Dismissed

Shashivendra @ Shashivendra Patel v. State of U.P. Thru. Prin. Secy. Home Lko and Another

Allahabad HC18 Sept 2024/1053/2024

Case brief

AI extract

What is this about?

This criminal revision challenged the rejection of a discharge application under Section 227 CrPC regarding alleged offences under Section 304 IPC and others. The High Court dismissed the revision, holding that the trial court was justified in framing the charge as the FIR disclosed prima facie offence despite the victim dying of Covid, distinguishing cases on unnatural death.

What did the court decide?

The revision is dismissed; the impugned order of the trial court rejecting the discharge application remains unaltered.

Shashivendra @ Shashivendra Patel Vs State of… — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:64383

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Court No. - 11

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Case :- CRIMINAL REVISION No. - 1053 of 2024

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Revisionist :- Shashivendra @ Shashivendra Patel Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko And Another

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Counsel for Revisionist :- Eshan Kumar Gupta,Arvind Kumar Mishra

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Counsel for Opposite Party :- G.A.

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Hon'ble Abdul Moin,J.

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Heard learned counsel for the revisionist as well as learned A.G.A. for the State-opposite party.

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Under challenge is the order dated 07.08.2024 passed by learned Additional Sessions Judge / Special Judge (A.T.S.), Lucknow in Sessions Trial No.909 of 2024 in Re: State Vs. Shashivendra Patel, whereby the discharge application filed by the revisionist under Section 227 of the Criminal Procedure Code (hereinafter referred to as "Code") has been rejected.

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The contention of learned counsel for the revisionist is that an F.I.R. was lodged by the respondent No.2 on 03.05.2021 under the provisions of Section 420, 304, 270 of the I.P.C., Section 3 of the Epidemic Act, 1897 and Section 51 of the Disaster Management Act, 2005 contending that the revisionist herein on telephone had indicated that he had got a medical team for the treatment of Corona disease. The team comprises of various doctors and he himself is a medico and he has got a tie up with the hospital and that he has got the capability of converting the house of the complainant into an I.C.U. hospital itself. It was also contended that the doctors would be visiting the house and that the patient, who in this case was the husband of the complainant, would recover in three days. Subsequent

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thereto, three boys turned up and collected Rs.50,000/- via google pay transfer. The antibiotic medicines were thereafter started and two cylinders of 45 litres each were taken away from the house of the complainant for being refilled but were not returned by contending that the cost of re-filling of the cylinders is Rs.20,000/- and Rs.45,000/- and that labor of Rs.80,000/- has been involved and it is only when the aforesaid amount is paid that the said cylinders would be re-filled. The complainant also claims to have paid an amount of Rs.1,50,000/- in cash and a certain amount to the staff also. Despite that, the complainant's husband did not recover and ultimately, he died.

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It is contended that the said F.I.R. was lodged after a period of seven days from the death of the complainant's husband. There is no inquest and postmortem. However, learned counsel for the revisionist fairly states that the husband of the complainant died on account of Covid.

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Subsequent thereto, the learned trial court had issued a summoning order dated 27.03.2023, a copy of which has been filed as annexure 1 to the supplementary affidavit dated 09.09.2024, per which the revisionist has been summoned for offences under Sections 420, 304, 270 of the I.P.C., Section 3 of the Epidemic Act, 1897, Section 51 of the Disaster Management Act, 2005 and Section 15(3) of the Medical Counsel Act.

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The revisionist claims to have filed an application under Section 227 of the Code contending that the offences against his are not made out which was rejected.

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In this revision, the learned counsel for the revisionist has only stressed on he being summoned for the offence under

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Section 304 of the I.P.C.

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The contention is that there is no material on record to attract the offence of Section 304 of the I.P.C. and as such, the learned trial court has patently erred in law in summoning the revisionist apart from the other provisions of the I.P.C., under the provision of Section 304 of the I.P.C.

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In this regard, reliance has been placed on the judgment of the Hon'ble Supreme Court in the cases of M/S Karnataka Emta Coal Mines Limited Vs. C.B.I. in Criminal Appeal No.1659 of 2024 , Ramalingam Vs. Viswanathan 2024 (4) SCC 808 and Raji Thapar Vs. Madan Lal Kapoor 2013 (3) SCC 330.

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Placing reliance on the judgment of the Hon'ble Supreme Court in the case of M/S Karnataka Emta Coal Mines (supra) , the contention is that in the said case the Hon'ble Supreme Court has held that while considering the application of discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge.

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Again placing reliance on the judgment of the Hon'ble Supreme Court in the cases of Ramalingam (supra) as well as in the case of Rajiv Thapar (supra) , the contention is that in these two cases the Hon'ble Supreme Court has held that in the case of natural death, an offence under Section 304 of I.P.C. would not be attracted.

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Having heard the learned counsel for the revisionist and perused the record, it emerges that an F.I.R. has been lodged against the revisionist on the facts as already indicated above.

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From a perusal of the said F.I.R., it is prima facie apparent that the revisionist had purported himself to be equipped with a team to treat Covid patient. However, despite he having taken a substantial amount of money, even the cylinders that had been taken from the house of the complainant were not returned back and rather an astronomical amount had been demanded in order to give back the said cylinders.

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Admittedly, the husband of the complainant died on account of Covid. But for the fact that the Covid disease, with which the nation was then faced and with which the husband of the complainant was suffering, had been treated timely the complainant's husband might have recovered. However, despite the revisionist having projected himself as a fit person to treat the Covid pandemic, a perusal of the F.I.R. would indicate that he only delayed the treatment of the complainant's husband with the result that the complainant's husband died on account of Covid.

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Considering the aforesaid, it cannot prima facie be said that the death of the complainant's husband would fall within the ambit of being "unnatural death" as is sought to be canvassed by the learned counsel for the revisionist on the basis of the judgment of the Hon'ble Supreme Court in the cases of Ramalingam (supra) and Rajiv Thapar (supra).

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So far as the judgment of the M/S Karnataka Emta Coal Mines (supra) is concerned, a perusal of the said judgment would indicate that the Hon'ble Supreme Court after placing reliance on its earlier judgment in the case of State of Tamil Nadu Vs. N. Suresh Rajan & Others 2014 (11) SCC 709 has held that at the time of consideration of the application of discharge, the court cannot act as mouthpiece of the prosecution or act a post office and may sift evidence in order to find out

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whether or not the allegations made are groundless so as to pass an order of discharge yet from a perusal of records and the facts as already enumerated above, it is clearly apparent that where the court thinks that the accused might have committed the offence on the basis of materials on record and its probative value, it can frame the charge though, for conviction, the court has to come to the conclusion that the accused has committed the offence.

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Upon filing of the discharge application by the revisionist with the learned trial court, the learned trial court, after considering the aforesaid facts, was of the view that prima facie an offence has been committed by the revisionist, as has been indicated in the said F.I.R., and thus issued the summoning order.

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Considering the facts as enumerated above, the details of the F.I.R. vis-a-vis the allegations as levelled against the revisionist and the fact that, admittedly, the husband of the complainant has died on account of Covid, consequently, no interference is required in the order impugned.

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Keeping in view of the aforesaid discussion, the revision is dismissed.

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Order Date :- 18.9.2024 S. Shivhare

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Digitally signed by :- SHASHANK SHIVHARE High Court of Judicature at Allahabad, Lucknow Bench

Shashivendra @ Shashivendra Patel v. State of U.P. Thru. Prin. Secy. Home Lko and Another

Case brief

What is this about?

What did the court decide?

Shashivendra @ Shashivendra Patel v. State of U.P. Thru. Prin. Secy. Home Lko and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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