The case revolves around the abduction of seven family members by the appellants, who were alleged to be involved in police custody. The incident occurred during a period of prevailing ...
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Page 1 SLP(CRL.)NO. 9568 OF 2012
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1432/2013
(ARISING OUT OF S. L. P. (CRL.) NO. 9568 OF 2012)
Dr. P.B. DESAI …..APPELLANT
VERSUS
STATE OF MAHARASHTRA & ANR. …...RESPONDENTS
J U D G M E N T
A.K. SIKRI, J.
1. Leave granted.
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2.The appellant herein, a renowned surgeon, stands convicted of the
offence punishable under Section 338 r/w Section 109 of the Indian Penal
Code, 1860 (hereinafter to be referred as the ‘I.P.C’). This conviction was
delivered by the Additional Chief Metropolitan Magistrate, 47
th
Court,
Esplanade, Mumbai, vide judgment and order dated 05.07.2011. The --
appellant was sentenced to suffer simple imprisonment (SI) till the rising of
the Court and to pay Rs. 50,000/- as and by way of compensation, in default
to suffer simple imprisonment for 3 months. This conviction and sentence
had been upheld by the ld. Additional Sessions Judge vide judgment dated
22.03.2012 and is also confirmed by the High Court of Judicature at
Bombay by way of impugned judgment dated 15.10.2012. Still not satisfied,
the appellant has challenged the judgment of the High Court, by way of
present appeal.
3.To give a glimpse of the episode at the outset, we may mention that
one Smt. Leela Singhi (hereinafter to be referred as the ‘patient’), wife of
Shri Padamchandra Singhi, the complainant, was suffering from Cancer for
which she was under medical treatment since the year 1977. As her
condition did not improve and rather deteriorated over a period of time, in
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Page 3 SLP(CRL.)NO. 9568 OF 2012
1987 she was taken to America and was treated in Sloan Kettering Memorial
Hospital in New York. However, it did not yield any positive results. The
doctors in that hospital declared her beyond surgical treatment and she was
sent back to India on 29.11.1987. In India, she had been under the medical
supervision of Dr. A.K. Mukherjee, for a long time, who started --
administering the medication prescribed by the doctors in U.S.A. Within few
days, the patient started suffering from vaginal bleeding because of which
Dr. A.K. Mukherjee advised her for hospitalization. She was admitted to
Bombay Hospital on 9.12.1987. After a few days of hospitalization, she was
examined by the appellant who advised ‘Exploratory Laparotomy (surgery)’,
in order to ascertain whether the patient’s uterus can or cannot be removed in
order to stop the vaginal bleeding.
4.Nod of a patient for Exploratory Laparotomy was duly taken who
signed the consent form. Dr. Mukherjee, assisted by two other doctors,
began the Exploratory Laparotomy procedure on 22.12.1987. On opening
the abdomen, Dr. Mukherjee found plastering of intestines as well as profuse
oozing of ascetic fluids. He immediately called the appellant who was
performing other surgical procedure in another operation theatre. The
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Page 4 SLP(CRL.)NO. 9568 OF 2012
appellant after seeing the condition of the patient from a distance, found that
it was not possible to proceed with the operation. He advised Dr. A.K.
Mukherjee to close the abdomen. Dr. Mukherjee, thus, closed the abdomen.
The condition of the patient, thereafter, deteriorated due to the formation of
fistula. The patient remained in the hospital for treatment of the fistula. After
remaining in the hospital for about 3 months she was discharged and taken
home by the complainant. But she never recovered and ultimately passed
away on 26.2.1989 at Jaipur.
