Delhi District Court
Dr. M. Khalilulla vs State Of U.P on 31 January, 2026
IN THE COURT OF SH. VIPIN KHARB :
ADDITIONAL SESSIONS JUDGE-07 : SOUTH-EAST DISTRICT
SAKET COURTS : NEW DELHI
Cr Rev 742/2018
Dr. M. Khalilullah Vs. State of UP
AND
Cr Rev 891/2018
State of UP Vs. Dr. M. Khalilulla
ORDER
31.01.2026
1. Vide this common order, court will decide two revision petitions i.e. Cr. Rev. No. 742/2018 and Cr. Rev No. 891/2018 as both of them assailed the same impugned order dated 25.09.2018 vide which charges for the offence u/s. 420/336/34 IPC were directed to be framed against accused persons i.e. Dr. M. Khalilullah and Dr. S. K. Khanna by the court of Sh. Nishant Garg, Ld. MM-06, South East, Saket Courts.
2. The revision No. 742/2018 is preferred by accused persons i.e. Dr. M. Khalilullah and Dr. S. K. Khanna for setting aside / quash the impugned order dated 25.09.2018 and revision No. 891/2018 is preferred by State of UP for framing of additional charges for the offence u/s. 417/418/465/467/ 468/471/326 read with 120-B IPC against the accused persons.
Page 1 of 153. Brief facts of the case are that the complainant Shamsher Khan visited Heart Centre at Lajpat Nagar on 21.03.2004 for treatment of heart palpitations. On the advice of Dr. M. Khalilullah, certain tests like ECG, ECO, X-ray, Chest PA, Blood Check, Holter, EPS and CAG etc were carried out. Allegations of the complainant are that on examining the reports, Dr. M Khaliullah informed him that there was no requirement of a pace-maker and advised him to take two tablets of medicine daily. Subsequently, when complainant was in the process to get medicines, he was called by Dr. M.Khaliullah who told the complainant that it was necessary to implant pace- maker. The doctor promised to arrange a latest American pace-maker for a sum of Rs.1,75,000/- to which the complainant agreed. Thereafter, on 25.03.2004, Dr. S K Khanna, in the presence of Dr. M.Khalilullah implanted a pace maker. Thereafter, at the instance of Dr. M. Khalilullah, Dr. S K Khanna shifted it to another site. It caused pain to complainant and the doctor tried to readjust it manually. Complainant further submitted that after implantation of the pace-maker, he did not get any relief, rather, it got aggravated. He was discharged from the hospital on 28.03.2004. When complainant did not get any relief even after taking post operative medicines, he consulted several reputed cardiologists of various hospitals and they all were of the view that the pacemaker was not required to be implanted as his heart was working 100%. Fearing that the pacemaker might cause damage to the heart, he approached doctors at Metro Hospital at Noida for its removal. After the removal of the pacemaker, all the problems like burning sensation in the chest, pricking sensation, pressure in neck and nerves were subsided and the heart palpitations were also removed. Grievance of the complainant is Page 2 of 15 that there was no requirement for implantation of the pacemaker and the accused persons were negligent in the performance of their duties. They indulged in unfair/unrestricted trade practice. The pacemaker was later on not found to be of USA make as represented. On the complaint dated 13.03.2006 given by the complaint, FIR was registered and comprehensive investigation was carried out. By the orders of Hon'ble Supreme Court, the case was transferred from Noida Court to Delhi Court. After hearing arguments, Ld. Trial Court has ordered for framing of charge u/s. 420/336/34 IPC against both accused Dr. S. K. Khanna and Dr. M. Khalilullah but did not frame charges for offence u/s. 417/418/465/467/468/471/326 read with 120-B IPC.
4. During pendency of the case, Dr. S. K. Khanna expired and proceedings qua him got abated.
Grounds of revision taken by the accused
5. Feeling aggrieved with the impugned order dated 25.09.2018, the revisionist / accused has preferred the present revision petition on the ground that Ld Trial Court failed to appreciate the Medical Board report dated 26.03.2008, as per which, accused Dr. M. Khalilullah has rightly arrived at decision to implant the pacemaker to the patient. Ld Trial Court failed to consider that as per the record of Metro Hospital, the implantation of pacemaker was required as 'Pacemaker interrogation record show - repeated, frequent episodes of AF lasting minutes to hours' but it was removed on the insistence of the complainant and it is clear from the Consent For Removal of Pacemaker given by the complainant to Metro Hospital that doctor never Page 3 of 15 advised to remove the pacemaker and it was made clear to complainant that pacemaker would be required at later stage. The consent obtained by Metro Hospital is sufficient to establish the fact that implantation of pacemaker was needed and its removal was not desirable. The pacemaker was removed from the body of complainant on 20.08.2004 and on 21.08.2004 at 6:15 a.m. complainant got sudden onset of giddiness, palpitation and blackout which substantiate that decision of Dr. M. Khalilullah was absolutely correct. The India Medtronic Pvt Ltd being the authorized company of Medtronic Inc. at USA through its AR sent a letter to IO on 29.05.2008 in which it was clarified that the pacemaker implanted in the body of complainant was of US make, so, no wrong representation was made to complainant and original pace- maker was used and no document was forged.
