Anil Sharma vs State Of U.P. & Anr.

HON'BLE DR. AJAY KUMAR-II, J.

Case called out in the revised list.

Heard Sri Rajendra Kumar Pandey, learned counsel for the revisionist, learned A.G.A. for the State and Sri Sachchida Nand Tiwari, learned counsel for the opposite party no.2.

This criminal revision is directed against the order dated 18.03.2025 passed by Sessions Judge, Ghaziabad in Criminal Revision No.37 of 2025 (Dr. Shiv Shankar Bhagat Vs. State of U.P. and another), Case Crime No.822 of 2014, under Section 304-A IPC, Police Station Indrapuram, District Ghaziabad, whereby the revisional Court has set-aside the order dated 18.01.2025 passed by Civil Judge (J.D.) / Fast Track Court No.1 (Crime Against Women), Ghaziabad rejecting the discharge application moved by opposite party no.2, and the revisional Court allowed the discharge application of opposite party no.2.

It has been submitted by the learned counsel for the revisionist that the trial Court vide order dated 18.01.2025 rightly rejected the discharge application of opposite party no.2 after considering the entire facts and circumstances of the case and the material available on record, against which the opposite party no.2 filed revision before the Sessions Judge and the revisional Court vide impugned order dated 18.03.2025 has wrongly allowed the discharge application of opposite party no.2 while setting aside the order dated 18.01.2025 passed by the trial Court. The order dated 18.03.2025 passed by the revisional Court is absolutely illegal, arbitrary, against the evidence on record and same has been passed without application of mind. The order passed by the revisional Court further reflects that it does not contain any reason or finding, therefore, the same is unsustainable in the eye of law. Lastly, it has been argued that the learned revisional Court has not appreciated all aspects of the matter while allowing the discharge application of opposite party no.2 and has passed the impugned order in a mechanical manner. It was lastly urged that the present criminal revision may be allowed and the impugned order dated 18.3.2025 be set-aside.

Per contra, learned A.G.A. for the State as well as learned counsel for the opposite party no.2 vehemently opposed the aforesaid submissions advanced by the learned counsel for the revisionist and submit that impugned order has been passed on the facts and evidence available on the record that too in accordance with well settled principles of law, which requires no interference and therefore, urged for dismissal of the present criminal revision.

The contentions of learned counsel for the revisionist were further refuted by learned counsel for the opposite party no.2, who contended that inspite of factum of death of victim (son of the revisionist/informant) being proved, there is no expert medical opinion or report about prima facie negligence in treatment of the victim by doctor (opposite party no.2). Therefore, order impugned of the revisional Court is not erroneous.

In Praban Kumar Mitra v. State of West Bengal 1958 SCC OnLine SC 79, the Constitution Bench of the Hon'ble Supreme Court discussed the nature of revisional powers of a High Court and held that the revisional power is a discretionary power which is to be exercised in aid of justice. Whether the High Court should exercise its revisional jurisdiction depends upon the facts and circumstances of that case.

Further, it is apposite to refer to the powers and limits of the criminal revisional court, which the Hon'ble Supreme Court in the judgment K.Ravi Vs. State of Tamil Nadu & ANR. 2024 INSC 642 observed that the object of remedy of the criminal revision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. The revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner.

The brief facts of the case are that revisionist Anil Sharma moved a written report / Tehrir stating therein that his son has died because of negligent treatment by opposite party no.2, upon which first information report vide Case Crime No.822 of 2014, under Section 304-A IPC, Police Station Indrapuram, District Ghaziabad was lodged. After completion of investigation, charge-sheet was filed against opposite party no.2. Thereafter, opposite party no.2 filed a discharge application dated 25.07.2024, which was rejected by the learned trial Court vide order dated 04.11.2024. Opposite party no.2 thereafter preferred criminal revision no.670 of 2024, which was allowed by the then Sessions Judge vide order dated 13.12.2024 and the learned trial Court was directed to proceed accordingly. Thereafter, the learned trial Court again rejected the discharge application of the revisionist vide order dated 18.01.2025. Aforesaid rejection order was again challenged by opposite party no.2 by way of criminal revision no.37 of 2025, which criminal revision was allowed by the then Sessions Judge, Ghaziabad vide order dated 18.03.2025 and has discharged the opposite party no.2, which impugned order is under challenge in the instant revision.

