Delhi High Court – Orders
Naveen Khichi vs State Through Sho/Io, P.S. Vivek Vihar on 11 March, 2025
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 3850/2024 & CRL.M.A. 31884/2024
NAVEEN KHICHI .....Petitioner
Through: Mr. B.P. Verma, Senior Advocate
with Mr. Vinay Kumar Parihar and
Ms. Shalvi Shukla, Advocates.
versus
STATE THROUGH SHO/IO, P.S. VIVEK VIHAR .....Respondent
Through: Mr. Tarang Srivastva, APP for the
State.
Insp. Afaque Ahmad, P.S. Vivek
Vihar.
Mr. Ashutosh Kaushik and Mr. Kartik
Misra, Advocates for complainant.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 11.03.2025
By way of the present petition filed under section 483 of the
Bharatiya Nagarik Suraksha Sanhita 2023, the petitioner, who is a
medical doctor by profession and runs a neo-natal care hospital called
„Baby Care New Born Hospital‟ in Vivek Vihar, Delhi seeks regular
bail in case FIR No. 350/2024 dated 26.05.2024 registered under
sections 336/304-A/34 of the Indian Penal Code, 1860 („IPC‟) at P.S.:
Vivek Vihar, Delhi.
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2. Notice on this petition was issued on 22.10.2024. Pursuant thereto
Status Report dated 1712.2024 has been filed by the State; and
Nominal Roll dated 16.12.2024 has been received from the concerned
Jail Superintendent.
3. Pursuant to intimation sent to the next-of-kin of the deceased infants,
some of the complainants were present in court; and vide order dated
09.01.2025, Mr. Ashutosh Kaushik, learned Standing Counsel of the
Delhi High Court Legal Services Committee was appointed to
represent the next-of-kin in the matter.
BRIEF FACTS
4. The genesis of the matter is that on 25.05.2024 at about 11:29 p.m. a
fire broke-out at the Baby Care New Born Hospital, Vivek Vihar,
Delhi („hospital‟), which hospital was run by the petitioner, The
hospital provides neo-natal care for newborn children; and as a result
of the fire, tragically, 07 infants lost their lives.
5. Consequent thereupon FIR No. 350/2024 dated 26.05.2024 came to
be registered under section 336/304-A/34 IPC at P.S.: Vivek Vihar,
Delhi. Upon completing investigation, chargesheet has been filed in
the matter under sections 304/308/34 IPC and section 75 of the
Juvenile Justice (Care and Protection of Children) Act, 2015 („JJ
Act‟). The court is informed that charges are yet to be framed in the
matter.
6. The petitioner was arrested on 26.05.2024 and has been in judicial
custody ever-since.
7. The court has heard Mr. B.P. Verma, learned senior counsel
appearing for the petitioner; Mr. Tarang Srivastva, learned APP
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appearing for the State; as well as Mr. Ashutosh Kaushik, learned
counsel appearing for the next-of-kin of some of the deceased infants.
PETITIONER’S CONTENTIONS
8. Mr. Verma, learned senior counsel appearing for the petitioner has
made the following essential submissions in support of the bail plea :
9. That it is the undisputed position that 07 infants lost their lives in a
fire that broke-out in the hospital on 25.05.2024 at about 11.29 p.m.
The fire was reported, whereupon the fire-brigade, CATS Ambulance
and Shaheed Bhagat Singh Sewa Dal Ambulance arrived at the spot;
and 12 infants were rescued from the rear-side of the building and
were admitted to the East Delhi Advance NICU, Vivek Vihar, Delhi;
but unfortunately during the course of treatment, 07 of those infants
died.
9.1. That the petitioner‟s contention is that the fire was accidental;
that the hospital was equipped with the necessary fire-fighting
equipment; and that the hospital staff who were available at that
time made all efforts to save the infants, as a result of which 05
of the 12 infants who were admitted to the hospital at the
relevant time, were saved, but unfortunately 07 of them died.
9.2. That though there is no doubt that the incident was extremely
unfortunate and the loss of lives of 07 infants cannot simply be
explained away, it must be appreciated that the Crime Scene
Report dated 04.07.2024 prepared by the FSL team, which
visited the spot on 27.05.2025, has concluded that on the basis
of their observations, the seat of the fire appears to be the front
portion of the terrace of the hospital; however the exact cause
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of the fire could not be ascertained; and the investigating
officer was advised to collect, preserve and forward the exhibits
collected at the spot in sealed condition to the FSL for further
examination.
