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When Prosecution against doctor is liable to be quashed for medical negligence?


Delivered on 29.05.2017
Case :- U/S 482/378/407 No. – 4194 of 2015

Dr. Meera Malik
The State Of U.P and another

Hon’ble Ravindra Nath Mishra-II,J.

1. This petition under Section 482 Cr.P.C. has been filed for quashing of charge-sheet No.157 of 2015 dated 12.06.2015 arising out of Crime No. 494-C/2015 under Sections 420, 338 and 201 I.P.C., Police Station Kotwali Nagar, District Raibareli.

2. Brief facts in the backdrop of which this petition has been filed are that opposite party no.2-Kunwar Vikrant Singh moved an application under Section 156 (3) in the Court of Chief Judicial Magistrate, Raibareli, stating therein that his wife was pregnant and was being medical supervised by the petitioner-Dr. Meera Malik. The petitioner assured normal delivery. At the last moment petitioner informed the opposite party no.2 that condition of patient was deteriorating as the baby was stuck inside, hence minor operation was required. However, opposite party no.2 did not agree for operation and insisted for normal delivery. On the assurance of the petitioner that everything would be normal, opposite party no.2 signed on consent papers. Thereupon operation was conducted, but after operation her condition did not improve and she was also not in sense when the2 petitioner was not able to give clear answer and was giving false assurances, the opposite party no.2 got the patient discharged from petitioner’s hospital and admitted her in Sahara Hospital, Lucknow where he was told that due to negligence of attending Doctor, there was excess bleeding endangering her life. According to opposite party no.2, the medical negligence of petitioner in conducting operation caused excessive bleeding and blood clotting, therefore, application for lodging F.I.R. was moved in the Court of Chief Judicial Magistrate, Raebareli.

3. Under the order of Chief Judicial Magistrate, F.I.R. was registered at Case Crime No. 449 C/ 2015 under Sections 420, 338 and 201 I.P.C., in police station Kotwali Nagar, District Raebareli. After investigation having found prima facie evidence against the petitioner, police filed charge-sheet in the Court, which has been challenged by the petitioner under Section 482 Cr.P.C.

4. Learned Counsel for the petitioner has submitted that petitioner is a qualified Gynecologist and Obstetrics and is expert in Gynie and Delivery. She is running Nursing Home dealing Gynie cases since 1972. The treatment and operation was done with the consent of opposite party no.2. All precautions were taken keeping her sensitive status in mind, but her blood pressure dropped to 80/60 MM of HG after delivery. She did not respond to medication. Ultrasound was done through a portable machine due to emergency to look for any intraperitoneal bleeding which could have been life threatening. As no cause could be detected, and condition of patient was deteriorating decision was taken to shift her to Queen Marry’s Hospital, Lucknow with the consent of family members. The detailed summary and reports were given to them. The patient was properly referred with functional3 IV Line. However, by personal choice they went to Sahara Hospital. There was no medical negligence was on the part of petitioner. Learned Counsel has also submitted that the police did not took independent decision of any team of Doctors regarding negligence of petitioner as per guidelines given in Jacob Mathew Versus State of Punjab AIR 2005 SC 3180 and in abuse of process of Court and in abuse of process of law submitted charge-sheet.

5. Per contra, learned Counsel for the opposite party submitted that before submission of Charge-sheet the Investigating Officer has recorded statement of Doctor Himani Negi, who has stated that due to negligence of petitioner, a vein was cut causing considerably loss of blood resulting in blood clotting. In Sahara Hospital patient was transfused five units of blood and she was taken up for Emergency Laparotomy for abdominal wall haematoma. The blood clot was found between peritoneum and rectus. Intraperitoneal cavity was clean. Thus the Investigating Officer has rightly concluded not only the medical negligence of the petitioner but also cheating in concealing the real condition of patient and giving false assurance to opposite party no.2.

