Allahabad High Court
Zakir Hussain vs State Of U.P And Another on 29 June, 2021
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- APPLICATION U/S 482 No. - 2353 of 2021
Applicant :- Zakir Hussain
Opposite Party :- State Of U.P And Another
Counsel for Applicant :- Arvind Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri Arvind Kumar Singh, learned counsel for the applicant and learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the order dated 06.10.2020 passed by Additional Civil Judge (Senior Division) Rampur in Case No.317 of 2020 arising out of Case Crime No.437 of 2019 (State vs. Zakir Hussain) whereby application of the applicant under Section 451 Cr.P.C. to release the property, seized in aforesaid case, has been rejected and the order dated 26.11.2020 passed by Sessions Judge, Rampur in Criminal Revision No.100 of 2020 (Zakir Hussain vs. State of U.P.) whereby revision preferred against the aforesaid order dated 06.10.2020 has been dismissed and the order impugned therein has been confirmed.
Learned counsel for the applicant submitted that the applicant is the owner of premises in dispute. He had applied for a license to run a Nursing Home in the name of "Prakash Nursing Home". On the application of the applicant, the licensing authority Rampur issued license in the name of 'Prakash Nursing Home'. Sri Singh very fairly submitted that the applicant is not a practicing doctor and he was running the Nursing Home with the help of number of doctors. It was unfortunate that one Rajni wife of Pradeep Kumar died in operation theater on 04.10.2019. In this regard a complaint was made on which the licence granted to the applicant in the name of 'Prakash Nursing Home' was cancelled by the licensing authority i.e. Chief Medical Officer, Rampur on 05.10.2019.
Sri Singh fairly submitted that against the order canceling license of Nursing Home, no statutory appeal has been preferred by the applicant and in fact a release application was filed for releasing the property in question. Vide order impugned dated 6.10.2020, the Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Rampur rejected the release application. Aggrieved by the said order, a revision was preferred before the Sessions Judge Rampur bearing Criminal Revision No.100 of 2020. The criminal revision was also rejected by the revisional authority vide order order dated 26.11.2020 hence this application.
Sri Arvind Kumar Singh, Advocate, heavily relied upon a judgment of Apex Court in Sunder Bhai Ambalal Desai vs. State of Gujarat reported in (2002) 10 SCC 283. He further contended that as the license of the Nursing Home has been cancelled and he is not running Nursing Home, his only prayer is confined to release of property in question.
On the contrary, learned A.G.A. while opposing the application submitted that the applicant is the owner of property and licence was granted on his application, thus the two fact cannot be bifurcated and once the licence was cancelled, the property in question was seized due to the criminal proceeding pending before the Court below. He further submitted that as per the licence, the Nursing Home was being run by an MBBS doctor and there was no surgeon thus the surgery performed at the Nursing Home was against the license granted by the licensing authority.
Having heard learned counsel for the parties and perusing the material on record, I find that though the licence was granted on the application of the applicant who is the owner of the premises in question, now he cannot be resile from the fact that he is not vicariously liable for the death which had occurred during the operation being performed in his Nursing Home. Further, from the perusal of the licence, an important fact which emerges for consideration is that there was only one MBBS doctor in the Hospital, the argument of Sri Singh that number of doctors visited the Nursing Home which included qualified surgeons also cannot be accepted as there is no disclosure to the effect in the affidavit to the application filed by the applicant disclosing their names. Condition of licence has been violated by the applicant while running a Nursing Home and performing surgeries without having qualified and trained doctors.
Reliance placed on the decision of the Apex Court in case of Sunder Bhai Ambalal Desai (supra) is of no help to the applicant as in the said case Court while discussing the provisions of Section 451 Cr.P.C. had held that the trial court should dispose of the valuable articles such as golden or silver ornaments or articles studded with precious stones at the earliest and should not be kept in police custody for years as huge amount of money is incurred by the State in protecting such articles.
The present case is distinguishable on the facts of the said case as in the present case the applicant himself was running a Nursing Home in his own premises after getting licence from the Chief Medical Officer which has been cancelled and the property has been attached.
No case for interference is made out.
The criminal misc. application under Section 482 Cr.P.C. being devoid of merits is hereby dismissed.
Order Date :- 29.6.2021
Kushal/V.S.Singh
