# Dr. Neeraj Kumar v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2025) 5 ILRA 1783
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-12
- **Case number:** Crl. Misc. Application U/S 482 No. 39316 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-neeraj-kumar-v-state-of-u-p-anr-opp-parties-53347
- **Pages:** 23

## Headnote

Criminal Procedure Code, 1973 - Section
482 - Indian Penal Code, 1860 - Sections
304 & 304A - Medical negligence -
Prosecution of doctor - Scope of criminal
liability - Confessional St.ment to police
-
Inadmissibility
-
Medical
Board
exonerating the applicant - Magistrate's
failure to consider expert opinion before
summoning - Held, confession recorded
under Section 161 Cr.P.C. inadmissible -
Medical practitioner cannot be prosecuted
under Section 304, 304AIPC unless gross
or reckless negligence of a very high
degree is proved- Proceedings quashed.
(Paras 29, 48, 55, 59, 66 and 69)

HELD:
Coming to the merits of the case, two issues
have been touched upon by learned counsel for
the
applicant.
The
primary
issue
for
consideration is whether a St.ment recorded by
the Investigating Officer under Section 161 of
the Code of Criminal Procedure can form the
basis for initiating criminal proceedings against
the applicant, and whether such a St.ment is
admissible as evidence for that purpose. (Para
29)

In light of the legal principles established in
Jacob Mathew (supra) case, the liability of a
doctor for medical negligence must be assessed
carefully. A doctor who diligently treats and
cures a patient should not be held criminally
liable for mere errors in judgment or minor
lapses. However, those doctors who act with
gross negligence, demonstrating a blatant
disregard for standard medical practices, can be
held accountable under criminal law. (Para 48)

In Jacob Mathew Vs St. of Punj. & anr.11 , the
Hon'ble Apex Court, in paragraph 12 of the
judgment, held that mere lack of care or an act
of negligence, which may give rise to civil
liability, is not sufficient to attract criminal
liability. The Court emphasized that negligence,
for the purpose of establishing a criminal
offence, must be of a gross or very high degree.
Only such aggravated negligence can amount to
a criminal act warranting penal consequences.
(Para 55)

It is an admitted position that the applicant was
a qualified doctor. There are no specific
allegations of any act of omission or commission
against the accused persons in the entire
plethora of documents relied upon by learned
counsel for the parties. The act of giving
injections as attributed to the doctor, even if
accepted to be true, could be described as an
act of negligence as there may have been a lack
of due care and precaution prior to giving the
1784 INDIAN LAW REPORTS ALLAHABAD SERIES
injections. But, the Court cannot categorically
hold the applicant criminally liable for this act of
negligence as he may be his carelessness or
want of due attention. As has already been
discussed and observed by the Hon'ble Apex
Court in the case of S.VS Narayan Rao (supra)
that an error of judgment in giving five
injections consequently, as in the present case,
does not amount to criminal negligence. (Para
59)

In the case of Dr. Mohan vs. St. of T.N. & anr.14
, the Apex Court has held that after reading
over accusation of instructing a staff nurse to
administer an injection over telephone which
injection when administered to the patient,
apparently reacted, resulting into his death
would not constitute an offence under Section
304 Part-I IPC and could be covered by Section
304A IPC. (Para 66)

Application allowed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,905 of 77,274. This is a partial read: ask again with offset=39905 for what follows._

5 All. Dr. Neeraj Kumar Vs. State of U.P. & Anr.
1783
possible by fixing dates on weekly
basis. The parties shall appear before the
trial court on 27th of May, 2025.

39. With the aforesaid directions
and observations, this Court finds that the
revisions lacks merit and is, accordingly,
dismissed. The order passed by the trial
court dated 26.07.2011 is upheld. Costs are
made easy.

40. The record of the trial court
shall be remitted to the court concerned
most expeditiously by sending a special
messenger within a week from today.
----------
(2025) 5 ILRA 1783
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.05.2025

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Crl. Misc. Application U/S 482 No. 39316 of
2023

Dr. Neeraj Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Shekhar Chaudhary, Sri Vishal Kashyap,
Sri G.S. Chaturvedi (Sr. Advocate)

Counsel for the Respondents:
Sri Anuruddh Chaturvedi, Sri Dinesh Kumar
Sharma, G.A.

Criminal Procedure Code, 1973 - Section
482 - Indian Penal Code, 1860 - Sections
304 & 304A - Medical negligence -
Prosecution of doctor - Scope of criminal
liability - Confessional St.ment to police
-
Inadmissibility
-
Medical
Board
exonerating the applicant - Magistrate's
failure to consider expert opinion before
summoning - Held, confession recorded
under Section 161 Cr.P.C. inadmissible -
Medical practitioner cannot be prosecuted
under Section 304, 304AIPC unless gross
or reckless negligence of a very high
degree is proved- Proceedings quashed.
(Paras 29, 48, 55, 59, 66 and 69)

HELD:
Coming to the merits of the case, two issues
have been touched upon by learned counsel for
the
applicant.
The
primary
issue
for
consideration is whether a St.ment recorded by
the Investigating Officer under Section 161 of
the Code of Criminal Procedure can form the
basis for initiating criminal proceedings against
the applicant, and whether such a St.ment is
admissible as evidence for that purpose. (Para
29)

