# Dr. Vipul Shah v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 817
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-30
- **Bench:** Sudhir Kumar Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-vipul-shah-v-state-of-u-p-ors-43944
- **Pages:** 13

## Headnote

Criminal law-Section 482 of Cr.P.C. - Chargesheet dated 09.06.2015 - Cognizance order dated
11.03.2016 - Case Crime No. 246 of 2011 - Sections 420/304 I.P.C. - Orthopedic Surgeon - Prescription
of Lefra (Leflunomide) - Damage in liver - Drug induced hepatitis - Multi organ failure, septicemia with
septic shock and DIC - Not a qualified Rheumatologist - Medical negligence - Intention - Knowledge -
Mens rea - Section 304 I.P.C. - Section 304-A I.P.C. - Laconic and non-speaking order - Application of
mind - Prima facie view - Chargesheet not quashed - Cognizance under Section 304 I.P.C. quashed -
Case for taking cognizance under Section 304-A/420 I.P.C. made out - Fresh order directed.

Brief facts which are culled out from the F.I.R. . Nidhi Srivastava, wife of informant Sudhir Srivastava was
admitted in Sahara Hospital, Lucknow on 17.10.2010 from where she was discharged on 21.10.2010. For
redressal of shoulder pain treatment was done by Dr. Vipul Shah (present petitioner) who even after noticing
the damage in liver (ALT 121) prescribed 'Lefra' (Leflunomide 10mg) alongwith other medicines and called
again. On 05.11.2010, Dr. Shah advised her to continue the same medicines for one month and half. Dr. Shah
did not advise any diagnostic test for liver enzymes nor he informed about adverse effects of Lefra. On
22.11.2010, she became ill again and since then she was getting treatment from different doctors. She was
shifted to Fortis Hospital, Delhi on 23.11.2010. Dr. Ashok Kumar, Rheumatologist informed that liver of
informant's wife has been damaged as a result of Lefra. Ultimately, she expired on 17.01.2011 in the Fortis
Hospital itself. Cause of death was shown to be Lefra induced hepatitis drug. Then, informant wrote to
Torrent Pharmaceutical Limited which informed that the patient having liver problems should not be
prescribed Lefra. Moreover, Dr. Shah did not prescribe any liver guard. He was not competent to prescribe
Lefra as he is only orthopedic Surgeon, as such, Dr. Shah has manifested medical negligence in treatment of
complainant's wife causing her death. Moreover, Dr. Shah's credentials have been disputed by General
Medical Council United Kingdom as well as United State of America. They categorically denied having licensed
Dr. Vipul Shah. He is using forged certificate and claims to be an internationally acclaimed medical practitioner
etc.(Para 5-7)

Submission of Sri Jyotindra Mishra, learned Senior counsel is that petitioner is an orthopedic Surgeon and has
used his knowledge and discretion in prescribing the medicines for shoulder pain of patient. There was no
intention of knowledge which could be attributed to petitioner so as to attract Section 304 I.P.C. Moreover,
after getting treatment from petitioner, patient was taken to different doctors and hospitals and it cannot be
said that cause of death could only be 'Lefra', prescribed by the petitioner.(Para10)

Sudhir Kumar Srivastava (complainant) has filed

## Text

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5 All. Dr. Vipul Shah Vs State Of U.P. & Ors.

817

10. Every citizen in this country has the right to have recourse to law. He has the right to
move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he
does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from
moving the court for bail by clamping an order of detention. The possibility of the Court granting bail may
not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be
enough. There must also be credible information or cogent reasons apparent on the record that the
detenu, if enlarged on bail, would act prejudicially to the interest of public order. That has been made
clear in Binod Singh v. District Magistrate Dhanbad, [1986] 4 SCC 416 at 421, where it was observed:

"A bald statement is merely an ipse dixit of the officer. If there were cogent materials for
thinking that the detenu might be released then these should have been made apparent. Etemal vigilance
on the part of the authority charged with both law and order and public order is the price which the
democracy in this country extracts from the public officials in order to protect the fundamental freedoms
of our citizens."

11. In the instant case, there was no material made apparent on record that the detenue, if released on
bail will indulge in activities prejudicial to the maintainance of public order. The detention order appears to
have been made merely on the ground that the petitioner who was in jail had moved an application for bail
and there was strong possibility of his being released bailed out. We do not think that the impugned order of
detention can be justified on that basis.

12. The habeas corpus writ petition succeeds and is allowed. The impugned detention order dated
20.08.2015 passed by District Magistrate, Meerut, respondent no.2 is hereby quashed.

13. The petitioner shall be forthwith releassed, if he is not wanted in any other case.

14. There shall however be no order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.05.2016

BEFORE

THE HON'BLE SUDHIR KUMAR SAXENA, J.

