Dr. A.K. Gupta And Others vs State Of U.P. And Others
2018 Latest Caselaw 3227 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 53								A.F.R.
 

 
Case :- APPLICATION U/S 482 No. - 4226 of 2005
 

 
Applicant :- Dr. A.K. Gupta And Others
 
Opposite Party :- State Of U.P. And Others
 
Counsel for Applicant :- Amit Krishna
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble J.J. Munir,J.

1. Many in the world of medicine say, or at at least tempted to say, "I Treat He Cures". All qualified doctors, except the occasional and recalcitrant few "treat" their patients. Whether they are cured or not in every case, is certainly not in the hands of the doctor. What if a doctor treats, but the patient is not cured; in fact, he dies. Does the doctor become guilty of the offence of death by negligence, punishable under Section 304A IPC?

2. This is all that the present case is about.

3. This Application under Section 482 Cr.P.C. has been filed by a certain Dr. A.K. Gupta, and, another Dr. Alok Mishra, seeking to quash the entire proceedings of Complaint Case no.2028 of 2004, Indradev Chauhan vs. Dr. A.K. Gupta and another, under Section 304 IPC, Police Station George Town, District Allahabad.

4. The applicants have come up with a case that the Priti Hospital (hereinafter referred to as the 'hospital') is one of the renowned Medical Care Centres in the City of Allahabad. It is equipped with the most modern and updated equipment, employed in the diagnosis and treatment of diseases. The doctors at the hospital are highly skilled and qualified professionals, in their respective areas of specialization. The hospital has steadily gained reputation, and, earned the trust of the innumerable ailing, who walk in with confidence and faith. The hospital is engaged in an untiring and ceaseless endeavour to serve the people of Allahabad, in general, by providing them the most modern amenities, in the field of medicare.

5. The applicants, however, lament that the weather is not always pink. It is certainly not so for every patient, who is devotedly cared for by the doctors at the hospital. Not all, but a few of the unlucky ones, who face reverses in treatment, do not take it with equanimity. The doctors at the hospital do not mind the emotional outbursts, at distressful moments, from the patients or their relatives.

6. It is their profe ssional duty to empathize with the unlucky few. But, there is a section amongst patients, and, much more, amongst their relatives, friends or persons of still remote acquaintance, who are on the look out to fish in troubled waters. Their intentions are mala fide. The moment there is an unpleasant turn or an event, in the course of medical management, the malicious mind of these minuscule section of the society, do not spare the hospitals, the doctors and staff, to browbeat them with extortionist demands for money.

7. It is submitted that there are various ways and means, to extort money from the doctors. Some resort to violence and goondaism, others would abuse the administration and the police machinery, some undeservedly choose to go to the Medical Council, and, still others, knock at the doors of the Court or the Consumer Fora.

8. In the present case, the applicants face criminal prosecution for an offence under Section 304A IPC, brought by way of a complaint, laid before the learned Chief Judicial Magistrate, Allahabad, who has summoned the applicants to stand their trial on the allegations, set out in the complaint.

9. Heard Sri Imran Syed holding brief of Sri Amit Krishan, learned counsel for the applicants and Sri M.P. Singh Gaur, learned Additional Government Advocate along with Sri Avanish Shukla, appearing for the State. Learned counsel for opposite party no.2 has not appeared.

10. It is submitted by the learned counsel for the applicants that the facts giving rise to the impugned complaint, require mention in some detail. One Ratnesh Kumar, a son of the complainant, Indradev Chauhan, was admitted to the hospital on 29.12.2003, in the evening hours. He came in with complaints of severe pain in the abdomen, fever and vomitting that he had for the four days past, and, had been under treatment, elsewhere. It is stated that at the time of admission to the hospital he was febrile, his pulse rate was high, and, respiratory rate was also high. His abdomen was painful. He was diagnosed with acute pancreatitis. His high pulse rate and respiratory rate indicated severe pancreatitis in multiple vital organ failure. It is further said, that patients with multi organ failure in pancreatitis, have a survival rate of less than 10%, that is to say, that 90% of patients with this medical condition die, despite best efforts in the world's best centres. The patient here, fell into that unfortunate category. It is stated further, that this contingency was fully explained to the relatives of the patient, time over again.

