# Dr. B.K. Yadav @ Biplav Kumar Yadav v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 908
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Criminal Misc. Writ Petition No. 18229 of 2022
- **Bench:** Anjani Kumar Mishra, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-b-k-yadav-biplav-kumar-yadav-v-state-of-u-p-ors-50656
- **Pages:** 3

## Headnote

G.A.

Petitioner is the Care taker of the Hospital- he
diagnosed the informant's son suffering from
Hernia and advised surgery-due to negligence
on the part of the doctors- without seeking the
written
consent
from
the
parents/natural
guardian operated the child, who died during
treatment-Petitioner being a care taker- was
supposed to be responsible for providing
medical care- -investigation is at the inceptive
stage-Material has to be collected whether the
offence is culpable or is a case of gross
negligence- criminal prosecution cannot be
thwarted as from a bare reading of the FIR- the
allegations disclose commission of a cognizable
offence.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

908 INDIAN LAW REPORTS ALLAHABAD SERIES
in AICTE Act which are exclusively within
the domain of PCI. Thus, it cannot be
accepted that there is 'implied repeal' of
the Pharmacy Act.

17. We are in complete agreement
with the view taken by this Court in Shri Prince
Shivaji Maratha Boarding House's College of
Architecture. Otherwise on merits also, as
observed and held hereinabove, the Pharmacy
Act which is a Special Act in the field of
pharmacy shall prevail and consequently so far
as the recognition of degrees and diplomas of
pharmacy
education
is
concerned,
the
Pharmacy Act shall prevail. As observed
hereinabove,
PCI
constituted
under
the
provisions of the Pharmacy Act which is
consisting of the experts in the field of pharmacy
and/or
related
subjects
shall
prevail.
Consequently, the norms and regulations set by
the PCI and other specified authorities under
the Pharmacy Act would have to be followed by
an institution imparting education for degrees
and diplomas in pharmacy.

20. In view of the above and for the
reasons stated above, it is held that in the field of
Pharmacy Education and more particularly so
far as the recognition of degrees and diplomas of
Pharmacy
Education
is
concerned,
the
Pharmacy Act, 1948 shall prevail. The norms
and regulations set by the PCI and other
specified authorities under the Pharmacy Act
would have to be followed by the concerned
institutions imparting education for degrees and
diplomas in pharmacy, including the norms and
regulations with respect to increase and/or
decrease in intake capacity of the students and
the decisions of the PCI shall only be followed by
the institutions imparting degrees and diplomas
in Pharmacy. The questions are answered
accordingly.

27. In view of the categorical provisions of
Section 10, 11, 12, 30, 31 & 32 of Act, 1948 and
the law laid down by the Hon'ble Supreme Court
in Dr. S.K. Toshniwal (Supra), we are of the
considered view that the Pharmacy Act, being
special legislation governing the field of
pharmacy shall prevail over any other general
law for the purpose of registration of the
candidates as Pharmacist in the State Register
and consequently, in the Central Register.
Therefore, any degree obtained by the petitioners
which has no approval of the Pharmacy Council
of India in terms of Section 12 of the Pharmacy
Act would not entitle them for their registration
in the State Register maintained under Section
31 of the Pharmacy Act. Thus, the question
no. 2 is also answered in negative and we
hold that the Singhania University, which is
recognized under Section 2 (f) of the UGC
Act,
1956,
is
required
to
take
approval/recognition for awarding diploma
in pharmacy under Section 12 of the Act,
1948 from the Pharmacy Council of India
for making such Diploma in Pharmacy to be
the approved qualification for the purposes
of registration of such diploma holder in the
State Register.

28. For all the reasons aforestated, we do
not find any merit in the writ petitions.
Consequently, all the writ petitions are
dismissed.
----------
(2023) 7 ILRA 908
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Misc. Writ Petition No. 18229 of 2022

Dr. B.K. Yadav @ Biplav Kumar Yadav
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
7 All. Dr. B.K. Yadav @ Biplav Kumar Yadav Vs. State of U.P. & Ors.
909
Counsel for the Petitioner:
Sri Satyendra Kumar Singh

Counsel for the Respondents:
G.A.

Petitioner is the Care taker of the Hospital- he
diagnosed the informant's son suffering from
Hernia and advised surgery-due to negligence
on the part of the doctors- without seeking the
written
consent
from
the
parents/natural
guardian operated the child, who died during
treatment-Petitioner being a care taker- was
supposed to be responsible for providing
medical care- -investigation is at the inceptive
stage-Material has to be collected whether the
offence is culpable or is a case of gross
negligence- criminal prosecution cannot be
thwarted as from a bare reading of the FIR- the
allegations disclose commission of a cognizable
offence.

