# Dr. Manoj Kumar v. The State of U.P. & Anr

- **Citation:** (2015) 3 ILRA 1479
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-08
- **Case number:** U/S 482/378/407 No. 2803 of 2006
- **Bench:** Ashwani Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-manoj-kumar-v-the-state-of-u-p-anr-43353
- **Pages:** 6

## Headnote

Cr.P.C. Section-482-Charge sheet-quashingoffence
under
section
304-A
IPC-if
allegation as it is accepted no case made
out against applicant-as per postmortem
report-deceased suffering from septicemiaas last stage-no grass negligence found-as
per law developed by Apex Court in Jacob
Mathew case-in criminal negligence-should
be much higher-as per statement made by
mother of deceased-no role of applicant
specified-charge sheet quashed-application
allowed.
Held: Para-14
Looking into the facts of the case, I find
that it is not a case where the doctor had
administered a wrong medicine, which
was not to be given. As opined by the
Doctor, who conducted the postmortem,
the child was already suffering from
septicemia, which must have taken some
time to develop and must have been at its
last stage. There was absolutely no gross
negligence on part of the applicant. There
may be liability in civil law or may be not -
this Court does not express any opinion on
the same but since there is no criminal
negligence of higher degree, in light of the
observations of Hon'ble the Supreme Court
in the decisions referred to herein above,
no case under Section 304-A is made out
against the applicant.
Case Law discussed:
2005 Supreme Court Cases (Cri) 1369-sub
para (5) and (6) of paragraph 48; (2009) 1
SCC (Cri) 958

## Text

3 All.
 Dr. Manoj Kumar Vs. The State of U.P. & Anr.
1479
and dispassionately in the matter. For the
purpose of carrying out the requirements of
this order, in the first place, the petitioner
shall remain present in the office of the
Director concerned on 05.01.2016. The
Director shall also be expected to take the
decision expeditiously, preferably within
two months from the first date of
appearance of the petitioner.
23. No costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.12.2015
BEFORE
THE HON'BLE ASHWANI KUMAR SINGH, J.
U/S 482/378/407 No. 2803 of 2006
Dr. Manoj Kumar
 ...Applicant
Versus
The State of U.P. & Anr.
...Respondents
Counsel for the Applicant:
Arun Sinha, Riyaz Ahmad
Counsel for the Respondents:
Govt. Advocate, Arun Kumar Shukla
Cr.P.C. Section-482-Charge sheet-quashingoffence
under
section
304-A
IPC-if
allegation as it is accepted no case made
out against applicant-as per postmortem
report-deceased suffering from septicemiaas last stage-no grass negligence found-as
per law developed by Apex Court in Jacob
Mathew case-in criminal negligence-should
be much higher-as per statement made by
mother of deceased-no role of applicant
specified-charge sheet quashed-application
allowed.
Held: Para-14
Looking into the facts of the case, I find
that it is not a case where the doctor had
administered a wrong medicine, which
was not to be given. As opined by the
Doctor, who conducted the postmortem,
the child was already suffering from
septicemia, which must have taken some
time to develop and must have been at its
last stage. There was absolutely no gross
negligence on part of the applicant. There
may be liability in civil law or may be not -
this Court does not express any opinion on
the same but since there is no criminal
negligence of higher degree, in light of the
observations of Hon'ble the Supreme Court
in the decisions referred to herein above,
no case under Section 304-A is made out
against the applicant.
Case Law discussed:
2005 Supreme Court Cases (Cri) 1369-sub
para (5) and (6) of paragraph 48; (2009) 1
SCC (Cri) 958
(Delivered by Hon'ble Ashwani Kumar
Singh, J.)
1. Heard learned counsel for the
applicant, learned State Counsel and
perused the relevant material on record as
well as counter affidavit filed by opposite
party no.2. None is present on behalf of
opposite party no.2.
2.
This petition under Section 482
Cr.P.C. has been preferred for quashing the
charge sheet of case no.1289/06, State v.
Dr.Manoj Kuar; Crime no.220/05, under
Section 304-A I.P.C., P.S.Ghazipur, District
Lucknow, pending in the Court of Special
C.J.M. (Customs), Lucknow and also for
quashing the proceedings pursuant to filing
of the charge sheet including the bailable
warrant issued on 26.9.2006.
