# Lavkush Yadav v. State Of U.P. & Anr

- **Citation:** (2025) 7 ILRA 139
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-17
- **Case number:** Matters Under Article 227 No. 7176 of 2025
- **Bench:** Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lavkush-yadav-v-state-of-u-p-anr-53604
- **Pages:** 4

## Headnote

G.A.

Issue for Consideration
Whether the rejection of the petitioner's
application under S.173(4) BNSS, alleging
medical negligence by a government doctor,
leading to the death of petitioner's two-monthold daughter. was justified.

Headnotes
Medical Negligence - Criminal Liability -
Petition under Article 227 - S.173(4)
BNSS - Allegations against a government
doctor for not being present during
emergency treatment of petitioner's child
- Doctor was present in the hospital
premises,
engaged
in
official
duties;
patient attended by junior doctors -
Criminal
negligence
of
a
medical
practitioner must be clearly established
before prosecution.
140 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: No illegality in the orders impugned -
Evidence showed that the doctor was present in
the hospital and performing official duties; the
patient was treated by competent staff - No
negligence on the part of the medical staff - No
case of criminal rashness or negligence was
made out - Rejection of the application under
S.173(4) BNSS and the revision therefrom was
justified. (Paras 11,12,13,14,15) (E-7)

Case Law Cited
Jacob Mathew v. State of Punjab and Another,
(2005) 6 SCC 1

List of Acts
Constitution of India; Bhartiya Nagarik Suraksha
Sanhita, 2023 (BNSS)

List of Keywords
Medical negligence; Emergency; Inquiry report;
biometric system; Child death; No gross medical
negligence.

Case Arising From
Application No. 475 of 2024 under S. 173(4)
BNSS before the Chief Judicial Magistrate,
Azamgarh, rejected by order dated 10.10.2024;
Criminal Revision No. 363 of 2024 before the
District
and
Sessions
Judge,
Azamgarh,
dismissed by order dated 11.3.2025.

Appearances for Parties
Advs. for the Appellant/Petitioner: Suneel
Kumar Yadav
Advs. for the Respondents: Government
Advocate (G.A.)

## Text

7 All. Lavkush Yadav Vs. State of U.P. & Anr.
139

(iv) Award the cost of the
abovenoted petition in favor of the
plaintiffs/petitioners."

3. It has been submitted by learned
counsel for the petitioner that the petitioner
lodged a complaint bearing Complaint Case
No. 5385 of 2022 against the respondentaccused which was dismissed by the
Additional Chief Judicial Magistrate, Court
No. 01, Agra vide order dated 08.12.2023
under Section 203 Cr.P.C.

4. Being aggrieved by the said order,
the petitioner preferred a criminal revision
before the learned District & Sessions
Judge, Agra wherein the criminal revision
was dismissed for want of prosecution vide
order dated 20.5.2024, passed by the
learned Revisional Court.

5. Learned counsel for the petitioner
has relied upon the judgement of Hon'ble
Supreme Court in Taj Mohammad vs.
State of Uttar Pradesh & Another, 2023
LiveLaw (SC) 689 wherein the Hon'ble
Supreme Court emphasised that: "even in
the absence of a party or his counsel, a
revision petition calls for consideration on
merits in accordance with the parameters
for consideration of a revision petition".

6. It has been emphasized that the
Revisional
Court
had
dismissed
the
revision for want of prosecution which is
against the mandate of law as discussed
above.

7.
Accordingly,
considering
the
aforesaid facts and circumstances of the
case as well as in light of the observations
as discussed above, the order dated
20.5.2024 passed by Sessions Judge, Agra
is hereby set aside and the matter is
remitted back to the Revisional Court to rehear the matter and pass a fresh order on
merit in accordance with law after giving
opportunity of hearing to both the parties
and subject to their cooperation if, there is
no other legal impediment.

8. With the aforesaid directions, the
writ petition is allowed.
----------
(2025) 7 ILRA 139
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2025

BEFORE

THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Matters Under Article 227 No. 7176 of 2025

Lavkush Yadav ...Petitioner
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Suneel Kumar Yadav

Counsel for the Respondents:
G.A.

Issue for Consideration
Whether the rejection of the petitioner's
application under S.173(4) BNSS, alleging
medical negligence by a government doctor,
leading to the death of petitioner's two-monthold daughter. was justified.

