Rajasthan High Court - Jodhpur
Vinod Shaily vs State Of Rajasthan on 5 May, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:19994] (1 of 28) [CRLMP-7844/2024]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 7844/2024
1. Vinod Shaily S/o Late Shri Purshottam Shaily, Aged About
59 Years, General And Endoscopic Surgeon At Vasundhara
Hospital, 11 Sector, C.h.b. Jodhpur.
2. Jitendra Khetawat S/o Shri Bhanwar Lal Khetawat, Aged
About 42 Years, Anaesthetist And Critical Care Consultant
At Vasundhara Hospital, 11 Sector, C.h.b. Jodhpur.
----Petitioners
Versus
1. State Of Rajasthan, Through Pp
2. Sahiram Bishnoi S/o Nathuram, R/o A225, Saraswati
Nagar, Basni, Jodhpur (Rajasthan)
----Respondents
Connected With
S.B. Criminal Misc(Pet.) No. 7770/2024
1. Sanjay Makwana S/o Mr. Sudhakar Makwana, Aged About
60 Years, Vasundhara Hospital, Sector 11, Chopasni
Housing Board, Jodhpur, 342008.
2. Dr. Renu Makwana W/o Dr. Sanjay Makwana, Aged About
58 Years, Vasundhara Hospital, Sector 11, Chopasni
Housing Board, Jodhpur, 342008.
----Petitioners
Versus
1. State Of Rajasthan, Through Pp
2. Sahiram Bishnoi S/o Nathuram, A 225, Saraswati Nagar,
Basni, Jodhpur, Distt. Jodhpur (Raj.)
----Respondents
For Petitioner(s) : Mr. Dhirender Singh, Sr. Advocate
assisted by Ms. Priyanka Borana
Mr. Muktesh Maheshwari
Ms. Vandana Bhansali
For Respondent(s) : Mr. Deepak Chaoudhary,AAG
(Downloaded on 08/05/2025 at 07:10:21 PM)
[2025:RJ-JD:19994] (2 of 28) [CRLMP-7844/2024]
Mr. Vikram Singh Rajpurohit,Dy.G.A.
Mr. Naman Mohnot
HON'BLE MR. JUSTICE FARJAND ALI
Order
Reportable
ORDER PRONOUNCED ON ::: 05/05/2025
ORDER RESERVED ON ::: 07/04/2025
1. By way of filing these instant criminal misc. petitions under
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, the
petitioners seek quashing of F.I.R. No. 388/2024 registered
at Police Station Chopasni Housing Board, District Jodhpur on
25.10.2024 for the alleged offence under Section 105 of the
Bharatiya Nyaya Sanhita and all consequential/subsequent
proceedings arising therefrom.
2. The foundational facts as alleged in the First Information
Report (FIR) are as follows:
The complainant, alleges grave medical negligence in
relation to the treatment administered to his daughter-in-
law, Mrs. Priyanka Bishnoi, who was admitted to Vasundhara
Hospital on 05.09.2024 for a minor uterine fibroid surgery. It
is claimed that she was assured of the simplicity of the
procedure, and shortly after admission, without
comprehensive diagnostic work-up or pre-operative
preparedness, she was rushed into surgery involving
hysteroscopy, laparoscopy, and trans-cervical resection of
myoma. The complainant contends that essential pre-
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surgical protocols, including the INR (International
Normalized Ratio) test, were not conducted. Post-operatively,
the patient's condition reportedly deteriorated rapidly, with
persistent unconsciousness, yet she was transferred to a
general ward without requisite neurological assessment or
CT brain imaging. The attending medical staff allegedly
downplayed the gravity of her condition and attributed her
non-responsiveness to minor cerebral inflammation without
diagnostic confirmation. Despite signs of severe hemorrhage
and administration of multiple blood transfusions, the
hospital allegedly continued to misrepresent her clinical
condition as stable. On 07.09.2024, when her condition
worsened further, she was referred to Marengo CIMS
Hospital, Ahmedabad. There, clinicians immediately
diagnosed her with critical intracranial hemorrhage--
confirmed via CT scan--and opined that prior failure to
undertake such imaging and timely intervention constituted
a breach of medical protocol. A report by a committee
constituted under the District Collector's order revealed stark
inconsistencies between the hospital's version and that of the
patient's attendants. The committee also recorded that the
patient suffered from post-operative sepsis, MODS (Multiple
Organ Dysfunction Syndrome), and DIC (Disseminated
Intravascular Coagulation), none of which were promptly or
appropriately addressed. It also highlighted the failure to
conduct a CT brain scan despite neurologists recommending
it, terming it a serious clinical lapse.
