Pankaj Ravjibhai Patel vs State Of Gujarat
2023 Latest Caselaw 6339 Guj

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R/CR.MA/16460/2017                             CAV JUDGMENT DATED: 31/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 16460 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy No of the judgment ?

4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== PANKAJ RAVJIBHAI PATEL Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:

VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1

RULE SERVED THRU CONCERNED POLICE STN for the Respondent(s)

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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 31/08/2023 CAV JUDGMENT

1. The present application is filed for seeking following

reliefs:

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"i) that Your Lordships be pleased to pass appropriate

order and be pleased to quash and set aside the FIR

qua the applicationer, being C.R.No.1-84/2015 registered

at Vastrapur Police station, Ahmedabad city, for the

offences punishable under Sections 304-A, 114 of IPC;

& C.C. No.7243/2015.

ii) that Your Lordships be pleased to stay the further

proceedings in connection with the FIR qua the

applicationer, being C.R.No 1-84/2015 registered at

Vastrapur Police station C.C. No.7243 during pendency

of this application;

iii) that any just and proper order may be passed."

2.1 Brief facts of the case as per the case of the

applicant in this application are as such that on

25.08.2015 Godavariben - mother of the complainant was

admitted in Sanjivani Super Specialty Hospital,

Vastrapur, Ahmedabad with a complaint of high grade

fever, lower abdominal pain, generalized weakness, under

care of Dr. Vinay Bhomiya. Thereafter, the Sonography

was done and it was found that there was highly

calcified stent in left renal system extended from kidney

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to urinary bladder with big stones in kidney ureter and

bladder. The stent was inserted by some Doctor before

about 15 years and though she was advised to get it

removed within a month. she forgot to get it removed

and it remained for 15 years as a result multiple calculi

were found in the kidney and urinary bladder. However,

the doctor advised to get the stent removed. It is further

the case of the applicant in this application are as such

that the present applicant and Dr. Nagendra Mishra

were consulted. Both the doctors advised her for

undergoing an operation to remove the big stone and

stent which was there since last more than 15 years.

2.2 It is further the case of the applicant in this applicant that two difficult operations were performed on

28.8.2014 and 2.9.2014. Some big stones were broken

with lithotomy and stone was removed. She was

discharged from the Hospital on 7/9/2014 with instruction

to come after one month for removal of stent. It is

further the case of the applicant in this applicant that

on 06.10.2014, Godavariben came to the hospital for

removal of stent, however as she was having fever and

infection, for two days she was treated for fever and

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infection. On 08.10.2014 - the stent was removed.

2.3 It is further the case of the applicant in this

applicant that after some time she started bleeding and

blood was seen in urine bag. Numbers of efforts were

made and Dr. Agrawal Expert Urologist was also

consulted and it was found that she was bleeding,

number of blood transfusions were also given. However,

on 9.10.2014 in early hours she died. It is further the

case of the applicant in this applicant that as per the

laboratory test reports, the patient had very low

percentage of hemoglobin and when she was admitted to

the hospital, she had 8.8% hemoglobin whereas normally

it should be between 11.5 to 16.4 gm percent. The platelets counts were 1,56,000 that was within the

normal range. It is further the case of the applicant in

this applicant that on number of times the reports were

taken out so far as the blood is concerned and however,

gradually the hemoglobin was reduced and that too to

the extent of 3.7%, platelets counts reduced to 59000

only where as it should be 1,50,000 to 4,50,000. The

platelet counts were reduced to such an extent that once

the blood starts oozing from any injury or puncture, it

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would not stop. It is further the case of the applicant in

this applicant that as, in a short time after she

developed complications of BP no surgery could be

performed to stitch the vein from where the blood was

oozing. Even nobody could come to know as to from

which site the blood was oozing from the vein. It is

further the case of the applicant in this applicant that

so far as these circumstances are concerned, no Doctor

can be blamed for such situation. more particularly the

present applicant who simply extracted the stent which

was inserted before about one month.

2.4 It is further the case of the applicant in this

applicant that the postmortem is also not performed properly, as, it mentions about the rupture kidney but

CT scan done few hours before death does not show any

rupture in the kidney. The patient was managed in best

possible way by the team of Doctors including Urologist,

Physician, Anesthetist. It is further the case of the

applicant in this applicant that the victim succumbed to

death only because of some extraneous reasons and

complications for which the applicant cannot be held

responsible and, therefore, prima facie the offence is not

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made-out qua the applicant. Hence, the present

application is preferred.