5.The complainant filed a complaint with the Maharashtra Medical
Council against the appellant and also lodged criminal complaint against the
appellant with the Director General of Police, Maharashtra. Main allegation
against the appellant was that he did not take personal care and attention by
preferring the operation himself. On the contrary he did not ever bother to
even remain present there when Dr. A.K. Mukherjee started surgical
procedure and opened the abdomen. Moreover, when Dr. Mukherjee, on
opening of the abdomen, found that Cancer was at a very advanced stage
and it would not be possible to proceed because there was fluid and
intestines were plastered and he called the appellant for advice, even then the
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Page 5 SLP(CRL.)NO. 9568 OF 2012
appellant did not examine the patient minutely. Instead, after seeing her
from the entrance of the operating room, he advised Dr. Mukherjee to close
the abdomen. So much so, even after the formation of the fistula and the
pathetic condition of the patient, the appellant never bothered to examine or
looked after her. It was alleged that the very advise of the appellant for --
surgical operation, even when doctors at U.S.A. had opined to the contrary,
was inappropriate. It was, thus alleged that the aforesaid acts of omission
and commission amounted to professional misconduct as well as offence
punishable under Section 338 of the I.P.C. Since, there was no overt act on
the part of the appellant, as the surgical procedure was performed by Dr.
A.K. Mukherjee, charge of abetment under Section 109 of I.P.C. was also
leveled against the appellant. Dr. A.K. Mukherjee was also made accused in
the said complaint. However, at a later stage, Dr. A.K. Mukherjee was
dropped from the proceedings at the instance of the complainant.
6.It is on the aforesaid allegations, purportedly proved through oral and
documentary evidence, that the conviction of the appellant is returned by the
courts below.
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7.On the complaint of the complainant, Maharashtra Medical Council
initiated disciplinary action against the appellant and found him guilty of
professional mis-conduct under Para 15 of the Warning Notice of the
Maharashtra Medical Council’s Code of Ethics and Para 3 of the disciplinary
action of the Medical Council of India’s Code of Ethics. It resulted in
issuance of warning under Section 22(1) of the Maharashtra Medical --
Council Act, 1965 vide orders dated 11.2.1991 passed by the Maharashtra
Medical Council. The appellant did not challenge the findings of the
disciplinary committee of the Maharashtra Medical Council and accepted the
order of warning.
8.As we are, in this appeal, concerned with the validity of the conviction
of the appellant under Section 338, IPC, we would like to reproduce that
provision at this stage:
“338. Causing grievous hurt by act endangering life or personal
safety of others:Whoever causes grievous hurt to any person
by doing any act so rashly or negligently as to endanger human
life, or the personal safety of others, shall be punished with
imprisonment of either description for a term which may extend
to two years, or with fine which may extend to one thousand
rupees, or with both.”
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9. Questions that falls for determination is as to whether the alleged role
of the appellant amounts to “doing any act” and whether it was so rash or
negligent as to endanger the life of the patient.-
10.Mr. Harish Salve, learned Senior Counsel appearing for the appellant,
at the outset, invited the attention of this Court to the exact charge framed by
the Trial Court which reads as under:-
“Does the prosecution prove that on 22.12.1987 at about 9.00
a.m., at Bombay Hospital, Mumbai, the Accused No. 1,
Accused No. 2 - Dr. A.K. Mukherjee, caused grievous hurt to
the wife of complainant namely, Leela Singhi by doing an
operation of abdomen taking out uterus, so rash or negligently
as to endanger human life or the personal safety of wife of the
complainant namely, Leela Singhi and thereby committed an
offence punishable under Section 338 read with Section 109 of
the I.P.C?”
11.His submission was that the specific allegations in the charge framed
against the appellant as well as Accused No. 2 – Dr.. A.K. Mukherjee were
that:-
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Page 8 SLP(CRL.)NO. 9568 OF 2012
a)The charge is for a specific act committed at 9.00 a.m. on
22.12.1987.
b)It is a charge against the Appellant (Accused No. 1) and Dr.
A.K. Mukherjee (Acquitted Accused No. 2).
c)The charge is against the two accused under Section 338 r/w
Section 109 of I.PC.
-
12.Proceeding therefrom, Mr. Harish Salve, argued that the primary
offender, as per the charge under Section 338 of the I.P.C, was Dr. A.K.
Mukherjee, the doctor who actually performed the procedure and the
appellant was charged as an abettor, using Section 109 of the I.P.C.
However, Dr. A.K. Mukherjee was dropped from the prosecution at the
instance of the complainant himself, on the ground that there was no
evidence against him. On the contrary, the complainant in his testimony
(P.W.1) gave glowing compliments to Dr. A.K. Mukherjee, praising his skills
both as a doctor and a surgeon. In such circumstances, argued Mr. Harish
Salve the question of abetment did not survive and, therefore, the case
warranted closure even against the appellant as well, after dropping Dr.