3.
This Court vide order dated
8.11.2006 issued notice to opposite party no.2
calling for filing objection/counter affidavit, if
any, within four weeks. Rejoinder affidavit, if
any, was directed to be filed within one week
thereafter. The Court also passed interim order
staying the proceedings of the case including
issuance of warrant.
1480
 INDIAN LAW REPORTS ALLAHABAD SERIES
4.
It is pertinent to disclose the
prosecution case: Briefly stated, the informant
Abhay Singh(a practising Advocate in the
Courts at Lucknow, as averred in para 17 of
the application) lodged F.I.R. on 1.5.2005 at
13:30 hours regarding the incident which had
taken place on 30.4.2005 at about 11:00 p.m.-
12:00 night. It was stated in the F.I.R. by
informant Abhay Singh that on 28.4.2005 his
son suddenly got ill; informant's wife took
him
to
Jwala
Nursing
Home,
near
Munshipulia, Ring Road, Lucknow; the
doctor of the Nursing Home attended the
patient, prescribed medicines and advised for
X-ray and blood test; the informant paid the
amount which was asked; the condition of the
boy on 30.4.2005 at 11:00 p.m. got
deteriorated and informant's wife again took
him to Nursing Home where the doctor of the
Nursing Home did not open the door and
refused to extend medical treatment. It is
further stated in the F.I.R. that the informant
on 30.4.2005 had gone to attend the marriage
of his cousin sister; informant's son on
30.4.2005 at about 12:00 night died due to
negligence of the doctor of Jwala Hospital.
5. The investigating officer took up
the
investigation
and
recorded
the
statements of the informant, informant's
wife, Smt.Rekha Devi(mother of the
deceased), witness Nandu, son of Rampal
Gupta; witness Ram Singh son of Sant
Ram and witness Ram Saran Gaur, son of
Bharat Prasad under Section 161 Cr.P.C.
6. The postmortem on the body of the
deceased was conducted on 2.5.2005 and as
per opinion of the doctor who conducted the
postmortem, the cause of death was - 'death
due to septicemia as a result of acute lung
disease'. .
7.
Learned counsel has vehemently
submitted that there is no evidence on
record to make out a case against the
applicant under Section 304-A I.P.C. It is
submitted that the only allegation as
levelled in the F.I.R. and in the statement of
the informant recorded under Section 161
Cr.P.C. is against Jwala Hospital, D-2226
Indira Nagar, Lucknow. The informant has
not named the applicant in the first
information report nor in his statement
recorded under Section 161 Cr.P.C., though
it is natural that he must have been
informed, the name of doctor, by his wife,
Smt. Rekha Devi, in whose statement under
Section 161 Cr.P.C., name of Dr.Manoj
Kumar finds place that he did not open the
door and refused to extend medical
treatment and due to his negligence, the
child died in front of the hospital. There is
hearsay evidence in this regard given by
witnesses Nandu and Ram Singh. Witness
Ram Saran Gaur is the only witness who is
said to have accompanied Smt. Rekha Devi
to the hospital and he has corroborated the
evidence that Dr. Manoj Kumar did not
open the door and refused to give medical
treatment, as such, due to negligence and
not getting treatment, the boy expired.
8.
Learned counsel states that the
whole story has been concocted by the
informant for pressurising the applicant to
extract
uncalled
for
or
unjustified
compensation. It is admitted that wife of the
informant, Smt.Rekha Devi had come to
Jwala Hospital along with her child on
29.4.2005, though her child had got ill on
28.4.2005, as mentioned in the F.I.R. The
doctor of the Hospital attended the child,
Aditya Kumar, aged about one and a half
years and prescribed medicines for him and
advised for blood-test and X-ray of the
chest. The prescription of Jwala Hospital is
annexed as Annexure CA-1 to the affidavit
filed by informant-opposite party no.2. The
prescription (Annexure CA-1) also indicates
3 All.
 Dr. Manoj Kumar Vs. The State of U.P. & Anr.
