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2022 DIGILAW 592 (ALL)

Manoj Mishra v. State Of U. P.

2022-04-21

MOHD.ASLAM

body2022
JUDGMENT : 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 learned Chief Judicial Magistrate-Gorakhpur 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 In-charge 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 In-charge 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 Hospital-Gorakhpur 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 COVID-19 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. 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 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 'gross-negligence' 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.