IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43133 of 2007 Sanjay Kumar, Son of Bindeshwar Sharma, Resident of Mohalla Chanakyapuri, P.S. Rampur, District Gaya. ---------- Petitioner Versus 1. State of Bihar. 2. Dr. Sangita Sinha, Wife of Pramod Kumar, Chainpur Bhawan, Murarpur More, P.S. Kotwali, District Gaya, Resident of Mohalla Lakhibagh, P.S. Moffasil, District Gaya. --------- Opposite Parties ----------- 3 19.03.2010 Heard Mr. Krishna Prasad Singh, learned senior counsel for the petitioner and counsel for the opposite party no.2 as also counsel for State. The impugned order is perfectly justified up to the last but one page. However, what really is not sustainable in law is the following portion of the impugned order:- “------At the same time having found disparity and vital contradictions in the facts as mentioned in Protest complaint case no. 483/06 dated 4.4.06 and also after considering technicality of the subject matter of the case, I do not feel any necessity to proceed further into the matter, as it would give birth to everlasting and unending litigacy with whom Courts are over burdened, the protest complaint is hereby dismissed.” It is well settled by now that the court has sufficient power to drop the criminal proceedings arising out of a police 2 case by agreeing with the police report but, if there be a pending protest petition, the procedure of complaint case has to be followed. In the present case, it appears that the court has passed an order without taking recourse to the procedure under Section 200 & 202 of the Code of Criminal Procedure. That is not permissible in law. Learned counsel for the opposite party no.2, however, submits that the Medical Council of India has subsequently held an enquiry and has found that there was no medical negligence in the alleged offence. This is an aspect which strictly goes into the defence of the opposite party no.2, which could be looked into by the court below while examining the protest petition. Accordingly, the impugned order in part is set aside to the extent indicated above and the court below is directed to proceed on the basis of the protest petition in accordance with law. Rsh (Mihir Kumar Jha, J.)