AMIT SUBHASH MOHEKAR vs STATE OF GUJARAT

R/SCR.A/9605/2026 JUDGMENT DATED: 14/10/2026
(GJHC240494162026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 9605 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER Sd/-

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Approved for Reporting Yes No
Yes ---
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AMIT SUBHASH MOHEKAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. HJ KARATHIYA(7012) for the Applicant(s) No. 1
MS MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER

Date : 14/10/2026

ORAL JUDGMENT
1. The present petition is filed with following prayers:-
“A) Issue a writ of mandamus or any other appropriate
writ, order or direction commanding Respondent No. 3,
the Police Inspector, Chandkheda Police Station, to
forthwith register an FIR based on the Petitioner's written
complaint dated 01.05.2025 (ANNEXURE-B), disclosing
cognizable offences punishable under Sections 105,
106A, 125, 238 and 61 BNS, 2023, and to proceed with
investigation in accordance with law, without any further
delay or prevarication;
B) Take cognizance of the willful disobedience of the
Order dated 06.02.2026 passed in R/SCR.A/15149/2025
by Respondent No. 2 the Commissioner of Police,
Ahmedabad City and initiate appropriate proceedings
under the Contempt of Courts Act, 1971, directing the
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said authority to show cause as to why he should not be
punished for civil contempt of this Honourable Court
(ANNEXURE-D);
C) Direct Respondents No. 2 and 3 forthwith to seize,
secure and preserve all medical records, CCTV footage,
OT logs, anesthesia records, nursing notes. post-
operative records, and all related documents and
electronic material pertaining to the admission, surgery
and death of Mrs. Sharmishta Mohekar at Pushp Hospital,
Chandkheda on 22.02.2025 and 23.02.2025, and at Smt.
Sushilaben M. Shah Multi-Speciality Hospital,
Ahmedabad;
D) Direct that the investigation consequent upon
registration of FIR be conducted under the supervision of
a senior officer not below the rank of Deputy
Commissioner of Police and that a status report be placed
before this Honourable Court within four weeks of
registration of FIR;
E) Direct Respondent No. 2 the Commissioner of Police,
Ahmedabad City to file a detailed and personal affidavit
explaining (i) whether and when the Order of this Court
dated 06.02.2026 was received, (ii) what steps, if any.
were taken pursuant thereto, (iii) why the representation
was not decided within eight weeks, and (iv) why an FIR
was not registered notwithstanding the clear disclosure of
cognizable offences;
F) Direct Respondent No. 2 and Respondent No. 3 to
forthwith provide a true copy of the Post Mortem Report
to the Petitioner;
G) Pending the hearing and final disposal of this petition,
be pleased to (i) direct Respondent No. 3 to register the
FIR forthwith, and (ii) direct that all forensic evidence
including CCTV footage and medical records specified in
Prayer (C) above be immediately seized and placed in the
custody of a responsible police officer pending further
orders:
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H) Award costs of this petition to the Petitioner, given the
deliberate and unjustified non-compliance of the
Respondents with this Court's Order;
I) Pass such other and further orders as this Honourable
Court may deem fit and proper in the facts and
circumstances of the case, in the interest of justice,
equity and good conscience.”
2. It is the grievance of the petitioner that wife of the
petitioner died on operation table due to rashness and
negligence of the doctor, and it requires registration of an FIR
under Section 302 of IPC.
3. Heard Mr.Abid Mulani, learned advocate for the petitioner
and Ms.Monali Bhatt for the State.
4. It is submitted by learned advocate for the petitioner that
previously the petitioner had approached this Court by raising
the same grievance by filing Special Criminal Application
No.15149 of 2025, wherein this Court has directed the
Commissioner of Police Ahmedabad City to decide the
representation dated 01.05.2025 as expeditiously as possible
preferably within a period of eight weeks from the date of
receipt of the order. It is submitted that despite said direction,
representation of the petitioner is not decided and no FIR has
been lodged. He submitted that, in that background, directions
are required to be given to the police authority to lodge the FIR
against medical officer, who has performed the surgery of wife
of the petitioner.
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5. Learned APP, Ms.Monali Bhatt, has placed on record the
report of Police Inspector, Chandkheda Police Station, stating
that this Court has directed to decide the representation, which
is made on 01.05.2025, however, opinion was sought from the
Civil Hospital with regard to cause of death of wife of the
petitioner. It is submitted that on 12.08.2026, a team of
doctors, has opined that there is no negligence on the part of
medical officer in providing the treatment, as the cause of
death is due to cardio-respiratory failure as a result of
complications of operative procedure in case of laparoscopic,
laparoscopic myomectomy. In that background, it is prayed to
dismiss the petition.
6. Having considered the submissions made by the learned
advocate for the petitioner and learned APP, it emerges from
record that the petitioner is husband of the deceased, viz.
Sharmishtaben. The deceased was admitted in the hospital for
the fibroid surgery through laparoscopic procedure on
21.02.2025. On next day, i.e. 22.02.2025 at 9.00 a.m, surgery
was done. After the surgery, the condition of wife of the
petitioner deteriorated, therefore, she was shifted to the SMS
Hospital, Chandkheda on 22.02.2025, where she died on
23.02.2025. It is not in dispute that wife of the petitioner was
aged only around 39 years and she unfortunately died, and
during the post-mortem, which is conducted by the panel of
doctors, cause of death was kept pending till availability of
FSL, histopathology reports and treatment papers. Thereafter,
the opinion was given by the medical team of B.J.Medical
College that wife of the petitioner died due to cardio-
respiratory failure as a result of the complications of operative
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procedure in case of laparoscopic myomectomy. The petitioner
had approached this Court earlier by filing the Special Criminal
Application No.15149 of 2025 seeking registration of FIR