[2025:RJ-JD:19994] (4 of 28) [CRLMP-7844/2024]
Further, the complainant asserts that the hospital's director,
Dr. Sanjay Makwana, later attributed Priyanka's deterioration
to a congenital AVM (arteriovenous malformation) and a
brain tumor. However, imaging conducted at CIMS Hospital
reportedly refuted the presence of any such conditions.
Priyanka Bishnoi succumbed on 18.09.2024. The
complainant holds that her death resulted from deliberate
medical negligence and concealment of critical facts by the
treating doctors and hospital staff. He submitted complaints
to the police authorities on 17.10.2024, yet no FIR was
registered; instead, a Marg report was initiated.
3. It is this sequence of events, culminating in the registration
of the impugned FIR, that has constrained the present
petitioners--who are neither the treating physicians nor
directly implicated in the clinical decision-making--to invoke
the extraordinary jurisdiction of this Court under Section 528
of BNSS, seeking quashing of the said FIR and all
consequential proceedings arising therefrom.
4. In furtherance of the investigation, a factual report dated
04.04.2025 was received from the Office of the Additional
Deputy Commissioner of Police, Women Crime Investigation
Cell, Jodhpur West, summarised as under:
As per the factual report dated 04.04.2025 from the Office of
the Additional Deputy Commissioner of Police, Women Crime
Investigation Cell, Jodhpur West, the case arises from a
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private complaint by Shri Sahiram Bishnoi regarding alleged
medical negligence at Vasundhara Hospital, Jodhpur, in the
treatment of his daughter-in-law, Priyanka Bishnoi (R.A.S.),
who was admitted on 05.09.2024 for a minor fibroid surgery.
It is alleged that the hospital neglected critical pre-operative
protocols such as INR testing and failed to respond to post-
operative complications including unconsciousness, delaying
appropriate neurological evaluation and referral. She was
eventually shifted to Marengo CIMS Hospital, Ahmedabad,
where she was diagnosed with severe intracranial
hemorrhage, sepsis, MODS, and related conditions, and died
on 18.09.2024. Subsequent investigation involved collection
of hospital records, witness statements, postmortem,
histopathology, and FSL reports, and CCTV footage from six
sealed hard disks sent to FSL Jaipur. A state-level medical
committee reviewed records, including those provided via
letters VHL/LET/2025-26/08 and 09 dated 22.02.2025, and
convened at SMS Hospital, Jaipur on 03.03.2025. The
committee concluded that while intracranial hemorrhage and
MODS were established causes of death, the precise cause of
rapid sepsis and DIC within 24 hours of surgery could not be
determined scientifically. Though such complications can
occur despite appropriate care, negligence could not be
definitively established beyond reasonable doubt. The
committee advised further investigation and permitted scope
for a secondary expert review if deemed necessary.
Additional records from Vasundhara Hospital and visual
[2025:RJ-JD:19994] (6 of 28) [CRLMP-7844/2024]
evidence, including postmortem videography and
photographs, were included in the case file. As per the
cumulative investigation to date--including earlier district
and state-level committee reports--the evidence does not
establish prima facie negligence by the hospital doctors.
5. Written Submissions of Petitioners
The learned counsel for the petitioners submitted that the
allegations in the FIR, even if taken at face value, do not
disclose a prima facie case of criminal medical negligence,
much less any act that could be construed as grossly
reckless or unlawful under Section 105 of the Bharatiya
Nyaya Sanhita. It is argued that the surgical intervention
was carried out in accordance with standard operative
protocols, and there is no material to show that the treating
doctors failed to exercise reasonable skill or diligence. It is
further contended that the initiation of criminal proceedings
without first obtaining a competent and independent medical
opinion is contrary to the settled law laid down by the
Hon'ble Supreme Court in Jacob Mathew v. State of
Punjab [(2005) 6 SCC 1], wherein it was held that
criminal prosecution of doctors should be preceded by an
expert medical assessment from an impartial source applying
the Bolam standard. In the present case, no such pre-
requisite expert opinion existed at the time of lodging the
FIR, thereby rendering the prosecution premature and
procedurally flawed. Reliance is also placed on Dr. Rajesh
[2025:RJ-JD:19994] (7 of 28) [CRLMP-7844/2024]
Batra v. State of Madhya Pradesh [2024 SC], where it
was held that criminal proceedings against doctors based on
private complaints are impermissible unless supported by
credible expert analysis. It is submitted that the FIR was
registered in reaction to the unfortunate death of the patient
and not on the basis of any structured or professional
medical review. The petitioner also invokes the ratio in Dr.
