SANDEEP MEHTA,J. - (1.) By way of this petition under Section 482 Cr.P.C., the petitioners herein crave to challenge the order dated 07.02.2017 passed by the learned Sessions Judge, Jodhpur District in revision affirming the order dated 15.11.2016 passed by the learned Judicial Magistrate, Balesar in Criminal Case No.454/2012 whereby, accusation was read over to the petitioners.
(2.) The petitioners herein were working as doctors at the Community Health Center, Balesar in the year 2012. A lady named Kaushalya was brought for treatment to the hospital. The petitioners treated her but the patient did not survive and passed away. Shri Dinesh, brother of the deceased, filed an FIR No.80/2012 against the present petitioners with an allegation that they acted negligently while providing treatment to Mst. Kaushalya. After investigation, a charge-sheet came to be filed against the petitioners for the offence under Section 304A IPC and cognizance was taken against them vide order dated 15.11.2016. The petitioners challenged the cognizance order in the Sessions Court, Jodhpur District which was rejected holding that the objection raised by the accused was a mixed question of facts and law and was fit to be adjudicated only after recording of evidence at the trial. While rejecting the revision by the order dated 07.02.2017, the learned revisional court held that the accused would be at liberty to raise the objection of sanction by resorting to Section 197 Cr.P.C. before the trial court after collection of evidence. The petitioners have now approached this Court through this petition under Section 482 Cr.P.C. for assailing these two orders.
(3.) Shri R.S. Gehlot, learned counsel representing the petitioners, relied upon the Supreme Court Judgment in the case of Amal Kumar Jha vs. State of Chhatisgarh & Anr ., reported in AIR 2016 SC 2082 and urged that both the petitioners are government doctors and they can be removed from their post only with the permission of the State Government. They were definitely acting in the discharge of their official duties while treating the deceased. As per Shri Gehlot, the petitioners acted diligently while carrying out the treatment of the deceased and they cannot be attributed any negligence whatsoever so as to be held responsible for her death. As per Shri Gehlot, the prosecution of the petitioners is impressible in law without procuring sanction under Section 197 Cr.P.C. He thus implored the court to exercise its inherent powers and set aside the impugned orders and the quash petitioners' prosecution as being bad in the eye of law.;