Mukherjee from the prosecution.
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Page 9 SLP(CRL.)NO. 9568 OF 2012
13.Without prejudice to the aforesaid submissions, further arguments of
Mr. Harish Salve were that, in any case, the ingredients of Section 338 of
I.P.C had not been established. It was merely a case of “negligence”
projected by the prosecution. It could not be held, ipso facto, that the
essential ingredients of the offence contained under Section 338 of I.P.C.
were fulfilled. -
14.Mr. Harish Salve endeavored to demonstrate that the decision of the
appellant to advise the operation, in question, namely “Exploratory
Laparotomy” could not even be treated as unreasonable or an act of
negligent advice. Once it was accepted that the appellant was a renowned
Oncologist with great experience, his opinion to conduct the aforesaid
procedure/ surgery, after examining the patient, was an expert opinion and
merely because he differed from the doctors in U.S.A. on this account,
negligence could not be attributed to him because of the same, much less
criminal negligence.
15.That apart, merely on the basis of negligence, it could not be held that
ingredients of Section 338 of I.P.C. stood proved as it could not amount to
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Page 10 SLP(CRL.)NO. 9568 OF 2012
an “act” of causing “grievous hurt”, that too “rationally and negligently”
thereby endangering the life of the patient. He submitted that, in the first
instance, a medical professional who is called upon to treat a patient cannot
possibly be charged for causing hurt, where the patient has come to the
hospital for receiving treatment inter alia by virtue of Section 81, 87 and 88
of the I.P.C. and where consent for such treatment has been freely given.-
Secondly, in the context of a doctor - patient relationship, even
assuming, without accepting that there could be a situation in which a doctor
can be held to have committed an offence of causing hurt (either for want of
consent or acting with wanton negligence in performing a procedure), it is
inconceivable that a doctor can be charged of causing a hurt by not doing
something. An omission by a surgeon to perform a surgery, in certain
extreme circumstances, may constitute acting in a manner that no medical
professional would, and thereby be a case of criminal negligence. It cannot
possibly be an omission by which hurt, by way of a positive act, is inflicted.
16.Mr. Harish Salve argued that once rendering an opinion to perform
such surgical procedure cannot be treated as criminal offence, in so far as
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Page 11 SLP(CRL.)NO. 9568 OF 2012
actual procedure is concerned, that was not performed by the appellant.
Without accepting, that it was the appellant who was to do the surgery
himself, he submitted that the Courts below fell in legal error by attributing
the so called omission to perform the said surgery by the appellant as an
“act” within the meaning of Section 338 of the I.P.C. He pointed out that the
charge as framed did not even remotely mention about the purported “illegal
omission”. He thus, argued that the Respondents could not base their case
on-
plea of “omission” as an “act”. Even otherwise, in the instant case, the so
called omission could not be treated as an “act” of causing grievous hurt in
as much as, such an omission has to be in relation to the operation that
caused the hurt. Dilating this aspect, the learned senior counsel projected
the theory that illegal omissions could result in causing hurt cannot have any
application to a doctor who has not performed a surgery – where the primary
allegation is that the performance of the surgery constituted the infliction of
hurt. Whatever may be the legal consequences of reneging on an assurance
to perform a surgery, if the surgery is performed by a duly qualified
professional, the surgeon who did not perform the surgery could not possibly
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Page 12 SLP(CRL.)NO. 9568 OF 2012
be guilty of causing hurt. A fortiori, where the surgeon who did perform the
surgery is duly qualified, and is blame free, there is no question of charging,
under Section 338 of I.P.C., some other surgeon who may have been
engaged to perform the surgery, but did not do so.
17.Mr. Harish Salve also sought to distract the charge of abetment under
Section 109 of the I.P.C. by attempting to highlight that as per the charge
framed by the Trial Court, the “act” was attributed to Dr. A.K. Mukherjee
and the primary charge against the appellant was only that of abetment.
With the dropping of Dr. A.K. Mukherjee from the prosecution, the charge
of abetment no more survived, more so when no overt act is attributed to the
appellant and there is no medical or other aspect examined to show grievous
hurt resulted because of the surgery. The appellant placed reliance upon the
decisions of this Court in Faguna Kant Nath v. The State of Assam (1959) 2
Suppl. SCR 1; Madan Raj Bhandari v. State of Rajasthan (1969) 2 SCC
385.
