NEUTRAL CITATION NO.

2023/DHC/001498

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 10.01.2023
Pronounced on: 01.03.2023
+ CRL.M.C. 3386/2010
DR. ZAKIR HUSSAIN & ORS. ..... Petitioners
Through: Mr. Rajesh Manchanda,
Advocate.

versus

STATE ..... Respondent

Through: Mr. Manoj Pant, APP for the
State with SI Sunny, P.S.
Roop Nagar, Delhi.
Mr. Jivesh Tiwari and
Ms.Samiksha, Advocates for
R-2.

CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J.
1. The petitioners herein have filed the present petition under
Section 482 of the Code of Criminal Procedure, 1973 („Cr.P.C‟) for
quashing of FIR bearing No. 198/2002 registered at Police Station
Roop Nagar, Delhi, for offences punishable under Sections 304A/34 of
the Indian Penal Code, 1860 („IPC‟).
2. The brief facts of the case are that on 17.07.2002 a complaint
was filed by the complainant/Respondent No.2, i.e., Krishan Tyagi

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wherein it had been stated that his wife/victim (deceased), was

suffering from stomach pain since last five days and had been taken to
a private hospital at Kingsway Camp, Delhi, where the concerned
doctors administered two injections to the victim but she did not get
any relief from pain. Thereafter, the victim was taken to Hindu Rao
Hospital, Delhi, where she had been administered with some injections
which had relieved her pain. However, one of the doctors suspected
that the victim may be suffering due to stones and suggested that an
ultra-sound should be conducted. Ultrasound report of the victim had
been submitted to Petitioner No.3 who informed the complainant that
his wife/victim had stones in her gallbladder and that an operation was
required at the earliest. As per the advice of Petitioner No.3, the victim
had been admitted in Roop Nagar Hospital, Delhi, at 11.30 a.m. and
few tests were conducted. At about 1 p.m. on the directions given by
Petitioner No.1 and 2, a nurse Ms. Simmi had administered glucose and
an injection to the victim. After 8-10 minutes the victim had started
shouting at the top of her voice pointing towards her stomach. No one
was available to attend her at the time and when 1-2 doctors went to
her room after 15 minutes the victim was not breathing. At about 4
p.m., Petitioner No.3 informed the complainant that his wife had died
due to heart attack.
3. The police after investigation submitted the charge sheet under
Sections 304A/34 IPC, whereupon cognizance was taken against the
petitioners and the case was committed to the Court of Sessions for
trial and presently, it is at the stage of framing of notice.
4. Learned counsel for the petitioner vehemently submits, on the

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point of limitation and maintainability of the order of cognizance, that

the charge sheet was filed in defiance of the judgment of Hon‟ble
Supreme Court in the case of J.K Mathew v. State of Punjab, (2005) 6
SCC 1. Learned counsel for the petitioners states that the petitioners
had filed an application under Section 294 Cr.P.C before the Trial
Court along with documents, i.e., enquiry report dated 13.01.2003 of
the Medical Board constituted by the Govt. of NCT of Delhi that no
negligence can be attributed to the petitioners and order dated
29.06.2006 passed by the learned District Consumer Redressal Forum,
Tiz Hazari Court, Delhi holding that no deficiency of service by the
petitioners is relevant in this regard.
5. Per Contra, Learned APP for the State opposes the application
filed by the petitioner for quashing of FIR and further submits that the
application filed by the petitioners under Section 294 Cr.P.C was
dismissed by the learned Trial Court vide order dated 16.01.2010, The
relevant portion of the order is as under:
“It is settled law that at the stee of framing the charge
accuse cannot file documents his defence. However, the Hon'ble
Supreme Court in Rukmini’s case, (2009) 1 SCC (Crl.) 721
observed that there may be rare cases in which documents can
be allowed to be filed by accused and those casesare where such
documents completely demonstrate that case of the prosecution
is totally absurd or totally concocted.
The present case is a summons trial case and therefore no
opportunity of hearing on charge is to be given. Therefore, in
my considered view. accused cannot further be allowed to file
documents and cannot further be allowed to seek
admission/denial thereof. When no opportunity of hearing is to
be given, there is no question of filling of documents by the
accused. The accused can put up their defence at the appropriate

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stage but not now. In a summon trial case only notice of

accusation is to be served upon the accused.
Therefore, application of the accused is dismissed. No
adverse order against accused person”.