against the medical officer, and this Court vide order dated
06.02.2026 directed the Commissioner of Police, Ahmedabad,
to decide the representation dated 01.05.2025 submitted by
the petitioner as expeditiously as possible, preferably within a
period of eight weeks from date of receipt of the order. As the
same was not decided, again the petitioner has approached
this Court by filing the present petition.
7. This Court vide order dated 07.09.2026 directed the
Commissioner of Police to explain that why the order is not
complied with and decision has not been taken. It is submitted
that the Medical Board has raised query with regard to
submission of postmortem report, and no final opinion was
received from the Medical Board consisting the two Doctors
from Gynec Branch, one from Anesthesia Branch and one from
Forensic Medicine Branch. It is submitted that on 22.09.2026,
the RMO Civil Hospital has forwarded the opinion from the
medical board stating as under:-
“ DISCUSSION
1. Injection vasopressin is used during almost all
myomectomy operations, but rarely it causes very
serious side effect in patients, such as "Arrhythmias and
Pulmonary Edema (irregular heartbeat and fluid filling the
lungs"), which may have happened in the case of this
patient during operation.
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2. After surgery, due to difficulty in extubation, she
was re-intubated and extubated after two hours of
observation.
3. They got her sonography done, which showed blood
around the urinary bladder. Since her condition was
serious, she was referred to a larger hospital for further
treatment.
4. HB report in SMS Hospital appears normal and 200 ML
of blood was removed during laparotomy. However, due
to such small amount of blood loss, the patient's serious
condition of Hypovolemic shock does not appear.
5. From this, it can be said that the patient has been
treated properly and there is no criminal negligence.”
8. At this stage, the Medical board had opined that there is
no criminal negligence in the treatment which was given to the
deceased. Therefore, the question is whether directions can be
issued to the police authority to lodge an FIR. To determine the
above question, the reference to the well-known decision in
the case of Jacob Mathew vs. State of Punjab , reported in
(2005) 6 SCC page 1 is required to be made, wherein the
Apex Court has framed the guidelines regarding negligence in
the context of medical profession, which is reproduced herein
below:-
“ Guidelines re: prosecuting medical professionals.
50 . As we have noticed herein above that the cases of
doctors (surgeons and physicians) being subjected to
criminal prosecution are on an increase. Sometimes such
prosecutions are filed by private complainants and
sometimes by police on an FIR being lodged and
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cognizance taken. The investigating officer and the
private complainant cannot always be supposed to have
knowledge of medical science so as to determine
whether the act of the accused medical professional
amounts to rash or negligent act within the domain of
criminal law under Section 304-A of IPC. The criminal
process once initiated subjects the medical professional
to serious embarrassment and sometimes harassment.
He has to seek bail to escape arrest, which may or may
not be granted to him. At the end he may be exonerated
by acquittal or discharge but the loss which he has
suffered in his reputation cannot be compensated by any
standards.
51. We may not be understood as holding that doctors
can never be prosecuted for an offence of which rashness
or negligence is an essential ingredient. All that we are
doing is to emphasize the need for care and caution in
the interest of society; for, the service which the medical
profession renders to human beings is probably the
noblest of all, and hence there is a need for protecting
doctors from frivolous or unjust prosecutions. Many a
complainant prefers recourse to criminal process as a
tool for pressurizing the medical professional for
extracting uncalled for or unjust compensation. Such
malicious proceedings have to be guarded against.
52. Statutory Rules or Executive Instructions
incorporating certain guidelines need to be framed and
issued by the Government of India and/or the State
Governments in consultation with the Medical Council of
India. So long as it is not done, we propose to lay down
certain guidelines for the future which should govern the
prosecution of doctors for offences of which criminal
rashness or criminal negligence is an ingredient. A
private complaint may not be entertained unless the
complainant has produced prima facie evidence before
the Court in the form of a credible opinion given by
another competent doctor to support the charge of
rashness or negligence on the part of the accused doctor.
The investigating officer should, before proceeding
against the doctor accused of rash or negligent act or
omission, obtain an independent and competent medical
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opinion preferably from a doctor in government service
qualified in that branch of medical practice who can
normally be expected to give an impartial and unbiased
opinion applying Bolam's test to the facts collected in the
investigation. A doctor accused of rashness or
negligence, may not be arrested in a routine manner
(simply because a charge has been levelled against him).
Unless his arrest is necessary for furthering the
investigation or for collecting evidence or unless the
investigation officer feels satisfied that the doctor
proceeded against would not make himself available to
face the prosecution unless arrested, the arrest may be
withheld.”
9. As opined by the Apex Court, the lodging of criminal
prosecution cannot be permitted as a tool for pressurizing the
medical professionals. Therefore, the credible opinion is
required to be obtained before lodging the criminal prosecution
from the competent doctor to support the charge of rashness
and negligence on the part of medical officer. As the medical
team consisting of four doctors from different branches has
opined that there is no criminal negligence, as alleged by the
petitioner, in the opinion of this Court, criminal prosecution
cannot be lodged against the medical officers merely on the
asking by the petitioner. Hence, the petition does not require
to be entertained and it is dismissed accordingly.
Sd/-
(M. K. THAKKER,J)
R.S. MALEK
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