18. Mr. B.H. Marlapalle, learned Senior Counsel appearing for the State
invited the attention of this Court to the reasons recorded by the Maharashtra
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Page 13 SLP(CRL.)NO. 9568 OF 2012
Medical Council in its orders dated 11.2.1991 holding the appellant guilty of
misconduct. He pointed out that under the Maharashtra Medical Council
Act, 1965, the proceedings against the appellant were in the nature of
judicial proceedings under Sections 22 of the said Act and since these
findings of the Medical Council had attained finality, there was no basis in
the submission of the appellant that he had not acted negligently. He also
referred to the findings recorded by the trial court and the High Court and
submitted as under:
-
a)The patient Smt. Leela Singhi was admitted at the Bombay
Hospital as the patient of the present accused in Room No.
1005 (MRC I Class).
b)She had given consent for being operated by the present
accused.
c)It was the accused mainly who took the decision to operate the
patient for exploratory surgery despite a written opinion from
the doctors of USA that she was inoperable.
d)As per the evidence of DW.2, Dr. Gajanand Hegade, Dr. A.K.
Mukherjee was the Assistant Surgeon under the present accused
and it was not permissible for him to perform any procedure
independently.
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Page 14 SLP(CRL.)NO. 9568 OF 2012
e)The accused had accepted two different surgeries in two
different operation theatres (OT 1 and OT 2) at the same time
on 20.12.1987 at the Bombay Hospital and Mrs. Leela Singhi
was taken in OT 2. He instructed Dr. A.K. Mukherjee to open
the abdomen of Mrs. Leela Singhi and went to OT1 to attend
another surgery. After Dr. A.K. Mukherjee, as per the
instructions of the present accused, Dr. P.B. Desai took a cut he
immediately noticed that the process was unmanageable for
him and the said process was started in the absence of Dr.
Desai. Dr. Mukherjee, therefore, in deperation sent for Dr.
Desai to come to OT 2 and attend to Mrs. Singhi for further
procedure. Dr. Desai did not turn up and, therefore, after
waiting for some time -and leaving the patient, Dr. Mukherjee
went to OT1 to request Dr. Desai to come and attend to Mrs.
Singhi. Dr. Desai came to OT 2 and by standing at a distance of
6 feet, instructed Dr. Mukherjee to stitch the abdomen as the
case was inoperable. He did not touch the patient, leave alone
stitching the abdomen by himself. The patient remained in the
Hospital for over three months and for about initial one month
she required dressing every one hour because of the bleeding
from the stitches. This pain and suffering of the patient could
have been avoided/ reduced if Dr. Desai himself had stitched
the abdomen. After the wound was stitched and till the patient
was discharged on 5.4.1998, Dr. Desai did not, even once,
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Page 15 SLP(CRL.)NO. 9568 OF 2012
attend to Mrs. Singhi and the patient missed the healing touch
of the surgeon who was authorized to operate her.
f)After the patient’s husband (PW.1) started writing complaints,
Dr. Desai flatly denied that Mrs. Singhi was his patient. And Dr.
Desai continued the denial even till the end of the trial despite
the fact that the Maharashtra Medical Council had held him
guilty after a full fledged enquiry under Section 22 of the
Maharashtra Medical Council Act, 1965 and warned him, so
also three witnesses from the hospital i.e. PW.2, PW.3 and PW.5
were examined by the prosecution to prove that Mrs. Leela
Singhi was the patient of Dr. Desai. This entire behavior of Dr.
Desai during the operation stage and post operation and -post
complaint/ during trial was not commensurate with his
professional eminence.
19.Submissions of Mr. B.H. Marlapalle were that the aforesaid admitted
facts were sufficient to establish commission of offence under Section 338
of the I.P.C., in as much as, it has been proved beyond reasonable doubts
that because of the procedure with which the patient was subjected to, under
the instructions of the appellant, the patient suffered grievous hurt which
also endangered her life and it was he alone who was negligent and acted
rashly from 20.12.1987 till the patient was discharged on 5.4.1988. He
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argued that it is not necessary to evaluate as to whether his decision to
operate Mrs. Singhi could be said to be rash or negligent, (though it was
hazardous) but surely having taken the decision to operate her, the appellant
did not operate her and instead instructed Dr. Mukherjee to proceed with the
first cut and Dr. Desai even abandoned the patient and went to the other
operation theatre. When he came back to OT 2, he did not attend to Mrs.
