due to emergency of the victim, as per her professional skill she advised for immediate surgery and after convincing the family members consent was given but infant could not be saved, thereafter patient was discharged on 4.4.2004 and thereafter, application under Section 156(3) Cr.P.C. was moved which was treated as a complaint case on the basis of which statement under Section 200 and 202 Cr.P.C. was recorded. As it is obligatory that prior to take cognizance, sanction was mandatory but no application is moved before the competent authority to get any sanction prior to the date of taking cognizance. It is also evident from the contents of the judgment relied by learned A.G.A. in the case of Dr. S.M. Mansoori (Supra) as the facts of the aforesaid case are entirely different from the present case, as in the present case, the applicant was a Senior Medical OfÏcer and in the identical facts, Hon'ble Apex Court has already decided the controversy in the case of Jacob Mathew (Supra) in para-49, it is observed that to prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do and as in the present case, there is no second opinion, therefore, present application is liable to be allowed.