U/S 482/378/407 No.- 1670 Of 2016

Dr. Vipul Shah ...Applicant
Versus
State Of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Kapil Misra
818 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
Govt. Advocate, A P Singh

Criminal law-Section 482 of Cr.P.C. - Chargesheet dated 09.06.2015 - Cognizance order dated
11.03.2016 - Case Crime No. 246 of 2011 - Sections 420/304 I.P.C. - Orthopedic Surgeon - Prescription
of Lefra (Leflunomide) - Damage in liver - Drug induced hepatitis - Multi organ failure, septicemia with
septic shock and DIC - Not a qualified Rheumatologist - Medical negligence - Intention - Knowledge -
Mens rea - Section 304 I.P.C. - Section 304-A I.P.C. - Laconic and non-speaking order - Application of
mind - Prima facie view - Chargesheet not quashed - Cognizance under Section 304 I.P.C. quashed -
Case for taking cognizance under Section 304-A/420 I.P.C. made out - Fresh order directed.

Brief facts which are culled out from the F.I.R. . Nidhi Srivastava, wife of informant Sudhir Srivastava was
admitted in Sahara Hospital, Lucknow on 17.10.2010 from where she was discharged on 21.10.2010. For
redressal of shoulder pain treatment was done by Dr. Vipul Shah (present petitioner) who even after noticing
the damage in liver (ALT 121) prescribed 'Lefra' (Leflunomide 10mg) alongwith other medicines and called
again. On 05.11.2010, Dr. Shah advised her to continue the same medicines for one month and half. Dr. Shah
did not advise any diagnostic test for liver enzymes nor he informed about adverse effects of Lefra. On
22.11.2010, she became ill again and since then she was getting treatment from different doctors. She was
shifted to Fortis Hospital, Delhi on 23.11.2010. Dr. Ashok Kumar, Rheumatologist informed that liver of
informant's wife has been damaged as a result of Lefra. Ultimately, she expired on 17.01.2011 in the Fortis
Hospital itself. Cause of death was shown to be Lefra induced hepatitis drug. Then, informant wrote to
Torrent Pharmaceutical Limited which informed that the patient having liver problems should not be
prescribed Lefra. Moreover, Dr. Shah did not prescribe any liver guard. He was not competent to prescribe
Lefra as he is only orthopedic Surgeon, as such, Dr. Shah has manifested medical negligence in treatment of
complainant's wife causing her death. Moreover, Dr. Shah's credentials have been disputed by General
Medical Council United Kingdom as well as United State of America. They categorically denied having licensed
Dr. Vipul Shah. He is using forged certificate and claims to be an internationally acclaimed medical practitioner
etc.(Para 5-7)

Submission of Sri Jyotindra Mishra, learned Senior counsel is that petitioner is an orthopedic Surgeon and has
used his knowledge and discretion in prescribing the medicines for shoulder pain of patient. There was no
intention of knowledge which could be attributed to petitioner so as to attract Section 304 I.P.C. Moreover,
after getting treatment from petitioner, patient was taken to different doctors and hospitals and it cannot be
said that cause of death could only be 'Lefra', prescribed by the petitioner.(Para10)

Sudhir Kumar Srivastava (complainant) has filed written statement and cited certain decisions. First case cited
by complainant is a decision given by Division Bench of this Court given in the case of Dr. Arun Kumar
Srivastava Vs. State of U.P. and others [writ petition no. 6587 of 2015 (MB)]. In this case, Bench observed
that doctor had no training of leparoscopy surgery and he had done surgery in private hospital which was
prohibited for the government doctor and patient was referred to private nursing home, albeit, all the facilities
including ICU etc were available in Lohia Hospital. There was no emergency of immediate operation. In these
facts, it was found that Section 304A is not attracted. In this case patient had died due to extra ordinary
bleeding as a result of injury to the inferior venacava.(Para 29)

Held: Para-(42,43,44)

(1) This petition succeeds in part. Chargesheet is not quashed. Order taking cognizance dated 11.03.2016,
under Section 304/420 I.P.C. is quashed. Case for taking cognizance under Section 304-A/420 I.P.C. is
definitely made out. C.J.M. is directed to pass fresh order in the light of observations made above within a
week from the date a certified copy of this order is filed before him. Petitioner is directed to appear before the
5 All. Dr. Vipul Shah Vs State Of U.P. & Ors.

819
learned Magistrate within two weeks from today. If he surrenders within two weeks from today and apply for
bail, his prayer for bail will be considered by C.J.M. in accordance with law, expeditiously, in view of the law
laid down by Hon'ble Apex Court in the case reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh
Vs. State of U.P. It is open for C.J.M. to resort to all the processes against petitioner which are admissible in
law, if he does not surrender within fifteen days.