In light of the legal principles established in
Jacob Mathew (supra) case, the liability of a
doctor for medical negligence must be assessed
carefully. A doctor who diligently treats and
cures a patient should not be held criminally
liable for mere errors in judgment or minor
lapses. However, those doctors who act with
gross negligence, demonstrating a blatant
disregard for standard medical practices, can be
held accountable under criminal law. (Para 48)

In Jacob Mathew Vs St. of Punj. & anr.11 , the
Hon'ble Apex Court, in paragraph 12 of the
judgment, held that mere lack of care or an act
of negligence, which may give rise to civil
liability, is not sufficient to attract criminal
liability. The Court emphasized that negligence,
for the purpose of establishing a criminal
offence, must be of a gross or very high degree.
Only such aggravated negligence can amount to
a criminal act warranting penal consequences.
(Para 55)

It is an admitted position that the applicant was
a qualified doctor. There are no specific
allegations of any act of omission or commission
against the accused persons in the entire
plethora of documents relied upon by learned
counsel for the parties. The act of giving
injections as attributed to the doctor, even if
accepted to be true, could be described as an
act of negligence as there may have been a lack
of due care and precaution prior to giving the
1784 INDIAN LAW REPORTS ALLAHABAD SERIES
injections. But, the Court cannot categorically
hold the applicant criminally liable for this act of
negligence as he may be his carelessness or
want of due attention. As has already been
discussed and observed by the Hon'ble Apex
Court in the case of S.VS Narayan Rao (supra)
that an error of judgment in giving five
injections consequently, as in the present case,
does not amount to criminal negligence. (Para
59)

In the case of Dr. Mohan vs. St. of T.N. & anr.14
, the Apex Court has held that after reading
over accusation of instructing a staff nurse to
administer an injection over telephone which
injection when administered to the patient,
apparently reacted, resulting into his death
would not constitute an offence under Section
304 Part-I IPC and could be covered by Section
304A IPC. (Para 66)

Application allowed. (E-14)

List of Cases cited:

1. Dipakbhai Jagdish Chandra Patel Vs St. of
Gujarat, (2019) 16 SCC 547

2. Agnoo Nagesia Vs St. of Bihar, AIR 1966 SC 119

3. Jacob Mathew Vs St. of Punj., (2005) 6 SCC 1

4. Dr. Suresh Gupta Vs Government of NCT of
Delhi, AIR 2004 SC 4091

5. S.VS Narayan Rao Vs Ratnamala, (2013) 10
SCC 741

6. Dr. Mohan Vs St. of T.N., Criminal Appeal Nos.
720-722 of 2025 (SC)

7. St. of Punj. Vs Davinder Pal Singh Bhullar,
(2011) 14 SCC 771

8. Martin F. D'Souza Vs Mohd. Ishfaq, AIR 2009
SC 2049

9. St. of Punj. Vs Shiv Ram & ors.

10. R.P. Kapur Vs St. of Punj. AIR 1960 SC 866,
St. of Har. Vs Bhajan Lal 1992 SCC (Cr.) 426,
(2005) 7 SCC 1
11. St. of Bihar Vs P.P. Sharma 1992 SCC (Cr.)
192

12. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haque & anr. (Para-10) 2005 SCC (Cr.)
283

13. Badrinath Vs St. of T.N. & ors., AIR 2000 SC
3243

14. St. of Kerala Vs Puthenkavu N.S.S.
Karayogam & Anr, (2001) 10 SCC 191

15. Mangal Prasad Tamoli (dead) by Lrs. Vs
Narvadeshwar Mishra (dead) by Lrs. & Ors.,
(2005) 3 SCC 422

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Mr. G.S. Chaturvedi, learned Senior
Counsel assisted by Mr. Vishal Kashyap
and Mr. Shekhar Chaudhary, learned
counsels
appeared
to
represent
the
applicants, Mr. Anuruddha Chaturvedi and
Mr.
Dinesh
Kumar
Sharma,
learned
counsels appeared for the opposite party
no.2 and Mr. Amit Singh Chauhan, learned
AGA-I for the State. Perused the record.

2. The present 482 Cr.P.C. application
has been filed to quash the charge-sheet
No.593 of 2023, dated 25.08.2023 and
cognizance/summoning
order
dated
19.09.2023
as
well
as
the
entire
proceedings of Criminal Case No.7991 of
2023 (State vs. Dr. Neeraj Kumar), arising
out of Case Crime No.376 of 2023, under
Sections 304 IPC, Police Station-Khurja
Nagar,
District-Bulandshahar,
pending
before
the
court
of
Chief
Judicial
Magistrate, Bulandshahar.

3. Earlier on 27.10.2023, the present
application under Section 482 CrPC was
disposed of, wherein a direction was given
to the applicant to surrender before the
5 All. Dr. Neeraj Kumar Vs. State of U.P. & Anr.
1785
court concerned within a period of one
month from that date and apply for bail,
which was to be decided expeditiously by
the court below, in accordance with law.