Admittedly, it is a case of death on account of medical negligence.

Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab and Another, (2005) 6 SCC 1, has held as under:

The aforesaid theory makes the legal position explicit that a private complaint cannot be entertained unless complainant has produced a prima facie evidence before the Court in the form of credible opinion given by another competent doctor to support the charge of negligence on the part of accused doctor. In the aforesaid judgement, Hon'ble Apex Court had specifically held that unless expert medical opinion/evidence about negligence in treatment is not available, the doctors cannot be prosecuted and the complaint against them is not maintainable. Hon'ble Apex Court has also made clear that Investigating Officer before proceeding against a doctor, accused of rash and negligent act or omission, must obtain an independent and competent medical opinion preferably from a doctor in Government service qualified in that branch of medical practice, who can normally be expected to give impartial and unbiased opinion. Thus, the prosecution of a doctor can survive only when such an independent and competent medical opinion is available on record. Such an independent and competent medical opinion is a sine qua non before proceeding in a private complaint. However, it is a mandatory requirement for an Investigating Officer before proceeding against the doctor, accused of rash and negligent act or omission.

Upon perusal of the impugned order in the light of the above noted well settled legal position and after having considered the submissions advanced by learned counsel for the parties and upon perusal of the material available on record, it is evident from the record that allegations in the F.I.R. is with regard to death of a minor son of revisionist / informant due to medical negligence by doctors. Learned revisional Court found that the opposite party no.2 is not a regular doctor in Aarogya Hospital, rather, after being called for the operation in Hospital, his job was simply to perform the surgery and leave. This fact finds corroboration from the evidence recorded by the Investigating Officer also that after the child regained consciousness following the operation/surgery, doctor Shiv Shanker Bhagat (opposite party no.2) is reported to have left from that place. Learned revisional Court further observed that the trial Court ignored the above fact while rejecting the discharge application of opposite party no.2. The learned revisional Court specifically observed that aforesaid fact was ignored merely on the statement of opposite party no.2 wherein he admitted that it was his mistake as he has not looked after the child post-surgery and had left his subsequent treatment on the shoulders of Dr. Sachin Mittal. It was further observed that the learned trial Court has relied upon the judgment of Hon'ble Supreme Court in Neeraj Sood Vs. Jasvinder Singh SCC OnLine SC 3069 so far as Dr. Sachin Mittal is concerned, but it has failed to apply the same in case of opposite party no.2 while evaluating the facts available on record. The revisional Court further observed that the trial Court has relied upon the alleged oral admission of opposite party no.2 that he has not seen the child after the operation and has thus again wrongly rejected his discharge application. During course of argument, it was specifically pointed out by this Court that whether any independent and competent medical opinion regarding alleged medical negligence qua opposite party no.2 is available on record or not. However, learned counsel for the revisionist failed to answer the query and learned counsel for the opposite party no.2 vehemently stated that no such medical opinion is available on record. Admittedly, opposite party no.2 is a qualified surgeon and before proceeding against him, it was required for the Investigating Officer to obtain an independent and competent medical opinion qua his alleged medical negligence, in the absence of which, prosecution against opposite party no.2 cannot be sustained. Facts further reveal that in this case except the statement of informant and postmortem report, neither any expert opinion of any doctor has been filed in support of the allegations made in the F.I.R. nor any panel of doctors has been formed by the Chief Medical Officer concerned inspite of repeated request made by the Investigating Officer.

A perusal of the impugned order reveals that the learned revisional Court has dealt with each and every ground taken by the revisionist / opposite party no.2 herein and allowed the discharge application of revisionist / opposite party no.2 by judicial application of mind.

The impugned order has been passed after a careful consideration of the matter as well as all the grounds taken in discharge application, which appears to be in accordance with law. The impugned order is neither perverse nor arbitrary. In view of the aforesaid facts and circumstances, this court finds no illegality, irregularity or perversity in the impugned order warranting interference in exercise of revisional jurisdiction. Therefore, relief prayed for by way of present criminal revision is hereby refused.

The present criminal revision lacks merit and is accordingly dismissed.