Case Law discussed:

1. Dr. Arun Kumar Srivastava Vs.State of U.P. and others Writ Petition No.6587 of 2015(MB)-Para 29
2. State of Maharashtra Vs. Salman Salim Khan and another (2004) 1 SCC 525 - Para 3
3. Mahadev Prasad Kaushik Vs. State of U.P. and another(2008)14 SCC 479-Paras 31-32
4. Bhushan Kumar and another Vs. State (NCT of Delhi) and another (2012) 5 SCC 424 - Para 33
5. State of Orissa and another Vs. Saroj Kumar Sahoo (2005) 13 SCC 540 - Paras 34-35
6. Lal Kamlendra Pratap Singh Vs. State of U.P.2009 (3) ADJ 322 (SC) - Para 44.

(Delivered by Hon'ble Sudhir Kumar Saxena, J.)

1. This petition has been filed under Section 482 of Cr.P.C. challenging the chargesheet
dated 09.06.2015 and cognizance order dated 11.03.2016 passed by Chief Judicial Magistrate,
Lucknow in Case Crime No. 246 of 2011, summoning petitioner under Sections 420/304 I.P.C.

2. Heard Sri Jyotindra Mishra, learned Senior Counsel assisted by Sri Kamlesh Mishra,
learned counsel for petitioner as well as Sri. Sudhir Srivistava (complainant), in person.

3. It appears that petitioner had approached this Court by means of Writ Petition No. 8186
of 2011(MB) seeking quashment of the F.I.R. Division Bench of this Court while dismissing the
said writ petition on 25.08.2011 observed that F.I.R. does disclose a cognizable offence and
permitted petitioner to surrender before the courts below and move the application for bail which
was to be considered expeditiously.

4. Matter was taken to Apex Court by means of S.L.P. no. 7122 of 2011 in which initially
an interim order was passed but said S.L.P. was dismissed vide order dated 24.02.2016 which is
being reproduced below:

"It is submitted at the Bar that the charge-sheet has already been filed in the matter,
therefore, it is not a fit case for our interference to quash the FIR. Hence, the special leave petition
is dismissed. However, it is open for the petitioner to urge all such contentions available for him in
law at the time of considering of framing of charge by the trial court.

Further, as prayed, four weeks' time is granted to the petitioner to surrender and seek
regular bail. If such an application is filed, the same shall be considered and disposed of in
accordance with law expeditiously.

All pending application(s) stand(s) disposed of."
820 INDIAN LAW REPORTS ALLAHABAD SERIES
5. After dismissal of the S.L.P., learned C.J.M. Passed the order dated 11.03.2016 which
has been impugned in this petition. C.J.M. has observed that prima facie there is sufficient ground
to take cognizance and it cannot be said that there is no material to take cognizance. Consequently,
application moved by petitioner challenging the cognizance order was rejected.

6. Before coming to merits of the case, it is necessary to give brief facts which are culled
out from the F.I.R.

7. Nidhi Srivastava, wife of informant Sudhir Srivastava was admitted in Sahara Hospital,
Lucknow on 17.10.2010 from where she was discharged on 21.10.2010. For redressal of shoulder
pain treatment was done by Dr. Vipul Shah (present petitioner) who even after noticing the damage
in liver (ALT 121) prescribed 'Lefra' (Leflunomide 10mg) alongwith other medicines and called
again. On 05.11.2010, Dr. Shah advised her to continue the same medicines for one month and
half. Dr. Shah did not advise any diagnostic test for liver enzymes nor he informed about adverse
effects of Lefra. On 22.11.2010, she became ill again and since then she was getting treatment from
different doctors. She was shifted to Fortis Hospital, Delhi on 23.11.2010. Dr. Ashok Kumar,
Rheumatologist informed that liver of informant's wife has been damaged as a result of Lefra.
Ultimately, she expired on 17.01.2011 in the Fortis Hospital itself. Cause of death was shown to be
Lefra induced hepatitis drug. Then, informant wrote to Torrent Pharmaceutical Limited which
informed that the patient having liver problems should not be prescribed Lefra. Moreover, Dr. Shah
did not prescribe any liver guard. He was not competent to prescribe Lefra as he is only orthopedic
Surgeon, as such, Dr. Shah has manifested medical negligence in treatment of complainant's wife
causing her death. Moreover, Dr. Shah's credentials have been disputed by General Medical
Council United Kingdom as well as United State of America. They categorically denied having
licensed Dr. Vipul Shah. He is using forged certificate and claims to be an internationally
acclaimed medical practitioner etc.

8. On this F.I.R. dated 12.08.2011, case was registered at Crime No. 246 of 2011, under
Sections 420/304-A (?) I.P.C., Police Station Kaiserbagh, District Lucknow. After investigation,
chargesheet was submitted under Sections 304/420 I.P.C. on 09.06.2015. Cognizance was taken on
the same day by C.J.M., rejecting the application filed by Dr. Vipul Shah challenging the
cognizance. Both chargesheet and cognizance order dated 11.03.2016 have been challenged in this
petition.