4. It appears that the applicant filed
anticipatory bail application No.1431 of
2024
in
which
some
order
dated
29.02.2024
was
passed.
A
recall
application No.3 of 2023 was filed for
recalling the order dated 27.10.2023 in
which, on 12.03.2024, the Co-ordinate
Bench of this Court passed the following
order:-

"Ref:- Criminal Misc. Recall
Application No. 3 of 2023

1. Vide order dated 29.02.2024
the coordinate Bench was passed the order.
Para 9 of the order is quoted below:-

"9. Connect with Criminal Misc.
Application 482 No. 39316 of 2023 (Dr.
Neeraj Kumar Vs. State of U.P. and
another) and place the matter before
Hon'ble The Chief Justice for nominating a
Bench to hear both the matters and list, if
possible,
on
06.03.2024
before
the
appropriate Bench."

2. Office is directed to place the
record before Hon'ble the Chief Justice for
nomination in pursuance of the order dated
29.02.2024l. As par perusal of record there
is no nomination by Hon'ble the Chief
Justice.

3. This Court is of the view that
Criminal
Misc.
Anticipatory
Bail
Application No. 1431 of 2024 moved on
behalf of the applicant should be heard by
the
Court
having
jurisdiction
and
Application U/s. 482 No. - 39316 of 2023
is on different cause in which recall
application is pending.

4.
Since
counsel
for
482
application
who
has
moved
recall
application is not present, the case is passed
over and for hearing of Criminal Misc.
Anticipatory Bail Application No. 1431 of
2024 the same should be placed before
Hon'ble the Chief Justice for nomination of
Criminal
Misc.
Anticipatory
Bail
Application No. 1431 of 2024.

5. In Court opinion, there is no
need
to
tag
the
Anticipatory
Bail
Application with U/s. 482 Application, as
both
the
proceedings
are
different
proceedings
and
Anticipatory
Bail
Application
be
detached
from
482
Application."

5. The applicant approached before the
Apex Court by means of filing Petition for
Special Leave to Appeal (Crl.) No.14974 of
2023, wherein on 24.11.2023, the Apex
Court passed the following order:-

"Having
regard
to
the
submissions made by the learned Senior
Counsel and having gone through the
impugned order passed by the High Court,
we are not inclined to entertain the present
petition
at
this
juncture.
However,
considering the affidavit filed by the
concerned counsel-Mr.Shekhar Chaudhary
before this Court, it shall be open for the
petitioner to approach the High Court with
a request to consider the said affidavit.

The High Court, on such request
being made, may consider the same and
pass appropriate orders in accordance with
law, without being influenced by the
dismissal of the present Special Leave
Petition.

With the above observations, the
Special Leave Petition is dismissed.

Pending applications, if any, shall
stand disposed of."

6. In view of the aforesaid order, on
the recall application no.3 of 2023 counsel
for the applicant was heard and the
1786 INDIAN LAW REPORTS ALLAHABAD SERIES
application was rejected by the Co-ordinate
Bench of this Court vide order dated
04.04.2024 holding it not maintainable in
pursuance of provisions contained under
Section 362 Cr.P.C.

7. Subsequently, the applicant again
approached before the Apex Court by
means of filing Criminal Appeal No.3929
of 2024 (Petition for Special Leave to
Appeal (Crl.) No.5059 of 2024, wherein the
Apex Court, vide order dated 23.09.2024,
requested the High Court to decide the
matter on merits as expeditiously as
possible. Till the final disposal of the said
proceedings, the trial of the case being
Sessions Case No.854 of 2024 pending
before
the
court
of
Session
Judge,
Bulandshahar, U.P. was stayed.

8. The matter was again placed before
Hon'ble Mr. Justice Deepak Verma, who
had earlier decided the case on 27.10.2023
and had also rejected the recall application
on 04.04.2024. Thereafter, on 23.11.2024,
the Co-ordinate Bench of this Court passed
the following order:-

1. Hon'ble The Chief Justice vide
order dated 17.11.2024, nominated this
matter to this Bench.

2. This Court vide order dated
27.10.2023 decided the instant application
under Section 482 Cr.P.C., after hearing
learned counsel for the parties. On persuasion
of learned counsel for the applicant that
applicant would apply for bail if some
protection is granted to him, the matter was
decided, thereafter, applicant challenged the
order of this Court dated 27.10.2023 before
Hon'ble Apex Court by filing an affidavit that
his counsel has never made any averment for
disposing of the instant application under
Section 482 Cr.P.C., as stated in the order
dated 27.10.2023. Paragraph no. 3 of the
affidavit filed before the Hon'ble Apex Court
is quoted as under:-

"That with all due respect, I stated
that I did not make any statement indicating a
lack of intent to press the case on its merits. I
would like to emphasize that considering the
circumstances of the present case, where I am
representing a highly esteemed doctor, and in
light
of
the
Medical
Board's
report
exonerating the doctor from any negligence,
there was never any reason for me to avoid
arguing the case on its merits. Further, the
prayers sought in the petition before the
Hon'ble High Court cannot be agitated before
the Ld. Trial Court and hence there was no
occasion for me to take any such oral prayer
as recorded in the impugned order."