3. Heard learned advocate Mr. Vishal K Anandjiwala

representing the applicant and Mr. Dhawan Jayswal,

learned Additional Public Prosecutor (APP) representing

the respondent - State. Though complainant is served

through the concerned Police Station, none appears on

behalf of respondent No.2 nor filed any affidavit to

contest this application.

4.1 Learned advocate Mr. Vishal K Anandjiwala

representing the applicant has submitted that looking to

the chain of the incidents, whereby the applicant has other doctors have performed the surgery on the

deceased and in appropriate manner. He has further

submitted that applicant being a surgeon played his part

and the other doctors were also present at the time of

the surgery. When the patient has arrived at the

hospital, at the point of time, patient was having some

serious problem and was removed while extraction of

stent by the present applicant on 8.10.2014. He has also

submitted that so far as this aspect for removal of sent

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is concerned, operation is not required at all, the same

is to be removed during from urine track. The stent is

JJ style and that is to be extracted only. For that no

operation was required. Therefore, there was no

negligence on the part of the present applicant in

extracting the stent which was inserted. He has further

submitted that earlier on 25.8.2014, Godavariben was

admitted in the hospital with a complaint of high grade

fever, lower abdominal pain, generalized weakness, under

care of Dr. Vinay Bhomiya. He has further submitted

that on investigation, it was found that she had anemia,

infection with big stone in the kidney, whole ureter and

bladder along with forgotten JJ stent, which was inserted

before about 15 years and therefore, the patient was referred to both the Doctors i.e. the present applicant

and Dr. Mishra. The patient was examined by both the

doctors and advised two stage operations for breaking the

stone and removal of JJ stent. The patient's relatives

were explained the risk of septicemia due to staged

operation and high risk surgery and thereafter at the

first instance the operation of breaking bladder stone

lower half of ureteric stone along with stent and left

PCN was performed on 29.8.2014.

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4.2 He has further submitted that the second stage of

operation of breaking the stone of upper half of ureteric

stone and renal stone was performed on 2.9.2014. The

patient was kept for observation for 3 days in ICU for

treatment of septicemia and then shifted to the ward as

she was improving and was discharged on 7.9.2014 with

specific advice to get the stent removed after one month.

In the operation dated 2.9.2014 the old stent which was

inserted before about 15 years ago was removed and new

stent was inserted and the advice was given to get it

removed after one month. Even after discharge she was

regularly seen in OPD. He has further submitted that

The patient was again admitted on 6.10.2014 with complain of headache, abdominal pain and generalized

weakness under Dr. Vinay Bhomia. She was seen by the

applicant on 7.10.2014. During this period for about 5

months, Dr. Nagendra Mishra had gone abroad and

therefore, he was not present. On 7.10.2014 she was

examined by the applicant and thereafter on 8.10.2014

the JJ stent which was inserted was removed.

Thereafter, the patient's position was changed from

lithotomy to supine, which was managed and PCNL

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wound site scrapping was done. She was kept in

operation theater till BP was normal and shifted to ward

Urine was clear. He has referred to the Anesthesia note.

He has submitted that this was the position that

narrated earlier.

4.3 He has further submitted that at 3.00 pm the

applicant was informed about low Blood Pressure and

red colour urine, therefore, he again went to the hospital

from his hospital at about 3.15 p.m., Dr Vinay Bhomia

and his team was trying to access central venous line

through right femoral in upper right thigh. However, it

failed, so on the left side, it was tried, that also failed

at multiple attempts. Thereafter, the patient was shifted to ICU at 4.15 p.m. In ICU central venous line in neck

was put by ICU in charge doctor. The treatment for

raising blood pressure and replacement of blood loss was

started. He has further submitted that she was bleeding

from both thigh punctures and PCN site. On further

investigation, she was found to have disseminated

intravascular coagulation (DIC) with altered coagulation.

This was the cause for excessive bleeding from all the

raw areas. DIC can be caused due to long term infection

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because of the forgotten stent with stones.