6. Before appreciating the rival contentions of the parties, I must mention here some of the admitted fact between the parties. It is admitted fact that wife of opposite party no.2 was pregnant and was under treatment of petitioner. She was also admitted in the Nursing Home of the petitioner, where she was operated, but her condition deteriorated and could not be controlled, therefore, on the insistence of family members of the patient, she was discharged from the Nursing Home and was admitted to Sahara Hospital. From the discharge summary of Sahara Hospital, it is clear that there was excessive loss of4 blood. There was also 600-700 ML of MG blood clots between peritoneum and rectus.

7. Petitioner/accused has been chargesheeted under Section 420/338 and 201 I.P.C. Section 338 of I.P.C. relates to grievous hurt by an act done rashly and negligently, which reads as under:

“338. Causing grievous hurt by act endangering life or personal
safety of others.—Whoever causes grievous hurt to any person by
doing any act so rashly or negligently as to endanger human life, or
the personal safety of others, shall be punished with imprisonment of
either description for a term which may extend to two years, or with
fine which may extend to one thousand rupees, or with both.”

8. Negligence has been interpreted in various judgments as breach of a duty caused by the omission to do something, which a reasonable man, guided by those considerations, which ordinarily regulate the conduct of human affairs, would do or doing something which prudent reasonable man would not do. Thus there consists of three constitute of negligence:

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I) a legal duty to exercise due care, owed by defendant to the complainant;
II) breach of the said duty; and
III) consequential damage.

9. Damage is a necessary ingredient for negligence. Once it is found that there is “duty to treat” there would be corresponding “duty to take care” upon the Doctor qua his patient. When reasonable care, expected of the medical professional, is not rendered and the action on the part of the medical practitioner comes within the mischief of negligence, it can be safely concluded that the said Doctor did not perform his duty5 properly, which was expected of him under the law and breached his duty to take care of the patient.

10. Basic principle relating to medical negligence is known as

“BOLAM” rule. This rule was laid by Justice McNair in the case of Bolam Versus Friern Hospital Management Committee (1957) 1 WLR page 582, which reads as under:

“Before I turn to that, I must explain what in law we mean
by ‘negligence’. In the ordinary case which does not involve any
special skill, negligence in law means this: some failure to do
some act which a reasonable man in the circumstances would do,
or the doing of some act which a reasonable man in the
circumstances would not do; and if that failure or the doing of
that act results in injury, then there is a cause of action. How do
you test whether this act or failure is negligent? In an ordinary
case it is generally said, that you judge that by the action of the
man in the street. He is the ordinary man. In one case it has been
said that you judge it by the conduct of the man on the top of a
Clapham omnibus. He is the ordinary man. But where you get a
situation which involves the use of some special skill or
competence, then the test as to whether there has been
negligence or not is not the test of the man on the top of a
Clapham omnibus, because he has not got this man exercising
and professing to have that special skill. … A man need not
possess the highest expert skill at the risk of being found
negligent. It is well-established law that it is sufficient if he
exercises the ordinary skill of an ordinary competent man
exercising that particular art.”

11. Similar matter came up before Hon’ble Apex Court in Jacob Methew Versus State of Punjab and another, AIR 2005 SC page 3180, where Hon’ble Court approving the BOLAM’s test held that the statement of law in Bolam’s case has been widely accepted as decisive standard of case for professional as well medical practitioner and has been applied by Court as touchstone to test the pleas of medical negligence.

12. Further, Hon’ble Court after discussing civil and criminal negligence and protection to the professionals has summed up conclusion as under:

(1) Negligence is the breach of a duty caused by omission to do
something which a reasonable man guided by those considerations
which ordinarily regulate the conduct of human affairs would do, or
doing something which a prudent and reasonable man would not do.
The definition of negligence as given in Law of Torts, Ratanlal
Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove,
holds good. Negligence becomes actionable on account of injury
resulting from the act or omission amounting to negligence
attributable to the person sued. The essential components of
negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’.