3. Since, the order of this Court
dated 27.10.2023, was passed after hearing
learned counsel for the parties but applicant
has fully mistrusted this Court, in such
scenario, this Court is not inclined to hear the
instant matter again. Accordingly, this matter
is released.

4. This order has been passed in the
presence of Sri Vishal Kashyap, learned
counsel for the applicant and Sri Aniruddh
Chaudhary,
learned
counsel
for
the
informant.

5. Let the matter be placed before
appropriate Bench after obtaining nomination
from Hon'ble The Chief Justice, if possible,
on 27.11.2024, showing the name of Sri
Aniruddh Chaudhary as counsel for the
informant.

9. In view of the order of Hon'ble The
Chief Justice dated 26.11.2024 as well as
Office report dated 27.11.2024, the matter
was placed before this Court to be heard on
merits. Therefore, on 06.01.2025, the
following order was passed:-

"Earlier learned counsel, Mr.
Vishal Kashyap (Adv Roll No. A/V
5 All. Dr. Neeraj Kumar Vs. State of U.P. & Anr.
1787
0830/13) appearing in the matter is directed
to be present before this Court alongwith
Mr. Shekhar Chaudhary, (Adv. Roll No.
A/S 0965/12) learned counsel for the
applicant.

From the records, this Court has
noted the conduct of aforesaid counsels,
who are directed to be present before this
Court on the next date fixed along with
counsel, who appeared in the matter.

Mr.
Anuruddha
Chaturvedi,
learned counsel for opposite party no.2 and
Mr. Amit Singh Chauhan, learned A.G.A.
for the State are present.

List this case on 21.01.2025 at
2:00 P.M."

10. Thereafter, on 21.01.2025, the
following order was passed:-

"Heard Mr. G.S. Chaturvedi,
learned Senior Counsel assisted by Mr.
Shekhar
Chaudhary
and
Mr.
Vishal
Kashyap,
learned
counsels
for
the
applicant,
Mr.
Anuruddh
Chaturvedi,
learned counsel for opposite party no.2 and
Mr. Amit Singh Chauhan, learned A.G.A.
for the State.

Mr. G.S. Chaturvedi, learned
Senior Counsel for the applicant submits
that vide order dated 23.09.2024 the Apex
Court has directed this Court to decide the
instant application on merits in accordance
with law, though, the fact about charge
being framed by the trial court has been
noticed by the Apex Court, on an objection
raised by the respondents therein. He
further submits that while deciding the case
on merits, the subsequent developments
have also to be considered by this Court.

In view of the above, learned
Senior Counsel for the applicant prays for
and is granted ten days time to file
amendment application.

As
prayed
by
Mr.
G.S.
Chaturvedi, learned Senior Counsel for the
applicant, list this case on 06.02.2025 at
2:00 P.M."

11. Again on 17.02.2025, this Court
passed the following order:-

"Mr. Vishal Kashyap, learned
counsel for the applicant, Mr. Dinesh
Kumar
Sharma,
learned
counsel
for
opposite party no.2 and Mr. Amit Singh
Chauhan, learned A.G.A. for the State are
present.

On 21.01.2025, Mr. Mr. G.S.
Chaturvedi, learned Senior Counsel for the
applicant had requested time for filing of
amendment application.

Amendment applicant is not filed
on behalf of the applicant.

On the matter being taken up, Mr.
Vishal Kashyap, learned counsel for the
applicant states that applicant has engaged
Senior Counsel to argue the matter and he
is not in a position to argue the matter.

On the request of learned counsel
for the applicant, list this case on
24.02.2025 at 12:00 O'clock."

12. On 24.02.2025, the following
order was passed:-

"Learned counsel for the applicant
has filed amendment application in the Court
today, which is taken on record. Office is
directed to register the same.

Learned counsel for the opposite
party no.2 submits that certain documents
have to be brought on record for proper
adjudication of the matter.

List this case on 5th March, 2025
at 12 pm.

In the meantime, learned counsel
for the opposite no.2 may file an affidavit
annexing all the necessary documents."
1788 INDIAN LAW REPORTS ALLAHABAD SERIES

13.
On
05.03.2025,
this
Court
reserving
the
judgment
passed
the
following order:-

"Short counter affidavit on behalf
of opposite party no.2 filed today in the
Court, is taken on record. Office is directed
to register the same.

Learned Senior Counsel for the
applicant does not wish to file rejoinder
affidavit.

Heard
Mr.
G.S.
Chaturvedi,
learned Senior Counsel assisted by Mr.
Vishal
Kashyap
and
Mr.
Shekhar
Chaudhary,
learned
counsels
for
the
applicants,
Mr.
Anurudh
Chaturvedi,
leaned counsel assisted by Mr. Dinesh
Kumar
Sharma,
learned
counsel
for
opposite party no.2 and Mr. Amit Singh
Chauhan, learned A.G.A. for the State.

Judgement reserved.

Learned counsels for both the
parties are directed to file their written
submission within a week."

