Gujarat High Court

Vinodkumar Chandanlal Gautam vs State Of Gujarat on 7 December, 2023

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     R/CR.MA/18663/2014                               JUDGMENT DATED: 07/12/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                     FIR/ORDER) NO. 18663 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                          VINODKUMAR CHANDANLAL GAUTAM
                                       Versus
                             STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PRAVIN GONDALIYA(1974) for the Applicant(s) No. 1
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 07/12/2023

                                  ORAL JUDGMENT

1. This application is filed under Section 482 of the

Code of Criminal Procedure, 1973 (`the Code' for short) for

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the following prayers:

"8(A) That this Hon'ble Court may be pleased to admit this Criminal Misc.Application;

(B) This Hon'ble Court may be pleased to allow this Criminal Misc.Application by quashing and setting aside the impugned FIR being CR No.I-46 of 2014 registered with Chandkheda Police Station for the offence punishable under sections 304A and 114 of IPC and further be pleased to quash and set aside the charge sheet filed in respect to the said FIR being Charge Sheet No.153 of 2014 and all other consequential proceedings arising out of the FIR being CR No.I-46 of 2014 read with Chandkheda police station in the interest of justice.

(C) Pending admission, hearing and final disposal of this petition, this Hon'ble court may be pleased to grant stay as to further proceedings of Criminal Case No.8488 of 2014 registered and pending before learned Chief Judicial Magistrate First-Class at Gandhinagar in the interest of justice.

(D) xxxxx"

2. The brief facts leading to filing of this application,

as stated in the application, are such that the impugned

complaint came to be filed by the complainant alleging that

his wife Varshaben aged about 57 years of age and suffering

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from Asthma; that as she was having some pain on the left

leg, she was taken to the applicant's hospital and it was

diagnized that due to spinal cord problem, there is a pain in

the leg and she is required to be operated; that she was

admitted in the hospital on 3.6.2013; that the complainant

informed prior to the date of the operation about the

bronchitis and asthma to the present applicant and

anesthetist; that on 3.6.2013, at about 1.30 p.m., the wife of

the complainant was taken to the operation theatre and at

about 2 o' clock, the present applicant came and entered into

operation theatre and after half an hour, he informed to the

complainant and his son that the heart of the complainant's

wife was stopped for 5 to 7 minutes and it was informed

that by using pumping by hands, it started functioning; that

she is required to be taken to the hospital having facility of

ventilator and therefore at about 4 o' clock in the evening,

she was taken to Indus hospital at Sabarmati, where the

health of the wife of the complainant further deteriorated and

therefore she was shifted to BAPS hospital, Shahibaug on

4.6.2013; and during the further treatment, the wife of the

complainant expired on 9.6.2013; that they have provided all

the papers of treatment of asthma to the present applicant

and anesthetist doctor Dr.Abhay Shah and they looked into

such papers; that prior to operation for spinal cord

Pulmonary Function Test was required but it was not done

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and the facility of ventilator is required to be kept ready

while operation of such patient but such facility was also not

made available; that at the time of operation Dr.Abhay Shah

did not remain present and the same was not informed to

the complainant by the present applicant; that at the place

of anesthetist Dr.Abhay Shah, service of some another

anesthetist was taken; that such important things were not

informed and due to all these facts, negligence is committed

by the applicant and therefore the wife of the complainant

has expired. It is this complaint which is prayed to be

quashed by way of this application.

3. Heard learned advocate Mr.Gondaliya for the

applicant, learned advocate Mr.Dagli for respondent no.1 and

learned APP Mr.Jayswal for respondent no.2.

4. Learned advocate Mr.Gondaliya for the applicant

has submitted that :

(i) though the impugned complaint is filed under Sections

304A and 114 of Indian Penal Code (`IPC'), looking to the

provision of Section 304A of the IPC, the applicant herein

has not performed any rash or negligent act which would

hold him liable for negligence;

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(ii) that the patient was admitted in the hospital of the

applicant for surgery of the spine and the anesthetist doctor

viz. Dr.Abhay Shah, after considering the medical papers and

bed side PFT reports of the patient opined that, the

anesthesia can be administered to the patient and the

operation can be performed, therefore, there is no negligence

of the present applicant;

