# Dr. Sushil Kumar Gupta v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1518
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-21
- **Case number:** Application U/S 482 No. 25818 of 2018
- **Bench:** Harsh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-sushil-kumar-gupta-v-state-of-u-p-anr-45531
- **Pages:** 6

## Headnote

A. Criminal Law-Indian Penal Code, 1860Sections 419, 420, 338, 504, 506 and 201
- In order to make out a prima facie offence of
Cheating
,
the
necessary
averments
constituting the said offence have to be made
in the FIR O.P no.2 allegedly operated for
stone
in
gallbladder
and
surgery
was
unsuccessful- Applicant was anaesthesiologist -
No case that after getting the money
deposited, her surgery was not conducted and
money was usurped and thus any fraud was
played on her by applicant, or anybody else.
Hence from averments made in F.I.R., no
prima facie evidence of offence under sections
419 and 420 IPC made out.

B. Criminal Law-Indian Penal Code, 1860-
Section 338 IPC - Merely administering the
required
dosage
of
anaesthesia
without
endangering the life of the patient or causing
any grievous hurt would not make out an
2 All. Dr. Sushil Kumar Gupta Vs. State of U.P. & Anr.
1519
offence under section 338 IPC or be considered
as an act of Negligence in the performance of
his duties Applicant allegedly gave O.P.No.2
dose of anaesthesia and he is not alleged to
have conducted any operation by cutting any
part of her body, internally or externally- No
whisper that dose of anaesthesia given by
applicant was excessive or caused any problem
or damage to opposite party no.2.

C. Criminal Law-Indian Penal Code, 1860-
Section 201- F.I.R. does not speak of
disappearance of any evidence by applicant -
No prima facie evidence of offence under
section 201 IPC.

Medical
Negligence-
Even
if
for
any
negligence at the Hospital, the same may be
liable under civil law, but applicant cannot be
held liable for negligence and endangering life
of opposite party no.2 constituting any offence
under section 338 IPC against applicant. ( Para
10,11, 12)

Criminal Application Allowed.

Case law relied upon/ Discussed:-

## Text

1518 INDIAN LAW REPORTS ALLAHABAD SERIES
official duty with assistance of Railway
Police Force and the Magistrate failed to
take note of this circumstance or to make
any discussion over this point in the
summoning order.

7. Apex Court in State of U.P. Vs.
Paras Nath Singh, (2009) 6 SCC 372 by a
three Judges Bench has propounded that
'no court shall take cognizance of such
offence except with the previous sanction'.
Use of the words 'no' and 'shall' make it
abundantly clear that the bar on the
exercise of power of the court to take
cognizance of any offence is absolute and
complete. Very cognizance is barred. That
is the complaint cannot be taken notice of.
According to Black's law Dictionary the
word 'cognizance' means 'Jurisdiction' or
'the exercise of jurisdiction' or 'power to
try and determine causes'. In common
parlance it means taking notice of. A court,
therefore, is precluded from entertaining a
complaint or taking notice of it or
exercising jurisdiction if it is in respect of
a public servant who is accused of an
offence alleged to have committed during
discharge of his official duty. This has
been reiterated by Apex Court in Criminal
Appeal Nos. 1590, 1591 of 2013 (in S.L.P.
Criminal No. 6652, 6653 of 2013), M. K.
Ayappa Vs. State. Hence, in the present
case, all these requirements were needed,
while passing a summoning order and
taking of cognizance. But no iota is there.
Hence it is completely abuse of process of
law.

8. Accordingly, this application
merits to be allowed.

9. This application u/s 482 Cr.P.C. is
allowed and the impugned summoning
order is hereby quashed. The file is being
remanded back to the Magistrate Court
concerned for making an enquiry afresh
u/s 200 and 202 Cr.P.C. and then after pass
a fresh reasoned order in view of
requirement
of
sanction
and
legal
precedents.
----------
(2020)02ILR A1518

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE
THE HON'BLE HARSH KUMAR, J.