9.3. That it has also come on record in two Crime Scene Reports
both dated 04.07.2024 that the terrace of the hospital was
connected to the balcony of the 2nd Floor of the adjoining
house, where semi-burnt cardboard, paper, metallic grill and
other such articles were found lying; and electrical wires and
switchboard of the front room of the adjoining building was
also found in burnt condition. It is argued that these
observations in the crime scene report raise a strong possibility
that the fire might have arisen in the adjacent building and then
spread to the hospital.
9.4. That furthermore, in his Report dated 13.06.2024 the Assistant
Electrical Inspector, who was brought by the police on the
scene has also concluded that on physical examination of the
electrical installations in the hospital, no sign of any short-
circuiting could be noticed; and again therefore, the exact cause
of fire could not be ascertained.
9.5. That the hospital was duly registered with the Directorate
General of Health Services, Delhi, which registration was
granted after the authorities had inspected the building; and the
registration certificate available with the hospital was valid till
31.03.2024. It is submitted that thereafter, the hospital had
applied for renewal of its registration and for grant of
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certification for a 15-bed Neo-natal Intensive Care Unit
(„NICU‟), which was pending with the authorities as of the date
of the incident but had not been rejected. The petitioner has
stressed on this fact in response to the allegation that as per the
existing registration, the hospital was entitled to admit only 05
infants for neo-natal care, but on point of fact, 12 infants had
been admitted to the hospital at the relevant time.
9.6. That the hospital had sufficient number of qualified doctors to
treat the infants; and that in any case, the death of the infants
was not a result of any improper treatment or medical
negligence at the hands of the doctors but was the unfortunate
result of an accidental fire that broke-out in the hospital.
9.7. That, as has been recorded in the crime scene report, 07 fire
extinguishers were found available in the hospital; and these
were used by the hospital staff at the time the fire broke-out.
9.8. That by reason of the foregoing, it is evident that at worst, the
offences that could be alleged against the petitioner are under
sections 336/304-A IPC, which are both bailable offences and
the maximum custodial sentence prescribed is for section 304-
A IPC, which is imprisonment for 02 years.
9.9. That admittedly the petitioner was not present at the hospital at
the time of the incident; and the circumstances in which the
unfortunate deaths have occurred show that neither „intention‟
nor „knowledge‟ as required under section 304 IPC can be
imputed to the petitioner; and the question of alleging offences
under section 304/308 IPC against the petitioner does not arise.
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9.10. That it has also been strenuously argued, that considering that
the cause of the fire is not ascertainable; and the hospital was
being run with due registration and all facilities and safety
equipment was available on-site, the allegation even of the
offence under section 304-A IPC is misconceived; and quite
definitely, the substitution of section 304/308 IPC is wholly
baseless since no element of mens-rea can be imputed to the
petitioner.
10. In support of the bail plea, learned senior counsel has placed reliance
on the following relevant judgements of the Supreme Court, which
submissions may be briefly summarised as follows :
10.1. Sushil Ansal vs. State through CBI,1 which case arose from an
incident of accidental fire in a cinema building, by reason of
negligent acts of allowing the installation of a electrical
transformer, and permitting various structural and fire safety
deviations in the building, which led to the death of 59 persons,
besides injuries to nearly 100 persons. It has been argued that in
the said case, the accused persons were prosecuted and
convicted only for the offence under section 304-A read with
section 36 IPC and section 337/338 read with section 36 IPC.
10.2. Dataram Singh vs. State of Uttar Pradesh & Anr.2 and Sanjay
Chandra vs. Central Bureau of Investigation3, to submit that
the grant of bail is the general rule and keeping a person in jail1
(2014) 6 SCC 173
2
(2018) 3 SCC 22
3
(2012) 1 SCC 40This is a digitally signed order. BAIL APPLN. 3850/2024 Page 6 of 18
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as an undertrial is an exception; and that the said principle
applies regardless of the gravity of the offence alleged or the
severity of the punishment prescribed in law for such offence.
10.3. P. Chidambaram vs. Directorate of Enforcement 4 and P.
Chidambaram vs. CBI,5 to submit that in the said verdicts the
Supreme Court has set-out the factors that are to be taken into
consideration while considering the grant of bail; and that the
Supreme Court has inter-alia observed that “… … The gravity
can only beget the length of sentence provided in law and by
asserting that the offence is grave, the grant of bail cannot be
thwarted… …”.6
10.4. Keshub Mahindra vs. State of Madhya Pradesh,7 which was
involving leakage of noxious gas from a defective chemical
plant, which led to innumerable deaths. It is pointed-out that in
the said decision, the Supreme Court has ruled that even
assuming that the plant was defective, the mere act that the
accused was storing a toxic and hazardous substance would not
even prima-facie suggest that the accused had „knowledge‟ that
he was likely to cause death of human beings; nor could it be
suggested that the accused had any „intention‟ to kill any
human being by operating the plant. In the circumstances, the
4
(2020) 13 SCC 791
5
(2020) 13 SCC 337
6
P. Chidambaram vs. Directorate of Enforcement, para 12
7
(1996) 6 SCC 129, para 20
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Supreme Court had held that charge under section 304 (Part-II)
IPC was not tenable against the accused person.