(iii) that upon the opinion of Dr.Abhay Shah for anesthesia,

the anesthesia was given by Dr.Kalpesh Panchal, who is in

the team of Dr.Abhay Shah; that after the anesthesia the

problem was started and before the applicant does any

surgery, the respiratory problem occurred and the patient was

immediately shifted to another hospital, where ICU facility

was available; therefore, the applicant was not liable for any

negligent act;

(iv) that as per PM report, the cause of death is cardio

respiratory arrest due to lung edema and not due to any

complication of surgery as she suffered heart problem before

the surgery and there are no surgery marks in PM report

also as no surgery is performed; therefore there is no rash or

negligent act which is alleged against the present applicant;

(v) that there is no any surgery performed by the applicant;

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that the applicant is not liable for any decision or act of

administration of anesthesia by anesthetist doctor;

(vi) that looking to the report of the committee, there is no

opinion about any negligence which can be said to be a gross

negligence or any negligence which entail criminal liability;

on the contrary, as per the report, the anesthetist could have

taken more care when the patient is suffering from asthma;

that the anesthetist Dr.Abhay Shah has examined the patient

and opined that the anesthesia can be administered and

patient can be operated for spine surgery and the applicant

has no role to play.

(vii) that the anesthesia machine is equipped with ventilators,

and in many cases, they are capable of providing life

sustaining mechanical ventilation to patients with respiratory

failure and they are used for this purpose every day in the

operating room; that the allegation of not having facility of

ventilator is not true and correct; that when the patient was

found with some problem after anesthesia, immediately the

complainant was informed and cardiologist Dr.Kamlesh

Chaudhary was called for, who visited the hospital and

advised for admission in the hospital where ICU facility is

available and therefore the patient was shifted to Indus

hospital immediately on 3.6.2013 from where they took

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discharge against medical advice and admitted in BAPS

hospital where on 9.6.2023, the patient expired; that there is

no negligence on the part of the present applicant;

(viii) that there is no mens rea or culpable negligence which

could attract the penal provisions; as there is no allegation

that, due to surgery or operation the patient died; and

therefore the applicant cannot be held liable for act of the

anesthetist and there cannot be vicarious liability in criminal

law.

(ix) that the complainant failed to even prove the tortuous

liability before the consumer forum as the complaint no. 18

of 2015 came to be dismissed by the learned CDRC,

Gandhinagar.

5. In support of his submissions, learned advocate

Mr.Gondaliya has relied on the following judgments passed by

the Hon'ble Apex Court as well as this Court:

(1) Suresh Gupta V/s Government of NCT, Delhi reported in

(2004)6 SCC 422.

(2) Jacob Mathew V/s State of Punjab and Another reported

in (2005)6 SCC 1.

(3) Malay Kumar Ganguly V/s Sukumar Mukherjee reported

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in AIR 2010 SC 1162.

(4) A.S.V.Narayanan Rao V/s Ratnamala and Another,

reported in (2013)10 SCC 741.

(5) Salil Sudheer Patil V/s State of Gujarat passed in

Cr.M.A.No.15926 of 2018.

(6) Vinod Jain V/s Santokba Durlabhji Memorial Hospital and

anr. Reported in AIR 2019 SC 1143.

(7) Kurban Hussein Mohamedalli Bangawalla V/s State of

Maharashtra reported in AIR 1965 SC 1616.

(8) Suleman Rahiman Mulani V/s State of Maharashtra

reported in AIR 1968 SC 829.

6. Per contra, learned advocate Mr.Dagli for the

respondent no.2-complainant has submitted that

(i) it is not in dispute that the wife of the complainant was

suffering from Asthama since last two and half years and

treatment papers were also shown before the date of

operation to the applicant-doctor;

(ii) that because of lack of proper care/precaution and also

because of the negligent way of treating patient more

particularly when such serious surgery was performed, no

Pulmonary Function Test (PFTS) which is required to be

conducted was not done;

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(iii) that there is likelihood of acute shock during operation

and for any urgency, the ventilator is also virtually must, x-

ray needs to be taken and other required parameters to be

fulfilled as pre-operative care which has not been done;

(iii). Referring to Section 304A of the IPC, which

section is invoked in the impugned complaint, learned

advocate Mr.Dagli submitted that the case was referred to

the panel of doctor consisting of dean of medical facility of

BGMC and civil hospital, head of orthopedic BGMC and chief

head of orthopedic division unit head of pulmonary medicine,

professor of pulmonary department, head of anesthesia,

forensic medicine and also forensic medicine department from

civil hospital, Ahmedabad and opinion in detail has been

given on 9.3.2014; joint inspection report was called for by

the committee which shows that preoperative detail

investigation like x-ray test pre operative physician and

anesthetic reference and pulmonary function test are basic

requirements. On 7.4.2014 also, the committee has recorded

at page no.100 that x-ray test and pre operative operation is

not done and therefore the applicant was negligent.

(iv) That the wife of the complainant was high risk

patient and there was a serious issue about breathing and

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pulmonary function test which was done on 23.9.2012

whereas operation was performed on 3.6.2013 as recorded on

page number 105 of the report of the panel and it is also

specifically referred that looking to the serious condition of

the patient about breathing and last report of the pulmonary

function i.e. lungs report of pulmonologist on 23.8.2012, which

shows moderate restrictive and severe obstructive disease and

before the day of operation, no physician nor pulmonologist

opinion or fresh x-ray test or PFT was performed and

therefore doctor is negligent as specifically stated in the

report which is signed by nine doctors of the panel who are

expert in the field.

(v) That the applicant was in knowledge of the fact

that the patient is steroid dependent and suffering from

asthma since last 2.5 years and she is high risk patient and

therefore all precautions are required to be taken which are

basic requirement and the same is not taken in the present

case.

7. In support of his submissions, learned advocate

Mr.Dagli has relied on the following citations:

(1) Dr.Goli Venkata Subba Rao V/s State of A.P. &

Anr., reported in 2006(0) Supreme (AP) 1037.

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(2) Dr.Rakesh Kumar V/s The State of Jharkhand

2016(0) Crl.J.1561

(3) B.Jagdish & Another V/s State of A.P. & Another

reported in 2009(1) SCC 681

(4) Pankaj Ravjibhai Patel V/s State of Gujarat being

Criminal Misc.Application No.16460 of 2017 dated 31.8.2023.

He, therefore, prays to dismiss this application.

8. I have heard learned advocates for the parties and

also considered the material placed on record.

9. It transpires that the patient Varshaben was aged

about 57 years of age at the time of incident. The present

applicant is spinal surgeon who called anesthetist Dr.Abhay

Shah, surgery was fixed on 3.6.2013 and the patient was

admitted on 2.6.2013, the patient was taken into operation

theatre at about 2 o' clock and thereafter after half an hour,

the doctor came out of operation theatre and informed the

complainant and his son that there is some complication due

to anesthesia given to the patient and therefore the patient

is required to be shifted to the nearby hospital whereby

facility of ICU is available and accordingly patient was

immediately shifted to the nearby hospital; thereafter, after a

period of almost six days, during the treatment at the BAPs

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hospital, Shahibaug, Varshaben unfortunately expired on

9.6.2013 and therefore the complaint is filed under the

provisions of Section 304A and 114 of Indian Penal Code

against the present applicant as well as the anesthetist

doctor on 2.3.2014 for the incident has occurred on 9.6.2013.

Therefore, there is a delay of about 8-9 months in filing such

complaint which is not explained in the complaint anywhere

and such unexplained and inordinate delay is normally fatal

to the case of the prosecution.

10. Moreover, it is also interesting aspect to be kept

in mind that the complainant has filed consumer complaint

before the Consumer Forum whereby the Consumer Forum,

Gandhinagar has dismissed the Complaint no.18 of 2015 by

order dated 3.3.2021 after considering various judgments and

by giving detailed reasons on the aspect of the negligence in

medical science. However, it is informed by the learned

advocate for the complainant that the order of Consumer

Forum is challenged before the Consumer Commission by way

of appeal and appeal is still pending for further

consideration.

11. Keeping all these aspects in mind, if we consider

the factual aspects of the matter, as transpired from the

record, they can be summarized as follows:

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(i) that the present applicant is orthopaedic surgeon and is

supposed to perform the surgery on the patient Varshaben on

the date and accordingly he has planned the surgery and

when the patient was taken into operation theatre, anesthesia

was given at that point of time and as patient Varshaben

was having prior history of asthma, she developed

complication and therefore the applicant as well as

anesthetist has tried to give cardio vascular massage to the

patient and thereafter informed the complainant and his son

to shift the patient to the nearby hospital for proper

treatment as the patient has developed some complication at

the time of administering anesthesia.

(ii) that the anesthetist doctor viz. Dr.Abhay Shah, after

considering the medical treatment given by the physician to

the patient and medical papers and also performing bed side

PFT report of the patient opined that the anesthesia can be

administered to the patient and operation can be performed.

Therefore, on the opinion given by the anesthetist, such

surgery is decided to be performed accordingly.

(iii) that on the opinion of Dr.Shah for anesthesia, the

anesthesia was given by Dr.Kalpesh Panchal who is in the

team of Dr.Abhay Shah; that after giving dose of anesthesia,

the problem had started with the patient and that before the

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present applicant who is surgeon could perform any surgery,

the respiratory problem occurred and patient was immediately

shifted to another hospital where the ICU facility was also

available, after taking the consent of the relatives of the

patient, more particularly, the complainant. As per the post-

mortem report, the cause of death is cardio respiratory arrest

due to lung edema and not due to any complication of

surgery. No surgery marks are also found in the post-mortem

report as no surgery is performed by the present applicant

and prior to performance of such surgery, such complication

is developed with the patient.

(iv) that thereafter the committee of expert doctors was

formed as per the direction of the Hon'ble Apex Court in the

judgment of Jacob Mathew and thereafter the policy was

framed by the government in such cases whereby also, the

committee has not found involvement of the present applicant

by performing any surgery and has not found any gross

negligence which attracts any criminal liability of the present

applicant. The committee has found that the anesthetist could

have taken more care as well as the present applicant who

is consultant surgeon of the patient prior to performing the

surgery as patient was suffering from asthma. But, in the

present case, it transpires that Dr.Shah who is anesthetist

has examined the patient and opined that the anesthesia can

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be administered and patient can be operated for spine

surgery and therefore for this aspect, the applicant has as

such no role to play, moreover, considering the fact that the

medical papers of the treatment regarding asthma was of the

recent past i.e. about 15 days back which was also perused

by the doctors as well as the anesthetist before deciding for

performing surgery on that unfortunate day.

(v) that the anesthesia machine is also equipped with

ventilators and such machines are used for this purpose

every day for patient room and therefore when the patient

was found with some problem due to administering of

anesthesia, the present applicant has informed the

complainant within few minutes and cardiologist Dr.Kamlesh

Chauhan was called for who visited the hospital and advised

admission in the hospital where ICU facility is there and

therefore the patient was shifted to Indus hospital on

13.6.2013 from where the patient took discharge against

medical advice and admitted in BAPS hospital where on

9.6.2013, the patient has expired. The guideline which is

provided by the applicant along with the written statement

for using anesthesia machines by the American Society of

Anesthesiologist also indicates that such machines are

equipped with ventilators facility.

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12. In view of the above factual aspects and

considering the judgments which are cited at the bar, prima

facie, no mens rea or culpable negligence of the present

applicant can be found which can attract the penal provisions

against the present applicant. It is undisputed fact that there

is no allegation that due to surgery or operation performed

by the present applicant, the patient has died but the

complication has occurred due to anesthesia administered to

the patient. Therefore, at the best, there can be some

negligence which can be attributed to the anesthetist but

vicarious liability of the applicant cannot be fastened in the

criminal law.

13. Considering all these aspects, I am prima facie of

the opinion that the case is made out to exercise my powers

under Section 482 of the Code as continuation of the present

proceedings pursuant to the FIR will amount to abuse of

process of law against the present applicant.

14. Now, the legal aspects and other relevant aspects

are discussed hereinafter.

15. It is fruitful to refer to certain aspects involved in

the facts of present case which are required to be considered

accordingly.

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"The consequences of legally cognizable medical negligence can broadly be put into three categories:

(i) Criminal liability,

(ii) monetary liability, and

(iii) disciplinary action.