(2) Negligence in the context of medical profession necessarily
calls for a treatment with a difference. To infer rashness or negligence
on the part of a professional, in particular a doctor, additional
considerations apply. A case of occupational negligence is different
from one of professional negligence. A simple lack of care, an error
of judgment or an accident, is not proof of negligence on the part of
a medical professional. So long as a doctor follows a practice
acceptable to the medical profession of that day, he cannot be held7
liable for negligence merely because a better alternative course or
method of treatment was also available or simply because a more
skilled doctor would not have chosen to follow or resort to that
practice or procedure which the accused followed. When it comes to
the failure of taking precautions what has to be seen is whether those
precautions were taken which the ordinary experience of men has
found to be sufficient; a failure to use special or extraordinary
precautions which might have prevented the particular happening
cannot be the standard for judging the alleged negligence. So also, the
standard of care, while assessing the practice as adopted, is judged in
the light of knowledge available at the time of the incident, and not at
the date of trial. Similarly, when the charge of negligence arises out of
failure to use some particular equipment, the charge would fail if the
equipment was not generally available at that particular time (that is,
the time of the incident) at which it is suggested it should have been

(3) A professional may be held liable for negligence on one of the
two findings: either he was not possessed of the requisite skill which
he professed to have possessed, or, he did not exercise, with
reasonable competence in the given case, the skill which he did
possess. The standard to be applied for judging, whether the person
charged has been negligent or not, would be that of an ordinary
competent person exercising ordinary skill in that profession. It is
not possible for every professional to possess the highest level of
expertise or skills in that branch which he practices. A highly skilled
professional may be possessed of better qualities, but that cannot be
made the basis or the yardstick for judging the performance of the
professional proceeded against on indictment of negligence.8

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(4) The test for determining medical negligence as laid down in
Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability
in India.

(5) The jurisprudential concept of negligence differs in civil and
criminal law. What may be negligence in civil law may not necessarily
be negligence in criminal law. For negligence to amount to an
offence, the element of mens rea must be shown to exist. For an act to
amount to criminal negligence, the degree of negligence should be
much higher i.e. gross or of a very high degree. Negligence which is
neither gross nor of a higher degree may provide a ground for
action in civil law but cannot form the basis for prosecution.

(6) The word ‘gross’ has not been used in Section 304A of IPC, yet it is
settled that in criminal law negligence or recklessness, to be so held,
must be of such a high degree as to be ‘gross’. The expression ‘rash or
negligent act’ as occurring in Section 304A of the IPC has to be read
as qualified by the word ‘grossly’.

(7) To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something or
failed to do something which in the given facts and circumstances no
medical professional in his ordinary senses and prudence would have
done or failed to do. The hazard taken by the accused doctor should
be of such a nature that the injury which resulted was most likely

(8) Res ipsa loquitur is only a rule of evidence and operates in the
domain of civil law specially in cases of torts and helps in9
determining the onus of proof in actions relating to negligence. It
cannot be pressed in service for determining per se the liability for
negligence within the domain of criminal law. Res ipsa loquitur has, if
at all, a limited application in trial on a charge of criminal

13. The Court has further observed that:

“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 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 may10
be withheld.”

14. Now coming to the present case wife of opposite party no.2 was under supervision of the petitioner since beginning of her pregnancy and his wife was also satisfied with her treatment. However, during delivery some complicasy had developed compelling delivery of baby by scissor, which was thought necessary by the petitioner to save life of the patient and the bay as well. She conducted operation after admittedly obtaining consent of the family members of the patient. Thus the act was done in good faith. Section 92 I.P.C. provides in exemptions for acts done in good faith. It says

“Nothing is an offence by reason of any harm which it may cause
to a person for whose benefit it is done in good faith, even without that
person’s consent, if the circumstances are such that it is impossible for
that person to signify consent, or if that person is incapable of giving
consent, and has no guardian or other person in lawful charge of him
from whom it is possible to obtain consent in time for the thing to be
done with benefit.”