9. Allegations and counter allegations have been made with respect to manipulation in the
F.I.R. as well as with respect to fairness of investigation. Now, that chargesheet has been submitted
under Sections 304/420 I.P.C., this Court does not think it necessary to deal with these allegations
as they have now become fully irrelevant. And for this very reason, submission of closure report or
changing investigations are not being noticed.

10. Submission of Sri Jyotindra Mishra, learned Senior counsel is that petitioner is an
orthopedic Surgeon and has used his knowledge and discretion in prescribing the medicines for
shoulder pain of patient. There was no intention of knowledge which could be attributed to
5 All. Dr. Vipul Shah Vs State Of U.P. & Ors.

821
petitioner so as to attract Section 304 I.P.C. Moreover, after getting treatment from petitioner,
patient was taken to different doctors and hospitals and it cannot be said that cause of death could
only be 'Lefra', prescribed by the petitioner.

11. Before adverting to the submissions advanced by learned counsel for the petitioner,
some more details are necessary which did not find mention in the F.I.R. but available on record.

12. A complaint has been filed by Sudhir Kumar Srivastava (complainant) before NCDRC.
Relevant extract of complaint is being reproduced below:

".......Ultimately she died also not due to any preexisting disease but died due
to drug induced hepatitis which resulted into her acute liver failure. This act of gross negligence
was committed initially by Dr. Vipul Shah, M.S. (Orthopaedics), by prescribing Lefra, a
hepatotoxic drug contraindicated in patients with impairment of liver function, which actually
induced hepatitis, without having done the necessary tests for Rheumatoid Arthritis and which he
was not authorised to prescribe because he was not a qualified Rheumatologist.

...............Subsequently the later doctors namely, Dr. Nirmal Kumar Jain,
M.B.B.S., and D.T.C.D., Dr. Anil Saraswat, M.D. (Medicine) and Dr. Shailendra Jain, M.D. (Skin
and V.D.), failed to take corrective treatment for drug Lefra elimination by administering
Cholestyramine to washout already accumulated drug lefra even after having full knowledge of the
fact that Nidhi had taken lefra for one month and in fact even after recording it as case of a drug
reaction.

..............Doctors of Sri Ganga Ram Hospital, New Delhi diagnosed the disease
wrongly as autoimmune Hepatitis and autoimmune Vasculitis instead of drug induced hepatitis and
drug induced Exfolative dermatitis although the required hallmark Lab test (ANA) to diagnose
Autoimmune Hepatitis was found to be negative in the very beginning and repeatedly found
negative in subsequent tests also. Even though there was clear indication in the prior medical
records that it could be drug reaction and repeatedly requested by the complainant to confirm the
drug reaction, they did not give any attention. Instead of immediately initiating washout of
accumulated drug Lefra, they prescribed several others medicines although they were fully aware
of the WHO certified hepatotoxic drugs lefra (LefluNomide) and SAAZ DS (Sulfasalazine) having
been taken by the patient for one month."