4.4 He has further submitted that thereafter, various

attempts were made and to control the situation and the

C.T. scan was also done, which suggest that no active

bleeding from renal area and small perinephric collection

and P.M. Report says large peritoneal hematoma, which

could not be explained either by the doctor, who

performed postmortem. He has further submitted that the

the postmortem is also not performed properly. Therefore,

he has submitted that the looking to the entire records

and medical papers, the patient was managed in best

possible way by the team of doctors including Urologist,

Physician, Anesthetist. In normal course, JJ stent removal and scrapping does not lead to excessive

bleeding, but she was also suffering from DIC, which led

to excessive bleeding for which the doctors cannot be

held responsible as negligent persons. He has has drawn

my attention to the laboratory report, which is, as per

his submission, regarding infection and DIC.

4.5 He has placed reliance on the judgment of the

Hon'ble Apex Court in the case of Jacob Methew Vs.

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State of Punjab & another reported in AIR 2005 SC-

3180, more particularly, para 49 is relevant and has

submitted that in the present case, there is no mesne

rea on the part of the doctors. It is a noble profession

where the Doctors are trying to give relief to the

patients from their agonies and pains. Even the Expert

Urologist of Government Hospital has stated in his

opinion that the operation carried out was as per

standard protocol and there is no mentioning of

negligence on the part of present applicant. He has

further submitted that during the pendency of this

application, on 18.4.2018, this Court has passed the order

by considering that the opinion obtained by the

Investigating Officer of Dr. Shrenik Shah, Urologist on 16.4.2018 and he has drawn my attention towards that

portion by referring the order of the Co-ordinate Bench

of this Court in the present matter dated 18.4.2018 and

has submitted that in view of the fact that now it is

settled position of law that applicant cannot be held

liable in view of the judgment of judgment of the

Hon'ble Apex Court in the cases of (i) Jacob Methew

(supra), (ii) Dr. Sou Jayshree Ujwal Ingole versus State

of Maharashtra & Another reported in (2017) 14 SCC

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571 and (iii) Zubedaben Bachubhai Desai versus State of

Gujarat rendered in Criminal Misc. Application No.1412

of 2010, and has submitted that in view of this factual

as well as legal position, this Court should exercise the

powers under Section 482 of the Criminal Procedure

Code, 1973 as no fruitful purpose would be served to

continue with the proceeding pursuant to the impugned

F.I.R. and such process of trial would amount to

harassment to the applicant and therefore, he prays to

allow this application by exercising its inherent powers

in view of the judgment of the Hon'ble Supreme Court

in the case of State of Haryana V/s Bhajan Lal reported

in AIR 1992 SC 604.

5. Conversely, Mr. Dhawan Jayswal, learned

Additional Public Prosecutor (APP) representing the

respondent - State has drawn my attention to various

documents on record and provided the following points:

(i) The deceased, Godavariben, was admitted to

Sanjivani Super Specialty Hospital, Vastrapur,

Ahmedabad. The initial surgery was performed by the

present applicant and Dr. Nagendra Mishra on 28.8.2014,

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and a second operation took place on 2.9.2014 to remove

a stone from the kidney/urinary tract.

(ii) On 6.10.2014, Godavariben visited to the hospital,

and at that time, after collecting some reports, further

surgery was performed on 8.10.2014 to remove the stent

that had been inserted during the previous operation.

The present applicant and Dr. Vinay Bhomiya were

present during this procedure.

(iii) Complications arose after the surgery, and

Godavariben was declared dead on 9.10.2014.

Subsequently, a complaint was filed with the concerned

Police Station, which initially registered the case as an accidental death (No.27 of 2014).

(iv) The Vastrapur Police sought an opinion from a

team of five doctors at Sola Civil Hospital, Ahmedabad

(Government Hospital). The team opined that negligence

in the treatment, involving the present applicant, Dr.

Nagendra Mishra, and Dr. Vinay Bhomiya, was the

cause of the patient's death.

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(v) Based on this opinion, the police registered an

offense under Sections 304A and 114 of the Indian Penal

Code on 4.5.2015. Subsequent investigation led to the

filing of a charge-sheet, and a criminal case (No.7243 of

2015) is currently pending.