1481
that the child was prescribed Coscopin
Paed. Syr. on 30.4.2005 and X-ray of chest
was found to be normal and nothing
abnormal was detected.
9.
Learned counsel states that the
allegation made by Smt.Rekha Devi, mother
of the deceased that she had visited the
hospital on 30.4.2005 at about 11:00 p.m.
along with her neighbour, Ram Saran is
totally false, as averred in para 14 of the
application. The hospital provides 24 hours'
emergency. One more aspect of the matter
for consideration is that the applicant, who is
the proprietor of the Nursing Home, would
come himself at 11:00 P.M., so late in night,
to open the doors of Nursing Home and
refuse to attend his own patient, who was
attended a day before and on the same day,
as borne out from the prescription (Annexure
CA-1), and was provided medical treatment.
This allegation against applicant, he being
proprietor of the Nursing Home, has been
levelled with some ulterior motive, may be
for some financial gains. There is no
allegation in the F.I.R., nor in the statement
of any witness that there was any negligence
on part of the applicant or any other doctor of
the Hospital in attending the child on
29.4.2015 or prescribing the medicines. The
child was properly attended and was
prescribed the required medicines.
10. Learned counsel states that even
if the facts of the case are proved, it
would not make out a case of criminal
rashness or negligence on part of the
accused applicant. In support of his
contention, learned counsel has relied
upon the decision of Hon'ble the Supreme
Court reported in Jacob Mathew v. State
of Punjab and another, reported in 2005
Supreme Court Cases (Cri) 1369 - in subparas (5) and (6) of paragraph 48, it has
been held as under :
"(5) The jurisprudential concept of
negligence differs in civil and criminal
law. What may be negligence in civil law
may not necessarily be negligence in
criminal law. For negligence to amount to
an offence, the element of mens rea must
be shown to exist. For an act to amount to
criminal
negligence,
the
degree
of
negligence should be much higher i.e.
gross or of a very high degree.
Negligence which is neither gross nor of a
higher degree may provide a ground for
action in civil law but cannot form the
basis for prosecution."
""6) The word "gross" has not been
used in Section 304-A IPC, yet it is settled
that in criminal law negligence or
recklessness, to be so held, must be of
such a high degree as to be "gross". The
expression "rash or negligent act" as
occurring in Section 304-A IPC has to be
read as qualified by the word "grossly".
Further, in para 14 of the report, it
has been held as under :
"14. In order to hold the existence of
criminal rashness or criminal negligence
it shall have to be found out that the
rashness was of such a degree as to
amount to taking a hazard knowing that
the hazard was of such a degree that
injury was most likely imminent. The
element of criminality is introduced by the
accused having run the risk of doing such
an act with recklessness and indifference
to the consequences. Lord Atkin in his
speech in Andrews v. Director of Public
Prosecutions [1937 AC 576 : (1937) 2 All
ER 552 (HL)] stated: (All ER p. 556 C)
"Simple lack of care such as will
constitute civil liability is not enough. For
purposes of the criminal law there are
degrees of negligence, and a very high
1482
 INDIAN LAW REPORTS ALLAHABAD SERIES
degree of negligence is required to be
proved before the felony is established."
Thus, a clear distinction exists
between "simple lack of care" incurring
civil liability and "very high degree of
negligence" which is required in criminal
cases. In Riddell v. Reid [(1942) 2 All ER
161 : 1943 AC 1 (HL)] (AC at p. 31) Lord
Porter said in his speech --
"A higher degree of negligence has
always been demanded in order to
establish a criminal offence than is
sufficient
to
create
civil
liability."
(Charlesworth & Percy, ibid., para 1.13)"
Para 28 of the report reads as under :
"28. A medical practitioner faced
with an emergency ordinarily tries his
best to redeem the patient out of his
suffering. He does not gain anything by
acting with negligence or by omitting to
do an act. Obviously, therefore, it will be
for the complainant to clearly make out a
case of negligence before a medical
practitioner is charged with or proceeded
against criminally. ................."
11. The following extract from Merry
and Mc.Call Smith: Errors, Medicine and the
law, cited with approval in Dr.Suresh Gupta
case, (2004) 6 SCC 422 (at pp. 247-48 of the
book) reads as under:
"Criminal
punishment
carries
substantial moral overtones. The doctrine of
strict liability allows for criminal conviction
in the absence of moral blameworthiness
only
in
very
limited
circumstances.