Singhi and stitched the cut. This was second act of rash and negligent
behavior of the appellant. Thirdly, even after the operation, he never
attended to Mrs. Leela Singhi till she was discharged and thus again this was
another act of rash and negligent behavior. Though this could be said to be
omissions of Dr. Desai, the word “doing any act” as appearing in Section
338 is required to be read with Section 32, 33 and 36 of I.P.C. The learned
counsel pointed out that in every part of this Code, except where a contrary
intention appears from the context, words which refer to acts done extend
also to illegal omissions. Section 33 of I.P.C. states that the word “act”
denotes as well a series of acts as a single act and the word “omission”
denotes as well as series of omissions as a single omission. Whereas, as per
Section 36 of the I.P.C. - wherever the causing of a certain effect, or an
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attempt to cause that effect, by an act or by an omission, is an offence, it is to
be understood that the causing of that effect partly by an act and partly by an
omission is the same offence. It was thus, argued that all the acts proved
against the appellant and the omissions attributable to him, form the part of
the same offence viz., an offence under Section 338 of causing grievous hurt
by rash and negligent acts/ omissions. The said offence is not attributable to
a single act or omission but it denotes a series of omissions/ acts as a single
omission/ act. -
20.According to the learned State Counsel even the offence under Section
109 of I.P.C. was proved, notwithstanding the fact that Dr. Mukherjee was
dropped from the proceedings. He referred to Section 107 of I.P.C. which
defines Abetment of a thing - by stating that a person abets a doing of a
thing who, inter alia, intentionally aids, by any act or illegal omission the
doing of that thing. As per Section 109 of I.P.C. whoever abets any offence
shall, if the act abetted is committed in consequence of the abetment, and no
express provision is made by the I.P.C. for the punishment of such abetment,
be punished with punishment provided for the offence. Thus, the offence
under Section 109 is an independent offence but the punishment is related
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with other offence. In the instant case, with the offence punishable under
Section 338, as the appellant instructed Dr. Mukherjee to open the abdomen
of Mrs. Singhi who was not authorized to do so and left the operation theatre
leaving the patient in the charge of Dr. Mukherjee, the appellant abetted
through Dr. Mukherjee. The words “intentionally acts” used in Section 107
(thirdly) of I.P.C. are required, to be read, in the instant case as “knowingly
instructs”. The prosecution case has not in any way effected because of the
discharge of Dr. Mukherjee by allowing an -application under Section 321 of
Cr. PC. as Dr. Mukherjee was not competent to undertake the procedure
independently and he undertook the procedure solely as per the instructions
of the appellant. Hence, the prosecution urged that the accused has been
rightly convicted under Section 338 r/w Section 109 of I.P.C.
21.Mr. Gonsalves, ld. Senior Counsel, argued for the complainant/
Respondent No. 2, and pleaded that the conviction recorded by the Court
below were perfectly justified which required no interference. He referred to
the following facts which according to him, were established by sufficient
and cogent evidence.
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Page 19 SLP(CRL.)NO. 9568 OF 2012
(a) The appellant alone was the doctor of the patient to whom
the patient was specifically referred to by Dr. Mukherjee
from the stage of examining the patient and advising
surgical operation. The entire responsibility was that of
the appellant even to do the surgery in as much as the
patient as well as the complainant recognized only one
doctor namely the appellant.
(b)The appellant took a particular decision viz., to perform
Exploratory Laparotomy and this itself was “rash and
negligent” act on the part of the appellant, when
examined the same in juxtaposition with the advise
rendered by the doctors in U.S.A.-
c)The instruction of the appellant to Dr. Mukherjee to
operate, when Dr. Mukherjee was not authorized by the
Complainant/ Respondent No. 2 was another act of rash
and negligent nature.
d)The appellant had consciously and deliberately
abandoned his patient twice – one at the time of
operation and thereafter, not attending and treating her to
ameliorate her pain and suffering, which was another
rash and negligent act.