(vi) The committee of doctors noted that the postmortem

report indicated around three liters of blood in the

stomach and an injury to the left kidney, suggesting

bleeding as the cause of death. Additionally, it was

observed that no prior written permission from the

patient's family/relative was obtained before the surgery.

(vi) With the committee's opinion confirming negligence by the doctors, Mr. Dhawan Jayswal argued that there

is no reason to scuttle the proceeding pursuant to the

impugned FIR. He maintained that the present

applicant's involvement in the offense punishable under

Sections 304-A and 114 of the IPC is supported by

prima facie evidence. He urged the Court not to exercise

its power under Section 482 of the Criminal Procedure

Code, emphasizing that such power should be exercised

very sparingly in the view of the judgment of the

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Hon'ble Apex Court in the case of Neeharika

Infrastructure Pvt. Ltd. versus State of Maharashtra and

Others reported in 2021 SCC OnLine SC 315.

6.1 I have heard the learned advocates representing the

respective parties. I have considered the submissions

made at the bar by the respective parties. I have gone

through the judgments cited at the bar by the parties.

6.2 In view of the fact that the prima facie the case is

that the present applicant was giving the treatment to

the deceased for the removal of stone and stent in

certain manner. It transpires that prima facie, during

the course of this surgery, it appears that the deceased sustained injuries to the kidney, leading to complications

post-surgery. Despite efforts by the medical team at

Vastrapur hospital, the deceased unfortunately passed

away. The postmortem report highlights the presence of

blood in the stomach and an injury on the left kidney.

Additionally, a committee of doctors from Sola Civil

Hospital, Ahmedabad, has given an opinion that suggests

negligence on the part of the medical professionals

involved, including the present applicant.

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6.3 In this background, considering the argument of

learned advocate for the applicant that applicant was

giving the treatment only and he has no intention to

cause any damage to the patient - deceased. That

contention itself is not sufficient considering the material

available on record and the judgments cited at the bar

in the cases of (i) Jacob Methew (supra), more

specifically, paragraph 49 is relevant, as under:

"49. We sum up our conclusions as under:-

(1) Negligence is the breach of a duty caused by

omission to do something which a reasonable man

guided by those considerations which ordinarily regulate

the conduct of human affairs would do, or doing

something which a prudent and reasonable man would

not do. The definition of negligence as given in Law of

Torts, Ratanlal & Dhirajlal (edited by Justice G.P.

Singh), referred to hereinabove, holds good. Negligence

becomes actionable on account of injury resulting from

the act or omission amounting to negligence attributable

to the person sued. The essential components of

negligence are three: 'duty', 'breach' and 'resulting

damage'.

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(2) Negligence in the context of medical profession

necessarily calls for a treatment with a difference. To

infer rashness or negligence on the part of a

professional, in particular a doctor, additional

considerations apply. A case of occupational negligence

is different from one of professional negligence. A

simple lack of care, an error of judgment or an

accident, is not proof of negligence on the part of a

medical professional. So long as a doctor follows a

practice acceptable to the medical profession of that

day, he cannot be held liable for negligence merely

because a better alternative course or method of

treatment was also available or simply because a more

skilled doctor would not have chosen to follow or resort

to that practice or procedure which the accused

followed. When it comes to the failure of taking

precautions what has to be seen is whether those

precautions were taken which the ordinary experience of

men has found to be sufficient; a failure to use special

or extraordinary precautions which might have

prevented the particular happening cannot be the

standard for judging the alleged negligence. So also, the

standard of care, while assessing the practice as

adopted, is judged in the light of knowledge available

at the time of the incident, and not at the date of

trial. Similarly, when the charge of negligence arises

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out of failure to use some particular equipment, the

charge would fail if the equipment was not generally

available at that particular time (that is, the time of

the incident) at which it is suggested it should have

been used.

(3) A professional may be held liable for negligence on

one of the two findings: either he was not possessed of

the requisite skill which he professed to have possessed,

or, he did not exercise, with reasonable competence in

the given case, the skill which he did possess. The

standard to be applied for judging, whether the person

charged has been negligent or not, would be that of an

ordinary competent person exercising ordinary skill in

that profession. It is not possible for every professional

to possess the highest level of expertise or skills in

that branch which he practices. A highly skilled

professional may be possessed of better qualities, but

that cannot be made the basis or the yardstick for

judging the performance of the professional proceeded

against on indictment of negligence.