13. From the above, it is apparent that complainant claims that Dr. Vipul Shah prescribed
Lefra. Thereafter, some negligence has been shown by Dr. Nirmal Jain, Dr. Anil Saraswat, Dr.
Shailendra Jain and also by doctors of Ganga Ram Hospital, New Delhi. It is not said that Dr. Vipul
Shah alone is responsible for the death of complainant's wife, although he may be responsible
initially for prescribing contraindicated medicine Lefra. It further appears from the complaint that
on 13.10.2010, patient developed high fever and recurrent vomiting at Etah as informant was
posted as Branch Head, Axis Bank at Etah. On 14.10.2010, Dr. Mukesh Chandra Jain was
consulted who treated patient for three days. He also prescribed blood test. On 17.10.2010, patient
822 INDIAN LAW REPORTS ALLAHABAD SERIES
was admitted in Super Specialty Sahara Hospital, Lucknow where she was treated for four days. On
21.10.2010, she was discharged from the hospital in satisfactory condition with diagonosis of fever
and thrombocytopenia. Even after discharge, patient felt acute pain in her right shoulder which was
brought to the notice of concerned doctor of Sahara Hospital but that was not taken to be serious
matter citing post viral effect and she was advised to take heating from pad and full rest. She was
called for review after five days. On 23rd October, 2010, patient was taken to Dr. Vipul Shah,
Orthopedic Surgeon (present petitioner), at F.I. Hospital, Lucknow. Complainant had been earlier
also treated by Dr. Shah for lower back pain. Petitioner noticed the derangement of liver function
and prescribed Lefra 10 mg twice daily alongwith Nimulid (Nimesulide) and SAAZ-DS
(Sulfasalazine). She was advised to come after three days. On 5th November, 2010, petitioner was
again consulted and said that pain has subsided. During this period, however, patient was advised
to continue the same medicine for one month and half. Nimulid and termedol (?) were withdrawn.
On 22.11.2010, patient developed headache and mild fever, she took two tablets of Seridon but
with no relief. She also developed some skin rashes. On 23.11.2010, Dr. N.K. Jain, Physician and
Chest specialist at Etah was approached who advised some diagnostic test and some liver test.
After examining the report, Dr. Jain prescribed medicines for malaria and tablet Allegra for skin
rashes. He advised to discontinue the medicines prescribed by present petitioner. On 27.11.2010,
Dr. Anil Saraswat of Agra was consulted who advised patient's admission in the Pushpanjali
Hospital, Agra. On 28.11.2010, complainant's wife was admitted in Pushpanjali Hospital, Agra
where she was diagnosed with PUO (PYREXIA OF UNKNOWN ORIGIN), however, malarial
pyrexia with Urticaria was also suspected. She remained there for four days and treated with steroid
Solu Medrol and other medicines. However, her skin problems turned acute and she was unable to
eat anything due to mouth sores, albeit, fever had subsided on 30.11.2010. On 29.11.2010, Dr.
Shailendra Jain, Dermatologist of Pushpanjali Hospital had given the reason for skin rashes and
prescribed medicines for it. On 02.12.2010, she was discharged from Pushpanjali Hospital with
reduced fever. On 3rd December, 2010, Nidhi developed high fever in the morning. Dr. Anil
telephonically advised to continue the medicines earlier prescribed in Pushpanjali Hospital in
addition to Calpol but with no relief. On 04.12.2010, patient was again admitted in Pushpanjali
Hospital, Agra. On the advice of Dr. Anil Saraswat, some tests were further conducted. She was
diagnosed as a case of PUO with UTI with septicemia and fever with hepatitis. On 05.12.2010,
noticing high level of ALT 1077, husband of patient contacted Dr. Vipul Shah telephonically who
advised to consult doctor at Sir Ganga Ram Hospital, New Delhi. Dr. Anil Saraswat also referred
her to SGRH, New Delhi. On 06.12.2010, she was attended by one doctor in SGRH where she was
admitted in the evening. On 07.12.2010, Dr. Anil Arora, Chief Consultant, Gastroenterology Dept.
attended her and Dr. Subhash Chand Bharija also came to see her. On 14.12.2010, skin biopsy
report came which showed vasculitis, Lymphocyte type with the remark that the possibility of drug
aetiology cannot be ruled out. On 17.12.2010, multi disciplinary team of SGRH diagnosed her as a
patient of autoimmune vasculitis with Autoimmune Hepatitis with sepsis and steroid Solu Medrol
was started for treatment. On 20.12.2010, after completion of Trans jugular Liver biopsy, she
experienced breathlessness and developed pulmonary edema. Consequently, she was shifted in
I.C.U. on Ventilator. On 21.12.2010, patient's condition become serious. Dr. Anil Arora advised
complainant to consult Dr. Malviya, Rheumatologist/Immunologist of Indian Spinal Injuries Centre
or Dr. Ashok Kumar of Fortis Hoispital.
5 All. Dr. Vipul Shah Vs State Of U.P. & Ors.

823
14. Dr. Arora also advised to visit Dr. Sanjeev Kapoor in Noble Medicare for the purpose
of consulting Dr. A.N. Malviya. Dr. Sanjeev Kapoor expressed his inability to refer his case to Dr.
A.N. Malviya citing his preoccupation. On 22nd December, 2010, complainant approached Dr.
Bimlesh Dhar Pandey, associate of Dr. Ashok Kumar for the purpose of consulting Dr. Ashok
Kumar who advised admission in Fortis Hospital. On 23.12.2010, patient was admitted in Fortis
Hospital and kept on Ventilator. Dr. Ashok Kumar prescribed Cholestyramine and other necessary
medicines for elimination of drug Lefra, however, deceased could not survive and she died due to
multi organ failure, septicemia with septic shock and DIC on 17.01.2011.

15. From the above history which was placed before this Court, it is apparent that Dr.
Ashok Kumar pointed out that Lafra, a hepatotoxic contraindicated medicine was cause of
hepatitis. Patient was last seen by Dr. Vipul Shah on 05.11.2010. According to prosecution,
thereafter, number of doctors at Etah, Agra and Delhi were consulted. Patient was admitted in
SGRH and Fortis Hospital in Delhi. She was also admitted in Pushpanjali Hospital Agra twice.
Remained in Sir Ganga Ram Hospital from 06.12.2010 to 22.12.2010 and in Fortis Hospital from
23.12.2010 to 17.01.2011. She remained in Pushpanjali Hospital, Agra for five days, for seventeen
days in SGRH, New Delhi and for twenty five days in Fortis Hospital.