6. I have heard the rival submissions on behalf of both the parties

as well as perused the material on record.
7. At the outset, it is important to take note of the order dated
24.08.2022 passed by this Court in the present case, which reads as
under:
“4. Learned counsel for the petitioner has not challenged
this order which was passed way back January, 2010. The order
does not, however, debar the accused from addressing
arguments on the point of limitation, maintainability of the
order of cognizance or the plea that the chargesheet was filed in
defiance of the judgment of the Hon'ble Supreme Court of India
in the case of J.K. Mathew Vs. State of Punjab(2005) 6SCC 1.
Learned counsel is at liberty to address arguments on these
points before the court of learned Magistrate on next date of
hearing”.

8. With regards to the contention raised by the learned counsel for

the petitioner on the point of limitation, maintainability of the order of
cognizance and the chargesheet being in defiance of the judgment of
Hon‟ble Supreme Court in the case of J.K Mathew v. State of Punjab,
(supra) the learned counsel can address arguments before the learned
Trial Court at the time of arguments on charge on these issues.
9. The present case is at the stage of charge and the arguments on
charge are yet to be heard. The arguments being raised before this
Court can be raised before the learned Trial Court for the purpose of
charge and if charges are framed and the applicants are aggrieved by

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the said order, they can approach this Court.

10. This Court has also taken note of the law laid down by the
Hon‟ble Supreme Court regarding the quashing of FIR in various
judgments.
11. It is to be noted that the Hon'ble Supreme Court has laid the
guidelines for quashing the FIR in the State of Haryana and Ors. v.
Ch. Bhajan Lal and Ors., 1992 SCC (Cri) 426:
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extra-ordinary power
under Article 226 or the inherent powers Under Section 482 of
the Code which we have extracted and reproduced above, we
give the following categories of cases by way of illustration
wherein such power could be exercised either to prevent abuse
of the process of any Court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise,
clearly defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list of
myriad kinds of cases wherein such power should be
exercised.
1. Where the allegations made in the First Information
Report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima-facie
constitute any offence or make out a case against the
accused.
2. Where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not
disclose a cognizable offence, justifying an investigation by
police officers Under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section 155(2)
of the Code.

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3. Where the uncontroverted allegations made in the FIR or

complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a
case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated Under
Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the
accused.
6. Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused
and with a view to spite him due to private and personal
grudge."
(Emphasis supplied)
12. The Hon'ble Supreme Court in the case of Rakhi Mishra Vs.
State of Bihar and Others,(2017) 16 SCC 772 has held that the High
Courts can use its power under Section 482 of Cr.P.C. only in
exceptional circumstances when a prima facie case is not made out
against the accused.
13. In Neeharika Infrastructure v. State of Maharashtra, 2021

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SCC OnLine 315, a three-judge Bench of Hon‟ble Apex Court has

analysed the precedents and culled out the relevant principles that
govern the law on quashing of an FIR under Section 482 of the
Cr.P.C. The relevant observation are as under:
"57. From the aforesaid decisions of this Court, right from
thedecision of the Privy Council in the case of Khawaja
Nazir Ahmad (supra), the following principles of law
emerge:
i) Police has the statutory right and duty under the relevant
provisions of the Code of Criminal Procedure contained in
Chapter XIV of the Code to investigate into cognizable
offences;
ii) Courts would not thwart any investigation into the
cognizable offences;
iii) However, in cases where no cognizable offence or
offence of any kind is disclosed in the first information
report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly
with circumspection, in the 'rarest of rare cases'. (The
rarest of rare cases standard in its application for
quashing under Section 482 Cr.P.C. is not to be confused
with the norm which has been formulated in the context
of the death penalty, as explained previously by this
Court);
v) While examining an FIR/complaint, quashing of which
is sought, the court cannot embark upon an enquiry as to
the reliability or genuineness or otherwise of the
allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the
initial stage;
vii) Quashing of a complaint/FIR should be an exception
and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the State
operate in two specific spheres of activities. The inherent
power of the court is, however, recognised to secure the ends