14. Before proceeding with the case,
brief facts of the case are, that for the
incident dated 13.02.2023, the Opposite
Party No.2 moved an application under
Section 156(3) Cr.P.C. on 27.02.2023
before
Chief
Judicial
Magistrate,
Bulandshahar,
against
the
applicant.
Subsequently,
another
application
U/s
156(3) Cr.P.C. was moved by the Opposite
Party No.2 before the Chief Judicial
Magistrate,
Bulandshahar
implicating
another person, namely, Prem Prakash
Arora, Administrative Manager, Kailash
Hospital,
Khurja,
alleging
additional
charges of medical negligence against the
applicant Dr. Neeraj Kumar and another
co-accused.

15. On the aforesaid application, the
Chief Judicial Magistrate, Bulandshahar
vide its letter dated 20.03.2023, directed the
Chief Medical Officer, Bulandshahar to
constitute a Medical Board. Accordingly,
the Chief Medical Officer, Bulandshahar
vide its letter dated 25.03.2023 constituted
a Medical Board comprising of five
doctors. The Medical Board submitted its
report on 08.04.2023 before the court
below and cleared the applicant from all
charges.

16. Mentioning about the said report,
wherein the applicant was cleared from all
charges, the application U/s 156(3) Cr.P.C.
moved by the opposite party no.2 was
allowed by the court below vide order
dated 10.05.2023 directing the Police to
register the FIR against the applicant and
other co-accused persons. Accordingly, the
first information report dated 12.05.2023
was registered as Case Crime No.370 of
2023, under Section 304 IPC, Police
Station-Khurja, District-Bulandshahar.

17. The aforesaid FIR was challenged
by means of filing Criminal Misc. Writ
Petition No.8295 of 2023 and the Division
Bench of this Court vide order dated
30.05.2023 granted protection to the
applicant till submission of police report.

18. After investigation, the charge
sheet has been submitted on 25.08.2023,
under Section 304 IPC. Pursuant to which,
the applicant has been summoned by the
court
concerned
vide
order
dated
19.09.2023. Hence the present application
has been filed.

19. Learned counsel for the applicant
has made the following submissions:-

(i) There is a delay in filing the
complaint against the applicant as the son
of opposite party no.2 died on 14.02.2023
5 All. Dr. Neeraj Kumar Vs. State of U.P. & Anr.
1789
and the application U/s 156(3) Cr.P.C. was
given on 27.02.2023 and again after some
improvement on 17.03.2023.

(ii) The applicant is a doctor by
profession and holds an M.B.B.S., M.D.
degree and runs a private clinic at Khurja,
District-Bulandshahar.

(iii) The enquiry report submitted
by the Medical Board "nowhere" discloses
that any negligence was committed by the
applicant during the treatment of deceased.

(iv) The charge sheet u/s 304 IPC
was submitted on 25.08.2023 on which the
Investigating Officer recorded the second
statement of applicant U/s 161 Cr.P.C.

(v) The second statement of
applicant recorded U/s 161 Cr.P.C. on
25.08.2023 upon which the Investigating
Officer relied in submitting the charge
sheet, can't be used as the same is a
confessional statement and cannot be taken
as an admissible piece of evidence as
provided under Sections 25 and 26 of the
Indian Evidence Act 1872, which prohibits
the use of such statement and confessional
statement made by the accused before the
Police. In support of his submission, he has
relied upon the judgement of Apex Court in
the case of Dipakbhai Jagdish Chandra
Patel vs. State of Gujarat and another1.
Relevant portion of the aforesaid judgment
is as under:-

"6............while dealing with the
question of framing charges. At that stage,
the court is required to confine its attention
to only those materials collected during
investigation
which
can
be
legally
translated into evidence and not upon
further evidence (dehors those materials)
that the prosecution may adduce in the trial
which would commence only after the
charges are framed and the accused denies
the charges. The Designated Court was,
therefore, not at all justified in taking into
consideration the confessional statement

(vi) Again in para 21 of the
aforesaid judgment, the Apex Court held as
under:-

"21. At the stage of framing the
charge in accordance with the principles
which have been laid down by this Court,
what the Court is expected to do is, it does
not act as a mere post office. The Court
must indeed sift the material before it. The
material to be sifted would be the material
which is produced and relied upon by the
prosecution. The sifting is not to be
meticulous in the sense that the Court dons
the mantle of the Trial Judge hearing
arguments after the entire evidence has
been adduced after a full-fledged trial and
the question is not whether the prosecution
has made out the case for the conviction of
the accused. All that is required is, the
Court must be satisfied that with the
materials available, a case is made out for
the accused to stand trial. A strong
suspicion suffices. However, a strong
suspicion must be founded on some
material. The material must be such as can
be translated into evidence at the stage of
trial. The strong suspicion cannot be the
pure subjective satisfaction based on the
moral notions of the Judge that here is a
case where it is possible that accused has
committed the offence. Strong suspicion
must be the suspicion which is premised on
some material which commends itself to
the court as sufficient to entertain the prima
facie view that the accused has committed
the offence.