10.5. Shantibhai J. Vaghela & Anr. vs. State of Gujarat & Ors.,8 in
which case several school children had drowned in a river close
to an ashram where the school was being run, due to lack of
effective supervision on the part of the persons running the
school. It is argued that in this case as well, the Supreme Court
held that a charge under section 304 (Part-II) IPC was not
made-out and the charge was reduced to section 304-A IPC.
10.6. Shamsher Khan vs. State (NCT of Delhi), 9 in which the
Supreme Court had held that mere storage of explosives in a
house by a person, would not attract the charge under section
304 (Part-II) IPC, since it cannot be presumed or inferred that
the accused had knowledge that his act of merely storing
explosives was likely to cause death.
STATE’S CONTENTIONS
11. Mr. Srivastva, learned APP appearing for the State has opposed the
grant of bail, citing the heinous nature of the offence and submitting
that the petitioner has the blood of 07 infants on his hands. Learned
APP submits, that the 07 infants died as a result of the fire that broke-
out in the hospital run by the petitioner; and the circumstances clearly
show that the petitioner had the „knowledge‟ that such a disaster was
waiting to happen.
8
(2012) 13 SCC 231
9
(2000) 8 SCC 568
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12. It is argued that the petitioner‟s culpability in the case arises from the
following factors :
12.1. That the hospital was being run without a valid registration
under the Delhi Nursing Home Registration Act, 1953 read
with the Delhi Nursing Home Registration (Amendment) Rules
2011, since their earlier registration had expired on 31.03.2024;
but the hospital had continued to receive in-patients.
12.2. That no document has come forth in the course of investigation
to show that requisite fire safety measures were installed, or
that requisite fire-fighting equipment was available, in the
hospital at the relevant time.
12.3. That as per the space available, the hospital could only have
accommodated 05 infants at a given time; but 12 beds were
being used to run the NICU, which in itself points to the
criminal negligence on the petitioner‟s part.
12.4. That even the doctors and the nurses available in the hospital
were not qualified to render the treatment that was being
offered.
12.5. That most importantly, 31 Nos. oxygen cylinders were found to
have been stored in the hospital; and as per the statements of
various witnesses recorded by the investigating officer, smaller
cylinders were being filled from larger oxygen cylinders within
the precincts of the hospital, which was a serious fire hazard.
12.6. That there was no emergency exits in the hospital; and it has
come-forth in the course of the investigation that only 01 spiral
staircase in the front of the building was available for theThis is a digitally signed order. BAIL APPLN. 3850/2024 Page 9 of 18
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purpose, which cannot be said to be a safe evacuation passage
for shifting-out the infants in an emergency.
12.7. That since it is the undisputed position that the petitioner was
the owner of the hospital, he was responsible for its day-to-day
functioning, which makes him liable for the tragic incident
leading to the death of 07 infants on the fateful day.
12.8. That it must be appreciated that the petitioner is an influential
person and is in a position to influence witnesses (several of
whom are his employees); that he may also tamper with
evidence; apart from the fact that considering the heinousness
and gravity of the offence, the petitioner is a serious flight risk.
12.9. That the building itself had been constructed in violation of the
Unified Building Bye-Laws for Delhi 2016 and the National
Building Code of India, 2016 inasmuch as a building meant for
public use cannot be occupied unless it has a fire-exit. It is
contended that not having a fire-exit completely nullifies the
petitioner‟s contention that the fire was accidental, since public
buildings are required to have proper fire escape routes since
accidental fires can occur.
13. On point of law, the State has relied upon the following judicial
precedents :
13.1. Alister Anthony Pareira vs. State of Maharashtra10 and State
vs. Sanjeev Nanda, 11 to submit that in these cases which10
(2012) 2 SCC 648
11
(2012) 8 SCC 450This is a digitally signed order. BAIL APPLN. 3850/2024 Page 10 of 18
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involved drunken driving at very high speed, leading to the
death of several persons, the accused persons were held guilty
of the offence under section 304 (Part-II) IPC. Learned APP
submits, that it has been held that an accused can be attributed
with the „knowledge‟ that his act of driving a vehicle at high-
speed in a rash and negligent manner, is dangerous and it could
cause death; and further that there is a presumption that a man
knows the natural and likely consequences of his act. It is
argued that based on the aforesaid reasoning, the Supreme
Court has held that the essential ingredients of the offence
under section 304 (Part-II) IPC were established in the said
cases.