15. Following illustrations appended to Section 88 and 92 of I.P.C. also explain the liability of a surgeon:

Section 88: Act not intended to cause death, done by consent in good faith for person’s benefit , a surgeion, 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.

Section 92: Act done in good faith for benefit of a person without consent, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence.

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16. In the present case also the petitioner performed operation in good faith to save life of the patient and the baby with consent of her family members. Thus Section 88 and 92 of I.P.C. are very well attracted.

17. Apart from this Hon’ble Apex Court in Jacob Mathew’s case (supra) has held that the private complaint should not be entertained unless the complainant had produced prima facie evidence before the Court in the form of a credible opinion given by a competent Doctor; the Investigating Officer should before preceding against the Doctor, accused of rash or negligent act or omission, obtain an independent and competent medical opinion, preferably from a Doctor in Government service qualified in that branch of medical practice.

18. In the present case, charge sheet has been submitted, merely on the basis of statement of Doctor Himani Negi of Sahara Hospital, who had subsequently treated the patient. She has stated that there was a blood clot of 600-700 ML between peritoneum and rectus which was cleaned by her and she also resorted to blood transfusion to save life of the patient. Due to this negligence of private Doctor any untoward event could have happened.

19. Thus from the totality of the facts and circumstances, it appears that the submission of charge-sheet was not in accordance with the guidelines given by Hon’ble Apex Court in Jacob Mathew’s case (supra). Firstly, no independent opinion of Government Doctor was obtained regarding negligence of petitioner before submission of charge-sheet. Though opinion of Government Doctor was not compulsory, there should have been opinion of independent Doctor. The opinion of Doctor Himani Negi can not be said to be independent opinion as she herself was involved in the case and had treated the patient. Secondly, applying BOLAM’s Test only ordinary competence man of medical was to be exercised and not special medical skill was required. A simple lack of care, and error of judgment or an accident cannot be said to be poof of negligence on the part of the petitioner. It is not the case of prosecution that the petitioner did not possess requisite skill, which she professed to have possessed or she did not exercise of reasonable competence in the given case, the skill which she did possess.

20. The element of cheating is also not made out merely because the petitioner had given assurance to control the condition of patient. There is nothing on record to show that she concealed any fact regarding treatment or that she did not possess the qualification which she professed. She had exercised the skill expected from a man of ordinary competence of medical.

21. Thus the allegations made in the First Information Report, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused and where no prima facie case is made out against accused, it is liable to be quashed as held in State of Haryana and others versus Ch. Bhajan Lal and others, AIR 1992 SC 604 in which Hon’ble Apex13 Court has laid down following seven guide lines to exercise power under Section 482 Cr.P.C.:

1. Where the allegations made in the First Information Report or
the complaint, even if they are taken at their face value and accepted
in their entirety do not prima facie constitute any offence or make
out a case against the accused.

2. Where the allegations in the First Information Report and other
materials, if any, accompanying the F.I.R. do not disclose a
cognizable offence, justifying an investigation by police officers under
Section 156(1) of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint
and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable
offence but constitute only a non-cognizable offence, no investigation
is permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd
and inherently improbable on the basis of which no prudent person
can ever reach a just conclusion that there is sufficient ground for
proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a criminal
proceeding is instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision in the Code or
the concerned Act, providing efficacious redress for the grievance of
the aggrieved party.

7. Where a criminal proceeding is manifestly attended with malafide
and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”

22. In view of above, the charge-sheet submitted by police against the petitioner is in abuse of process of the Court and process of law and is liable to be quashed.

23. Consequently, the petition under Section 482 Cr.P.C. filed by the applicant is allowed and Charge-sheet No. 157 of 2015 dated 12.06.2015 arising out of Crime No. 494-C/2015 under Sections 420, 338 and 201 I.P.C., Police Station Kotwali Nagar, District Raibareli, pending in the Court of Chief Judicial Magistrate is hereby quashed.

Order Date :29.05.2017

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