Conviction of any substantial criminal
offence requires that the accused person
should
have
acted
with
a
morally
blameworthy state of mind. Recklessness and
deliberate wrongdoing, levels four and five
are classification of blame, are normally
blameworthy but any conduct falling short of
that should not be the subject of criminal
liability.
Common-law
systems
have
traditionally only made negligence the
subject of criminal sanction when the level of
negligence has been high -- a standard
traditionally described as gross negligence."
*
 *
"Blame is a powerful weapon. When
used appropriately and according to
morally defensible criteria, it has an
indispensable role in human affairs. Its
inappropriate
use,
however,
distorts
tolerant
and
constructive
relations
between people. Some of life's misfortunes
are accidents for which nobody is morally
responsible. Others are wrongs for which
responsibility is diffuse. Yet others are
instances of culpable conduct, and
constitute grounds for compensation and
at times, for punishment. Distinguishing
between these various categories requires
careful,
morally
sensitive
and
scientifically informed analysis."
12. Paragraphs 15 and 17 also needs
consideration. They read as follows :-
"15. The fore-quoted statement of law
in Andrews [1937 AC 576 : (1937) 2 All ER
552 (HL)] has been noted with approval by
this Court in Syad Akbar v. State of
Karnataka [(1980) 1 SCC 30 : 1980 SCC
(Cri) 59] . The Supreme Court has dealt with
and pointed out with reasons the distinction
between negligence in civil law and in
criminal law. Their Lordships have opined
that there is a marked difference as to the
effect of evidence viz. the proof, in civil and
criminal proceedings. In civil proceedings, a
mere preponderance of probability is
sufficient,
and
the
defendant
is
not
necessarily entitled to the benefit of every
reasonable
doubt;
but
in
criminal
proceedings, the persuasion of guilt must
3 All.
 Dr. Manoj Kumar Vs. The State of U.P. & Anr.
1483
amount to such a moral certainty as
convinces the mind of the Court, as a
reasonable man, beyond all reasonable
doubt. Where negligence is an essential
ingredient of the offence, the negligence to be
established by the prosecution must be
culpable or gross and not the negligence
merely based upon an error of judgment."
"17. In our opinion, the factor of
grossness
or
degree
does
assume
significance while drawing distinction in
negligence
actionable
in
tort
and
negligence punishable as a crime. To be
latter, the negligence has to be gross or of
a very high degree."
Para 51 of the report reads as follows
:
"51. We may not be understood as
holding that doctors can never be prosecuted
for an offence of which rashness or
negligence is an essential ingredient. All that
we are doing is to emphasise the need for
care and caution in the interest of society;
for, the service which the medical profession
renders to human beings is probably the
noblest of all, and hence there is a need for
protecting doctors from frivolous or unjust
prosecutions. Many a complainant prefer
recourse to criminal process as a tool for
pressurising the medical professional for
extracting
uncalled
for
or
unjust
compensation. Such malicious proceedings
have to be guarded against."
13. In a decision reported in (2009) 1
SCC (Cri) 958, Martin F.D'Souza v. Mohd.
Ishfaq, Hon'ble the Supreme Court has
observed in paragraphs 103 and 104 as
follows:
"103. ..... However, now what is
often seen is that doctors out of fear of
facing legal proceedings do not give first
aid to the patient, and instead tell him to
proceed to the hospital by which time the
patient may develop other complications."
"104. Hence courts/Consumer Fora
should keep the above factors in mind when
deciding cases related to medical negligence,
and not take a view which would be in fact a
disservice to the public. The decision of this
Court in Indian Medical Assn. v. V.P.
Shantha [(1995) 6 SCC 651] should not be
understood to mean that doctors should be
harassed merely because their treatment was
unsuccessful or caused some mishap which
was not necessarily due to negligence. In fact
in the aforesaid decision it has been
observed (vide SCC para 22): (V.P. Shantha
case [(1995) 6 SCC 651] , SCC p. 665)"
"22. In the matter of professional
liability professions differ from other
occupations for the reason that professions
operate in spheres where success cannot be
achieved in every case and very often
success or failure depends upon factors
beyond the professional man's control."