16. It is contended that Dr. Vipul Shah also prescribed a liver guard i.e. Carnisure for
protecting liver and muscle. It is further contended that Dr. Shah had called patient after three days
i.e. on 26th October, 2010 but patient did not come. It has come on record that Medical Council of
India has found petitioner guilty of professional misconduct and he was suspended for two years.
Finding him guilty of not proper patient management Dr. Vipul Shah was suspended for a period of
three years. Consequently, name of Dr. Shah was ordered to be removed from the register for a
period of three years. It is stated that order of Medical Council of India has been stayed by this
Court vide order dated 24.06.2014 passed in Writ Petition No. 5227 of 2014 (MB) on the ground
that Medical Council of India cannot permit filing of appeal beyond limitation. A committee was
constituted by C.M.O., Lucknow who also found out no negligence but same is of no relevance at
this stage.

17. According to prescription dated 23.10. 2010, patient was diagnosed with post viral
myalgia which also mentions derange liver. Patient was prescribed Lefra 10mg tablet and tablet
SAAZ alongwith Carnisure. On 17.10.2010, ALT level of patient was 179.0 which was raised
(normal range is 0-42). It is apparent from the Sahara Pathology report dated 21.10.2010 that
reading had come down to 121-131 which shows improvement in parameters. On 5th November,
2010, aloevera, glucosemine, Carnisure, SAAZ and ecozyme were prescribed. Nimulid and
termedol were withdrawn.

18. From the death certificate, it is apparent that she died due to multi organ failure,
septicemia with septic shock and DIC and antecedent cause was drug (Lefra) induced hepatitis.

19. Report of Torrent Pharmaceutical does show that lefra had to be prescribed by qualified
Rheumatologist. Lefra is only for the treatment of rheumatoid arthritis. Report also indicates that
824 INDIAN LAW REPORTS ALLAHABAD SERIES
Lefra is an immunomodulator and can cause hematological reactions including thrombocytopenia.
Report clarifies that in some patient severe liver injury and liver failure has been reported,
increased side effects may occur when given concomitantly with other drug like hepatotoxic
potential i.e. nimesulide, chloroquine etc.

20. It is not certain if Dr. Shah was qualified Rheumatologist. There is statement of Fortis
Hospital itself which has been annexed with this petition as annexure -5. Reply sought by Dr. Shah
whether he is 100% sure that problem was caused due to Lefra. Dr. Ashok Kumar replied to the
effect that 'no' and Lefra was considered as a probable cause. Attempt was made to wash out the
drug which led to amelioration in skin rashes. However, liver did not improve. It was also informed
by the Fortis Hospital that no drug level test was done to confirm the antecedent cause.

21. From the above discussion, it is apparent that it cannot be said with certainty if Lefra
taken for 18 days alone caused skin rashes, liver failure and septicemia. Patient was taken to Dr.
Vipul Shah on 23rd October, 2010. Lefra was taken for 18 days. In the F.I.R., there is no mention of
other medicines prescribed by Dr. Shah i.e. Nimulid (Nimesulide), SAAZ-DS (Sulfasalazine) and
Carnisure etc. Dr. Shah may not be a Rheumatologist. He had treated complainant earlier with
relief. Furthermore, discharge slip of Sahara Hospital shows that patient was suffering from
thrombocytopaenia. Lefra was given her after discharge from Sahara Hospital.

22. This is a technical area and even experts cannot say with certainty as to what could be
the causes or single cause for death. Judges are also not expert of this science. It has come
thereafter patient was treated by Dr. Vipul Shah, number of doctors including super specialty
doctors at Agra, Fortis and SGRH, New Delhi. According to informant, even those doctors could
not make correct diagnosis and diagnosis made by SGRH, New Delhi was doubted by Fortis
Hospital when super specialty Hospital differ on diagnosis, could a single act ought to be faulted
for death, especially when this medicine was allegedly taken only for 18 days. She remained in
various hospitals including two reputed hospitals nearly for two months. It is not on record that
when she was admitted in SGRH or Pushpanjali Hospital, her liver had become completely
damaged. There is no material whether she had taken all the medicines alongwith Lefra. Death was
not instantaneous. Loaded dose of Lefra 100 mg was not prescribed, only 10 mg was prescribed.
Death was caused nearly after two months and 20 days.

23. Is it possible to say with certainty that drug Lefra administered by Dr. Vipul Shah
which patient took for 18 days, even if complaint case is accepted in toto, was the sole cause of
liver damage and septicemia which could not be controlled by various hospitals detailed above.

24. Dr. Vipul Shah was suspended for three years by Medical Council of India for without
properly explaining medicine's adverse effect. Moreover, he was not Rheumatologist. These
material, prima facie, show that Dr. Shah had prescribed the medicines without properly informing
the attendant with the side effects, may be or may not be in ignorance of its side effects. Can it be
said that Dr. Vipul Shah was guilty of culpable homicide or will it be a case of gross criminal
5 All. Dr. Vipul Shah Vs State Of U.P. & Ors.