Grounds of revision taken by the complainant / State
6. Feeling aggrieved with the impugned order dated 25.09.2018, the revisionist / State of UP has preferred the present revision petition on the ground that the impugned order is partly incorrect, erroneous, improper and illegal to the extent of not mentioning the sections 417/418/465/467/468/ 471/326 read with 120-B IPC and does not disclose that why charges are not made out for rest of sections which are mentioned in the charge-sheet and what is the ground for not considering the remaining sections. Further, Ld. Trial Court failed to appreciate that accused persons hatched a conspiracy and prepared forged medical documents and implant pacemaker in the body of complainant. The Ld. Trial Court committed a gross illegality in not ordering for framing of charge in all the sections as per the charge-sheet.
Page 4 of 157. I have heard Ld counsel for the revisionist and Ld. Counsel for the respondent.
8. Case file along-with TCR perused.
9. The charge-sheet was filed for the offences u/s. 420/336/417/418/465/ 467/ 468/471/326 read with 120-B IPC but vide impugned order charges were directed to framed only for the offences u/s. 420/336/34 IP. No discussion was done or reason was given by the Ld. Trial Court for not concurring with the investigation done by the IO regarding offences u/s. 417/418/465/467/468/ 471/326 read with 120-B IPC. On this ground alone, the impugned order is liable to be set aside and case to be remanded back for fresh hearing on charge but as sufficient time has already been passed in deciding the revision petition as the petition file got misplaced by the previous Ahlmad of the court due to which petition file was reconstructed and after that arguments could be heard. So, court will decide the petition on merits.
10. Page no. 153 of the chargesheet shows that Complainant Mr Shamsher Khan got admitted in the "The Heart Centre" hospital on 21 st March 2004. Page no.154 of the chargesheet shows that the dual chamber pacemaker was implanted on 25th March, 2004 and the pacemaker was supplied by the "Medtronics". Page no.155 of the chargesheet contains the implanted device identification card as per which the pacemaker was implanted in complainant Page 5 of 15 Mr Shamsher Khan. At page no.213 of the chargesheet, the bill of purchase of pacemaker is present which shows that bill / invoice was issued in the name of accused Dr. M Khalilullah for Rs, 1,75,000/- and a discount of Rs.10,000/- was also given. On page no. 214 of the chargesheet, the receipt of payment of Rs.1,75,000/- is annexed which was issued in the name of complainant Mr. Shamsher Khan by "Sona marketing systems, Pvt Ltd.".
11. During investigation, the notice was sent by the IO to India Medtronic Pvt Ltd to inquire about the Pacemaker implanted on the complainant. Letter dated 29.05.08 sent by India Medtronic Pvt. Ltd. is annexed with the charge- sheet and it confirms that the Pacemaker was known as "Kappa 900 series"
and was purchased by Dr. Khalilullah from their distributor M/s Sona Marketing System Pvt Ltd. manufactured by Medtronic Inc. in USA and marketed and sold in India by Sona India Pvt. Ltd. It was also mentioned that the above Pacemaker was the Premium Packer model and most technologically advanced Pacemaker in the year, 2003-04.
12. During investigation, as per the direction issued by the Ld. Metropolitan Magistrate on 15.1.2008, the original pacemaker which was removed from the body of patient was also seized and photo thereof was produced before the Ld. Metropolitan Magistrate which proves that the same pacemaker was implanted in the body of the patient as mentioned in the invoices and receipts and represented by the accused persons to the Complainant.
Page 6 of 1513. All the above documents which are part of charge-sheet shows that the pacemaker was supplied by "Sona Marketing Systems Pvt Ltd.", which is Authorised agent of US pacemaker "Medtronics" and the pacemaker was purchased directly by the complainant from them and money was paid by the complainant directly to the company.
14. From the above documents and observations, it is concluded that the Pacemaker was of US make manufactured by Medtronic Inc. and directly purchased through its authorized agent in India and no forgery of any bill / invoice qua the pacemaker was done and genuine pacemaker was implanted. Therefore, no offence u/s. 417/418/465/467/468/471 read with 120-B IPC is made out. Therefore, revision petition i.e. Cr Rev No. 891/2018 titled 'State of UP vs. Dr. S. K. Khanna & Anr.' filed by the State of UP is hereby dismissed.