11. It is also asserted that the patient was managed, in accordance with the standard guidelines of medical protocol. He was managed with the best of antibiotics for pancreatitis, like IIIrd generation cephalosporins, plurogunolones, amunigloycosides and impenem. Considering his lung related complications, he was managed best with anticipation. He was given nebulization, chest physio therapy, and, when need arose, he was put on mechanical respirator machine. He was, thus, treated with the best of the machines, best central line placement, with adequate monitoring volume status, mechanical respirator, and, other support systems. It is claimed by the applicants, that the management provided to the patient, was the best available treatment. It is said in the application that despite all efforts, he succumbed to his ailment which was sad. But, it was due to the nature of the disease, that was well explained to his relatives, time over again. It is also asserted that the patient's father, was several times given the option to move him to a higher centre, but he continued treatment at the hospital, in accordance with his free choice and judgment.

12. It is said that the patient died on 3rd January, 2004. After his demise, his body was taken away, by the complainant/ opposite party and his relatives. At that juncture, no allegation of negligence in treatment of the patient was alleged by the complainant, against the doctors. The body of the patient was cremated without autopsy, as it was not regarded at all by anyone, including the complainant, to be case of an unnatural death. It is said, lateron, the complainant had second thoughts. He considered it to be a great opportunity to encash the death of his son. He was riled up by some others who were interested to bring a bad name to the hospital. This led the complainant to meet applicant no.1, Dr. A.K. Gupta, with a not so honourable agenda. He demanded money of applicant no.1, purportedly as a recompense for his son's death but, in fact, as an opportunistic extortion. The first applicant has asserted that he refused to succumb to the illegal demand of the complainant. This refusal is said to have infuriated the complainant, in consequence whereof he threatened the applicants with dire consequences, if his demand for money, was not met.

13. It is said that when the applicants did not pay any heed to the illegal demand of the complainant, out of vengeance and mala fides, he filed the impugned complaint, giving rise to Complaint Case no.2028 of 2004, Indradev Chauhan vs. Dr. A.K. Gupta and another, under Sections 304-A and 420 IPC in the Court of the Chief Judicial Magistrate, Allahabad. The complaint was filed on 18.05.2004. The substance of the complaint is to the effect that the patient was admitted to the hospital on 29.12.2003 with abdomen pain; that the complainant was convinced by the doctors that his son was alright, and, there was nothing to worry about; that on 02.01.2004, the attendant nurse administered three injections, on instructions of the doctors; that in the next following ten minutes, the patient fell unconscious; that the doctors were called who moved the patient to the Intensive Care Unit, and, the complainant was kept in the dark during all this while; that after sometime, the doctor told the complainant that venom had spread all over the patient's body, bearing possible reference to septicemia; that the complainant also deposited a sum of Rs.30,000/- with the doctor, but despite that, his son expired on 03.01.2004 at about 1.00 a.m.; and, that it was asserted in the complaint, that the patient died due to negligence of the doctors.

14. The Magistrate after recording evidence of the complainant and his witnesses under Sections 200, and, 202 Cr.P.C., proceeded to summon the applicants to stand their trial, albeit under Section 304-A IPC alone, and, not under Section 420 IPC, by a summoning order dated 28.04.2004.

15. Learned counsel for the applicants has assailed the complaint, as also the summoning order, on the premises that the complaint is highly belated, and, has been filed after almost four and a half months of delay with no good explanation; that the delay in moving the complaint is telltale of premeditation, afterthought and mala fides to bring a prosecution with the object of abusing the process of criminal court, to extort money from the applicants; that a perusal of the complaint shows, that no offence under Section 304-A IPC, is prima facie made out; that the patient was properly and continuously, under the supervision of doctors; that he was provided best available medical treatment, but the patient with multi organ failure in pancreatitis, had extremely marginal chances of survival. It is also said, as an integral part of the same ground, that there is no allegation, that the applicant did not attend the patient.

16. It is urged that it might have been a case of negligence, within the meaning of Section 304-A IPC, if the doctor had not attended the patient. However, the patient was under continuous supervision of the doctors, excluding the possibility of provisions of Section 304A IPC being attracted; that the trial court has passed the order impugned, without considering the nature of the disease, without application of mind, and, in a mechanical fashion. It is submitted that going by the nature of the disease, the percentage chances of survival, the continuous management and supervision offered by the applicants, doing their best to save the patient's life, no offence under Section 304-A IPC, can be said to be made out by the dint of various judicial authorities governing medical negligence, including death by negligence, in the context of a doctor. In this connection, the learned counsel for the applicants has placed reliance upon the authorities of their Lordships of the Supreme Court in Dr. Suresh Gupta vs. Government of NCT of Delhi and another, 2004 Cri LJ 3870, Jacob Mathew vs. State of Punjab and another, (2005) 6 SCC 1, Kusum Sharma and others vs. Batra Hospital and Medical Research Centre and others, (2010) 3 SCC 480, Martin F. D'Souza vs. Mohd. Ishfaq, (2009) 3 SCC 1. Reliance has also been placed on two English authorities, dealing with negligence committed by medical professionals, though dealt with as a civil wrong or tort. The said authorities are Bolam vs. Friern Hospital Management, (1957) 2 All ER 118, which is a decision of the Queens' Bench Division and that in Roe vs. Ministry of Health, [1954] 2 All ER 131 [A].