W.P. dismissed. (E-9)

List of Cases cited:

1. Dr. P. Kumar VS St. of U.P. Vs & anr.
reported in 2016 Vol. 0, Supreme Court (All),
252

2. Jacob Mathew Vs St. of Punj. & anr. reported
in 2005(5) Supreme 297

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard learned counsel for the
petitioner, learned A.G.A. for the State and
perused the record.

2. The writ petition seeks quashing of
the F.I.R. dated 03.07.2020 giving rise to
Case Crime No.33 of 2020, under Section
304
I.P.C.,
Police
Station-
Lalpur
Pandeypur, District Varanasi.

3. The allegations against the
petitioner is that the petitioner is the Care
taker of the Medicity Neuro & Critical Care
Hospital, Varanasi, who diagnosed the
informant's son suffering from Hernia and
advised surgery. The informant deposited a
sum of Rs. 48,000/- for the treatment.
However, due to negligence on the part of
the doctors who without seeking the written
consent from the parents/natural guardian
operated the child, who died during
treatment.

4. The main contention raised by
learned counsel for the petitioner is that the
petitioner did not operate the informant's
son and is merely the Care taker of the
aforesaid hospital. The petitioner has been
falsely implicated for ulterior purposes.
The counsel for the petitioner to support his
submissions has relied the judgment and
order passed in Dr. P. Kumar VS. State of
U.P. And Another reported in 2016 Vol.
0, Supreme Court (All), 252 stating that
the medical practitioner should not be
prosecuted in every such case where due to
critical condition a patient expires. Further,
it has been asserted that the Supreme Court
has laid down the guidelines with regard to
the cases of medical negligence and has
issued direction that in such cases the
matter should first be referred to a
competent doctor or committee of doctors
specialist in the relevant field and when
such a doctor or committee reports that
there is prima facie case of medical
negligence, only then notice should be
issued to the doctor or hospital concerned.
Courts or consumer courts are not experts
in medical science and therefore they
should not substitute their own views over
that of specialists. The Supreme Court has
also warned the police officers against
arresting or harassing the doctors unless
the
facts
clearly
come
within
the
parameters laid down in Jacob Mathew's
case. Observing that the law is a watchdog
and not a bloodhound, the Supreme Court
910 INDIAN LAW REPORTS ALLAHABAD SERIES
has held that the doctors doing duty with
reasonable care would not incur liability
even if their treatment failed. Harm
resulting from mischance or misadventure
or through an error of judgment would not
necessarily attract such liability. Simply
because a patient has not favourably
responded to a treatment given by a doctor
or a surgery has failed, the doctor cannot
be held straightaway liable for medical
negligence.

5. Per contra, learned A.G.A. for the
State has asserted that the petitioner
diagnosed and advised surgery to the
informant's son suffering from Hernia. The
gross negligence on the part of the
petitioner is that the surgery/operation took
place without seeking consent of the
natural guardian/father/first informant of
the deceased, who was available at the time
of the incident. The consent letter annexed
as
Annexure
No.
SA-1
of
the
Supplementary Affidavit indicates that the
said consent has been procured from the
uncle Manish and the grand-mother Sita
Devi. Despite the natural guardian being
present at the place of incident as is evident
from the FIR, the petitioner did not care to
seek the consent from the father/informant.

6. From the bare reading of the First
Information Report, it is apparent that the
son of the first informant died during the
treatment/surgery undergone for Hernia.
The impugned First Information Report has
been registered under Section 304 IPC and
the petitioner being a care taker was
supposed to be responsible for providing
medical care. The contention of the learned
counsel for the petitioner that he is a care
taker, is merely his defence, which is not to
be considered in a writ petition which seeks
quashing of the FIR. The investigation is at
the inceptive/nascent stage. Material has to
be collected whether the offence is culpable
or is a case of gross negligence. It is too
early to conclude whether the petitioner
could avail and seek the protection in the
light of the guidelines/parameters as laid
down by the Hon'ble Supreme Court in
Jacob Mathew Vs. State of Punjab &
Another reported in 2005(5) Supreme 297,
in regard to medical negligence. The
criminal prosecution cannot be thwarted as
from a bare reading of the FIR, the
allegations disclose commission of a
cognizable offence.

7. No interference is required.

8.

The
writ
petition
is,
therefore,dismissed.
----------
(2023) 7 ILRA 910
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 337 of 1998

Munni Lal ...Appellant
Versus
Mohd. Rafik Kidwai & Anr.
 ...Respondents

Counsel for the Appellant:
Sri M.S. Pipersenia, Sri Shiv Kumar Singh

Counsel for the Respondents:
Sri A.D. Saundars, Sri S.K. Tiwari, Sri Sundama
Ji Shandiya

Civil Law-The Code of Civil Procedure,
1908-Section 100-Second Appeal---Suit
for cancellation of sale deed dismissed,
appeal allowed--- Trial Court from all this
evidence has concluded that once it was
admitted to the plaintiff that the Sub-Registrar
before registering the document had read it out