(vii) He further submits that
admissibility of statement of accused, in
law, made to a police officer is barred
under Section 162 Cr.P.C. He has relied
upon Para 37 to 41 of the aforesaid
judgement, which are as follows:-

"37. Thus, quite clearly, a person
who stands in the shoes of the accused
being named in the First Information
1790 INDIAN LAW REPORTS ALLAHABAD SERIES
Report, can be examined by the Police
Officer under Section 161 of the Cr.PC.
The next question however is, as to
whether the statement given by a person
who stands in the shoes of an accused and
who gives a statement, whether the
statement is admissible in law? It is here
that Section 162 of the Code comes into
play:

"162. Statements to police not to
be signed: Use of statements in evidence.

(1) No statement made by any
person to a police officer in the course of
an investigation under this Chapter, shall, if
reduced to writing, be signed by the person
making it; nor shall any such statement or
any record thereof, whether in a police
diary or otherwise, or any part of such
statement or record, be used for any
purpose, save as hereinafter provided, at
any inquiry or trial in respect of any
offence under investigation at the time
when such statement was made: Provided
that when any witness is called for the
prosecution in such inquiry or trial whose
statement has been reduced into writing as
aforesaid, any part of his statement, if duly
proved, may be used by the accused, and
with the permission of the Court, by the
prosecution, to contradict such witness in
the manner provided by section 145 of the
Indian Evidence Act, 1872 (1 of 1872 );
and when any part of such statement is so
used, any part thereof may also be used in
the re- examination of such witness, but for
the purpose only of explaining any matter
referred to in his cross- examination.

(2) Nothing in this section shall
be deemed to apply to any statement falling
within the provisions of clause (1) of
section 32 of the Indian Evidence Act,
1872 (1 of 1872), or to affect the provisions
of section 27 of that Act. Explanation.- An
omission to state a fact or circumstance in
the statement referred to in sub- section (1)
may amount to contradiction if the same
appears to be significant and otherwise
relevant having regard to the context in
which such omission occurs and whether
any omission amounts to a contradiction in
the particular context shall be a question of
fact."

38. A Bench of three learned
Judges of this Court in Mahabir Mandal
and others v. State of Bihar14, had this to
say:

"39. Coming to the case of
Kasim, we find that there is no reliable
evidence as may show that Kasim was
present at the house of Mahabir on the
night of occurrence and took part in the
disposal of the dead body of Indira.
Reliance was placed by the prosecution
upon the statement alleged to have been
made by Kasim and Mahadeo accused at
the police station in the presence of
Baijnath PW after Baijnath had lodged
report at the police station. Such statements
are legally not admissible in evidence and
cannot be used as substantive 14 AIR 1972
1331 evidence. According to Section 162
of the Code of Criminal Procedure, no
statement made by any person to a police
officer in the course of an investigation
shall be signed by the person making it or
used for any purpose at any enquiry or trial
in
respect
of
any
offence
under
investigation at the time when such
statement was made. The only exception to
the above rule is mentioned in the proviso
to that section. According to the proviso,
when any witness is called for the
prosecution in the enquiry or trial, any part
of his statement, if duly proved, may be
used by the accused and with the
permission of the court by the prosecution,
to contradict such witness in the manner
provided by Section 145 of the Indian
Evidence Act and when any part of such
statement is so used, any part thereof may
5 All. Dr. Neeraj Kumar Vs. State of U.P. & Anr.
1791
also be used in the re-examination of such
witness for the purpose only of explaining
any matter referred to in his crossexamination. The above rule is, however,
not applicable to statements falling within
the provisions of Clause 1 of Section 32 of
the Indian Evidence Act or to affect the
provisions of Section 27 of that Act. It is
also well established that the bar of
inadmissibility
operates
not
only
on
statements of witnesses but also on those of
the accused (see Narayan Swami v.
Emperor [AIR 1939 PC 47]). Lord Atkin,
in that case, while dealing with Section 162
of the Code of Criminal Procedure
observed:

"Then follows the section in
question which is drawn in the same
general way relating to 'any person.' That
the words in their ordinary meaning would
include any person though he may
thereafter
be
accused
seems
plain.
Investigation into crime often includes the
examination of a number or persons none
of whom or all of whom may be suspected
at the time. The first words of the section
prohibiting the statement if recorded from
being signed must apply to all the
statements made at the time and must
therefore apply to a statement made by a
person possibly not then even suspected but
eventually accused." Reference may also
be made to Section 26 of the Indian
Evidence Act, according to which no
confession made by any person whilst he is
in the custody of a police officer, unless it
be made in the immediate presence of a
Magistrate, shall be proved against such
person. There is nothing in the present case
to show that the statements which were
made by Kasim and Mahadeo accused on
September 18, 1963, at the police station in
the presence of Baijnath resulted in the
discovery of any incriminating material as
may make them admissible under Section
27 of the Indian Evidence Act. As such, the
aforesaid statements must be excluded from
consideration." (Emphasis supplied)

39. Therefore, the combined
effect
of
these
provisions
can
be
summarized as follows:

Unless a person is accused of an
offence, he cannot claim the protection of
Article 20(3) of the Constitution of India.