17. The contention based on what would constitute medical negligence, and, even more fundamentally, actionable negligence, would be dealt with shortly, where the aforesaid authorities shall be considered in their application, as to how they bear upon the facts of the present case.

18. The complainant has filed a counter affidavit which is on record. The Court has gone through the counter affidavit, unassisted by the learned counsel for opposite party no.2, who has not appeared, despite attempt to serve him by written notice, undertaken by the learned counsel for the applicants.

19. The sum and substance of the assertions in the counter affidavit are to the effect, that a case of death by negligence is made out on the basis of facts pleaded, and, the evidence on record, against the applicants. The doctors and the nurses had not taken due care, after admitting the patient to the hospital. The patient died due to negligence of the doctors at the hospital. It is asserted that the accused/ applicants were negligent in the discharge of their duties, and, the patient died in consequence of negligence of the doctors and the nurses. It is urged that the accused have come up with an exaggerated version of the patient's ailment, without any material on record. It is also urged that the complainant after discharge of the patient, was not provided a discharge slip, saying what medical aid was given to the patient. It is asserted that the dead body of the patient was given, unaccompanied by requisite papers, so that the complainant might not take legal steps against the applicants. It is asserted by the complainant that he was present all along with the patient, and, that the patient was not cared for by the doctors. It is asserted that the doctors had yet not made their routine round, to watch the patient's condition, on account of which the patient died as a result of carelessness and negligence of the doctors. It has been asserted in paragraph 9 of the counter affidavit that the complainant has never made any demand of money, on account of the death of the patient, of the hospital establishment or the doctors. The complainant bona fide believes, that the death of the patient was on account of negligence of the doctors. It is asserted that the allegation, in paragraph 11 of the application, has been coloured to suppress the injury caused to the complainant by negligence of the doctors (the assertion about extortion). It is urged, for a legal proposition, that the case involves an offence prima facie disclosed, that requires trial; it cannot be scuttled in proceedings under Section 482 Cr.P.C.

20. There is a rejoinder filed on behalf of the applicants where the stand in the counter affidavit has been disputed, and, assertions of denial repelled.

21. This Court, has bestowed a thoughtful consideration to the issue in hand. The contours of negligence by a doctor, so as to constitute a criminal offence, was considered by their Lordships of the Supreme Court in Suresh Gupra (supra). It is a decision on which the learned counsel for the applicants has placed heavy reliance, particularly, for the reason that it relates to a case where a doctor was prosecuted for an offence under Section 304-A IPC, in relation to an act done in discharge of his professional duties.

22. Learned counsel for the applicants has invited the attention of the Court, to what has been said in Suresh Gupta (supra), in regard to holding a doctor criminally liable in negligence, for his professional acts; it has been held thus:

"20. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or recklessness". It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. v. Adomako (Supra) relied upon on behalf of the doctor elucidates the said legal position and contains following observations :-

"Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State."

21. Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as 'criminal'. It can be termed 'criminal' only when the medical men exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.

22. This approach of the courts in the matter of fixing criminal liability on the doctors, in the course of medical treatment given by them to their patients, is necessary so that the hazards of medical men in medical profession being exposed to civil liability, may not unreasonably extend to criminal liability and expose them to risk of landing themselves in prison for alleged criminal negligence.

23. For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.

24. No doubt in the present case, the patient was a young man with no history of any heart ailment. The operation to be performed for nasal deformity was not so complicated or serious. He was not accompanied even by his own wife during the operation. From the medical opinions produced by the prosecution, the cause of death is stated to be 'not introducing a cuffed endoW-tracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage'. This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.

25. Between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct.

26. To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable."

(Emphasis by Court)

23. No doubt, to fasten criminal liability on a doctor or surgeon, the degree of negligence to be proved has to be very high, which their Lordships have described, as gross negligence or recklessness. It cannot be held attracted to a doctor's professional acts, while treating a patient, merely on account of lack of necessary care, attention and skill, though the last three deficiencies may invite action at the civil law for negligence, subject to much of what turns on evidence, and, application of the law to it. But, to make out a case of criminal negligence, much more has to be proved, as that is what has been spoken of in para 26 of the report in Suresh Gupra (supra). What, however, cannot be lost sight of, while dealing with the applicants' prayer to quash this complaint at the threshold, is the fact that in Suresh Gupta (supra), the Magistrate had before him, the complete record and documentary evidence in the form of medical papers relating to the treatment, on the basis of which it was urged on behalf of the doctor, that no case worth proceeding with, for the criminal offence under Section 304-A IPC, was made out. The Magistrate had passed a detailed order discussing what the surgical procedure undertaken was, where and how it went wrong, to the understanding of the Magistrate, and, on that basis an opinion was formed by the Magistrate to proceed. At that stage, the doctor had approached the High Court by a Petition under Section 482 Cr.P.C., seeking to quash the proceedings before the Magistrate, that was dismissed by the order impugned before their Lordships. A perusal of the decision in Suresh Gupta (supra) also shows, that the court had the advantage of a medical investigation into the cause of death of the patient, where a postmortem examination was done by a Special Board of Doctors, comprising four doctors, constituted by the Investigating Agency, that was also there in the picture. There were minutely differing opinions expressed by three doctors on the one hand, and, one on the other, with Dr. Jagannathan, from the Special Medical Board, speaking out exculpatory in favour of accused doctor on the foot of his detailed medical reasoning. The other three doctors of the Board also had not said anything much inculpatory. It was, on the basis of all this material about the medical procedure undertaken in Suresh Gupta (supra), available on record, that their Lordships held:

"12. It is on these medical papers produced by the prosecution, we have to decide whether the High Court was right in holding that criminal liability prima facie has arisen against the surgeon and he must face the trial. The legal position is almost firmly established that where a patient dies due to the negligent medical treatment of the doctor, the doctor can be made liable in civil law for paying compensation and damages in tort and at the same time, if the degree of negligence is so gross and his act was reckless as to endanger the life of the patient, he would also be made criminally liable for offence under Section 304A of IPC.

16. Applying the laid down test for quashing or refusing to quash the criminal proceedings under Section 482 of the Criminal Procedure Code, we have to find out whether from the complaint and the accompanying medical papers and by accepting the entire case alleged by the prosecution to be true, an order of conviction of the doctor for offence under Section 304A of IPC can be passed.

17. The operation was performed on 18.4.1994 and the patient is alleged to have died on the same day. The post-mortem was performed after three days i.e. on 21.4.1994. According to the post-mortem report, the cause of death was : "blockage of respiratory passage by aspirated blood consequent upon surgically incised margin of nasal septum."

18. The medical experts constituting the Special Medical Board set up by the investigation have opined that "the blockage of air passage was due to aspiration of blood from the wound and it was not likely in the presence of cuffed endoW-tracheal tube of proper size being introduced before the operation and remained in position." The team of experts also opined that 'presence of fluid and clotted blood in respiratory passage is likely, as it invariably occurs ante-mortem due to aspiration from operation site.' But they also opined that 'presence of fluid and clotted blood in the respiratory passage, as noted in the post-mortem export, due to trickling of decomposition bloody fluid and some clot present in the nostril from the site of incision in the nose, cannot be ruled out after the tube is taken out.'

19. Dr. Jagannatham, one of the members of the Special Medical Team constituted during investigation has, however, given separate opinion, the details of which we have quoted above. It seems to be to some extent in favour of the accused surgeon. From the post-mortem report and the opinion of the three medical experts of the medical team specially constituted, the case of the prosecution laid against the surgeon is that there was negligence in 'not putting a cuffed endoW-tracheal tube of proper size' and in a manner so as to prevent aspiration of blood blocking respiratory passage."