These acts, according to Mr. Gonsalve, were sufficient to specify the
ingredients of Section 338 of I.P.C.
22.Mr. Gonsalves, also pointed out that the only defence of the appellant
was that Smt. Leela Singhi was not her patient which has been proved to be
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Page 20 SLP(CRL.)NO. 9568 OF 2012
false. Therefore, the appellant could not be allowed to argue to the contrary.
Mr. Gonsalves also referred to the findings of the Maharashtra Medical
Council, as argued by the State Counsel, to buttress his submission that the
guilt of the appellant stood proved.
23.We have given our deep thoughts to the aforesaid submissions made
by the learned Senior Counsel appearing for different parties. The provisions
of Section 338 IPC have already been reproduced in the earlier part of this --
judgment. A perusal thereof would clearly demonstrate that before a person
is held guilty of the offence, following ingredients need to be established:
a)Causing grievous hurt to a person.
b)Grievous hurt should be the result of an act.
c)Such act ought to have been rash and negligent.
d)The intensity of commission of such an act ought to endanger
human life or the personal safety of others.
24.Before we find out as to whether these essential ingredients have been
satisfied in the present case or not, another aspects needs discussion, viz.,
whether Smt. Leela was the patient of the appellant or not.
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The Established Facts
To find an answer to this question, let us revert to those facts which
have been established by evidence. Respondent No.2 on the advice of Dr.
A.K. Mukherjee admitted her in the unit of the appellant at Bombay Hospital
on the basis of a note for admission given by Dr. A. Mukherjee. The
operation namely “Exploratory Laprotomy Panhyxtroctomy” was advised by
the appellant. At Bombay Hospital, a number of medical tests referred by the
appellant including CT Scan, Blood Analysis, Blood transfusion report, --
examination of urine, microscopic examination of centrifugalised deposits
were done on the patient. As per the Bombay Hospital records, the patient -
Smt. Leela Singhi was admitted as the indoor patient from 09.12.1987 to
4.5.1988 in Room No. 1005 under the appellant. Room No. 1005 was
earmarked for the appellant and never allotted to any other patient without
instructions of the appellant. The date of operation was fixed as per the
convenience and on instructions of the appellant five days after his advice.
The patient was examined by the appellant after preliminary investigations
by Dr. A. K Mukherjee. A bill of Rs. 5000/- as the operation fee rendered by
the operating surgeon Accused No 1 - the appellant, was raised by Bombay
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Page 22 SLP(CRL.)NO. 9568 OF 2012
Hospital which was sent to Government of Rajasthan for payment. The
documents also showed the appellant as operating surgeon. The constant
reminders for the clearance of the bill were made to the Government of
Rajasthan for releasing of the payment. The Respondent No. 2 had objected
for charging of Rs. 5000/- in the name of the appellant for the operation
which admittedly the appellant had never carried on his wife, the operation
which according to the Bombay Hospital records was to be conducted by the
appellant. Thereafter, Respondent No.2 made a complaint to the Board of --
Management of the Bombay Hospital regarding the behaviour of the
appellant and even met the chairman of the hospital. Resultantly, the charges
of Rs. 5,000/- against the appellant were waived. After the correspondence,
Bombay Hospital sent a duplicate bill deleting Rs. 5,000/- which was the
operation fee charges for the appellant.
We may record that the defence put by the appellant in the Trial Court
was that Smt. Leela Singhi was not her patient but the same has rightly been
rejected by the Courts below in view of plethora of evidence, establishing
otherwise. Thus, it can be concluded that Smt. Leela was the patient of the
appellant and it was his responsibility to take care of his patient.