Headnotes
Medical Negligence - Criminal Liability -
Petition under Article 227 - S.173(4)
BNSS - Allegations against a government
doctor for not being present during
emergency treatment of petitioner's child
- Doctor was present in the hospital
premises,
engaged
in
official
duties;
patient attended by junior doctors -
Criminal
negligence
of
a
medical
practitioner must be clearly established
before prosecution.
140 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: No illegality in the orders impugned -
Evidence showed that the doctor was present in
the hospital and performing official duties; the
patient was treated by competent staff - No
negligence on the part of the medical staff - No
case of criminal rashness or negligence was
made out - Rejection of the application under
S.173(4) BNSS and the revision therefrom was
justified. (Paras 11,12,13,14,15) (E-7)

Case Law Cited
Jacob Mathew v. State of Punjab and Another,
(2005) 6 SCC 1

List of Acts
Constitution of India; Bhartiya Nagarik Suraksha
Sanhita, 2023 (BNSS)

List of Keywords
Medical negligence; Emergency; Inquiry report;
biometric system; Child death; No gross medical
negligence.

Case Arising From
Application No. 475 of 2024 under S. 173(4)
BNSS before the Chief Judicial Magistrate,
Azamgarh, rejected by order dated 10.10.2024;
Criminal Revision No. 363 of 2024 before the
District
and
Sessions
Judge,
Azamgarh,
dismissed by order dated 11.3.2025.

Appearances for Parties
Advs. for the Appellant/Petitioner: Suneel
Kumar Yadav
Advs. for the Respondents: Government
Advocate (G.A.)

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

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

2. The present petition under Article
227 of the Constitution of India has been
filed with a prayer to set aside the
impugned
order
dated
11.3.2025
in
Criminal Revision No. 363 of 2024
(Lavkush Yadav vs. State of U.P. and
another) passed by District and Session
Judge, Azamgarh as well as order dated
10.10.2024 in Application No. 475 of 2024
under Section 173(4) BNSS (Lavkush
Yadav vs. Deepak Pandey) passed by CJM
Azamgarh,
P.S.
Jahanaganj,
District
Azamgarh.

3. It has been submitted by learned
counsel for the petitioner that the petitioner
moved an application under Section 173(4)
BNSS for lodging of the FIR but the same
has been rejected by the Chief Judicial
Magistrate, Azamgarh vide order dated
10.10.2024.

4. Being aggrieved by the said order,
the petitioner preferred a revision which
was also dismissed on 11.3.2025, hence the
present petition has been preferred.

5. The main contention of learned
counsel for the petitioner is that the
daughter of the petitioner, aged about 2
months, was suffering from pneumonia and
was in a critical condition. She needed
urgent
medical
aid.
The
petitioner
contacted the Chief Medical Officer for her
treatment who advised to approach the
Child Specialist Dr. Deepak Pandey,
Rajkiya Medical College, Chakrapanpur,
Azamgarh who was also the Head of the
Child Department. The petitioner hired 108
Ambulance and went to the Rajkiya
Medical College where his daughter was
attended by Junior Doctors. It was
informed by junior doctors that Dr. Deepak
Pandey runs a private hospital and can be
consulted at Rainbow Hospital, Sidhari,
Azamgarh.
Knowing
this
fact,
the
petitioner got annoyed and complained the
Chief Medical Officer that the doctor
concerned runs a private hospital, therefore,
some action needs to be taken against him.
The ailing daughter was then referred by
7 All. Lavkush Yadav Vs. State of U.P. & Anr.
141
the junior doctors to the IMS BHU,
whereby she died on the way.

6. The main grievance of the petitioner
is that the daughter of the petitioner died
due to the negligence on the part of Dr.
Deepak Pandey who was not available in
the hospital to perform his official task and
was busy earning double income through
other sources.

7. After moving an application under
Section 173(4) BNSS before the concerned
Chief Judicial Magistrate, a police report
was sought from Police Station Jahanaganj.
An enquiry was conducted. It was found
that attendance of the official and staff was
recorded through biometric system and Dr.
Deepak Pandey was present within the
premises on 20.4.2024 for OPD and from
2.00 P.M. to 3.00 P.M. he was engaged in
delivering lectures to the students of MBBS
(Final Year). The daughter of the petitioner
was referred by junior doctors to IMS BHU
at 02.45 P.M. At the time of referral, Dr.
Deepak Pandey was busy delivering
lectures to the medical students.

8. The learned Magistrate, after
considering the enquiry report of the
concerned Police Station, found that prima
facie no offence was made out against the
alleged
doctor.
Accordingly,
the
application moved under Section 173(4)
BNSS was rejected and the revision filed
by the petitioner against the said impugned
order was also rejected.