(4) The test for determining medical negligence as laid

down in Bolam's case [1957] 1 W.L.R. 582, 586 holds

good in its applicability in India.

(5) The jurisprudential concept of negligence differs in

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civil and criminal law. What may be negligence in civil

law may not necessarily be negligence in criminal law.

For negligence to amount to an offence, the element of

mens rea must be shown to exist. For an act to

amount to criminal negligence, the degree of negligence

should be much higher i.e. gross or of a very high

degree. Negligence which is neither gross nor of a

higher degree may provide a ground for action in civil

law but cannot form the basis for prosecution.

(6) The word 'gross' has not been used in Section 304A

of IPC, yet it is settled that in criminal law negligence

or recklessness, to be so held, must be of such a high

degree as to be 'gross'. The expression 'rash or

negligent act' as occurring in Section 304A of the IPC

has to be read as qualified by the word 'grossly'.

(7) To prosecute a medical professional for negligence

under criminal law it must be shown that the accused

did something or failed to do something which in the

given facts and circumstances no medical professional in

his ordinary senses and prudence would have done or

failed to do. The hazard taken by the accused doctor

should be of such a nature that the injury which

resulted was most likely imminent.

(8) Res ipsa loquitur is only a rule of evidence and

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operates in the domain of civil law specially in cases of

torts and helps in determining the onus of proof in

actions relating to negligence. It cannot be pressed in

service for determining per se the liability for

negligence within the domain of criminal law. Res ipsa

loquitur has, if at all, a limited application in trial on

a charge of criminal negligence."

And (ii) Dr. Sou Jayshree Ujwal Ingole (supra), here

also, at the same line on the medical negligence, the Co-

ordinate Bench of this Court has also given the

judgment on the same line, more specifically, para 10 is

relevant by relying on the judgment in the case of Jacob

Methew (supra).

6.4 There is no dispute about the proposition of law

concerning Section 304A and medical negligence.

However, in the present case, it has been revealed that

there was an apparent error committed by the team of

doctors at Vastrapur Hospital during the performance of

surgery and the removal of the deceased's stent. The

applicant being an Urologist, who has performed surgery

cannot escape from his liability at this stage and more

particularly, when the committee of five doctors have

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specifically opined, which cannot be brushed aside under

the guise that now Investigating Officer of Dr. Shrenik

Shah, Urologist, at such belated stage, has opined that

there is no negligence on the part of the doctors without

assigning any cogent and convincing reasons for doing so.

6.5 It is fruitful to refer the judgment of the Hon'ble

Apex Court in the case of Mahadev Prashad Kaushik

versus State of Uttar Pradesh reported in 2009 1 GLH

220, which says that when there is allegations are made

including Section 304A of the IPC, prima facie, it has

been established that it is a case of medical negligence

on the part of the doctors merely because of the

parameters laid down in the case of Jacob Methew (supra), and doctors cannot be let off the hork and not

exempted from the criminal investigation.

6.6 It is also fruitful to refer the judgment of the

Hon'ble Apex Court in the case of B. Jagdish and

Another vs. State of Andhra Pradesh reported in (2009)

1 SCC 681. There is limited jurisdiction under Section

482 of the Criminal Procedure Code and in absence of

trial, this Court, in exercise of powers under Section 482

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of the Criminal Procedure Code, cannot quash the

complaint. It is also fruitful to refer the judgment of the

Hon'ble Apex Court, regarding the limitation in exercising

the power under Section 482 of the Criminal Procedure

Code, in the case of State Of Rajasthan v. Fatehkaran

Mehdu reported in (2017) 3 SCC 198. Here also, the

Court found that normally, the Court should not exercise

the extraordinary discretionary power under Section 482

to quash the proceedings.

6.7 Therefore, considering the presence of the post-

mortem report and the expert committee's findings, which

prima facie indicate negligence on the part of the doctors

during the surgical procedure, I am of the view that a prima facie case has been established against the present

applicant. Hence, it is not appropriate to exercise my

inherent powers under Section 482 of the Criminal

Procedure Code at this juncture to scuttle the process of

the criminal trial. The applicant will have ample

opportunities to defend their case during the trial by

presenting and cross-examining witnesses.