40. Such a person, viz., person
who is named in the FIR, and therefore, the
accused in the eyes of law, can indeed be
questioned and the statement is taken by
the Police Officer. A confession, which is
made to a Police Officer, would be
inadmissible having regard to Section 25 of
the Evidence Act. A confession, which is
vitiated under Section 24 of the Evidence
Act would also be inadmissible. A
confession unless it fulfills the test laid
down in Pakala Narayana Swami (supra)
and as accepted by this Court, may still be
used as an admission under Section 21 of
the Evidence Act. This, however, is subject
to the bar of admissibility of a statement
under Section 161 of the Cr.PC. Therefore,
even if a statement contains admission, the
statement being one under Section 161, it
would immediately attract the bar under
Section 162 of the Cr.PC.

41. Bar under Section 162 Cr.PC,
no doubt, operates in regard to the
statement made to a Police Officer in
between two points of time, viz., from the
beginning of the investigation till the
termination of the same. In a case where
statement containing not a confession but
admission, which is otherwise relevant and
which is made before the investigation
commences, may be admissible. We need
not, however, say anything more.

(viii) He further submits that no
confession made to a police officer shall be
proved against a person accused of an
offence. Section 162 of the Code of
1792 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Procedure forbids the use of any
statement made by any person to a Police
Officer in the course of investigation for
any purpose at any enquiry or trial in
respect of the offence under investigation.
The aforesaid has been held by the Apex
Court in the case of Agnoo Nagesia
(appellant) vs. State of Bihar2.

(ix) The present case has been
lodged after due thought and consultation
as the son of the opposite party no.2
expired on 14.02.2023 and first application
U/s
156(3)
Cr.P.C.
was
filed
on
27.02.2023, thereafter, with an improved
version, second application U/s 156(3)
Cr.P.C. was filed on 17.03.2023, which
shows considerable and unexplained delay.

(x) The Hon'ble Supreme Court
in a catena of decisions has held that
medical practitioner found responsible
cannot be exposed to criminal prosecution.
The Apex Court in a case of Jacob
Mathew vs. State of Punjab3, while
quashing the prosecution of the accused
appellant in detail described the term
"negligence" but the same has not been
followed by the court below while passing
the order dated 19.09.2023 in a mechanical
manner without applying its judicial mind.

(xi) In the aforesaid judgment, the
Apex Court has gone to the extent of
holding that a private complaint cannot be
entertained unless the complainant has
produced prima facie evidence before the
court in the form of a credible opinion
given by another competent doctor to
support
the
charges
of
rashness
or
negligence on the part of the accused
doctor. The investigating officer should act
before proceeding against the doctor
accused of rashness or negligent act or
omission, obtain an independent and
complete medical opinion, preferably from
a doctor in government service qualified in
that branch of medical practice who can
normally be expected to give an impartial
and unbiased opinion applying Bolam's test
to the facts collected in the investigation. A
doctor accused of rashness or negligence
may not be arrested in a routine manner
simply because a charge has been levelled
against him.

(xii) The Hon'ble Supreme Court
in the case of Martin F. D'Souza vs.
Mohd. Ishfaq4 upholding the case of
Jacob Methew (supra) and gave certain
directions in para 117, which is as follows:-

"117. We, therefore, direct that
whenever a complaint is received against a
doctor or hospital by the Consumer Fora
(whether District, State or National) or by
the Criminal Court then before issuing
notice to the doctor or hospital against
whom the complaint was made the
Consumer Forum or Criminal Court
should first refer the matter to a
competent
doctor
or
committee
of
doctors, specialized in the field relating
to which the medical negligence is
attributed, and only after that doctor or
committee reports that there is a prima
facie case of medical negligence should
notice be then issued to the concerned
doctor/hospital. This is necessary to
avoid harassment to doctors who may not
be ultimately found to be negligent. We
further warn the police officials not to
arrest or harass doctors unless the facts
clearly come within the parameters laid
down in Jacob Mathew's case (supra),
otherwise the policemen will themselves
have to face legal action."

(xiii) The court below while
passing
the
order
dated
10.05.2023
directing for registration of FIR and issuing
summons vide order dated 19.09.2023 has
not considered the expert report given by
the Medical Board, which is totally illegal
and against the directions of the Hon'ble
Supreme Court.
5 All. Dr. Neeraj Kumar Vs. State of U.P. & Anr.
1793

(xiv) Thus on the aforesaid
grounds, the proceedings are nothing but an
abuse of process of law and hence, the
prosecution against the applicant is wholly
unjustified and liable to be quashed.

20. On the other hand, learned counsel
for the opposite party no.2 submits that:-

(i) An application U/s 156(3)
Cr.P.C. was filed by the father of the
deceased on 27.02.2023 but the aforesaid
application was not pressed by the opposite
party no.2 as certain relevant facts were not
mentioned in the said application. The
second application U/s 156(3) Cr.P.C. was
moved on 17.03.2023, on which, the Chief
Judicial Magistrate, Bulandshahar directed
the Chief Medical Officer, Bulandshahar to
set up a Medical Board of five doctors to
enquire and submit its report before the
Court.