9. From the perusal of records, it
transpires that as per the report dated
14.5.2024 uploaded on the IGRS Portal the
baby girl of Lavkush (Petitioner) was
admitted in the Emergency Department at
12.15
P.M.
and
during
medical
investigation it was found that there was a
hole in her heart (VSD) due to which she
was suffering from CHF and Perfumeries.
All these symptoms were informed to the
petitioner. Looking to her critical condition,
the petitioner was advised to refer the baby
to IMS-BHU at 2.45 P.M. on the same day.

10. Learned AGA for the State could
not dispute the aforesaid facts.

11. It is undisputed that the petitioner
remained at the Emergency Ward for 2
hours and Dr Deepak Pandey was in the
OPD and delivering lecture to the Medical
Student. The Junior Doctors, Dr. Narendra
Yadav, Senior Resident and Dr. Akhilesh
Kumar Varma, Junior Resident were
available in the Emergency Ward and
attended
the
patient.There
was
no
negligence on the part of the medical staff.

12.
Thus,
the
contents
of
the
application moved under Section 173(4)
BNSS does not make out a case of criminal
rashness or negligence on the part of
respondent no. 2.

13. The Hon?ble Supreme Court in
Jacob Mathew vs. State of Punjab and
Another (2005) 6 SCC 1 has laid down a
detailed guidelines to protect the interest of
doctors and to save them from unwarranted
and malicious proceedings. Elaborating the
same,
it
was
observed
that:-
"Indiscriminate prosecution of medical
professionals for criminal negligence is
counter-productive and does no service or
good to society. A medical practitioner
faced with an emergency ordinarily tries
his best to redeem the patient out of his
suffering. He does not gain anything by
acting with negligence or by omitting to do
an act. Obviously, therefore, it will be for
the complainant to clearly make out a case
of negligence before a medical practitioner
142 INDIAN LAW REPORTS ALLAHABAD SERIES
is charged with or proceeded against
criminally. A surgeon with shaky hands
under fear of legal action cannot perform a
successful operation and a quivering
physician cannot administer the end-dose
of medicine of his patient. If the hands be
trembling with the dangling fear of facing a
criminal prosecution in the event of failure
for whatever reason whether attributable to
himself or not, neither can a surgeon
successfully wield his life-saving scalpel to
perform an essential surgery, nor can a
physician successfully administer the lifesaving dose of medicine. Discretion being
the better part of valour, a medical
professional would feel better advised to
leave terminal patient to his own fate in the
case of emergency where the chance of
success may be 10% (or so), rather than
taking the risk of making a last ditch effort
towards saving the subject and facing a
criminal prosecution if his effort fails. Such
timidity forced upon a doctor would be a
disservice to society."

14. Considering the material available
on record, this Court finds that the relevant
inquiry
was
already
conducted.
The
daughter of the petitioner was admitted in a
critical condition in the Emergency Ward
and was attended by two junior doctors and
thereafter was referred to IMS-BHU. The
respondent No. 2 was in OPD and was
delivering lectures to the medical students
from 2.00 P.M to 3.00 P.M. There was no
gross medical negligence in her treatment.

15. Consequently, this Court does not
find any illegality in the orders impugned,
therefore, no interference is required.

16. Accordingly, the writ petition is
dismissed.
----------
(2025) 7 ILRA 142
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2025
BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 8521 of 2024

M/S Sterling Irrigations And Ors.
 ...Petitioners
Versus
Ms Bharat Industries ...Respondent

Counsel for the Petitioners:
Prateek Kumar

Counsel for the Respondent:
Ajay Kumar Pandey, Chhaya Gupta, Sujeet
Kumar

Issue for Consideration
Matter
pertains
to
the
applicability
and
interpretation of SS.124 ,125 of the Trade Marks
Act, 1999 in a suit filed for injunction, and the
legality of stay granted by the Commercial Court
on
the
basis
of
pending
rectification
proceedings.

Headnotes
Trade Marks Act, 1999 - SS.124 & 125 -
Stay of proceedings where validity of
registration is questioned - Suit and
counter-claim
filed
only
for
permanent/prohibitory injunction and not
for infringement - validity of registration
not challenged - S.124 not attracted -
stay
of
proceedings
bad
in
law
-
Rectification Application - Proper forum -
S.125
-
Rectification
application
in
pending suit for infringement must be
filed before the High Court, not before the
Registrar - O.14 R.1 CPC - Framing of
issues - Issues framed earlier under O.14
R. 1 CPC are distinct from issues required
to be framed under S.124 - absence of
such issue fatal to stay order.
Held: Suit and counter claim being for
injunction only, not for infringement of trade
mark, provisions of S.124 of the Trade Marks
Act, 1999 were not applicable - Even if treated