15. The Ld. Trial Court had directed the framing of charges u/s. 420/336/34 IPC on the ground that it is triable issue whether due precautions were taken by the accused persons by exercising reasonable care before implanting the pacemaker at the first instance and whether its implementation was the only possible and reasonable solution to mitigate the pain of the complainant and whether accused persons have acted negligently to arrive at the conclusion to implant the pacemaker or implanted it for any extraneous consideration to deprive the complainant for Rs.1,75,000/- and thereby cheated the complainant.
Page 7 of 1516. The Perusal of the charge sheet shows that from page no.124 till page no.143, the treatment slip of Complainant Mr. Shamsher Khan along with Test reports are annexed. As per which on 28.9.03 complainant visited the hospital 'The Heart Centre' for the first time with the complaint of Palpitation, Giddiness and irregular heart beats and on the same day, the hospital conducted investigation like ECG and Holter tests on complainant and on the basis of the test, it was found out that Complainant was suffering from (1)Tachy Brady syndrome (2) long sinus poses and (3) intermittent AF (Irregularity of beat) and on the basis of test reports and diagnosis, the complainant was advised Implantation of DDR (Dual chamber pacemaker).
17. Page no.144 annexed with the charge-sheet shows that complainant again visited Accused doctors in emergency condition from Jhasi, Uttar Pradesh. He was having Synocopal attack, acute palpitation, giddiness and blackout and Tests like ECG, ECHO and Holter test were conducted upon him; on the basis of these test reports and the Holter Test report conducted on a 28/9/2003, Implementation of pacemaker was Recommended. Page no. 145 and 146 shows that complainant signed the "Informed Consent for Cardiac Catheterization". Complainant is a well-educated person, who was serving as a judicial officer at Jhansi, Uttar Pradesh at that time and so, was well aware about Tests and Treatment given to him. Complainant only after being fully aware about all the aspects must have signed the consent form and as such he had agreed for implantation of pacemaker through surgery. Page no. 148 shows that he gave his signed consent for the surgical or other evasive procedures on 24/03/2004 for implantation of the pacemaker.
Page 8 of 1518. Complainant first got himself examined in September 2003 and after six months i.e. in March, 2004 again visited the accused doctors. The complainant had sufficient time to take 2nd or even 3rd opinion on his condition and treatment recommended to him. Being a serving judicial Officer, he was well educated and informed person and must have take opinion from other doctors. Only after taking opinion from other doctors and after being satisfied with the line of treatment suggested to him by the accused doctors and their reputation, he must have travel a huge distance of 500 kms from Jhansi to Delhi for the treatment.
19. There can be no doubt on the caliber and qualification of the accused persons to perform such operation as one of the accused Dr. Khalilullah is very renowned cardiologist and have been bestowed with 3rd highest civil award i.e. Padam Bhushan and he has written books on this subject.
20. The pacemaker was implanted on 25.03.2004 by doing surgery. The complainant remained admitted in the hospital upto 28.03.2004 and all the required tests etc have been done during the stay in the hospital. The complainant was discharged on 28.03.2004 and discharge summary was prepared. Perusal of discharge summary shows that there was no complications and the pacemaker was properly implanted. The complainant visited the hospital on 06.04.2004 and it was found that pacemaker was functioning well and everything was normal when he visited on 06.04.2004. This shows that the said surgery was done properly without any Page 9 of 15 complications and infections therein.
21. Later on, complainant got the pacemaker removed from Metro Hospital on 20.07.2024. When the said Pacemaker was got removed by the Complainant from the Metro Hospital and Heart Institute on 20.07.2004 its pocket were found comfortable. At page 220 of the chargesheet, the progress report of complainant at 'Metro Hospital & Heart Institute' is annexed and it shows that complainant was found to have repeated, frequent episode of AF lasting minutes to hours. The observations made by the Doctors on 20.07.2004 is reproduced below:-
"Symptoms related to pacemaker implantation. Feels deep/ penetrating sensation at pocket site. Pacemaker checked.
Pacemaker pocket comfortable. Patient want Pacemaker removed as he feels his symptoms have worsened.
Pacemaker interrogation record show-repeated, frequent episodes of AF lasting minutes to hours"
22. The history and physical examination record of Metro Hospital where complainant had gone for removal of his Pacemaker are part of charge-sheet and they suggests that at the site of the pacemaker there was no redness, tenderness, pain or pressure, it was quite healthy and, on checking of the Pacemaker, it was found to be made of Kappa. Progress sheet of Metro Hospital also suggests that the Pacemaker was checked and its pocket was found comfortable. This proves that pacemaker was implanted by the accused doctors perfectly and there was no issue with the surgery done for implantation.
