# Dr. Ajay Sharma v. State of U.P. and others

- **Citation:** (2012) 3 ILRA 1116
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-09-03
- **Case number:** Criminal Misc. Application No. 1335 of 1999
- **Bench:** Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-ajay-sharma-v-state-of-u-p-and-others-42339
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 482-
Summoning Order to face trail-offence
under
Section
304-A
I.P.C.-applicant
being doctor-negligently put plaster in
hand of deceased-caused death after 14
days-admittedly
no
post
mortem
conduced to ascertain the cause of
death-negligence
of
treatment
not
established-Trail
Court
as
well
as
revisional court wrongly over sighted
this aspect complaint if prima facie
constitute no offence-order impugned
quashed.
3All] Dr. Ajay Sharma V. State of U.P. and others
1117
Held: Para-7

Having considered the submissions I am
of the opinion that it is an admitted case
of the prosecution that the post mortem
of deceased was not conducted and due
to which the cause of death could not be
ascertained hence the liability of the
applicant
for
being
negligent
in
conducting the medical treatment of the
victim cannot be established to make out
an offence u/s 304-A I.P.C. Hence from
the material on record it is apparent that
the present case falls in one of the
category mentioned in the case of State
of Haryana Vs. Bhajan Lal AIR 1992 SC
604 The Apex Court held that where the
allegations
made
in
F.I.R.
or
the
complaint even if taken at their face
value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.
The Court can quash the proceedings in
exercise of its inherent power u/s 482
Cr.P.C. In another case reported in 2004
(6) SCC 422 Suresh Gupta (Dr) Vs.
Government of NCT of Delhi. The Apex
Court justified the powers of High Court
to quash the proceedings u/s 482 Cr.P.C.
where from the perusal of complaint u/s
304-A I.P.C. no offence is made out.
Case Law discussed:
AIR 1992 SC 604; 2004 (6) SCC 422

## Text

1116 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
rejected through a meaningful-not formalreading of the plaint. If it is manifestly
vexatious and meritless, in the sense of not
disclosing a cause of action or clear right to
sue, the Trial Court should exercise his
power under Order VII Rule 11 C.P.C.

9. At this stage, it is noteworthy that,
if a clever drafting has created the illusion
of a cause of action, it is incumbent upon
the Trial Judge to nip in the bud, at the first
hearing, by examining the party searchingly
under Order X C.P.C.

10. An application for rejection of the
plaint can be filed if the allegations made in
the plaint even if given face value and taken
to be correct in their entirety appear to be
barred by any law. The question as to
whether a suit is barred by limitation or not
would, therefore, depend upon the facts and
circumstances of each case. For the said
purpose, only the averments made in the
plaint are relevant. At this stage, the court
would not be entitled to consider the case of
the defence. (See Popat and Kotecha
Property v. SBI Staff Assn. (2005) 7 SCC
510)

11. In view of the fact and keeping in
view of the legal angle, the impugned order
is in consonance with law and need no
interference.

12. On the other score, in view of the
law laid down by a full Bench of the
Hon'ble Apex Court in the case of
Pandurang Dhoni Chougule vs Maruti
Hari Jadhav reported in AIR 1966 SC,
153, in which it has been held, "It is wellsettled that a plea of limitation or a plea of
res judicata is a plea of law which concerns
the jurisdiction of the Court, which tries the
proceedings. A finding on these pleas in
favour of the party raising them would oust
the jurisdiction of the Court, and so, an
erroneous decision on these pleas can be
said to be concerned with questions of
jurisdiction which fall within the purview of
Section 115 of the Code. But an erroneous
decision on a question of law reached by
the subordinate court which has no relation
to questions of jurisdiction of that Court,
cannot be corrected by the High Court
under Section 115.", the revision is not
maintainable.

13. On the basis of the discussions
made above, the revision is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.09.2012

BEFORE
THE HON'BLE RAMESH SINHA, J.