Application U/S 482 No. 25818 of 2018

Dr. Sushil Kumar Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajesh Kumar Chitragupt, Sri Kamal
Kishor Mishra

Counsel for the Opposite Parties:
A.G.A., Sri Anil Kumar Mishra, Sri Om
Prakash Pandey, Sri Rajesh Kumar Dubey

A. Criminal Law-Indian Penal Code, 1860Sections 419, 420, 338, 504, 506 and 201
- In order to make out a prima facie offence of
Cheating
,
the
necessary
averments
constituting the said offence have to be made
in the FIR O.P no.2 allegedly operated for
stone
in
gallbladder
and
surgery
was
unsuccessful- Applicant was anaesthesiologist -
No case that after getting the money
deposited, her surgery was not conducted and
money was usurped and thus any fraud was
played on her by applicant, or anybody else.
Hence from averments made in F.I.R., no
prima facie evidence of offence under sections
419 and 420 IPC made out.

B. Criminal Law-Indian Penal Code, 1860-
Section 338 IPC - Merely administering the
required
dosage
of
anaesthesia
without
endangering the life of the patient or causing
any grievous hurt would not make out an
2 All. Dr. Sushil Kumar Gupta Vs. State of U.P. & Anr.
1519
offence under section 338 IPC or be considered
as an act of Negligence in the performance of
his duties Applicant allegedly gave O.P.No.2
dose of anaesthesia and he is not alleged to
have conducted any operation by cutting any
part of her body, internally or externally- No
whisper that dose of anaesthesia given by
applicant was excessive or caused any problem
or damage to opposite party no.2.

C. Criminal Law-Indian Penal Code, 1860-
Section 201- F.I.R. does not speak of
disappearance of any evidence by applicant -
No prima facie evidence of offence under
section 201 IPC.

Medical
Negligence-
Even
if
for
any
negligence at the Hospital, the same may be
liable under civil law, but applicant cannot be
held liable for negligence and endangering life
of opposite party no.2 constituting any offence
under section 338 IPC against applicant. ( Para
10,11, 12)

Criminal Application Allowed.

Case law relied upon/ Discussed:-

1. Jacob Mathew Vs. St. of Punj. & anr., (2005)
3 JIC 320 (SC)

(Delivered by Hon'ble Harsh Kumar, J.)

1. Rejoinder affidavit filed by
learned counsel for applicant, is taken on
record.

2. Heard Sri Kamal Kishor Mishra,
learned counsel for applicant, Sri Anil
Kumar
Mishra,
learned
counsel
for
opposite party no.2, learned A.G.A. for
State and perused the record.

3. This application under Section 482
Cr.P.C. has been filed for quashing the
entire proceedings of Criminal Case
No.2136 of 2018 (State Vs. Dr. Sushil
Kumar Gupta), relating to Case Crime
No.338 of 2017, under sections 419, 420,
338, 504, 506 and 201 IPC, P.S. Sidharth
Nagar, District Sidharth Nagar pending in
the Court of C.J.M., Sidharth Nagar as
well as for quashing the impugned charge
sheet dated 21.3.2018.

4. Learned counsel for applicant
contends that applicant has been falsely
implicated in the F.I.R. lodged by opposite
party no.2 on account of unsuccessful
surgery; that as per averments made in
F.I.R. lodged against applicant and Dr.
Skand Mishra, "opposite party no.2 was
admitted in Aryan Hospital, Tharauli,
Siddharth Nagar for operation of stone in
gallbladder and during surgery applicant
and Dr. Skand Mishra together, opposite
party no.2 got a cut over her nerve of liver
on 8.1.2016, causing further complications
and in order to save her life, she had to
rush to Gorakhpur and undergone further
surgery
at
Gorakhnath
Hospital,
Gorakhpur
and
S.G.P.G.I.
Centre,
Lucknow and upon getting of bit well
informed District Magistrate, Siddharth
Nagar,
on
whose
direction
C.M.O.
recorded her statement while applicant on
getting knowledge of above complaint
allegedly threatened her for life and the
doctors on the pretext of operation usurped
a sum of Rs.14,000/- by cheating her".

