# Manoj Mishra v. State of U.P. & Ors - **Citation:** (2022) 5 ILRA 1500 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-04-21 - **Case number:** Application U/S 482 No. 16489 of 2021 - **Bench:** Mohd. Aslam - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-mishra-v-state-of-u-p-ors-48437 - **Pages:** 3 ## Headnote Law - Code of Criminal Procedure, 1973 - Section 482-Application u/s 156 (3) Cr.P.C.-against the doctor and Hospital's Management-for gross negligence-as 5 All. Manoj Mishra Vs. State of U.P. & Ors. 1501 RT-PCR report of his father was negative-swab and blood sample was positive-Application rejected by Magistrate-no independent expert report to establish gross-negligence. Application dismissed. (E-9) List of Cases cited: ## Text 1500 INDIAN LAW REPORTS ALLAHABAD SERIES 60, 61,62 & 63. He has referred CD62 to show that on 24.12.2019, statement of Pradeep Kumar Singh, informant/complainant and Raj Kumar Singh, eye witness, have been recorded. Serial No.4 (f) of CD61 has been demonstrated to show that name of one accused Sarvesh Yadav son of Bharat Lal Yadav has been dropped from the charge sheet. As per learned AGA, the aforesaid exercise has been carried out on 24.12.2019. On that Sri Anupam Mehrotra has submitted that the aforesaid facts may not be considered as collection of evidence and at the best, it is a recording of statement of some witnesses. 41. As per Sri Mehrotra, there is difference between recording of statement and collecting of evidence. He has further submitted that the aforesaid exercise being carried out till 3:00 PM of 25.12.2019, which has been shown in papers of CD63. Therefore, charge sheet would have been prepared after 3:00 PM. Thereafter, it would have been sent to the supervisory authority, who is Circle Officer and Circle Officer must have taken some time to go through the complete case diary and filed before the court on or before 4:00 PM. Thus, Sri Mehrotra has submitted that it was not practically possible for the prosecution to file charge sheet before the court on 25.12.2019 but the same has been filed on the same date before the court, which is beyond any comprehension. On that, Sri Anurag Verma, learned AGA, has submitted that this fact may not be challenged in a petition filed under Section 482 Cr.P.C. as no miscarriage of justice would be caused to the applicant and only for this reason, impugned charge-sheet, orders and proceedings may not be quashed in view of the settled proposition of law by the Apex Court as cited above. 42. Considering the aforesaid aspects of the issue in question, I am constraint to observe that the prosecution could not explain properly the aforesaid chain of events, but at the same time, I am conscious about the fact that even if there is any procedural lapse or technical error in preparation of the charge sheet, which is curable under the law and such error does not appear to be manifest error and is not causing any miscarriage of justice to the applicant as ample opportunity would be provided to the applicant/defence at the time of trial as per law, therefore, invoking powers enshrined under Section 482 Cr.P.C., charge-sheet and proceedings so challenged may not be quashed. 43. Accordingly, this petition fails and is dismissed. 44. No order as to costs. ---------- (2022)05ILR A1500 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 21.04.2022 BEFORE THE HON'BLE MOHD. ASLAM, J. Application U/S 482 No. 16489 of 2021 Manoj Mishra ...Applicant Versus State of U.P. & Ors. ...Opposite Parties Counsel for the Applicant: Sri Kamlesh Kumar Tiwari Counsel for the Opposite Parties: G.A. Criminal Law - Code of Criminal Procedure, 1973 - Section 482-Application u/s 156 (3) Cr.P.C.-against the doctor and Hospital's Management-for gross negligence-as 5 All. Manoj Mishra Vs. State of U.P. & Ors. 1501 RT-PCR report of his father was negative-swab and blood sample was positive-Application rejected by Magistrate-no independent expert report to establish gross-negligence. Application dismissed. (E-9) List of Cases cited: 1. Jacob Mathew Vs St. of Pun. reported in (2005) 6 SCC 1. 2. Civil Appeal No.6507 of 2009 (Dr. Mrs. Chanda Rani Akhouri & Ors. Vs Dr. M.A. Methusethupathi & Ors.). (Delivered by Hon'ble Mohd. Aslam, J.) 1. Heard learned counsel for the applicant as well as learned A.G.A. for the State. 2. The instant application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the impugned order dated 06.08.2021 passed the the learned Chief Judicial MagistrateGorakhpur in Case No.2152 of 2021 (Manoj Mishra v. Dr. Sudhakar Pandey), by which, the application of the applicant under Section 156(3) Cr.P.C. was rejected. 