(ii) Pursuant to the direction of
the concerned court, Medical Board was
constituted comprising five doctors of
B.B.D., District Hospital, Bulandshahar
whereas the applicant was working as
Government Doctor (Chest Physician) from
November, 2006 to 2015 at S.S.M.J.
Hospital, Khurja District Bulandshahar.

(iii)
The
Medical
Board
submitted its report on 08.04.2023 before
the court concerned, exonerating the
applicant without conducting a proper
enquiry and without considering the fact
that high dose of antibiotics and antimalarial injections would have been given
to the patient, who has empty stomach. The
injections given were Mero SB 1.5mg, 2
doses and injection Artesunate Falcigo
60mg, 3 doses. These injections were
prescribed by the applicant in his hand
written
prescription
(Slip)
and
the
informant placed said prescription along
with the Bill which is part of the evidence
collected by the I.O. The aforesaid 5
injections were intravenous and were
injected only in 10-15 minutes and this was
the reason from where the condition of the
patient started deteriorating and this was
not considered by the Medical Board,
despite evidence of the same being on
record
and
specifically
pleaded
in
application under section 156(3) Cr.P.C.

(iv) After submission of the
medical report, the trial court vide order
dated 10.05.2023, categorically recorded a
finding that a prima-facie cognizable
offence is made out and the correct facts
can be determined only in investigation and
hence, court directed for investigation.

(v) He further submits that the
report submitted by the Medical Board is
not conclusive for the Magistrate to
exonerate the accused Doctor and the
Magistrate after perusal of the report can
proceed to pass order for investigation by
the police after considering the report.
However the order dated 10.05.2023 was
never challenged by the applicant and thus
the present F.I.R. came to be lodged on
12.05.2023, Police Station-Khurja Nagar,
District-Bulandshahar, under section 304
I.P.C.

(vi)
The
aforesaid
first
information report was challenged before
this Court by means of Criminal Misc. Writ
Petition No.8295 of 2023 in which the
Division Bench of this Court vide order
dated 30.05.2023 stayed the arrest of the
applicant during the Investigation.

(vii) Initially the Investigation
was being carried out by Inspector Shri
Dheeraj Singh which subsequently was
transferred to Inspector, Crime Branch on
25.07.2023 by the order of Additional S.P.,
Bulandshahar.

(viii) Inspector, Crime Branch, on
04.08.2023,
after
going
through
the
Investigation carried out by the previous
1794 INDIAN LAW REPORTS ALLAHABAD SERIES
Investigating Officer and the evidence
collected by him as well as considering the
report of the Medical Board came to the
conclusion that the Medical Board had not
performed its duty in a proper manner and
had concealed the facts and had further
presented the same in a fraudulent manner.

(ix) On 22.08.2023, Investigating
Officer in order to verify the contents and
statements of the applicant as well as the
findings of the Medical Board examined
Dr. Neeraj Kumar on those aspects which
were noted by the I.O. on 04.08.2023. The
applicant in the affidavit filed in support of
the application under Section 482 Cr.P.C.
had never claimed that no such statement
was given that he was examined by the
Investigating Officer. In fact, the aforesaid
statements were concealed and not filed by
the applicant.

(x)
On
25.08.2023,
the
chargesheet was filed by the Investigating
Officer giving therein the details of the
entire investigation and the evidence
collected during the course of investigation,
in respect of the allegation levelled in the
First Information Report as well as the
statements of the witnesses recorded during
the course of investigation.

(xi)
Initially,
the
present
application was dismissed by the Coordinate Bench of this Court vide order
dated 27.10.2023 on the concession of the
counsel for the applicant. The aforesaid
concession was made by the present
counsel and alternative prayer was orally
made which was accepted by the Coordinate Bench of this Court but on the
basis of false affidavit filed before Hon'ble
Supreme Court by the counsel for the
applicant while challenging the order dated
27.10.2023, stating therein that no such
concession was given by him before the
Hon'ble Court which was recorded. The
Hon'ble Supreme Court vide order dated
24.11.2023 remanded back the matter
without setting aside the order passed by
the Co-ordinate Bench of this Court
directing the applicant to file recall
application with the averments made in the
affidavit filed before Hon'ble Supreme
Court.
The
aforesaid
order
dated
24.11.2023 was ex-parte order.

(xii) Pursuant to the order dated
24.11.2023 passed by the Hon'ble Supreme
Court, Criminal Misc. Recall Application
No.03 of 2023 was filed by the applicant on
01.12.2023 and when the averments made
in the affidavit were confronted then the
applicant
himself
admitted
that
the
concession was given by him and since the
present recall application under section 362
Cr.P.C. is not maintainable hence the Coordinate Bench of this Court vide order
dated 04.04.2024 rejected the said recall
application on this ground.

(xiii) The aforesaid order dated
04.04.2024 passed by the Co-ordinate
Bench of this Court was again challenged
before the Hon'ble Supreme Court stating
that the Co-ordinate Bench of this Court
had not decided the application considering
the affidavit filed before Hon'ble Supreme
Court as was directed vide order dated
24.11.2023 by Hon'ble Apex Court.