Case at a Glance
A man alleged that during the April 2021 Covid wave a hospital demanded cash for a bed, overcharged for Remdesivir, and twice stopped his wife’s oxygen before she died. The Magistrate refused to direct registration of an FIR under Section 156(3) CrPC and instead proceeded with pre-summoning evidence on his complaint; the Sessions Court dismissed his revision. The Delhi High Court held that the second-revision bar in Section 438(3) BNSS can be overcome by inherent powers only in cases of gross injustice, and since his complaint was still pending, he was not remediless. It dismissed the petition.
According to the complaint, the petitioner’s wife tested positive for Covid-19 on 23 April 2021 and developed breathing difficulty on 25 April 2021. After another hospital reportedly refused admission for want of beds, she was taken to the respondent hospital, where Rs 1,00,000 in cash was allegedly demanded for a bed and she was admitted after an advance of Rs 50,000. Remdesivir was allegedly prescribed at Rs 25,000, and a later shift altered the prescription and sought Rs 20,000. On 27 April 2021, oxygen was allegedly stopped and restored after objection; that evening, staff advised shifting her for want of ICU beds, oxygen was allegedly stopped again at about 6 pm, and she died at about 7:27 pm.
When the police did not register an FIR, the petitioner filed a complaint alleging homicide and forgery, with an application under Section 156(3) CrPC. On 28 August 2023, the Magistrate dismissed the application, reasoning that the petitioner knew the identity of the accused and the evidence, and directed pre-summoning evidence under Section 200 CrPC; a police status report said the patient’s oxygen saturation was unstable and many Covid patients died despite treatment. On 19 April 2025, the Sessions Court dismissed his revision after considering a Delhi Medical Council report. He then invoked Section 528 BNSS before the High Court.
The Key Question Before the Court
Can the High Court use its inherent powers under Section 528 BNSS to direct registration of an FIR after a revision has failed, despite the bar on a second revision in Section 438(3) BNSS?
Inherent Powers Are for Gross Injustice, Not a Second Revision
Justice Girish Kathpalia noted that the provisions corresponding to Sections 397 and 482 CrPC are carried forward unchanged in the BNSS, so the earlier case law on their interplay continues to apply. Relying on the Delhi High Court’s decision in Exclusive Capital Ltd. v. State, GNCTD, 2026:DHC:6742, which draws on Amar Nath v. State of Haryana, (1977) 07 SC CK 0013, (1977) 4 SCC 137, Madhu Limaye v. State of Maharashtra, (1977) 10 SC CK 0023, (1977) 4 SCC 551, State of Haryana v. Bhajan Lal, (1990) 11 SC CK 0008, 1992 SCC (Cri) 426, and Girish Kumar Suneja v. CBI, (2017) 07 SC CK 0034, (2017) 14 SCC 809, the Court held that inherent powers must be used sparingly, the test being whether the petitioner has been left without remedy after the revision was dismissed. The petitioner had relied on Krishnan v. Krishnaveni, (1997) 01 SC CK 0097, (1997) 1 SCR 511, and Dhariwal Tobacco Products Ltd. v. State of Maharashtra, (2008) 12 SC CK 0150.
The petitioner was not remediless: his complaint was pending before the Magistrate for pre-summoning evidence, and directions to the police could still be issued under Section 225 BNSS if required. The Court observed that directing an FIR in the circumstances would unfairly pressure the accused into settling what appeared to be a civil dispute with a criminal veneer, and held that the case was not one of “gross injustice” or a “rarest of rare case”. As it put it, “Such invocation of inherent powers has to be done sparingly and not in routine.”
What the Court Actually Held
- The petition under Section 528 BNSS was dismissed as not maintainable in view of the bar on a second revision under Section 438(3) BNSS.
- Inherent powers can be used to overcome that bar only in cases of gross injustice where the petitioner is left without remedy.
- The petitioner was not remediless, since his complaint is pending before the Magistrate and police directions can still be issued under Section 225 BNSS if required.
- The case was not one of gross injustice; the refusal to direct an FIR under Section 156(3) CrPC stands.
Why This Judgment Matters
- Many families have pursued criminal complaints over Covid-era hospital deaths; this judgment shows the procedural route courts expect.
- It applies pre-BNSS case law on inherent powers and second revisions to the new code.
- It confirms that a complaint case with pre-summoning evidence is an adequate remedy where the complainant knows the accused and the evidence.
What Should Advocates Take Away From the Judgment?
For Families of Patients
- If the police do not register an FIR, a complaint case before the Magistrate remains a live remedy.
- Lead evidence at the pre-summoning stage; the Magistrate can still seek a police inquiry if needed.
For Counsel
- After a failed revision, Section 528 BNSS petitions will succeed only on a showing of gross injustice.
- Cite Exclusive Capital on the interplay between Sections 438(3) and 528 BNSS.
- Consider civil and consumer remedies alongside criminal complaints in medical negligence matters.
Key Takeaways
- No second revision is allowed under Section 438(3) BNSS.
- Inherent powers are not a substitute for a second revision.
- A pending complaint case meant the petitioner was not without remedy.
- The Court did not decide whether the hospital was negligent.
Frequently Asked Questions
Did the Delhi High Court find the hospital not guilty?
No. It decided only that it would not use inherent powers to order an FIR; the petitioner’s complaint remains pending before the Magistrate.
What is the bar under Section 438(3) BNSS?
It bars a second revision by the same person after a revision has been decided, mirroring the earlier CrPC provision.
Can the Magistrate still involve the police?
The Court noted that directions to the police could still be issued under Section 225 BNSS if required.
Conclusion
The Delhi High Court has declined to order an FIR over a Covid-era hospital death, holding that the family’s complaint before the Magistrate is an adequate remedy and inherent powers are not for routine use.
Practical takeaway: Where an application under Section 156(3) is refused and a revision fails, pursue the complaint case; a Section 528 BNSS petition needs a clear case of gross injustice.
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