Suresh Gupta v. Govt. of NCT of Delhi [(2004) 6 SCC
422], which was later affirmed in Jacob Mathew (supra),
reiterating that mere error of judgment, inadvertent
omission, or unfortunate outcome cannot ipso facto
constitute criminal negligence. The threshold under criminal
law requires conduct so grossly negligent that no prudent
medical professional would have acted in such a manner. The
submissions stress that no such level of culpability is evident
from the record, and in fact, the State Expert Committee
itself refrained from attributing negligence. Thus, the
petitioner contends that the initiation and continuation of
proceedings amount to a misuse of the criminal process,
contrary to judicially established safeguards and principles
intended to protect medical practitioners from vexatious
litigation.
6. Written submissions of Respondent
Respondent No. 2 has opposed the petition, asserting that
the case involves serious and specific allegations of gross
medical negligence, meriting a full-fledged criminal
[2025:RJ-JD:19994] (8 of 28) [CRLMP-7844/2024]
investigation and trial. It is contended that the treating
doctors failed to conduct the INR (International Normalized
Ratio) test, which is a basic and mandatory pre-operative
investigation to assess coagulation status and surgical risk.
The omission of such a test, despite the patient being taken
under general anesthesia, is argued to be not merely
procedural but a flagrant violation of the standard of medical
care. It is further submitted that when the patient's condition
began to deteriorate post-operatively, a neurological
consultation was reportedly undertaken and a CT Scan was
advised, but the same was deliberately withheld, thereby
obstructing timely diagnosis and intervention. It is alleged
that false information was disseminated by the hospital,
suggesting that the deceased suffered from an AV
Malformation, whereas the CT Scan conducted later at CIMS
Hospital, Ahmedabad, categorically ruled out such a
condition, thereby exposing a misleading narrative. Reliance
is placed on the State Expert Committee report and opinions
from CIMS Hospital to argue that there was a clear deviation
from protocol, including resistance to neurological imaging
and the withholding of critical treatment interventions. It is
also submitted that two materially different versions of the
patient's admission record have surfaced--one submitted to
the Expert Committee and another produced before
investigating authorities--raising serious concerns of forgery
and retrospective fabrication of medical documents.
Respondent No. 2 further relies on binding precedents of the
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Hon'ble Supreme Court, including Jacob Mathew v. State
of Punjab [(2005) 6 SCC 1], Kusum Sharma v. Batra
Hospital [(2010) 3 SCC 480], and Dr. Suresh Gupta v.
Govt. of NCT of Delhi [(2004) 6 SCC 422], to argue that
the conduct of the hospital and its doctors amounted to
recklessness and gross incompetence attracting criminal
liability. Foreign precedents such as Montgomery v.
Lanarkshire Health Board ([2015] UKSC 11) and Roe
v. Minister of Health ([1954] 2 QB 66) are also cited to
bolster the contention that failure to disclose risks and
suppress critical diagnostics constitutes actionable
negligence. Additionally, it is alleged that there was apathy
on part of the investigating authorities in registering the FIR
and examining material evidence, further justifying judicial
scrutiny at the pre-trial stage.
7. Heard learned counsels present for the parties and gone
through the materials available on record as well as written
submissions provided by the parties.
8. The foundational principle governing adjudication of medical
negligence is encapsulated in the Bolam Test, laid down in
the landmark English decision of Bolam v. Friern Hospital
Management Committee [1957] 1 WLR 582. As per this
test, a medical professional cannot be held liable for
negligence if it is shown that the conduct in question was in
accordance with a practice accepted as proper by a
[2025:RJ-JD:19994] (10 of 28) [CRLMP-7844/2024]
responsible body of medical men skilled in that particular art.
The Hon'ble Mr. Justice McNair, in his seminal
pronouncement, authoritatively held:
"A doctor is not guilty of negligence if he has acted in
accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular art.
Putting it the other way around, a doctor is not negligent, if
he is acting in accordance with such a practice, merely
because there is a body of opinion that takes a contrary
view."