5. He submitted that the entire
prosecution story is absolutely false and
incorrect; that father of applicant Dr. J.P.
Gupta, M.B.B.S. retired from the post of
Chief Medical Officer in 2014 established
and run Aryan Hospital and unfortunately
died on 12.11.2016, after about 10 months
of surgery of opposite party no.2; that
applicant is M.B.B.S. Doctor and at the
time of alleged surgery on 8.1.2016, was
posted as Medical Officer at C.H.C.,
Brijmanganj and was on his duty and
neither conducted surgery of opposite
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
party no.2 nor was at all present or
working in Aryan Hospital at the time of
surgery of opposite party no.2; that in any
case, according to statements of opposite
party no.2 and her witnesses, applicant
allegedly played role of an Anesthetist and
administered
dose
of
anesthesia
to
opposite party no.2 during operation; that
the surgery of gallbladder is technical one
and since the internal organs are connected
with each other, possibility of cut over the
adjoining nerve, may not be ruled out,
despite due care and caution by expert
doctor; that Dr. Skand Mishra is an expert
surgeon; that though surgery of opposite
party no.2 with regard to gallbladder was
successfully
conducted
but
since
complaint
of
pain
sustained
for
considerable time, so opposite party no.2
sought premature discharge and preferred
treatment
at
Gorakhnath
Hospital,
Gorakhpur and thereafter at S.G.P.G.I.,
Lucknow and is alleged to have been
further operated at Gorakhnath Hospital,
Gorakhpur as well as at S.G.P.G.I.,
Lucknow; that on the complaint made by
opposite party no.2, an inquiry was
ordered by C.M.O., Siddharth Nagar and
the committee submitted it's report to
C.M.O.(Annexure
No.9)
with
the
conclusion that surgery of gallbladder was
performed by expert doctor and since she
(opposite party no.2) did not get relief, she
was again operated by expert at Gorakhpur
and, thereafter, in super specialty hospital
S.G.P.G.I., Lucknow which took enough
time in complete recovery and that such
complications are part of surgery and it
will not be correct to say that doctor did
not conduct the operation sincerely; that
the report of S.G.P.G.I., Lucknow at
Annexure No.10 also does not indicate any
negligence on the part of applicant; that
even if the allegations made by opposite
party no.2 and her witnesses are taken to
be correct, for the sake of arguments, since
applicant was assigned only with the role
of anesthetist and had nothing to do with
surgery of gallbladder, resulting in cut
over nerve of her liver, during removal of
gallbladder, (providing anesthesia is a presurgery stage and nothing beyond it); that
medical negligence, if any, could have
been occurred only by the person, who
applied knives etc. during surgery for
removal of gallbladder; that no case of
medical negligence is or can be made out
against applicant; that applicant neither
usurped any money nor committed any
offence of cheating and no offence under
sections 419 and 420 IPC is made out
against him; that Rs.14,000/- or any
amount was admittedly deposited by
opposite party no.2 was towards operation
charges and since admittedly operation of
her gallbladder was conducted, no case of
cheating or usurping her money can be
made out; that the case of applicant is
distinguishable from co-accused Dr. Skand
Mishra, who is an expert surgeon and
conducted surgery very sincerely and
correctly; that applicant never abused
opposite party no.2 or her family members
and never threatened them of life; that
under wrong impression of opposite party
no.2 about alleged medical negligence, the
applicant may not be held responsible; that
applicant did not do anything to make the
evidence disappear; that in view of the
material on record even if the evidence
remains same, there is no possibility of
conviction of applicant; that applicant
either intentionally or otherwise did not
cause any grievous hurt to opposite party
no.2 rashly or negligently to endanger her
life; that the prosecution of applicant is
noting but abuse of process of Court and in
order to secure the ends of justice, charge
sheet as well as proceedings of criminal
case are liable to be quashed.
2 All. Dr. Sushil Kumar Gupta Vs. State of U.P. & Anr.
1521

6. In support of his arguments,
learned counsel for applicant has paid
reliance on the law laid down by the Apex
Court in the case of Jacob Mathew Vs.
State of Punjab and another, 2005 (3)
JIC 320 (SC),

