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2025 DIGILAW 946 (ALL)

Lavkush Yadav v. State of U. P.

2025-07-17

NAND PRABHA SHUKLA

body2025
JUDGMENT : 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 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. 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. 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 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 life-saving 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. 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.