13.2. State of Gujarat vs. Haidarali Kalubhai,12 to argue that in a
case where „intent‟ or „knowledge‟ is the direct motivating
force of the act complained of, section 304-A IPC has to make
room for the more grave and serious charge under section 304
IPC. In the present case, it is argued that admitting 12 infants
instead of 05, as was permissible under the rules; running a
hospital with no fire-exit; and where oxygen cylinders were
being stored and re-filled in a grossly negligent manner, raises
a serious presumption that the offence under 304 (Part-II) IPC
was committed and not just the offence under 304-A IPC.
12
(1976) 1 SCC 889
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13.3. Dr Mani Kumar Chhetri vs. State of West Bengal,13 where, in
the context of the definition of „culpable homicide‟ under
section 299 IPC, the Calcutta High Court has held that the word
„knowledge‟ appearing that provision must be understood as
involving a degree of „certainty‟ and not „mere probability‟ as
to the knowledge of the consequences of the act; and
furthermore, the knowledge as to likelihood of death must be
the „direct‟ and „motivating force‟ for commission of the act
and not a possibility arising therefrom.
COMPLAINANTS’ CONTENTIONS
14. Mr. Kaushik, learned counsel appearing for the next-of-kin of some of
the deceased infants, while adopting the submissions made on behalf
of the State, has also opposed the grant of bail to the petitioner on the
following principal grounds :
14.1. That the petitioner has suffered a previous conviction under
section 3 read with section 6 of the Delhi Nursing Home
Registration Act 1953, where he was charged with running a
nursing home without the required registration. It is pointed-out
that in CT Cases No.599/2019, the petitioner had pleaded
guilty, and vide order dated 08.05.2023 the learned Additional
Chief Metropolitan Magistrate, Karkardooma Courts, Delhi had
convicted the petitioner for the aforesaid offence. But since the
petitioner had shown remorse and had said that he would
remain careful in the future, a lenient view was taken on13
(2017) SCC OnLine Cal 8423; paras 45, 48This is a digitally signed order. BAIL APPLN. 3850/2024 Page 12 of 18
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sentencing and the petitioner was let-off only with a fine of Rs.
2,000/-.
14.2. That the petitioner is also involved in another case bearing FIR
No. 330/2021 registered under sections 325/506/34 IPC read
with section 75 of the JJ Act at P.S.: Vivek Vihar, New Delhi,
where a nurse has been charged with breaking the arm of an
infant at the petitioner‟s hospital. It is submitted that though the
petitioner has not been named as an accused in the original
chargesheet filed in the said case, a supplementary chargesheet
is believed to be under consideration, naming the petitioner as
an accused in that case as well.
14.3. That the previous conviction that the petitioner has suffered in
CT Cases No.599/2019 shows per-se negligence on his part,
and considering that 07 infants have lost their lives in the
petitioner‟s hospital, the gravity of the offence cannot be
overemphasised.
14.4. That in their statements recorded by the investigating officer,
the prosecution witnesses have said that they saw and heard
oxygen cylinders exploding, which was a result of the grossly
negligent act on the petitioner‟s part in allowing his untrained
staff members to re-fill smaller oxygen cylinders from larger
cylinders on the ground floor of the hospital, which lead to the
disaster on the fateful day.
14.5. That it is also seen from the statement of the house-keeping
staff at the hospital, that they had cautioned the petitioner that
since there was no trained technician to operate and re-fill
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oxygen cylinders at the hospital, something „wrong‟ could
happen in the process; but the petitioner ignored all such
warnings and told his staff to continuing doing their work,
saying that it was not their problem. It is argued that the
statement of the petitioner‟s staff to the said effect clearly
shows that the petitioner was fully in the know of the attendant
danger but he chose to ignore it.
14.6. That since charges are yet to be framed in the matter, there is
every possibility and risk that the petitioner will attempt to
influence the course of the trial.
DISCUSSION & CONCLUSIONS
15. This court is painfully conscious that the death of 07 infants in a
hospital that was supposed to save and preserve their lives, is an
incident that shakes-up the whole community. The incident is grave as
can be; and the loss, not just to the families of the infants, but to the
community is irreparable and there is little one can do to offer solace
to the next-of-kin.
