Smt. Geeta Shukla vs The State Of Madhya Pradesh
2023 Latest Caselaw 14225 MP

                                                        1
                               IN    THE       HIGH COURT OF MADHYA
                                                   PRADESH
                                                 AT JABALPUR
                                                  BEFORE
                                    HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                           ON THE 29 th OF AUGUST, 2023
                                          WRIT PETITION No. 22919 of 2022

                         BETWEEN:-
                         SMT. GEETA SHUKLA W/O LATE SHYAM BARAYAN
                         SHUKLA, AGED ABOUT 45 YEARS, OCCUPATION:
                         HOUSE WIFE, HOUSE NO. 282/3 BESIDE MADHAI
                         MANDIR SUBHASH WARD KATNI (MADHYA
                         PRADESH)

                                                                               .....PETITIONER
                         (BY SHRI RAJ POHANKAR - ADVOCATE)

                         AND
                         1.    THE STATE OF MADHYA PRADESH
                               THROUGH     PRINCIPAL   SECRETARY
                               DEPARTMENT OF HOME VALLABH BHAWAN
                               BHOPAL (MADHYA PRADESH)

                         2.    STATION HOUSE OFFICER, SOHAGPUR
                               POLICE    STATION DISTRICT SHAHDOL
                               (MADHYA PRADESH)

                                                                             .....RESPONDENTS
                         (BY SHRI ALOK AGNIHOTRI - GOVT. ADVOCATE)

                               This petition coming on for admission this day, the court passed
                         the following:
                                                         ORDER

This writ petition is filed seeking direction to the respondents- authorities to register FIR on the complaint lodged by petitioner on 02/06/2021 within some prescribed time limit.

Signature Not Verified Signed by: TULSA SINGH Signing time: 9/1/2023 5:52:15 PM

2. Petitioner made a complaint to S.H.O., Police Station,Sohagpur, Distt. Shahdol that she lost her husband Shyam Narayan Shukla due to negligence of the hospital authorities where he was admitted in the medical college for treatment of Covid.

3. It is submitted that petitioner made a request for lodging of FIR against medical staff, oxygen supply operator and others as have been mentioned in the application (Annexure-P/7), but no action is taken by the authorities till date. Reliance is placed on the order of Hon'ble Supreme Court in the case of Sindhu Janak Nagargo Je Vs. State of Maharashtra and others, Criminal Appeal No.- of 2023 (Arising out of SLP (Crl.) No.5883 of 2020 wherein placing reliance on the judgment

of Hon'ble Supreme Court in the case of Lalita Kumar Vs. State of Uttar Pradesh and others, (2014) 2 SCC 1, direction is issued to lodge FIR.

4. After hearing learned counsel for the petitioner, facts of the present case are different. They are broadly covered by three Judges Bench decision of Hon'ble Supreme Court in the case of Jacob Mathew Vs. State of Punjab and another, (2005) 6 SCC 1 wherein Hon'ble Supreme Court has held that in case of death due to criminal medical negligence, liability of the doctors will be attracted. It is held that test which is to be applied is that it must be shown that accused doctor 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. Hazard taken by accused doctor should be of such a nature that injury which resulted was most

Signature Not Verified Signed by: TULSA SINGH Signing time: 9/1/2023 5:52:15 PM

likely imminent. It is also held that doctors cannot be proceeded against under Section 304-A on parameters of Bolam test, (1957) 2 All ER 118, 121 D-F. Thus, when these aspects are taken into consideration, then in light of the decision of Hon'ble Supreme Court in the case of Jacob Mathew (supra), facts of the case in the case of Sindhu Janak Nagargo Je (supra) being different and not applicable to the present case, this petition is not maintainable. Petitioner is relegated to avail alternative remedy of filing a private complaint as held by Hon'ble Supreme case in the case of Sakiri Vasu Vs. State of Uttar Pradesh and others, (2008) 2 SCC 409.

5. In above terms, this petition is disposed of.

(VIVEK AGARWAL) JUDGE ts

Signature Not Verified Signed by: TULSA SINGH Signing time: 9/1/2023 5:52:15 PM