The court affirmed that clear evidence of negligence is required to proceed against medical professionals, protecting them from unwarranted criminal prosecution.

JUDGMENT :

Nand Prabha Shukla, J.

1. Heard learned counsel for the petitioner, learned AGA for the State and perused the record.

2. The present petition under Article 227 of the Constitution of India has been filed with a prayer to set aside the impugned order dated 11.3.2025 in Criminal Revision No. 363 of 2024 ( Lavkush Yadav vs. State of U.P. and another ) passed by District and Session Judge, Azamgarh as well as order dated 10.10.2024 in Application No. 475 of 2024 under Section 173 (4) BNSS ( Lavkush Yadav vs. Deepak Pandey ) passed by CJM Azamgarh, P.S. Jahanaganj, District Azamgarh.

3. It has been submitted by learned counsel for the petitioner that the petitioner moved an application under Section 173 (4) BNSS for lodging of the FIR but the same has been rejected by the Chief Judicial Magistrate, Azamgarh vide order dated 10.10.2024.

4. Being aggrieved by the said order, the petitioner preferred a revision which was also dismissed on 11.3.2025, hence the present petition has been preferred.

5. The main contention of learned counsel for the petitioner is that the daughter of the petitioner, aged about 2 months, was suffering from pneumonia and was in a critical condition. She needed urgent medical aid. The petitioner contacted the Chief Medical Officer for her treatment who advised to approach the Child Specialist Dr. Deepak Pandey, Rajkiya Medical College, Chakrapanpur, Azamgarh who was also the Head of the Child Department. The petitioner hired 108 Ambulance and went to the Rajkiya Medical College where his daughter was attended by Junior Doctors. It was informed by junior doctors that Dr. Deepak Pandey runs a private hospital and can be consulted at Rainbow Hospital, Sidhari, Azamgarh. Knowing this fact, the petitioner got annoyed and complained the Chief Medical Officer that the doctor concerned runs a private hospital, therefore, some action needs to be taken against him. The ailing daughter was then referred by the junior doctors to the IMS BHU, whereby she died on the way.

6. The main grievance of the petitioner is that the daughter of the petitioner died due to the negligence on the part of Dr. Deepak Pandey who was not available in the hospital to perform his official task and was busy earning double income through other sources.

7. After moving an application under Section 173 (4) BNSS before the concerned Chief Judicial Magistrate, a police report was sought from Police Station Jahanaganj. An enquiry was conducted. It was found that attendance of the official and staff was recorded through biometric system and Dr. Deepak Pandey was present within the premises on 20.4.2024 for OPD and from 2.00 P.M. to 3.00 P.M. he was engaged in delivering lectures to the students of MBBS (Final Year). The daughter of the petitioner was referred by junior doctors to IMS BHU at 02.45 P.M. At the time of referral, Dr. Deepak Pandey was busy delivering lectures to the medical students.

8. The learned Magistrate, after considering the enquiry report of the concerned Police Station, found that prima facie no offence was made out against the alleged doctor. Accordingly, the application moved under Section 173 (4) BNSS was rejected and the revision filed by the petitioner against the said impugned order was also rejected.

9. From the perusal of records, it transpires that as per the report dated 14.5.2024 uploaded on the IGRS Portal the baby girl of Lavkush (Petitioner) was admitted in the Emergency Department at 12.15 P.M. and during medical investigation it was found that there was a hole in her heart (VSD) due to which she was su