9. This legal formulation, recognized and followed by the
Hon'ble Supreme Court of India in Jacob Mathew v. State
of Punjab [(2005) 6 SCC 1], reflects the judicial restraint
warranted in matters involving complex questions of medical
judgment. Courts are not to substitute their lay opinions for
the specialized views of qualified medical experts, nor are
they to criminalize bona fide errors in medical decision-
making, unless the negligence is so gross and reckless as to
evince a disregard for life and safety.
10.In the present case, the allegations pertain to the alleged
medical negligence resulting in the death of Mrs. Priyanka
Bishnoi following a fibroid surgery performed at Vasundhara
Hospital, Jodhpur. The complainant has sought initiation of
criminal proceedings against the treating physicians under
Section 105 of the Bharatiya Nyaya Sanhita (formerly Section
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304 IPC), alleging culpable negligence in the conduct of
surgery, omission of essential pre-operative tests, and delay
in critical diagnostic procedures post-surgery.
11.However, in consonance with the Bolam principle, this Court
must necessarily examine whether the medical decisions
taken were so palpably unreasonable or reckless as to fall
outside the ambit of what a competent body of professionals
would endorse. In this regard, the matter was referred, out of
abundant caution, to a State-Level Medical Expert
Committee, which, after a thorough evaluation of the clinical
records and procedural chronology, unequivocally concluded
that no prima facie evidence of medical negligence was
found. It was further observed that the complications which
ensued were known medical risks, and that the line of
treatment adopted was within the scope of acceptable clinical
discretion. This Court takes judicial note of the State-Level
Committee Report dated 21.09.2024, constituted pursuant to
directions issued by the Directorate of Medical Education,
Rajasthan, to examine the clinical management, institutional
protocols, and possible medical lapses in the treatment of the
deceased, Mrs. Priyanka Bishnoi. The Committee, after a
physical inspection of Vasundhara Hospital and detailed
analysis of the records, observed that the patient developed
postoperative sepsis with Disseminated Intravascular
Coagulation (DIC) and multi-organ failure, and that while she
was treated in an NABH-accredited facility equipped with
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standard infrastructure, the absence of complete
documentation--particularly from the referral hospital at
Ahmedabad--and the non-availability of conclusive post-
mortem histopathology reports precluded the committee from
determining the precise cause of death or ruling out systemic
lapses. Notably, the Committee refrained from making any
definitive finding that would amount to a charge of medical
negligence. These findings assume significance in the context
of the criminal allegations raised and must be weighed with
circumspection.
12.It is a trite proposition that when a duly constituted medical
board comprising domain experts has opined against the
existence of negligence, and when no contra expert opinion
has been produced to establish a reckless or impermissible
departure from the standard of care, criminal prosecution
under Section 105 BNS cannot be sustained. The law requires
that for an act to constitute criminal medical negligence, it
must transcend mere error of judgment and amount to a
gross dereliction of duty, evidencing either mens rea or an
utter disregard for patient safety--a threshold not satisfied in
the instant case.
13.Having regard to the allegations made and the circumstances
surrounding the demise of the complainant's daughter-in-law,
this Court is conscious of the settled position of law pertaining
to allegations of medical negligence which may give rise to
[2025:RJ-JD:19994] (13 of 28) [CRLMP-7844/2024]
criminal culpability. A mere adverse outcome of a medical
procedure does not, ipso facto, constitute medical negligence.
A private complainant, lacking in medical expertise, cannot
conclusively impute criminal negligence to a medical
practitioner solely on the basis of an unfortunate result or
post-operative deterioration. The domain of medical
negligence squarely falls within the realm of expert
knowledge, and the threshold for initiating criminal
prosecution against medical professionals is placed
significantly high to protect bona fide medical judgment from
frivolous or misconceived litigation.
14.In the present matter, it is evident that the medical
procedure carried out upon the deceased was indeed
preceded and followed by complications, as narrated in the
complaint. However, this Court finds it imperative to evaluate
whether the conduct of the medical practitioners crosses the
threshold from civil negligence into the domain of gross or
criminal negligence under Section 304 IPC or Section 105 of
the Bharatiya Nyaya Sanhita, as alleged.
15.To ascertain this, the matter was duly referred to a State-
Level Medical Expert Committee purely as a measure of
abundant caution. The committee, upon examination of the
relevant medical records, procedural steps undertaken, and
statements of the attending professionals, categorically
opined that there was no prima facie material indicative of
[2025:RJ-JD:19994] (14 of 28) [CRLMP-7844/2024]
culpable medical negligence. Notably, even the expert
neurologist consulted during the course of internal inquiries
had recommended certain diagnostic protocols, but omission
thereof, in the expert's view, did not rise to the level of
deliberate or reckless indifference amounting to criminal
misconduct.
16.The District-Level Medical Expert Committee, in its report
dated 19.9.2024, after reviewing the hospital records and
statements of the attending medical professionals, found no
willful negligence in the treatment provided. However,
discrepancies in the statements of the patient's attendant and
the hospital staff were noted, warranting further
investigation. Additionally, the omission of a CT Brain scan,
despite a neurologist's recommendation, also requires further
scrutiny.
17.It is a cardinal principle that unless the medical expert's
opinion lends support to the charge of medical negligence--
particularly of such gravity that it shocks the conscience of a
prudent man--criminal prosecution should not be allowed in
routine. The opinion of a duly constituted expert committee,
having denied the existence of medical negligence in
unequivocal terms, cannot be brushed aside in favour of
speculative inferences.
[2025:RJ-JD:19994] (15 of 28) [CRLMP-7844/2024]
18.While the Court acknowledges the petitioner's anguish and
the tragic loss suffered, it is well settled that penal
consequences under the criminal justice system must flow
only from established culpability supported by cogent
evidence, not from conjecture or mere suspicion. The
invocation of Section 105 of the Bharatiya Nyaya Sanhita
(akin to Section 304 IPC) necessitates a stringent degree of
proof of gross negligence or recklessness with knowledge of
likely fatal consequences--something that is palpably absent
in the instant case in view of the committee's findings.
19.The Hon'ble Supreme Court, in Kusum Sharma & Ors. v.
Batra Hospital & Medical Research Centre & Ors.,
(2010) 3 SCC 480, distilled this principle further by laying
down eleven guiding tenets for determining culpability in
medical negligence cases. Most relevantly, the Court
reiterated that:
• Negligence must be gross or culpable to attract criminal
consequences--not merely based on a difference in diagnosis
or judgment.
• Doctors must be allowed to function without fear, and
criminal law must not become an instrument to intimidate or
pressure.
A mere failure of treatment or an unfortunate outcome does
not establish liability, absent a demonstrable breach of a
standard that no ordinary, competent practitioner would
commit.
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20.In the present case, the petitioner alleges gross negligence
by medical personnel at Vasundhara Hospital in the course of
surgical treatment administered to his daughter-in-law, the
late Mrs. Priyanka Bishnoi. The allegations pertain to omission
of pre-operative tests, delay in critical diagnostics, and
improper post-operative care, ultimately leading to her
demise. However, applying the Bolam and Kusum Sharma
standards, it becomes abundantly clear that a criminal charge
cannot be founded on inferential assumptions, speculative
allegations, or retrospective dissatisfaction with the medical
outcome. The matter was duly placed before a State-Level
Medical Expert Committee and District-Level Medical Expert
Committee, which concluded that there was no prima facie
evidence of medical negligence. These expert opinions carry
significant probative value and must guide judicial
determination at this stage.
21.Mere dissatisfaction with the result of medical treatment,
however tragic, cannot in itself constitute grounds for criminal
prosecution unless supported by cogent evidence pointing to
gross recklessness or culpable negligence, as delineated by
the Hon'ble Supreme Court in Jacob Mathew v. State of
Punjab [(2005) 6 SCC 1]. The threshold for initiating
criminal proceedings against medical professionals is not
satisfied merely by alleging procedural lapses or adverse
consequences, but requires demonstrable conduct that falls
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palpably outside the realm of accepted medical standards.
It is also pertinent to emphasize that in the course of clinical
management, not every minor or routine diagnostic omission
can be elevated to a charge of criminal indifference. As
recognized in Dr. Suresh Gupta v. Govt. of NCT of Delhi
[(2004) 6 SCC 422], only conduct that exhibits a high
degree of gross negligence or recklessness that shocks the
conscience of a prudent man may warrant criminal culpability.
In the present case, there is no such material on record that
crosses this high threshold. Further, it is wholly unreasonable
to expect that minute-to-minute details of the ongoing
medical procedures or evolving diagnostic considerations
would be exhaustively shared with the patient's attendants,
particularly in a high-pressure post-operative setting.