Criminal Misc. Application No. 1335 of
1999

Dr. Ajay Sharma

 ...Applicant
Versus
State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Tarun Kumar Srivastava

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-Section 482-
Summoning Order to face trail-offence
under
Section
304-A
I.P.C.-applicant
being doctor-negligently put plaster in
hand of deceased-caused death after 14
days-admittedly
no
post
mortem
conduced to ascertain the cause of
death-negligence
of
treatment
not
established-Trail
Court
as
well
as
revisional court wrongly over sighted
this aspect complaint if prima facie
constitute no offence-order impugned
quashed.
3All] Dr. Ajay Sharma V. State of U.P. and others
1117
Held: Para-7

Having considered the submissions I am
of the opinion that it is an admitted case
of the prosecution that the post mortem
of deceased was not conducted and due
to which the cause of death could not be
ascertained hence the liability of the
applicant
for
being
negligent
in
conducting the medical treatment of the
victim cannot be established to make out
an offence u/s 304-A I.P.C. Hence from
the material on record it is apparent that
the present case falls in one of the
category mentioned in the case of State
of Haryana Vs. Bhajan Lal AIR 1992 SC
604 The Apex Court held that where the
allegations
made
in
F.I.R.
or
the
complaint even if taken at their face
value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.
The Court can quash the proceedings in
exercise of its inherent power u/s 482
Cr.P.C. In another case reported in 2004
(6) SCC 422 Suresh Gupta (Dr) Vs.
Government of NCT of Delhi. The Apex
Court justified the powers of High Court
to quash the proceedings u/s 482 Cr.P.C.
where from the perusal of complaint u/s
304-A I.P.C. no offence is made out.
Case Law discussed:
AIR 1992 SC 604; 2004 (6) SCC 422

(Delivered by Hon'ble Ramesh Sinha, J.)

1.

Heard
Sri
Tarun
Kumar
Srivastava, learned counsel for the
applicant, learned A.G.A. for the State
and perused the record.

2. Notice was issued to opposite
party No. 3 in pursuance of this Court
order
dated
10.5.1999.
The
Chief
Judicial Magistrate, Bijnor submitted its
report dated 8.6.1999 stating therein that
the notice of the aforesaid application u/s
482 Cr.P.C. has been served and received
by opposite party No. 3 through the
concerned police station. The report of
C.J.M. is on record. Inspite of service of
notice on opposite party No. 3 he has not
appeared in person or through his
counsel; thus notice to him is sufficient.

3. Brief facts of the case is that a
F.I.R. was lodged by opposite party No.
3 against the applicant as case Crime No.
492 of 1996 under section 304-A I.P.C.
P.S. Kotwali District Bijnor alleging that
his daughter namely Roosi received a
fracture in her hand when she had gone
at the house of one Harpal of village
Ghazipur for which she was given
medical
treatment
by
the
accused
applicant. The applicant tied plaster in
the hand of the girl and handed over to
her mother who is wife of opposite party
No. 3, thereafter the girl expired in the
evening. After investigation final report
was submitted by the police. Against
which opposite party No. 3 filed a protest
petition on which the learned Magistrate
passed order on 18.2.1998 summoning
the applicant to face trial u/s 304-A
I.P.C. Thereafter being aggrieved by the
said summoning order the applicant has
preferred a revision which was dismissed
by
the
lower revisional court on
26.11.1998 hence the present application
u/s
482
Cr.P.C.
has
been
filed
challenging the order of lower revisional
court as well as the order passed by the
Chief Judicial Magistrate.

4. It has been contended by the
learned counsel for the applicant that the
applicant is a doctor. He is M.S. in
Orthopedics and doing practice since
1985.

5. It has been submitted that the
F.I.R. of the incident was lodged after 21
days of the incident by opposite party
No. 3 alleging false allegations against
1118 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the applicant that he has been negligent
in giving treatment to the victim who
subsequently died. It is admitted case of
the prosecution that no post mortem of
the deceased was conducted as is also
evident from the protest application filed
by opposite party No. 3. The learned
Magistrate while passing the summoning
order has held that no doubt that post
mortem of the deceased was not
conducted but prima facie cognizable
offence is made out against opposite
party for which he was summoned for
facing trial u/s 304-A I.P.C. Learned
counsel for the applicant has contended
that when the cause of death of deceased
could not ascertained then the trial of the
applicant u/s 304-A I.P.C. is wholly
unwarranted
hence
the
proceedings
against the applicant should be quashed.
He further submits that as opposite party
No. 3 is a practicing lawyer in the district
court Bijnor for harassing the applicant
and for ulterior motive has initiated the
present proceedings against him. He
urged the lower revisional court without
their being legal evidence on record has
illegally rejected the revision of the
applicant and confirmed the summoning
order.

6. Learned A.G.A. on the other
hand has tried to justify the orders passed
by the courts below but he could not
dispute the fact that the post mortem of
the deceased was not conducted and
cause of death could not be known. The
learned A.G.A. could not point out any
material to show which may warrant the
trial of the applicant.