6.8 Further, in the judgment of the Hon'ble Apex Court

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in the case of Neeharika Infrastructure Pvt. Ltd. versus

State of Maharashtra and Others reported in 2021 SCC

OnLine SC 315, and more particularly para 80 is

relevant, which is as under:

"80. In view of the above and for the reasons stated

above, our final conclusions on the principal/core issue,

whether the High Court would be justified in passing

an interim order of stay of investigation and/or "no

coercive steps to be adopted", during the pendency of

the quashing petition under Section 482 Cr.P.C and/or

under Article 226 of the Constitution of India and in

what circumstances and whether the High Court

would be justified in passing the order of not to

arrest the accused or "no coercive steps to be

adopted" during the investigation or till the final

report/chargesheet is filed under Section 173 Cr.P.C.,

while dismissing/disposing of/not entertaining/not

quashing the criminal proceedings/complaint/FIR in

exercise of powers under Section 482 Cr.P.C. and/or

under Article 226 of the Constitution of India, our

final conclusions are as under:

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

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into a cognizable offence;

ii) Courts would not thwart any investigation into the

cognizable offences;

iii) It is only in cases where no cognizable offence or

offence of any kind is disclosed in the first

information report that the Court will not permit an

investigation to go on;

iv) The power of quashing should be exercised

sparingly with circumspection, as it has been

observed, in the 'rarest of rare cases (not to be

confused with the formation in the context of death

penalty).

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 rather than an ordinary rule;

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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

and one ought not to tread over the other sphere;

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

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to abuse of process of law. 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 more 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;

xv) When a prayer for quashing the FIR is made by

the alleged accused and the court when it exercises

the power under Section 482 Cr.P.C., only has to

consider whether the allegations in the FIR disclose

commission of a cognizable offence or not. The court

is not required to consider on merits whether or not

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the merits of the allegations make out a cognizable

offence and the court has to permit the investigating

agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable

and/or the aforesaid aspects are required to be

considered by the High Court while passing an

interim order in a quashing petition in exercise of

powers under Section 482 Cr.P.C. and/or under Article

226 of the Constitution of India. However, an interim

order of stay of investigation during the pendency of

the quashing petition can be passed with

circumspection. Such an interim order should not

require to be passed routinely, casually and/or

mechanically. Normally, when the investigation is in

progress and the facts are hazy and the entire

evidence/material is not before the High Court, the

High Court should restrain itself from passing the

interim order of not to arrest or "no coercive steps to

be adopted" and the accused should be relegated to

apply for anticipatory bail under Section 438 Cr.P.C.

before the competent court. The High Court shall not

and as such is not justified in passing the order of

not to arrest and/or "no coercive steps" either during

the investigation or till the investigation is completed

and/or till the final report/chargesheet is filed under

Section 173 Cr.P.C., while dismissing/disposing of the

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quashing petition under Section 482 Cr.P.C. and/or

under Article 226 of the Constitution of India. xvii)

Even in a case where the High Court is prima facie

of the opinion that an exceptional case is made out

for grant of interim stay of further investigation, after

considering the broad parameters while exercising the

powers under Section 482 Cr.P.C. and/or under Article

226 of the Constitution of India referred to

hereinabove, the High Court has to give brief reasons

why such an interim order is warranted and/or is

required to be passed so that it can demonstrate the

application of mind by the Court and the higher

forum can consider what was weighed with the High

Court while passing such an interim order.

xviii) Whenever an interim order is passed by the

High Court of "no coercive steps to be adopted"

within the aforesaid parameters, the High Court must

clarify what does it mean by "no coercive steps to be

adopted" as the term "no coercive steps to be

adopted" can be said to be too vague and/or broad

which can be misunderstood and/or misapplied."

I am of the opinion that prayers made in the

present application is not required to be granted at this

stage as no case is made out to exercise my inherent

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powers under Section 482 of the Criminal Procedure

Code. Let all the contentions raised by the parties are

tested by the trial court after appreciating the evidence

available on the record, in accordance with law.

7. Accordingly, the present application is dismissed

with no order as to costs.

8. Notice stands discharged. Interim relief, if any,

stands vacated.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA