Bombay High Court
Sachin Bajirao Patil vs The State Of Maharashtra And Anr on 5 June, 2023
Bench: Nitin W. Sambre, Sharmila U. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.189 OF 2019
Sachin Bajirao Patil ..... Petitioner
Vs.
The State of Maharashtra and Anr. ..... Respondents
Mr. Rahul S. Kate for the Petitioner.
Mr. K. V. Saste, APP for Respondent-State.
CORAM : NITIN W. SAMBRE &
SHARMILA U. DESHMUKH, JJ.
DATE : 5th JUNE 2023.
P. C.
1. Heard.
2. The petitioner, Doctor by profession is seeking
quashing of Crime No.84/2016 punishable under section 304-A
read with 34 of IPC.
3. The contention of the prosecution as against the
petitioner is that while giving discharge to the father of respondent
No.2, by mistake, the hospital administration has annexed two
papers prescribing medication of some other person, who was also
discharged on the same day, and, which was not meant for the
father of respondent No.2 to the father of respondent No.2, which
resulted into death of the father of respondent No.2.
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4. The contention of learned counsel for the petitioner is
that the petitioner cannot be prosecuted having regard to the law
laid down in the matter of Jacob Mathew v. State of Punjab,2005
(6) SCC 1. So as to substantiate his claim he has drawn support
from the observations made in paragraph No.48 particularly clause
(2) and (5) of the said paragraph which reads thus:
"(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 held 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
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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 used.
(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."
5. He has also drawn support from paragraph No.52 of
the said judgment which reads thus:
"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
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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."
6. Learned counsel for the petitioner submits that the
expert's opinion which is placed on record substantiate the claim of
the petitioner that it is not because of medication wrongly
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prescribed, the death of father of respondent No.2 is caused.
7. In view of the above, issue notice to respondent
returnable on 3/7/2023. Learned APP waives service for
respondent-State.
SHARMILA U. DESHMUKH, J. NITIN W. SAMBRE, J.
