# Nitin Kumar Jain v. State of U.P. & Ors - **Citation:** (2025) 7 ILRA 137 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2025-07-18 - **Case number:** Matters Under Article 227 No. 6435 of 2025 - **Bench:** Ms. Nand Prabha Shukla - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nitin-kumar-jain-v-state-of-u-p-ors-53603 - **Pages:** 3 ## 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 n ## Text 7 All. Nitin Kumar Jain Vs. State of U.P. & Ors. 137 such value for the purposes of Section 7(ivA) of the Court Fees Act. Question No.1 is answered accordingly. E-II Answer to Question No.2:- 80. Now, in light of the answer to Question No.1, it would be apposite to consider the Question No.2 referred to this Court which is reproduced as under:- "(II) Whether, the court fees paid on the suit for cancellation of an agreement to sale would be governed by Section 7 (v) of the Court Fees Act or under Article 17 (iii) of the Second Schedule of the Court Fees Act?" 81. Considering the provisions of Section 7(iv-A) of the Court Fees Act and noticing the explanation appended thereto, it is no more in dispute that if a suit falls within Section 7(iv-A) of the Court Fees Act, consequently, the court fees payable would be on ad valorem basis taking note of the explanation appended to Section 7(iv-A) of the Court Fees Act. The moment a suit involves cancellation of either an instrument or a decree as the case may be and it is referable to Section 7(iv-A) of the Court Fees Act then the fee would necessarily be paid on ad valorem basis and that would ipso facto exclude the applicability of Article 17(iii) of the Court Fees Act. 82. In light of the aforesaid, it would be clear that a suit seeking cancellation of an agreement to sell would be governed by Section 7(iv-A) of the Court Fees Act and the court fees payable would be in terms of Section 7(v) as provided in the explanation to Section 7(iv-A) of the Court Fees Act and not under Article 17(iii) of the Second Scheduled of the Court Fees Act. The question No.2 is answered accordingly. F. Conclusion:- 83. This Court holds that an agreement to sell is an 'instrument securing money or other property' for the purposes of Section 7(iv-A) of the Court Fees Act. A fortiori in a suit seeking cancellation of an agreement to sell, the court fee payable would be in terms of Section 7(iv-A) and its explanation, referable to Section 7(v) of the Court Fees Act, 1870 and not in terms of Article 17(iii) of the Second Schedule of the Court Fees Act. 84. This Court also holds that the decisions of this Court in Altaf Husain (supra) and Suman Lata Agrawal (supra) do not lay down the correct law and accordingly, they are overruled. 85. The reference is answered in the aforesaid terms. 86. The matter may now be placed before the Court concerned for deciding the petition on its own merits. 87. Before parting, this Court records it appreciation for the learned counsel and members of the Bar namely Shri Pritish Kumar, Shri S.M.S. Royekwar, Shri Ayush Tandon and Shri Reshu Sharma, who gave their valuable assistance to the Court. ---------- (2025) 7 ILRA 137 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.07.2025 BEFORE THE HON'BLE MS. NAND PRABHA SHUKLA, J. Matters Under Article 227 No. 6435 of 2025 Nitin Kumar Jain ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: 138 INDIAN LAW REPORTS ALLAHABAD SERIES Gaurav Srivastava, Rajesh Kumar Srivastava Counsel for the Respondents: G.A. Issue for Consideration Matter pertains to the legality of the order passed by the Revisional Court (District & Sessions Judge), whereby the criminal revision was dismissed for want of prosecution, without adjudication on merits, in light of the principle laid down by the Hon'ble Supreme Court in Taj Mohammad v. State of Uttar Pradesh & Another, 2023 LiveLaw (SC) 689, which emphasizes that even in the absence of a party or his counsel, a revision petition must be considered on merits. Headnotes Constitution of India - Article 227 - Supervisory Jurisdiction - Scope and Interference - Criminal Procedure Code, 1973 - SS. 397/401 - Revision - Dismissal for want of prosecution - Impermissibility - 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. Held: Revisional Court erred in dismissing the revision petition for non-prosecution - Following Supreme Court precedent, the Court held that a revision petition requires consideration on merits - Order dated 20.05.2024 passed by the Sessions Judge, Agra dismissing the revision for want of prosecution set aside - Matter remitted to the Revisional Court to rehear and decide the case afresh on merits, in accordance with law, after giving opportunity of hearing to both parties - Petition allowed. (Paras 4 ,5,6,7,8) (E-7) Case Law Cited Taj Mohammad v. State of Uttar Pradesh & Another, 2023 LiveLaw (SC) 689 List of Acts Constitution of India; Code of Criminal Procedure, 1973; Indian Penal Code, 1860; List of Keywords Criminal Revision; Dismissed for want of prosecution; Consideration on merits; Mandate of law; Re-hear the matter. Case Arising From Order dated 20.05.2024 of the Sessions Judge, Agra in Criminal Revision No. 82 of 2024, arising out of Case No. 15385 of 2022 under SS. 420, 406 IPC, Police Station Sikandara, District Agra. Appearances for Parties Advs. for the Appellant: Gaurav Srivastava, Rajesh Kumar Srivastava Advs. for the Respondents: 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 instant petition under Article 227 of the Constitution of India has filed seeking the following relief: "(i) Issue an order or directing setting aside the order dated 20.05.2024 passed by Sessions Judge, Agra in Criminal Revision No. 82 of 2024 (Nitin Jain Vs. State of U.P. and and Another). (ii) Issue an order or directing setting aside the order dated 08.12.2023 passed by Additional Chief Judicial, Court No. 01, Agra in Case No. 15385 of 2022 (Nitin Kumar Vs. Abhishek Ahuja and Others) u/s 420, 406 IPC, Police Station Sikandara, District Agra. (iii) Issue any suitable order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case existing the present case; 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.