Criminal liability can be fastened pursuant to the provisions of the Indian Penal Code, 1860 ("IPC"), which are general in nature and do not provide specifically for "medical negligence." For instance, Section 304A of IPC.(which deals with the death of a person by any rash or negligent act and leads to imprisonment up to 2 years)

Civil liability, i.e., monetary compensation can be fastened under the general law by pursuing a remedy before appropriate civil court or consumer forums. An action seeking imposition of the civil liability on the erring medical professional is initiated by dependents of the deceased patient or by the patient himself (if alive) to seek compensation. Doors of permanent lok adalats, constituted pursuant to the Legal Services Authority Act, 1987, can also be knocked at by a complainant seeking relief in the relation to services "in a hospital or dispensary" which are considered to be "public utility services" within the meaning thereof, wherein first a conciliation is attempted and thereafter determination on merits of the matter is made

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Professional misconduct by medical practitioners is governed by the Indian Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, made under IMC Act, 1956. Medical Council of India (MCI) and the appropriate State Medical Councils are empowered to take disciplinary action whereby the name of the practitioner could be removed forever or be suspended. Professional misconduct is, however, a broad term which may or may not include medical negligence within its fold. For instance, in the context of lawyers, it is not only a professional misconduct but other misconduct also which may lead to imposition of disciplinary penalties, for example, violation of prohibition on liquor under Bombay Prohibition Act, 1949, by the advocate; and perhaps a corollary may be extended for cases of medical negligence by medical professionals.

Treatment without informed consent may also amount to negligence

The existence of doctor-patient relationship is a prerequisite to fasten liability on the doctor. The relationship is fiduciary in nature, and the obligation on the medical practitioner is greater when the patient ordinarily has an imprecise understanding of the ailment, diagnostic process, treatment, and all its attendant consequences. Duty to act in the best interest, however, cannot be stretched to a level where actions are taken against the will of the patient or without

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the consent of the patient if the patient is capable of understanding. Every patient has a right of self- determination and to reject the treatment even if such rejection were to be considered foolish by most rationale standards, and the medical professional cannot impose his will. Medical practitioners can, however, act on the substituted consent, if the primary consent is not available for a variety of reasons such as patient being a minor, mentally unsound, and unconscious.

Error of judgment

A doctor is not necessarily liable in all cases where a patient has suffered an injury. This may either be due to the fact that he has a valid defense or that he has not breached the duty of care. Error of judgment can either be a mere error of judgment or error of judgment due to negligence. Only in the case of the former, it has been recognized by the courts as not being a breach of the duty of care. It can be described as the recognition in law of the human fallibility in all spheres of life. A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. It is situation in which only in retrospect can we say there was an error. At the time when the decision was made, it did not seem wrong. If, however, due consideration of all the factors was not taken, then it would amount to an error of judgment due to negligence.

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16. Now, considering the various judgments cited at

the bar, the judgments in the cases in case of Martin F

D'Souza V/s Mohd.Ishfaq reported in 2009(3) SCC 1 and in the case of Kusum Sharma And Others V/s Batra Hospital

and Medical Research Centre and Others, reported in 2010(3) SCC 480, more particularly, the judgment of Jacob Mathew

(supra), the doctors and nurses respectively who are

professionals cannot be fastened with `negligence' under the

criminal law because the degree of negligence was not high

enough or in fact there was not any negligence on their part

so as to foist charges under Sections 304A and 114 of the

IPC.

17. Paragraph 48 of the judgment of Jacob Mathew

(supra) is reproduced as under:

"48. We sum up our conclusions 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 and Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury

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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 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 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

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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. (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. (4) The test for determining medical negligence as laid down in Bolam's case (1957) 1 WLR 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

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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 imminent.(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 in 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 negligence."

18. It is also relevant to discuss some of the

judgments and law relating to medical negligence which is

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also under:

"Law relating to medical negligence:

1. The applicant herein being a qualified doctor is facing the charge of medical negligence as provided under Section 304A of the Indian Penal Code. It is necessary to reproduce Section 304A of the Indian Penal Code which reads thus:

"Section 304A.Causing death by negligence.-- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

2. A bare perusal of the provision says that, a person causes the death of another by such acts as are rash or negligent, but there is no intention to cause death and no knowledge, the act will cause death shall be punished with the imprisonment as prescribed.

3. In the case of Malay Kumar Ganguly vs. Sukumar Mukherjee reported in (2009) 9 SCC 221, the Apex Court while dealing with the case of medical negligence, prescribed three criteria to prove negligence under the criminal law

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and held that, in order to prove negligence, the prosecution must prove (i) the existence of duty; (ii) a breach of the duty causing death and (iii) the breach of the duty must be characterized as gross negligence. The Apex Court further held that, what is or is not negligence involves a consideration of what which reasonable man would or would not have done in these circumstances. For negligence, to amount an offence, the element of mensrea must be shown to exist. A negligence which is not such high degree may provide a ground for action in civil law, but cannot form basis of prosecution. The criteria to prosecute a medical professional for which in the given facts and circumstances, require to be proved that, no medical professional in his ordinary senses and prudence would have done or failed to do so.