14. Looking into the facts of the case, I
find that it is not a case where the doctor had
administered a wrong medicine, which was
not to be given. As opined by the Doctor, who
conducted the postmortem, the child was
already suffering from septicemia, which
must have taken some time to develop and
must have been at its last stage. There was
absolutely no gross negligence on part of the
applicant. There may be liability in civil law
or may be not - this Court does not express
any opinion on the same but since there is no
criminal negligence of higher degree, in light
of the observations of Hon'ble the Supreme
Court in the decisions referred to herein
above, no case under Section 304-A is made
out against the applicant.
15. Accordingly, the application
under Section 482 Cr.P.C. is hereby
1484
 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed. The charge sheet of case no.1289/06,
State v. Dr.Manoj Kuar; Crime no.220/05,
under Section 304-A I.P.C., P.S.Ghazipur,
District Lucknow and the proceedings arising
therefrom including bailable warrant issued on
26.9.2006 by Special C.J.M. (Customs),
Lucknow are quashed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.12.2015
BEFORE
THE HON'BLE DR. DEVENDRA KUMAR
ARORA, J.
W.P. No. 5584 (SS) of 2010
along with W.P. No. 6851 (SS) of 2010
Jitendra Mohan Pandey
 ...Petitioner
Versus
State of U.P. & Ors.
...Opp.Parties
Counsel for the Petitioner:
Om Prakash Mani Tripathi
Counsel for the Opp.Parties:
C.S.C. , Jyotinjay Verma , Niraj Chaurasia
, Omkar Singh and R.P.Verma
Intermediate Education Act 1921-Section7-A-read with the U.P. High School &
Intermediate Colleges (Payment of salary
of Teachers and employee) Act 1971Section-9-payment of salary from stateexchequer-teachers in private institution
appointed
by
management-without
creation of post-whether mandamus can be
issued for creation of post and payment of
salary?-held-'No'.
Held: Para-22
In the present case also, the petitioners
were appointed on the post of Assistant
Teacher in the Institution in question by the
Committee of Management on its own,
without their being any valid order issued
by the competent authority. It is also true
that the petitioners were appointed above
the sanctioned strength. In view of Section
9 of the Payment of Salary Act, the
institution can make appointment only
against the post which has been created by
the
order
of
Director
of
Education.
Therefore, in view of the aforesaid Full
Bench
judgments
of
this
Court,
no
mandamus for payment of salary as well as
creation of post of Assistant Teacher in the
Institution in question can be issued while
exercising powers under Article 226 of the
Constitution of India.
Case Law discussed:
(2000(2); 2004 (1) UPLBEC 746; W.P. No.
2054(SS) of 2000 read with W.P. No. 1406
(SS) of 2001; 1999 (35) ALR 191; Special
Appeal Defective No. 673 of 2014; AIR 1995
SC 1121
(Delivered by Hon'ble Dr. Devendra
Kumar Arora, J.)
1.
Heard Mr. O.P.M. Tripathi, Mr.
Shishir Chandra, learned counsel for the
petitioners, Mr. Neeraj Chaurasiya, learned
counsel for the District Basic Education
Officer, Ambedkar Nagar (opposite party
No.3) and Mr. Omkar Singh, learned counsel
for the Committee of Management (opposite
party No.4).
2.
By means of the above-captioned
writ petitions under Article 226 of the
Constitution of India, petitioners have prayed
for issuance of writ in the nature of
Mandamus directing the opposite parties No.
2-Director, Basic Education, Uttar Pradesh
and opposite party No.3-District Basic
Education Officer, Ambedkar Nagar to
create post of Assistant Teacher (Science) in
Pandit Nehru Smarak, Purwa Madhyamik
Vidyalaya
Sarve
Nikaspur,
District
Ambedkar Nagar, and make payment of
salary in admissible grade of Assistant
Teacher
to
the
petitioners
with
all
consequential benefits w.e.f. the date when
they joined the aforesaid School on the post
of Assistant Teacher (LT Grade) or in the