3. The brief facts of the case is that the father of the applicant was ill and got serious on 03.05.2021, thereafter, applicant took him to the District Hospital-Gorakhpur but Incharge of the Emergency Ward of the District Hospital-Gorakhpur stated that he would not look after the father of the applicant without COVID test report. The applicant's father was tested for COVID-19 on the same day and the antigen as well as RT-PCR report was "negative". The applicant approached the Incharge of the Emergency Ward of the District Hospital-Gorakhpur who stated that his father was not in a serious condition and advised the applicant to take his father home. After reaching home on the same day i.e. 03.05.2021 at about 09:00 p.m., his father fell down and, thereafter, the applicant called for ambulance and the father of the applicant was again taken to the District HospitalGorakhpur at about 10:30 p.m. and his father was allotted bed in the COVID Ward at about 12 'o' clock in the night. There was no management of oxygen in the hospital. On 04.05.2021, the applicant rushed to the house of opposite party no.2 and stated about the condition of his father and management of the hospital but when opposite party no.3 came on round, he did not checked his father as the bed ticket was not prepared by the authority concerned. On 04.05.2021, the swab and blood sample was taken for COVID19 test. The RT-PCR report came on 26.05.2021 as "positive". However, on 04.05.2021, at about 10:30 p.m., the father of the applicant was declared dead. Thereafter, the applicant moved an application under Section 156(3) Cr.P.C. against the opposite party nos.2 and 3 but the said application was rejected by the learned lower court vide order dated 06.08.2021 by relying on the law laid by the Hon'ble Apex Court in Jacob Mathew v. State of Punjab reported in (2005) 6 SCC 1. 4. Feeling aggrieved by it, the applicant preferred the instant application under Section 482 Cr.P.C. 5. It is submitted by the learned counsel for the applicant that on 03.05.2021, the RT-PCR report of his father was found "negative" and the swab and blood sample taken on 04.05.2021 was tested "positive". It is further submitted that the contradictions in the two reports reflect 'gross-negligence' on the part of the doctors concerned. 6. Per contra, learned A.G.A. for the State opposed the application and stated 1502 INDIAN LAW REPORTS ALLAHABAD SERIES that it may be possible that the result of the rapid antigen COVID Test report and the RT-PCR report may vary. It is further submitted that the above-noted variations in the two report cannot be termed as 'grossnegligence' on the part of the doctors concerned. 7. I have given thoughtful consideration to the submissions advanced by the learned counsel for the parties and gone through the material available on record. 8. Hon'ble Apex Court in Jacob Mathew (supra) has held that:- "To prosecute the medical professionals for negligence under criminal law, something more than mere negligence had to be proved. Medical professionals should not be dragged into criminal proceedings unless negligence of a high order is shown. " 9. Hon'ble Apex Court has reiterated the above-noted proposition of law in the latest judgement passed in Civil Appeal No.6507 of 2009 (Dr. Mrs. Chanda Rani Akhouri & Ors. v. Dr. M.A. Methusethupathi & Ors.). 10. Moreover, there is no independent expert report to establish that there was 'gross-negligence' on the part of opposite party nos.2 and 3. There is possibility that the rapid antigen COVID Test report and the RT-PCR report may vary and that cannot be termed as the 'gross negligence' on the part of opposite party nos.2 and 3. 11. In view of the above, the instant application under Section 482 Cr.P.C. is devoid of merit and is, accordingly, dismissed. ---------- (2022)05ILR A1502 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 27.04.2022 BEFORE THE HON'BLE MANISH KUMAR, J. Application U/S 482 No. 18403 of 2021 Ramendra Sharma & Ors. ...Applicants Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicants: Sri Mohit Singh Counsel for the Opposite Parties: G.A. Criminal Law - Code of Criminal Procedure, 1973 - Section 195 - FIR lodged by Sub-Inspector-chargesheet filedcognizance taken by Trial Court-for offence u/s 174-A IPC-in absence of any complaint in writing by officer concerned-Circle Officer-C.O. is subordinate to SPSuperintendent of Police (SP) not filed any complaint as required u/s 195 Cr.P.C.- Proceeding initiated in pursuance of F.I.R. lodged by Sub Inspector-who is not the investigating Officer-order of Trial Court without jurisdiction abinitio-proceeding quashed. Application allowed. (E-9) List of Cases cited: 1. Daulat Ram Vs St. of Pun., 1962 Supp (2) SCR 812 : A.I.R. 1962 SC 1206. 2. Yogeshwar Sood & anr. Vs St. of U.P. & ors. Criminal Misc. Writ Petition No.12772 of 2020