7. Per contra, learned AGA and
learned counsel for opposite party no.2
vehemently opposed the application for
quashing of charge sheet and proceedings
against applicant and contended that it is
clear from the material on record that
applicant was present at the time of
surgery of opposite party no.2 at Aryan
Hospital and the allegations that he was on
duty in Medical Hospital at CHC,
Brijmanganj indicates that his presence in
Aryan Hospital was unauthorized; that if
the applicant was posted at C.H.C.
Brijmanganj, he had no business to
provide anesthesia to opposite party no.2,
which indicates that he is not loyal to his
duties also; that since the applicant has
played active role in surgery of gallbladder
of opposite party no.2, he is equally liable
for negligence in unsuccessful surgery and
cut over her liver nerve; that the matter of
negligence, is a matter to be decided upon
evidence
and
mere
reports
of
the
committee constituted by C.M.O. at
Annexure No.9 or of S.G.P.G.I. at
Annexure No.10, are not sufficient to hold
the applicant not guilty for medical
negligence; that it is wrong to say that no
offence under sections 419, 420, 338, 504,
506 and 201 IPC is made out against
applicant; that application has been moved
with
false
allegations
and
malafide
intention and is liable to be dismissed.

8. Upon hearing parties counsel and
perusal of record, I find that cheating has
been defined under section 415 IPC as
under :-

"415. Cheating.--Whoever, by
deceiving any person, fraudulently or
dishonestly induces the person so deceived
to deliver any property to any person, or to
consent that any person shall retain any
property, or intentionally induces the
person so deceived to do or omit to do
anything which he would not do or omit if
he were not so deceived, and which act or
omission causes or is likely to cause
damage or harm to that person in body,
mind, reputation or property, is said to
"cheat"."

9. In the case of Jacob Mathew
(supra), where a patient with acute
breathing problem brought to hospital and
admitted and died due to immediate nonavailability of oxygen cylinder, quashing
prosecution of accused doctor under
section 304A/34 IPC, the 03 Judges Bench
of Apex Court held that

"(i) Medical Negligence

(ii) Since patient died due to
non-availability of Oxygen in time, hence
no case of criminal negligence is made out
against doctor - Hospital may be liable
under civil law but doctors cannot be
prosecuted under Section 304-A IPC.

(iii) To prosecute a doctor for
negligence under criminal law it must be
shown that he did something or failed to
do something which no doctor in his
ordinary senses and prudence would have
done or failed to do so.

(iv) Negligence is the breach of a
duty caused by omission to do something
which a reasonable man guided by those
considerations which ordinarily regulate
the conduct of human affairs would do, or
doing something which a prudent and
reasonable man would not do.

(v) Negligence in the context of
medical profession necessarily calls for a
1522 INDIAN LAW REPORTS ALLAHABAD SERIES
treatment with a difference. To infer
rashness or negligence on the part of a
professional, in particular a doctor,
additional considerations apply. A case of
occupational negligence is different from
one of professional negligence. A simple
lack of care an error of judgment or an
accident, is not proof of negligence on the
part of medical professional. So long as a
doctor follows a practice acceptable to the
medical profession of that day, he cannot
be held liable for negligence merely
because a better alternative course or
method of treatment was also available or
simply because a more skilled doctor
would not have chosen to follow or resort
to that practice or procedure which the
accused followed."

10. In the instant case, opposite party
no.2 is alleged to have been operated for
stone in gallbladder at Aryan Hospital,
Tharauli, Siddharth Nagar after depositing
Rs.14,000/-. The case of opposite party
no.2 is that her surgery was done by
applicant and Dr. Skand Mishra, which
was not successful on account of their
medical negligence. There is no case that
after getting the money deposited, her
surgery was not conducted and money was
usurped and thus any fraud was played on
her by applicant, or anybody else. Hence
from averments made in F.I.R., I find that
there is no prima facie evidence of offence
under sections 419 and 420 IPC.

11. As far as offence under section
338 IPC is concerned according to
opposite party no.2 during surgery of her
gallbladder, applicant allegedly given her
dose of anesthesia and he is not alleged to
have conducted any operation by cutting
any part of her body, internally or
externally. There is no whisper that dose of
anesthesia
given
by
applicant
was
excessive or caused any problem or
damage to opposite party no.2. So if
applicant, the Anesthetist, who was posted
at C.H.C. Brijmanganj and was not present
on duty in C.H.C. or was unauthorizedly
present at Aryan Hospital even then he
may not be considered to be negligent for
alleged cut of liver nerve of opposite party
no.2 or of causing any grievous hurt to her.
The averments with regard to offences
under sections 504 and 506 IPC are
ornamental in nature in absence of any
specific
allegations
in
F.I.R.
or
in
statement of opposite party no.2. It is also
pertinent to mention that F.I.R. does not
speak of disappearance of any evidence by
applicant and so there is no prima facie
evidence of offence under section 201 IPC
against applicant.