Diagnostic reports, including those recommended but not
undertaken, are part of the internal clinical deliberations and
are generally accessible through proper channels; their non-
disclosure to laypersons in real time does not, in and of itself,
imply suppression or malafide intent. Allegations of non-
disclosure must be evaluated in light of clinical exigencies,
standard protocols, and practical limitations faced by the
attending staff. Hence, the contention that there was
deliberate suppression of diagnostics or intentional
withholding of information lacks the evidentiary foundation
necessary to invoke criminal liability in a medical negligence
framework.
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22.Moreover, this Court is also mindful of the fact that the
reputation and functional credibility of private medical
institutions are inherently tied to their standards of care and
patient outcomes. In the modern healthcare ecosystem, no
private hospital or its professional staff can reasonably be
presumed to operate with a wilful disregard for human life,
especially when such conduct would directly undermine their
institutional standing, public trust, and economic viability. A
medical practitioner operating within a private setup is guided
not merely by the clinical interest of the patient but also by
the ethical and reputational constraints of the institution
under whose aegis he functions. It must further be
appreciated that a single adverse outcome, if even remotely
attributable to a negligent act, has the potential to cause
irreparable damage to the professional standing of both the
doctor and the hospital. In a sector where public confidence
serves as the cornerstone of survival, the mere perception of
substandard care can derail years of painstakingly built
credibility. Private healthcare institutions operate not just as
treatment facilities but as trust-based service entities--
heavily reliant on goodwill, word-of-mouth, and community
validation. The inflow of patients, which sustains the
operational and financial viability of such institutions, is
directly proportional to the public's perception of their clinical
integrity. Consequently, even from a purely pragmatic or
commercial standpoint, it defies logic to assume that a doctor
or institution would deliberately risk such reputational capital
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by engaging in rash or negligent medical practices. The risk
of professional ruin, economic decline, and eventual
institutional collapse acts as a natural deterrent against any
willful lapse in the standard of care. Indeed, the very
business model of private healthcare is predicated on the
maintenance of --professional goodwill and ethical reliability.
The erosion of this trust, through real or perceived
negligence, would cause a rapid attrition of patient inflow,
leading not only to financial instability but to the eventual
dismantling of the entire clinical establishment. Thus, the
likelihood of a private medical practitioner, knowingly or
recklessly, compromising patient care is not merely
implausible--it is antithetical to both professional instinct and
institutional self-preservation.
23.It is inconceivable that a licensed and qualified medical
professional, having undergone rigorous academic training
and extensive clinical exposure over several years, would
intentionally pursue a line of treatment with the objective of
endangering human life. The record unequivocally reflects
that the attending physician, confronted with a critical and
dynamically evolving clinical scenario, exercised his judgment
in real time, acting with the singular intent to preserve and
restore the patient's health. The actions undertaken were
rooted in his medical wisdom and situational appraisal, not in
any form of disregard for the patient's well-being. Whether
the chosen course of treatment ultimately succeeded or failed
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pertains to the unpredictability inherent in medical science
and the complexity of human physiology--not to any criminal
malintent. Medical decisions taken within the four walls of an
operation theatre are often made under acute pressure, with
constrained time and information, and under conditions
where immediate response is paramount. It is imperative to
recognize that the treating doctor, positioned bedside and
bearing direct responsibility, exercises clinical discretion
shaped by years of training, personal experience, and the
unique circumstances presented by the patient at that precise
moment. The retrospective assertion that "another action
should have been taken," or that "a different decision might
have yielded a better result," is often a manifestation of
hindsight bias, and not a valid metric for assessing
professional culpability. In medical jurisprudence, it is
inappropriate--indeed, legally impermissible--to superimpose
an idealized course of action derived from post-facto analysis
over the real-time decisions made in emergent and life-
threatening situations. The clinical process, particularly in
emergency operative settings, is governed not by
hypothetical perfection but by a constrained equilibrium of
risk and benefit, filtered through the doctor's best judgment
at the time. The standard is not omniscience but
reasonableness. It is a fallacy to presume that because an
alternate method appears preferable in the calm of
retrospect, the course actually followed was negligent or
reckless. The treating physician, being physically present with
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the patient and having direct access to the intra-operative
cues and unfolding clinical variables, is in the most competent
position to determine the immediate course of action. His
decisions, though potentially open to debate in hindsight, are
protected under the law so long as they conform to the
accepted standards of practice prevailing at the time.