24. To the understanding of this Court, the opinion that their Lordships have expressed in paragraphs 20 to 26 of the report is not an opinion in the void, or on the mere assertions of the complainant. Their Lordships in Suresh Gupta (supra), like the courts below in that case, had before them a rich collection, of all medical evidence on the basis of which one party alleged the criminal offence under Section 304-A IPC, whereas the doctor said that no criminal liability was made out. Their Lordship's decision in Suresh Gupta (supra) is, therefore, to be seen in the context of facts that more than basic material relating to the act of medical negligence said to constitute a criminal offence, was available on record. In fact, it is in the context of the requirement of the requisite medical opinion, to be filed in support of the complaint, before the Court can proceed, that their Lordships observed in Suresh Gupta (supra), already quoted and emphasized hereinbefore that "Criminal prosecution of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients." Their Lordships, therefore, have treated availability of medical opinion in support of the prosecution, in the first instance, to be a sine qua non to proceed against doctors with a criminal prosecution for medical negligence. In other words, a mere layman's assertions or claims to criminal negligence by a doctor, not involving quintessentially a medically educated analysis, would no more than be an indignation or a lament of the patient, who has sustained some loss during medical treatment on the foot of which the Court cannot at all proceed. The prosecution has to be supported by medically informed opinion and records, before the Court can take cognizance of an offence of criminal negligence, against a doctor, under Section 304-A IPC.

25. In the present case, this Court has no hesitation in saying that the complainant-opposite party has filed a belated complaint, four and a half months after the occurrence, with no steps taken in between, by even as much as asking for an autopsy, let alone second opinions of doctors. The complaint has been filed on the basis of facts that are no more than raw perceptions of a layman, who has lost a dear one during the course of medical treatment by a doctor in the discharge of his professional duties. There is no document brought on record by the complainant-opposite party, through the counter affidavit dated 07.07.2005, filed on his behalf that may show, that any medical opinion or report from an expert was filed in support of the complaint of criminal negligence by the applicants, in the discharge of their professional duties as doctors, while treating the complainant's deceased son. Even if the subsequent authorities prescribing more strict standards as to a medically informed prosecution, to be the requirement of a valid complaint, in a case of medical negligence are to be set apart, the law in Suresh Gupta (supra) does not permit an unsupported complaint, bereft of medical opinion, or an expert analysis of the issue, subject matter of the complaint, to be proceeded with at all.

26. The next decision relied upon by the learned counsel for the applicants is Jacob Mathew (supra) which also relates to a case of prosecution of a doctor, for an offence punishable under Section 304-A read with Section 34 IPC. In the said decision of their Lordships, the case arose out of an allegation of death by negligence punishable under Section 304-A IPC, against Dr. Jacob Mathew. The prosecution was brought against the doctor under the circumstances that the brother of the complainant, who was admitted to CMC Hospital, Ludhiana, experienced difficulty in breathing. The complainant who was present in the room, contacted the duty nurse who, in her turn, called a doctor to attend. However, no doctor turned up for a period as long as 20 - 25 minutes. Then, Dr. Jacob Mathew and Dr. Allen Joseph visited the patient's room. They called for an oxygen cylinder that was brought and connected to ease breathing. The problem, however, escalated. The patient tried to get up, but the medical staff asked him to stay in bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. The complainant went to the adjoining room and brought a gas cylinder, but there was no arrangement to make the alternate gas cylinder, functional. During all these operations, 5 - 7 precious minutes were lost. By the time another doctor came, he found and declared the patient dead. In these circumstances, a First Information Report for an offence punishable under Section 304-A/ 34 IPC was registered against the doctors, wherein the two of them were charge sheeted.

27. The Judicial Magistrate framed charges under Section 304-A IPC, against the two accused doctors. Both of them went up in revision to the Sessions Judge. That was dismissed. A petition was filed to the High Court under Section 482 Cr.P.C., seeking to quash the FIR and all subsequent proceedings, which figures in paragraph 3 of the report in Jacob Mathew (supra). It was the case of the accused before the High Court that there was no specific allegation of any act of omission or commission, against the accused doctors. There was a plethora documents comprising the challan papers, filed by the police against them. From the aforesaid description of proceedings in the case, it is again evident that before all the courts, including their Lordships, there was on record all documentary evidence about treatment that the police collected during their investigation, it being a State case. The Court when requested to quash the proceedings had before them the assurance of what went about in the hospital, where the deceased was claimed to have died on account of criminal negligence of the doctors.

28. The Court surely could not have proceeded with the complaint in case no evidence were led before the Magistrate, looking to the law laid down in Suresh Gupta (supra). The issue of proceeding with a complaint bereft of medical opinion as to professional negligence, and, documents relating to treatment, was considered by their Lordships in Jacob Mathew (supra). It was held:

"50. As we have noticed hereinabove 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 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 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."