825
negligence. In the absence of any material showing that Dr. Shah had intention or knowledge that
prescription of Lefra could cause death, could he be chargesheeted under Section 304 I.P.C.

25. Intention is an invisible fact which can be inferred from surrounding circumstances and
pre and post conduct. Admittedly, complainant had earlier been patient of Dr. Shah who had treated
his lower back pain with satisfaction. There was no enmity or reason for causing damage to liver.
Moreover during the period wife was under treatment of different doctors, complainant kept on
informing and consulting Dr. Shah. This displays faith on him. This could be an act of ignorance
may be because of anxiety to show early relief, especially when parameters had progressed as is
apparent from the report of Sahara Hospital. Doctor has to take number of decisions in the best
interests of patient on the spot. Reaction of medicines on every body is different, in fact every body
is different. As such, in the absence of any specific material, it could not be possible to charge a
doctor with mens rea. He is supposed to keep best interests of patient in mind. Every medicine has
some side effect. Sometimes in order to check greater damage or bring immediate relief,
contraindicated medicines are prescribed and liver or kidney are taken care of by prescribing
protective guards.

26. In the case of Carcinoma, drugs are prescribed which almost compromise the immunity
of the body yet they are administered in order to save the life and liver and kidney guard medicines,
enzymes,' bacterias for protecting elementary canal are prescribed. For preventing greater damage
and for guarding other important organs of the body, some decision have to be left with the doctor
and in such cases doctor cannot be faulted by Court. Needless to say that doctors are human. They
only treat according to their knowledge, experience and wisdom. Criminal prosecution should not
be initiated in every case of failure. This Court can very well visualize the agony of husband whose
wife's condition was worsening day by day and he was running from doctor to doctor, hospital to
hospital to save his wife. His efforts, helplessness do arouse emotional outrage. His mental agony,
pressure and suffering are difficult to explain.

27. It was very difficult to endure this period and Court has full sympathy with the
complainant but rigors of law can't be diluted so as to bring in criminal prosecution for murder.

28. Balancing act is expected from the Court. Medical profession and doctors have also to
be saved from unnecessary litigation allowing them to discharge their duties fearlessly sans a
lurking fear of Court/litigation and the ordeal it follows. He may be incompetent or negligent but
not guilty of culpable homicide.

29. Sudhir Kumar Srivastava (complainant) has filed written statement and cited certain
decisions. First case cited by complainant is a decision given by Division Bench of this Court given
in the case of Dr. Arun Kumar Srivastava Vs. State of U.P. and others [writ petition no. 6587
of 2015 (MB)]. In this case, Bench observed that doctor had no training of leparoscopy surgery and
he had done surgery in private hospital which was prohibited for the government doctor and patient
was referred to private nursing home, albeit, all the facilities including ICU etc were available in
Lohia Hospital. There was no emergency of immediate operation. In these facts, it was found that
826 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 304A is not attracted. In this case patient had died due to extra ordinary bleeding as a result
of injury to the inferior venacava.

30. In the case of State of Maharashtra Vs. Salman Salim Khan and another [(2004) 1
SCC 525], charge has been framed under Section 304-A of I.P.C. Hon'ble Apex Court upheld the
judgment of the High Court directing to frame charge under Section 304-A I.P.C. and said that it is
the discretion of Magistrate to alter it, if he comes with the conclusion that some graver offence is
made out.

31. In the case of Mahadev Prasad Kaushik Vs. State of U.P. and another [(2008) 14
SCC 479], patient Buddha Ram had died within half an hour, immediately after accused
administered three injections. Relevant paragraph nos. 26, 28, 29, 32 and 47 are being reproduced
below:

"26. Before Section 304 can be invoked, the following ingredients must be
satisfied (i) the death of the person must have been caused; (ii) such death must have been caused
by the act of the accused by causing bodily injury; (iii) there must be an intention on the part of
the accused (a) to cause death; or (b)to cause such bodily injury which is likely to cause death;
(Part I) or (iv) there must be knowledge on the part of the accused that the bodily injury is such that
it is likely to cause death (Part II).

28.The section deals with homicidal death by rash or negligent act. It does not
create a new offence. It is directed against the offences outside the range of Sections 299
and 300, IPC and covers those cases where death has been caused without `intention' or
`knowledge'. The words "not amounting to culpable homicide" in the provision are
significant and clearly convey that the section seeks to embrace those cases where there is neither
intention to cause death, nor knowledge that the act done will in all probability result into
death. It applies to acts which are rash or negligent and are directly the cause of death of another
person.

29. There is thus distinction between Section 304 and Section 304A. Section 304A
carves out cases where death is caused by doing a rash or negligent act which does not amount to
culpable homicide not amounting to murder within the meaning of Section 299 or culpable
homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all
the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the
`motivating force' of the act complained of, Section 304A will have to make room for the graver
and more serious charge of culpable homicide not amounting to murder or amounting to murder as
the facts disclose. The section has application to those cases where there is neither intention to
cause death nor knowledge that the act in all probability will cause death.