Furthermore, such decisions must be evaluated in light of the
circumstantial exigencies rather than the sterile certainty of
hindsight. The legal test is not whether a different doctor, in
an ideal scenario, might have adopted an alternative
approach, but whether the conduct fell below the standard of
care expected of an ordinary competent practitioner placed in
similar circumstances. To hold otherwise would render every
adverse medical outcome susceptible to criminal indictment,
thereby instilling a culture of defensive medicine detrimental
to public interest. Equally illogical is the assumption that a
private tertiary care institution--whose very sustenance and
reputation hinge upon public trust--would either promote or
tolerate reckless or cavalier treatment protocols. In an era of
heightened regulatory scrutiny and increasing public
awareness, any deviation from recognized norms of care
would not only expose such a facility to debilitating legal
consequences but also irreparably tarnish its standing in a
fiercely competitive healthcare ecosystem. Hence, imputing
mala fide intention or gross neglect to the institution or its
medical personnel, absent concrete and compelling material,
[2025:RJ-JD:19994] (22 of 28) [CRLMP-7844/2024]
is not only legally unsustainable but wholly inconsistent with
the evidentiary record before this Court.
24.To draw an analogy, just as it would be irrational to critique
the choice of traveling by bus by exalting, in hindsight, the
comparative merits of train travel after the journey is
complete, similarly, the appropriateness of a medical decision
cannot be impugned merely because another theoretical path
might have yielded a different or more favourable result.
Medicine, like transportation, offers multiple routes to a
destination; the mere availability of alternatives does not
negate the reasonableness of the chosen path. The practice
followed by the treating physician in the present case, as
borne out from the record, is one that falls within the ambit
of recognized and acceptable medical practice, and not one
that warrants the invocation of criminal culpability.
25.These realities underscore why the law--as stated in Kusum
Sharma and Bolam--requires courts to distinguish between
an adverse result and actionable negligence, and even more
stringently, between negligence and criminal culpability. The
absence of mens rea, or a wilful, gross departure from
standard medical practice, stands at the heart of this
distinction.
26.Before proceeding further, it becomes imperative to examine
the doctrine of vicarious liability as sought to be applied in
[2025:RJ-JD:19994] (23 of 28) [CRLMP-7844/2024]
the present matter against the petitioners, who are
functionaries of the private medical institution. The invocation
of vicarious liability in criminal jurisprudence is not as
expansive or readily inferred as in civil liability. In the realm
of criminal law, especially when dealing with allegations of
negligence under Section 105 BNS, the attribution of criminal
responsibility to a party who has not directly committed the
act necessitates a heightened threshold. There must be a
clear demonstration of either active participation, wilful
neglect, or an institutional failure so grave that it amounts to
complicity or conscious disregard of established medical
protocols. The petitioners in the present case(CRLMP
7770/2024) are neither the treating physicians nor shown to
have played any proximate role in the clinical decision-
making that led to the adverse outcome. No material has
been presented that suggests the petitioners directed,
advised, coerced, or otherwise influenced the specific medical
intervention undertaken by the attending doctor. In fact, the
foundational principle behind vicarious criminal liability
requires that the employer or institutional head be proven to
have either (a) authorized the wrongful act, (b) neglected to
prevent a known and foreseeable risk, or (c) failed in a non-
delegable statutory duty. None of these conditions are fulfilled
herein.
Furthermore, it is a well-acknowledged tenet in legal
jurisprudence that a private hospital, although an employer in
the administrative sense, cannot be held criminally liable for
[2025:RJ-JD:19994] (24 of 28) [CRLMP-7844/2024]
every clinical decision undertaken by an independently
functioning medical professional, unless there is compelling
evidence of institutional breakdown or gross supervisory
failure. The treating doctor, in the exercise of his independent
medical judgment, acted autonomously in the course of
surgery--a domain that neither the petitioners nor the
institution can realistically be said to micro-manage in real-
time. The doctrine of respondeat superior has its limitations
in criminal law, particularly in professions that require
independent application of discretion and skill. To impose
criminal vicarious liability on the hospital management in
such circumstances would be to stretch the doctrine beyond
its doctrinal limits, and set a dangerous precedent whereby
administrative or managerial personnel are rendered liable for
acts over which they exercised neither control nor contributed
by any omission. In the absence of any allegations of policy
failure, administrative dereliction, or evidence of systemic
apathy, the attempt to fasten vicarious liability upon the
petitioners is not only legally unsustainable but also contrary
to the jurisprudential safeguards established by the Hon'ble
Supreme Court in matters involving medical negligence.