(Emphasis by Court)

29. The requirement of a credible opinion, given by another Doctor, to support a charge of rashness or negligence on the part of an accused Doctor, is a louder echo of their Lordships' decision in Suresh Gupta (supra), where it says that criminal prosecution of doctors, without adequate medical opinion pointing to their guilt, would be counter-productive. Thus, in order to maintain a complaint for an offence punishable under Section 304-A IPC against a doctor with regard to his professional acts, the requirement of the law is that it should be supported by adequate medical evidence, prima facie demonstrative of a case of criminal negligence. A private complaint, or even an FIR, based on a non-medico layman's vantage, howsoever categorical or systematic, would not entitle the Magistrate to proceed with the complaint against a doctor for criminal negligence, relating to his professional acts.

30. In a later decision, the Hon'ble Supreme Court in Kusum Sharma and others (supra), summarized the principles to be applied in case of medical negligence, that are expressed in the words of their Lordships, thus:

"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-

I. Negligence is the breach of a duty exercised 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.

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

90. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind."

31. It must be noticed here, that Kusum Sharma (supra) was a case that arose from proceedings under the Consumer Protection Act, but their Lordships considered the position of law regarding medical negligence, in its widest possible terms, whether involved in a criminal prosecution, a civil action or a consumer complaint. Their Lordships enunciation of the law shows, like the decision, in Jacob Mathew (supra) to be founded on principles propounded in the face of this new world challenge of a changing order. It is also based on a searching review of authority from different jurisdictions across the world, where courts have been confronted with similar claims against doctors and hospital establishments, by dissatisfied patients, sometimes blackmailers. There is no manner of doubt that the decision of their Lordships under reference, though rendered in the context of a consumer dispute, adumbrates principles, that provide ground rules to judge, irrespective of the nature of jurisdiction or proceedings, claims and complaints regarding medical negligence. They also served as an infallible guide for courts, called upon to decide, whether a criminal prosecution initiated, on a complaint, or a police report, is worth permitting to proceed to trial, or requires as is proverbially called, to be nipped in the bud.

32. A still recent decision by the Hon'ble Supreme Court in Martin F. D'Souza (supra) has reiterated the fundamental principles of the law about medical negligence, as laid down in Suresh Gupta (supra), Jacob Mathew (supra) and Kusum Sharma (supra). Martin F. D'Souza (supra) also arose under the Consumer Disputes Jurisdiction. Their Lordships in the said decision have laid down definite procedural safeguards, to insulate doctors against the predicament of facing the entire rigamarole of proceedings, merely because a patient in his perception of the matter, chooses to move the machinery of law. Their Lordships mandated procedural safeguards to be followed in all jurisdictions, in matters of complaints of medical negligence against doctors, directing thus:

"106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action."

33. A perusal of the impugned complaint and the proceedings before the Magistrate, shows that the complaint is not supported by any kind of a second opinion, or expert opinion by another doctor, that is to say, a medically informed endorsement of the complainant's allegation against the applicants. The Magistrate has proceeded to issue process, forming an opinion about the existence of a prima facie case, where the material on record by the procedural safeguards, devised by their Lordships in Suresh Gupta (supra), Jacob Mathew (supra) and Martin F. D'Souza (supra) does not permit the Magistrate, to form that opinion. In other words, the Magistrate could not have taken cognizance of the complaint, and, proceeded to issue process, in the absence of an expert opinion by a competent doctor or a Committee of doctors, to which the matter should have been first referred, given the fact that no second opinion by a competent doctor was filed by the complainant. Before this Court too, it is not the complainant's case, though he has filed a return, that he filed any expert report or a second opinion from a doctor, to buttress his complaint. It does not require any further dilation or analysis to say that it is only an expert opinion by a competent doctor, or a committee of them, filed in support of the complaint or secured by the Court, that would imbue life into the impugned complaint on the basis of which the Magistrate could proceed against the applicants. That basis is utterly absent, on the state of proceedings impugned in the present application. As such, the impugned complaint, and, all consequential proceedings, are liable to be quashed as an abuse of process of court.

34. In the result, this application succeeds and is allowed. The impugned complaint giving rise to proceedings of Complaint Case no.2028 of 2004, Indradev Chauhan vs. Dr. A.K. Gupta and another, under Section 304-A IPC, Police Station George Town, District Allahabad, pending before the Chief Judicial Magistrate, Allahabad are hereby quashed.

Order Date :- 12.10.2018/Anoop