32. The learned counsel for the appellant-accused submitted that by no stretch of
imagination, it can be said that the appellant while administering injections to deceased Buddha
Ram said to have committed an offence punishable under Section 304, IPC. It can never be said
5 All. Dr. Vipul Shah Vs State Of U.P. & Ors.

827
that the death of Buddha Ram had been caused by the appellant by doing the act of giving
injections with intention to cause his death or to cause such bodily injury as is likely to cause death.
Likewise, it is impossible to think that the purported act has been done by the appellant-accused
with the knowledge that in all probability, it would result into the death of Buddha Ram.

47. For the foregoing reasons, in our judgment, the appeal deserves to be partly
allowed. So far as issuance of process for offences punishable under Sections 504 and 506, IPC is
concerned, it is liable to be quashed and is hereby quashed. Likewise, process for an offence
punishable under Section 304, IPC is ill-conceived on the facts of the case and the process could
only be issued by the learned Magistrate to the appellant-accused for an offence punishable under
Section 304A, IPC. The appeal is accordingly allowed to the extent indicated above."

(emphasis supplied)

32. In this case too instantaneous death had occurred and Section 304 I.P.C. was not found
to be applicable.

33. The case of Bhushan Kumar and another Vs. State (NCT of Delhi) and another
[(2012) 5 SCC 424] is on the requirement of Magistrate to give reasons while taking cognizance.

34. The case of State of Orissa and another Vs. Saroj Kumar Sahoo [(2005) 13 SCC
540] is pertaining to criminal negligence and demonstrates the High Courts' powers under Section
482 Cr.P.C. Relevant para of the judgment is being reproduced below:

"It is to be noted that the investigation was not complete and at that stage it was
impermissible for the High Court to look into materials, the acceptability of which is essentially a
matter for trial. While exercising jurisdiction under Section 482 of the Cr.P.C., it is not permissible
for the Court to act as if it was a trial Court. Even when charge is framed at that stage, the Court
has to only prima facie be satisfied about existence of sufficient ground for proceeding against the
accused. For that limited purpose, the Court can evaluate material and documents on records but it
cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether
the materials produced are sufficient or not for convicting the accused. In Chand Dhawan (Smt.) v.
Jawahar Lal and Ors., [1992] 3 SCC 317, it was observed that when the materials relied upon by a
party are required to be proved, no inference can be drawn on the basis of those materials to
conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions
under Section 482 of the Cr.P.C., which cannot be termed as evidence without being tested and
proved."

35. This case does not apply on the facts of present case. In this case, it has been held that
order of taking cognizance can be examined by this Court under Section 482 Cr.P.C. Relevant
paragraph is being reproduced below:
828 INDIAN LAW REPORTS ALLAHABAD SERIES
"Inherent jurisdiction under the section though wide has to be exercised sparingly,
carefully and with caution and only when such exercise is justified by the tests specifically laid
down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice
for the administration of which alone courts exist. Authority of the court exists for advancement of
justice and if any attempt is made to abuse that authority so as to produce injustice, the court has
power to prevent abuse. It would be an abuse of process of the court to allow any action which
would result in injustice and prevent promotion of justice. In exercise of the powers court would be
justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the
process of court or quashing of these proceedings would otherwise serve the ends of justice. When
no offence is disclosed by the report, the court may examine the question of fact. When a report is
sought to be quashed, it is permissible to look into the materials to assess what the report has
alleged and whether any offence is made out even if the allegations are accepted in toto."

36. In this case at hand, Hon'ble Apex Court was pleased to dismiss the S.L.P. as
chargesheet has been filed. After dismissal of appeal, cognizance has been taken by learned
Magistrate vide order dated 11.03.2016 which order has been challenged in this Court.

37. Submission of complainant that petition is not maintainable, does not appeal as cause
of action has arisen on account of impugned order passed by C.J.M., taking cognizance on
11.03.2016.

38. Allegations of concealment or manipulation or influencing investigation or change of
investigation officer, are not being examined as chargesheet has been filed.

39. In view of the above, this Court is of the view that C.J.M. while taking cognizance has
not considered the material nor given any specific reason for taking cognizance under Section 304
I.P.C. In fact, his order is laconic and non-speaking. Application was filed before C.J.M. and
therefore, while considering the application, he ought to have applied his mind to material on
record.

40. In view of the discussion made above, from the record of prosecution this Court is
prima facie of the view that there was no justification to take cognizance under Section 304 I.P.C.
However, considering the facts and circumstances of the case, it cannot be said that offence under
Section 304-A I.P.C. is not made out.

41. Even otherwise C.J.M. is not bound by opinion of I.O. He has to apply his mind to the
papers submitted by I.O. and then take a decision of taking cognizance.