4. In the case of Dr. Suresh Gupta vs. Government of NCT of Delhi & Anr., reported in AIR (2004) SC 4091, the Supreme Court observed that, for fixing liability on a Doctor or a Surgeon, the stand of negligence require to be proved should be so high as can be described "gross negligence". To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence, enough to fasten liability in civil law.

5. In the case of P.B. Desai vs. State of Maharashtra, reported in AIR (2014) SC 795, the Apex Court examined the term

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negligence so far medical professionals are concerned and held that, where negligence is an essential ingredients 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. The only state of mind which is deserving of punishment is that, which demonstrates an intention to cause harm to others or where there is deliberate willingness to subject others to the risk of harm. The negligent conduct does not entail an intention to cause harm, but, only involves a deliberate act subjecting another to the risk of harm where the actor is aware of the existence of the risk and, nonetheless, proceeds in the face of the risk.

6. While deciding whether the medical professional is guilty of medical negligence, the Apex Court in the case of Kusum Sharma and others vs. Batra Hospital and Medical Research Centre and others, reported in AIR (2010) SC 1050, laid down following principles namely:

"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.

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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

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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

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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."

7. In the case of Bombay Hospital and Medical Research Centre vs. Asha Jayswal, reported in (2021) 0 AIJEL-SC 68074, the Supreme Court while dealing with the civil appeal against the order of the National Consumer Forum examine the scope of medical negligence and after considering the celebrated judgment reported as Jacob Mathew (supra), held that, simple lack of care, an error of judgment or an accident is not proof of negligence on the part of the medical professional. It is further held by the Supreme Court that, in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that, the medical professional was negligent.

8. Recently, in the case of Dr. (MRS.) Chanda Rani Akhouri

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&Ors. vs. Dr. M.A. Methusethupathi & Ors., reported in (2022 LiveLaw (SC) 391), the Apex Court in para-31 while examining the medical negligence of the hospital and its doctors, observed that, the doctors as expected to take reasonable care, but no professional can assure that the patient will come back home after overcoming the crisis. In para-27, it is observed that, a medical practitioner is not to be held liable simply things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable cause of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty caste upon the medical practitioner is that, he must ensure that medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, a medical practitioner would be liable only where his conduct fell below that of the standards of reasonably competent practitioner in his field.

19. Considering the judgments referred to above, the

case of the present applicant is required to be considered for

quashing of the FIR as no criminal liability can be fastened

against the professional, more particularly, when the present

applicant has not performed any operation or surgery. At the

best, he could have taken extra care by keeping some

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physician present at the time of surgery as patient was

having history of asthma but when the complication was

developed after administration of anesthesia and as some

respiratory complication developed, it transpires that the

applicant has immediately called physician/cardiologist

Dr.Kamlesh Chauhan for attending patient and even

otherwise, before such surgery, it transpires that either the

physician and anesthetist has to make necessary inquiries

with the said patient and after giving opinion either by the

anesthetist or physician, such surgery can be performed and

in the present case, the anesthetist has already given opinion

with a view to perform surgery.

20. One more aspect which is required to be

considered for quashing of the impugned complaint is that

the complaint is filed after delay of eight months and now

the Hon'ble Apex Court has held in number of judgments,

that such delay is required to be explained which is not done

in the present case and therefore on that count also, the

complaint is required to be quashed and the present petition

is required to be considered.

21. In the judgment of Inder Mohan Goswami and

Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read

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as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:

[(i) to give effect to an order under the Code;]

[(ii) to prevent abuse of the process of court, and]

[(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific

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provisions in the statute. Discussion of decided cases."

22. Considering the overall aspects, factual and legal,

as discussed hereinabove, and more particularly, considering

the fact that the present applicant has not committed any

gross negligence or any criminality can be attributed to the

present applicant who has admittedly not performed any

surgery and such complication has occurred prior to

performance of such surgery, I am of the opinion that the

present application is required to be allowed by exercising

powers under Section 482 of the Code.

23. Accordingly, this application is allowed. The

impugned complaint being CR No.I-46 of 2014 registered with

Chandkheda Police Station for the offence punishable under