16. This court is also aware, that at this stage, it is only dealing with a bail
petition; that charges are yet to be framed in the case by the learned
trial court; and that therefore, it is not only inappropriate but also
inadvisable for this court to express any definitive view as to whether
a charge is made-out against the petitioner under section 304 (Part-II)
IPC or under section 304-A IPC.
17. That being said, a bail petition must be decided in accordance with
law and cannot be dealt-with based on public perception or the
sentiments of the community in relation to the accused.
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18. Furthermore, to the limited extent that the gravity of an offence is a
relevant consideration for grant or denial of bail, and especially since
the offence under section 304A IPC is „bailable‟ while that under
section 304 (Part-II) IPC is a „non-bailable‟ offence, this court must
briefly and only by way of a prima-facie assessment see whether the
ingredients of the offence under section 304-A IPC are discernible
against the petitioner in the present case.
19. In this behalf, and based on the judicial precedents cited by the
parties, it is observed that „mere probability‟ that an accused had
„knowledge‟ of the consequences of his act is not sufficient to allege
the offence under section 304 (Part-II) IPC; and a higher degree of
certainty is necessary to impute such „knowledge‟.14 Moreover, every
rash and negligent act resulting in death cannot, in and of itself, lead
to the inference that the person who committed the act had the
knowledge that the act was likely to cause death.
20. It is also noticed that the Legislature has advisedly used the word
“act” in section 304 IPC, to signify that „intention‟ within the
meaning of section 304 (Part-I) and „knowledge‟ under section 304
(Part-II) IPC must refer to and correlate with a specific act or illegal
omission15 on the part of the accused which results in death.
21. In the present case, this court is of the view :
14
Dr Mani Kumar Chhetri (supra)
15
cf. section 32 IPCThis is a digitally signed order. BAIL APPLN. 3850/2024 Page 15 of 18
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21.1. That whether the allegations against the petitioner amount to an
offence under section 304-A IPC or an offence under section
304 (Part-II) IPC is a seriously debatable question;
21.2. That no overt act appears to be attributable to the petitioner
which led to the death of 07 infants, and the allegation is that he
had failed to take certain measures to ensure the safety of the
infants admitted to the NICU and had also committed
infractions of building construction rules and regulations in
relation to his hospital;
21.3. A perusal of Nominal Roll dated 16.12.2024 shows that that the
petitioner has suffered judicial custody for about 09 months as
an undertrial; that his jail conduct has been „satisfactory‟; and
that he has no other criminal involvements;
21.4. If, as observed above, the question of whether the allegations
against the petitioner amount to an offence under section 304-A
IPC or under section 304 (Part-II) IPC requires deeper
consideration, that question must await framing of charges and
subsequent proceedings in the course of the trial. At this stage,
on first principles, the court must lean towards an interpretation
that favours the accused, namely that the offence is under
section 304-A IPC; and
21.5. Section 304-A IPC is punishable with a maximum custodial
sentence of 02 years, apart from fine. In that context, the
petitioner has already suffered judicial custody of about 09
months.
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22. The foregoing considerations persuade the court to grant to the
petitioner – Naveen Khichi s/o Umed Singh – regular bail pending
trial, subject to the following conditions :
22.1. The petitioner shall furnish a personal bond in the sum of
Rs.5,00,000/- (Rs. Five Lacs Only) with 02 sureties in the like
amount from family members, to the satisfaction of the learned
trial court;
22.2. The petitioner shall furnish to the Investigating Officer a
cellphone number on which the petitioner may be contacted at
any time and shall ensure that the number is kept active and
switched-on at all times;
22.3. If the petitioner has a passport, he shall surrender the same to
the learned trial court and shall not travel out of the country
without prior permission of the learned trial court;
22.4. The petitioner shall not contact, nor visit, nor offer any
inducement, threat or promise to any of the prosecution
witnesses or other persons acquainted with the facts of case.
The petitioner shall not tamper with evidence nor otherwise
indulge in any act or omission that is unlawful or that would
prejudice the proceedings in the pending trial; and
22.5. In case of any change in his residential address/contact details,
the petitioner shall promptly inform the I.O. in writing.
23. Since the petitioner is facing trial and is therefore appearing before
the learned trial court from time-to-time, it is not considered
necessary to impose a reporting requirement as a condition of regular
bail.
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24. Nothing in this order shall be construed as an expression of opinion
on the merits of the pending matter.
25. A copy of this order be sent to the concerned Jail Superintendent
forthwith.
26. Petition stands disposed-of in the above terms.
27. Pending applications, if any, are also disposed-of.
ANUP JAIRAM BHAMBHANI, J
MARCH 11, 2025
V.Rawat/ds
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