27.Furthermore, while assessing the question of criminal
negligence, this Court cannot disregard the broader
philosophical construct that underpins legal reasoning itself--
that every culpable act must have a rational foundation in
intent, knowledge, or gross omission. In the context of
[2025:RJ-JD:19994] (25 of 28) [CRLMP-7844/2024]
medical negligence, these three pillars must be rigorously
tested. First, the possibility of intentional harm is, in most
cases involving qualified medical professionals, inherently
absurd. A physician who has sworn to uphold the Hippocratic
Oath, who has dedicated his professional life to healing, and
who thrives on the trust placed in him by patients and
institutions alike, has no conceivable motive to deliberately
act in a manner likely to cause death. To attribute such
intent, without overwhelming evidence, would not only defy
logic but also insult the integrity of the profession itself.
28.Second, the notion that the act was done with knowledge
that it may cause death must be evaluated in the context of
the actor's training and habitual function. A doctor is
presumed to possess not only clinical competence but also
ethical awareness. It would be against the very fabric of
medical ethos--and virtually inconceivable--that a skilled
professional, consciously aware of the fatal implications of his
actions, would proceed regardless. The Supreme Court in
Kusum Sharma rightly observed that in situations of
complexity or clinical emergency, a medical practitioner may
adopt a procedure involving risk if, in their professional
judgment, it offers a higher chance of recovery. This choice,
though fallible, cannot be equated with guilt.
29.Third, if the act was done without knowledge--that is, in a
manner that may be viewed as a lapse or error in judgment--
[2025:RJ-JD:19994] (26 of 28) [CRLMP-7844/2024]
it still falls short of the high threshold required for criminal
liability. The law recognizes that death is the inevitable
conclusion of all life, and every death--even if occurring
under clinical care--cannot be viewed as a consequence of
criminal negligence unless supported by clear, cogent, and
compelling evidence. To criminalize every clinical complication
or suboptimal outcome would create a climate of fear, deeply
impairing medical practice and public interest alike. It must
also be emphasized that legal proceedings cannot be
legitimately instituted solely on the basis of sentiments or
emotional anguish, however intense or sincere they may be.
The administration of justice must rest on objective standards
of culpability and evidentiary thresholds, not on grief or
public sympathy alone. This Court, too, is not impervious to
the sorrow arising from the untimely demise of a young and
capable officer--a woman of notable administrative acumen
and promise. Her loss is, without doubt, tragic and deeply
unfortunate. However, the solemn obligation of the legal
system is to distinguish between misfortune and culpability,
and to ensure that human suffering, however profound, does
not substitute for proof required under the law.
30.This tripartite framework--of intent, foreknowledge, and
culpable negligence--forms the very backbone of criminal
jurisprudence, and its application must be especially cautious
in the medical field. The treating physician in this case acted
within the bounds of his expertise, during an exigent clinical
[2025:RJ-JD:19994] (27 of 28) [CRLMP-7844/2024]
scenario, with the aim of saving life--not endangering it.
There is no credible evidence of intentional wrongdoing,
reckless indifference, or disregard for standard care,
especially when an independent expert committee has found
no lapse warranting further action.
31.In light of the above, it would be wholly unjust to subject the
petitioners to the rigours of criminal trial when the cumulative
material, including expert committee findings, fails to
establish even a prima facie case of gross medical negligence.
The continuation of proceedings would not only be contrary to
the principles laid down in Bolam, Jacob Mathew and Kusum
Sharma (supra), but would also result in the undue
harassment of medical professionals and strike at the very
root of responsible clinical autonomy.
32.Accordingly, in light of the authoritative expert opinion and in
the absence of any credible material disclosing a prima facie
offence under the penal law, further continuation of criminal
proceedings in relation to FIR No. 388/2024 registered at
Police Station Chopasni Housing Board, District Jodhpur,
would be an abuse of the process of law.
33.Resultantly, this Court allows the instant petitions. FIR No.
388/2024 and all consequential proceedings arising therefrom
are hereby quashed.
[2025:RJ-JD:19994] (28 of 28) [CRLMP-7844/2024]
34.The stay petitions stand disposed of.
(FARJAND ALI),J
30-Mamta/-
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