7.

Having
considered
the
submissions I am of the opinion that it is
an admitted case of the prosecution that
the post mortem of deceased was not
conducted and due to which the cause of
death could not be ascertained hence the
liability of the applicant for being
negligent in conducting the medical
treatment of the victim cannot be
established to make out an offence u/s
304-A I.P.C. Hence from the material on
record it is apparent that the present case
falls in one of the category mentioned in
the case of State of Haryana Vs.
Bhajan Lal AIR 1992 SC 604 The Apex
Court held that where the allegations
made in F.I.R. or the complaint even if
taken at their face value and accepted in
their
entirety
do
not
prima
facie
constitute any offence or make out a case
against the accused. The Court can quash
the proceedings in exercise of its
inherent power u/s 482 Cr.P.C. In
another case reported in 2004 (6) SCC
422
Suresh
Gupta
(Dr)
Vs.
Government of NCT of Delhi. The
Apex Court justified the powers of High
Court to quash the proceedings u/s 482
Cr.P.C. where from the perusal of
complaint u/s 304-A I.P.C. no offence is
made out.

8.

In
the above facts and
circumstances of the case the petition
under section 482 Cr.P.C. is allowed and
the impugned orders dated 26.11.1998
passed by the revisional Court in
Criminal Revision No. 145 of 1998 and
dated 18.2.1998 passed by the Chief
Judicial Magistrate, Bijnor are hereby
quashed
as
well
as
the
further
proceedings pending before the C.J.M.
Bijnor is also quashed.
---------
3 All] Raj Dutt Tiwari S/O Kishun Dutt Tiwari & others V. State of U.P. and others
1119
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.09.2012

BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.

Service Single No. 2055 of 2011

Raj Dutt Tiwari S/O Kishun Dutt Tiwari &
Ors

 ...Applicant
Versus
State Of U.P. Thru Principal Secretary
Home & Ors.

 ...Respondents

Counsel for the Petitioner:
Sri Shesh Nath Bharadwaj

Counsel for the Respondents:
C.S.C.

U.P. Police Group-D Employees Service
Rules 2009-petitioners working on Class
4th
Post-challenging
dismissal
order
passed under Rule 1999-on ground
petitioner
being
class
4th
employee
governed by U.P. Govt. Servant Group-D
Employees
Rules
1985-heldmisconceived in view of Section 29 of
Rule 2009 itself Service Condition of
Class 4th employee working in Police
Department-for all purpose are member
of Police Force-dismissal order warrant
no interference.

Held: Para 11

This Court is of the view that petitioners
being employed in Police Department are
for all purposes part of police force, as
such, it cannot be said that Police Act,
1861 will apply on petitioners. The
service conditions of petitioners while
working on Class-IV post in Police
Department are to be governed by 2009
Rules and the matters which are not
precisely covered by 2009 Rules are to
be
governed
by
U.P.
Government
Servants (Discipline & Appeal) Rules,
1999 which is very much clear from Rule
29 of 2009 Rules.
Case law discussed:
Special Appeal No. 169 of 2012 (Krishna
Murari Vs. State of U.P. and others)

(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. Heard learned counsel for
petitioners as well as learned Standing
Counsel.

2. Under challenge is the validity of
U.P. Police Group-D Employees Service
Rules, 2009 (in short 2009 Rules).

3. Learned counsel for petitioners
submits that petitioners being class-IV
employees working in Police Department
cannot be treated to be police officers as the
Police Act, 1861 and U.P. Police Officers of
Subordinate Rank (Punishment and Appeal)
Rules, 1991 (in short 1991 Rules) are not
applicable to the petitioners.

4. Contention is that the impugned
Rules have been framed in exercise of
powers under Section 2 and sub-sections 2
and 3 of Section 46 of Police Act, 1861 and
as such the impugned Rules are Ultra Vires
and beyond the Rule making powers of the
State Government under Section 46(2) and
(3) of Police Act, 1861.

5. It is further submitted that service
conditions of petitioners were governed
under Uttar Pradesh Government Servant
Group-D Employees Service Rules, 1975 as
amended in 1985 (in short 1985 Rules) and
the petitioners are similarly situated classIV employees as of other departments of
State Government.

6. Learned Standing Counsel on the
other hand submitted that it is totally
misconceived to say that petitioners while
working in Police Department are not part