12. In view of discussions made
above and the law laid down by Apex
Court in the case of Jacob Mathew
(supra) since applicant even if provided
anesthesia to opposite party no.2, prior to
her surgery of removal of gallbladder
stone
at
Aryan
Hospital,
Tharauli,
Siddharth Nagar, he is not alleged to have
committed any breach of duty in providing
inadequate dose of anesthesia and there is
no whisper of any lack of care on his part
or of cutting the nerve of liver of opposite
party no.2 endangering her life, he may
not be considered to be negligent in
performing his duties. Even if for any
negligence
at
the
Aryan
Hospital,
Siddharth Nagar, the same may be liable
under civil law, but applicant Dr. S.K.
Gupta may not be held liable for
negligence
and
endangering
life
of
opposite party no.2 constituting any
offence under section 338 IPC against
applicant. The averments made in F.I.R.
with regard to deposit of Rs.14,000/-
towards operation charges do not constitute
2 All. Shyam Babu & Ors. Vs. State of U.P. & Anr.
1523
any offence under sections 419, 420 IPC and
there are no specific averments with regard to
offences under sections 504, 506 and 201 IPC.
Hence I am in full agreement with the
arguments advanced on behalf of applicant that
his prosecution for offences under sections
419, 420, 338, 504, 506 and 201 IPC is
unwarranted and amounts to abuse of process
of Court and if permitted to continue will cause
unnecessary harassment of a M.B.B.S. Doctor.
There is sufficient ground for quashing the
proceedings of criminal case for preventing
abuse of process of Court and to secure the
ends of justice. Therefore, the application is
liable to be allowed and proceedings of
Criminal Case No.2136 of 2018 (State Vs. Dr.
Sushil Kumar Gupta), relating to Case Crime
No.338 of 2017, under sections 419, 420, 338,
504, 506 and 201 IPC as well as charge sheet
dated 21.3.2018, are liable to be quashed as
against applicant.

13. The application U/s 482 Cr.P.C. is
allowed and the proceedings of Criminal Case
No.2136 of 2018 (State Vs. Dr. Sushil Kumar
Gupta), relating to Case Crime No.338 of
2017, under sections 419, 420, 338, 504, 506
and 201 IPC as well as charge sheet dated
21.3.2018 are quashed, accordingly.

14. However, it is made clear that any
observation made in the body of judgment will
not prejudice the rights of opposite party no.2
in the case pending as against co-accused
person or in civil proceedings, if any, filed by
her.
----------
(2020)02ILR A1523

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.01.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 30776 of 2012

Shyam Babu & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Akhil Kumar Shukla

Counsel for the Opposite Parties:
A.G.A., Sri Radha Mohan Pandey, Sri
Rajendra Kumar Ojha

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 190 (1)(a) -
Section 190 (1)(b) - At the time of
summoning and taking cognizance, under
Section 190 of Cr.P.C., material placed on
case diary, is to be taken in consideration
and once the same is insufficient and further
evidence is being taken, then, procedure
under Chapter XV of Cr.P.C. was required
and Magistrate was to make inquiry under
Section
200
and
202
of
Cr.P.C.
The
Magistrate can ignore the conclusion arrived
at by Investigating Officer and independently
apply his judicial mind to the facts emerging
from the investigation and take cognizance
of the case, if he thinks fit and exercise his
power
under
Section
190
(1)(b).
The
Magistrate is not bound in such situation to
follow the procedure laid down in Section
200 and 202 of Cr.P.C. for taking cognizance
of the case under Section 190 (1)(a),
though, it is open to him to act under
Section 200 and 202 of Cr.P.C. also.

The magistrate cannot take into account
material extraneous to the case diary while
considering a Protest Petition and either the
Magistrate can summon the accused u/s
190(1)(b) ignoring the Final Report or
proceed under Chapter XV of the Code
treating the matter as a Complaint Case. (
Para 5)

Criminal Application allowed.

Case law discussed:-
1. Minu Kumari & anr. Vs. St. Of Bihar, (2006)
4 SCC 359