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of justice or prevent the above of the process by Section 482

Cr.P.C.
ix) The functions of the judiciary and the police are
complementary, not overlapping;
x) Save in exceptional cases where non-interference would
result in miscarriage of justice, the Court and the judicial
process should not interfere at the stage of investigation of
offences;
xi) Extraordinary and inherent powers of the Court do not
confer an arbitrary jurisdiction on the Court to act according
to its whims or caprice;
xii) The first information report is not an encyclopaedia
which must disclose all facts and details relating to the
offence reported. Therefore, when the investigation by the
police is in progress, the court should not go into the merits
of the allegations in the FIR. Police must be permitted to
complete the investigation. It would be premature to
pronounce the conclusion based on hazy facts that the
complaint/FIR does not deserve to be investigated or that it
amounts to abuse of process of law. During or after
investigation, if the investigating officer finds that there is no
substance in the application made by the complainant, the
investigating officer may file an appropriate report/summary
before the learned Magistrate which may be considered by
the learned Magistrate in accordance with the known
procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but
conferment of wide power requires the court to be cautious.
It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit,
regard being had to the parameters of quashing and the self-
restraint imposed by law, more particularly the parameters
laid down by this Court in the cases of R.P. Kapur (supra)
and Bhajan Lal (supra), has the jurisdiction to quash the
FIR/complaint; and
xv) When a prayer for quashing the FIR is made by the
alleged accused, the court when it exercises the power
under Section 482 Cr.P.C., only has to consider whether or

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not the allegations in the FIR disclose the commission of a

cognizable offence and is not required to consider on merits
whether the allegations make out a cognizable offence or not
and the court has to permit the investigating agency/police to
investigate the allegations in the FIR."
(Emphasis Supplied)

14. As per the law laid down in Bhajan Lal (supra) and Neeharika
Infrastructure (supra), it has been cautioned that the High Courts in
exercise of powers under section 482 Cr.P.C may interfere in
proceedings relating to cognizable offences to prevent abuse of the
process of any court or otherwise to secure the end of justice, but such
power should be exercised sparingly and that too in the rarest of rare
cases.
15. The main allegation in the complaint against the present petitioner
is that urgent medical care and assistance was required to be given to
the deceased but the same was not available to her while she was
reeling under pain and no doctor was available to attend to her. Even if
it is presumed that she had died of a cardiac arrest, those 15 minutes
when she had been shouting for help, as per the complainant, and no
help was available to her, would have been the life saving minutes for
the deceased, when due to medical negligence in the form of non-
availability of doctor concerned in the emergency, she lost her life.
16. Furthermore, from bare perusal of the FIR, this Court is not
persuaded to reach a conclusion that the allegation levelled against the
petitioners are absurd, highly improbable or that such incident could
not have happened. Whether the allegations in the FIR are true or
untrue, will be decided in the course of trial. In fact the trial is yet to

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commence in the present case. The pleas taken before this Court can be
taken at the stage of framing of notice/charge.
17. Considering the overall facts and circumstances of the case and
the allegations and material available on record, this Court finds no
reason to interfere with the FIR bearing no. 198/2002 registered at PS
Roop Nagar, Delhi at the present stage.
18. Accordingly, the present petition stands dismissed.
19. It is however, clarified that the observations made by this Court
are only for the purpose of deciding the present petition and shall have
no bearing on the merits of the case during the trial.
20. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J

MARCH 1, 2023/zp

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By:ZEENAT PRAVEEN
Signing Date:02.03.2023
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