Vijay Kumar Singh vs State Of U.P. And Another

1. Heard Mr. Ram Babu Tiwari, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. Applicant-Vijay Kumar Singh has filed the present application under Section 482 Cr.P.C. challenging the order dated 28.10.2021 passed by Additional Chief Judicial Magistrate, Court No.-18, Allahabad in Misc. Case No. 25 of 2021 (Vijay Kumar Singh Vs. Dr. Rohit Gupta), under Section 156(3) Cr.P.C., Police Station-George Town, District-Prayagraj, whereby aforementioned application filed by applicant has been rejected.

4. Learned counsel for applicant submits that the order impugned in present application is manifestly illegal and therefore, liable to be set aside by this Court. He has then invited attention of Court to the application under Section 156(3) Cr.P.C., filed by applicant before the jurisdictional Magistrate, copy of which is on record as Annexure-2 to the affidavit. With reference to above, it is urged by the learned counsel for applicant that perusal of aforesaid application clearly goes to show that the commission of a cognizable offence is clearly disclosed. He, therefore contends that in view of above and also the law laid down by Apex Court in Five Judges Bench judgment in Lalita Kumari Vs. State of U.P., (2014) 2 SCC 1, the concerned Jurisdictional Magistrate had no other option but to allow the application under Section 156(3) Cr.P.C. filed by applicant. The view taken to the contrary by Jurisdictional Magistrate is, thus, not only illegal but also arbitrary. Consequently, the same is liable to be set aside by this Court.

5. Per contra, the learned A.G.A. has opposed the present application. He submits that the order impugned in present application is perfectly just and legal.As such, no interference is warranted by this Court. According to the learned A.G.A., subsequent to the Five Judges Bench judgment of Supreme Court in Lalita Kumari (Supra), a Two Judges Bench of the Supreme Court in Priyanka Srivastava Vs. State of U.P., (2015) 6 SCC 287, has held that jurisdiction under Section 156(3) Cr.P.C. is not to be exercised by the jurisdictional Magistrate in a routine manner. The concerned Magistrate must exercised care, caution and circumspection while dealing with an application under Section 156(3) Cr.P.C. It is in line with above that the concerned Magistrate examined the material on record.

7. Learned A.G.A. then submits that prior to the application under Section 156(3) Cr.P.C. having been filed, an application was submitted by the applicant before the Chief Medical Officer alleging medical negligence against prospective accused. The matter was examined by the Chief Medical Team. However, the Medical Team, upon enquiry, came to the conclusion that no medical negligence was committed by the prospective accused while treating the patient, who unfortunately died during the course of treatment.

8. In the submission of the learned A.G.A., no criminal action can be maintained against a Doctor for committing medical negligence unless there is a report to that effect or non establishment of the principle of res ipsa loquitur. To buttress his submission, the learned A.G.A. has referred to the following judgments;-

(i). Jacob Mathew "Vs. State of Punjab and Another, (2005) 6 SCC 1,

(ii). Martin F. D'Souza Vs. Mohd. Ishfaq, (2009) 3 SCC 1,

(iii). Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and Others, AIR 2010 SC 1050,

(iv). V. Krishna Kumar Vs. State of Tamil Nadu and Others, (2015) 9 SCC 388,

(v). Arun Kumar Manglik Vs. Chirayu Health and Medicare Private Limited and Another, (2019) 7 SCC 401,

(vi). Bombay Hospital and Medical Research Centre Vs. Asha Jaiswal and Others, (2021) 19 SCC 1.

9. On the above premise, the learned A.G.A. thus concludes that no interference is warranted by this Court in present application. As such, the same is liable to be dismissed by this Court.

10. When confronted with above, the learned counsel for applicant could not overcome the same.

11. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record and considering the facts that the objections raised by the learned A.G.A. in opposition to present application could not be dislodged by the learned counsel for applicant, therefore, no good ground exists to entertain the present application.

12. As a result, the present application fails and is liable to be dismissed.

13. It is, accordingly, dismissed.

Order Date :- 31.8.2024

Vinay