Page 10 of 1523. On perusing the test reports annexed with the chargesheet, it is evident that the Complainant was diagnosed for "Tachy Brady Syndrome" and the prosecution has not brought any other contrary report that he was not suffering from such ailment or that there was no necessity for implanting Pacemaker. Even the documents annexed with chargesheet shows that the complainant was having the history of "Syncopal" attacks.
24. The Pacemaker was removed at the desire of the Complainant. Pacemaker interrogation report showed as repeated frequent episodes of AF lasting minutes to hours. After removal of the Pacemaker, on 21.08.04 at 6.15 a.m. patient has sudden onset of giddiness.
25. During investigation, Board of doctors was constituted and after going through all the documents, it gave the opinion that there was a necessity to implant a Pacemaker to Shamsher Khan (Complainant) and the Board opinion is annexed at Page 209 of the charge-sheet. From the report of Medical Board, it is clear that the pace-maker was required to be implanted and if the pacemaker was required to be implanted then in that case there was no other way available except to undertake surgery by the surgeon on the body of patient to implant the pacemaker.
26. In the present case, the general exception provided by Sec. 88 IPC is applicable and same is reproduced hereinbelow :
"88. Act not intended to cause death, done by consent in good faith for person's benefit.-Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be Page 11 of 15 intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm Illustration A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death and intending in good faith, Z's benefit performs that operation on Z, with Z's consent. A has committed no offence."
27. As per the Medical Board and other documents available on the record produced by the prosecution, it is clear that there was need of the implantation of the pacemaker; only way which is known in medical science is to implant the pacemaker by doing surgery, so, the surgery has been done as required. Therefore, no offence u/s. 336/326 IPC is made out.
28. The law on point as to when an accused can be discharged or can be charged in situation where contradictory evidence is on record has been best laid down in case titled as "Union of India Vs. Prafulla Kumar Samal and Anr". After examining all pros and cons following guidelines have been laid down in para no. 10 of the aforesaid judgment:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge :
i) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
ii). Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
iii) The test to determine a prima facie case would naturally depend Page 12 of 15 upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
iv). That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
29. Hon'ble Supreme Court of India in case titled as "Satish Mehra Vs. Delhi Administration and Ors 1996 J. C. C 507" has expressed similar view that when judge is fairly certain that there is no prospect of case ending in conviction the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on future date.
30. In the present case, from the above discussion, court is of the opinion that from the documentary evidences which contains the treatment history of the complainant, there was a need for the implantation of the pacemaker. The pacemaker was removed at Metro Hospital, Noida as per the wishes of the complainant and not on the medical advice. No document has been filed along-with the charge-sheet showing any recommendation or opinion or advice given by any renowned doctor or hospital that pacemaker was never Page 13 of 15 required. On the contrary, the discharged summary prepared by the Metro Hospital unequivocally demonstrated that the Doctors were of the opinion that the removal of the Pacemaker was not necessary and its removal would rather lead to various severe consequences. The said hospital had clearly mentioned that the removal of the Pacemaker was made at the instance / wants of the Complainant. So, it is concluded that there is no evidence which suggested that there was no need to implant Pacemaker to the Complainant. Rather there is evidence that there was necessity of it and therefore, it was implanted after obtaining the consent of the Complainant.
31. Suspicion, how strong may be but can never be a piece of evidence. All the documents collected during the investigation exonerates the accused persons rather than pointing fingers towards them and failed to raise any suspicion that pacemaker was not required to be implanted in the complainant and it was implanted for any extraneous reason or accused persons have cheated the complainant in any way, leave aside grave suspicion. Therefore, the accused Dr. M. Khalillulah is entitled to be discharged from the present case.
32. In view of the discussion above, the revision petition Cr. No. 742/18 titled 'Dr. M. Khalilullah Vs. State of UP' is allowed and impugned order dated 25.09.2018 is hereby set aside and revisionist Dr. M. Khalillulah is discharged from the present case.
Page 14 of 1533. Copy of this order be attached with the files of both the revision petitions. TCR be sent back to the Ld. Trial Court / Successor Court along- with copy of this order.
34. File of Revision Petition be consigned to Record Room after due compliance.
Vipin Digitally signed
by Vipin Kharb
Date: 2026.01.31
Kharb 17:01:54 +0530
Announced in open Court today (Vipin Kharb)
on 31.01.2026 Additional Sessions Judge-07
South-East, Saket Courts,
New Delhi
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