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Page 23 SLP(CRL.)NO. 9568 OF 2012
25.The answer can also be founded on the nature of professional duty
which appellant owed to the patient. Usually before the operation, consent
form is required to be signed by the patient for agreeing to the risks
involved. The documentary medical records of surgical operation pointed to
the appellant as the operating surgeon, the oral and documentary proof both
impliedly and explicitly leads to the creation of contractual agreement
between the patient and the appellant. -
26.In Lambert v. California ( 355 U.S 225 (1957), the Supreme Court of
United States seems to recognize the unfairness of imposing liability where
an actor is unaware of a duty to act. Similarly the Indian Constitution
mandates under Articles 20(1) & 21 of the Constitution of India that the due
process of law requires that everyone who is tried under any law before
court must have some awareness of, or at least a reasonable opportunity to
become aware of their legal owed duty towards its recipient. In this case, at
hand, the appellant was aware of his duty towards the patient - Smt. Leela as
the appellant was the patient’s operating surgeon. To the utter disregard of
the patient, the appellant vehemently denied her to be his patient. Since the
documentary evidences are conclusive in nature also all the facts which had
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Page 24 SLP(CRL.)NO. 9568 OF 2012
been perused below in the courts undoubtedly point to the undeniable fact
that the patient - Smt. Leela was indeed the appellant’s patient.
27.Thus, brushing aside the objection of the appellant that Smt. Leela
Singhi was not his patient, on the facts of this case we proceed to find out
whether conviction u/s 338 is sustainable or not.
28.For time being we keep aside the first element, viz. whether the
surgical procedure of opening the abdomen of the patient resulted in --
grievous hurt. That is dealt with at appropriate stage. Before that we
discuss the preliminary submission as to whether this act can be attributed to
the appellant. Vehemence in the submission was that there is no “overt” act
on the part of the appellant. Therefore, question arises, in the context of
second ingredient, as to whether “omission to act”, would also be covered by
the expression “act” occurring therein.
29.Whether “act” includes “omission”? Though this aspects needs
elaboration alongwith discussion with regard to other ingredients as these
are inextricably mixed up and can’t be discussed in isolation and, therefore,
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Page 25 SLP(CRL.)NO. 9568 OF 2012
we have proceeded in that manner at appropriate stage. Here, we are
narrating the legal position only. In this behalf, we may point out that there
may be various circumstances where “act” would include “omission to act”
as well. This is so recognized even in Sections 32, 33 & 36 of I.P.C.
These provisions are reproduced below:
“32.Words referring to acts include illegal omissions. - In
every part of the said code, except where a contrary
intention appears from the context, words which refer to
acts done extend also to illegal omissions. -
33. “Act”, “Omission”. - The word “act” denotes as well a
series of acts as a single act: the word “omission” denotes
as well a series of omissions as a single omission.
36. Effect caused partly by act and partly by omission. -
Wherever the causing of certain effect, or an attempt to
cause that effect, by an act or by an omission, is an
offence, it is to be understood that the causing of that
effect partly by an act and partly by an omission is the
same offence."
30.The legal understanding of omission is indispensable at the juncture.
An omission is sometimes called a negative act, but this seems dangerous
25
Page 26 SLP(CRL.)NO. 9568 OF 2012
practice, for it too easily permits an omission to be substituted for an act
without requiring the special requirement for omission liability such as legal
duty and the physical capacity to perform the act. Criminal liability for an
omission is also well accepted where the actor has a legal duty and the
capacity to act. It is said that this rather fundamental exception to the act
requirement is permitted because an actor’s failure to perform a legal duty of
which he is capable, satisfies the purposes of the act requirement or at least
satisfies them as well as an act does. Specifically these two special
requirements for omission liability help to exclude from liability cases of --
fantasizing and irresolute intentions, important purposes of the act
requirement.
31.However, a failure to act, by itself does nothing to screen out mere
fantasies. It is the actor’s failure to act in the light of his capacity to do so
that suggests the actor’s willingness to go beyond mere fantasizing and to
have the harm or evil of the offence occur. Even then, however, the
screening effect seems weak; “letting something happen” simply does not
carry the same implication of resolute intention that is shown in causing
something to happen by affirmative action. While an actor’s failure to
26
Page 27 SLP(CRL.)NO. 9568 OF 2012
perform a legal duty provides some evidentiary support for the existence of
an intention to have the harm or evil occur, the force of the implication is
similarly weak. Inaction often carries no implication of intention unless it is
shown that the actor knows of his or her duty to act and the opportunity to
do so.
32.Liability for an omission requires a legal duty to act; a moral duty to
act is not sufficient. The duty may arise either from the offence definition
itself or from some other provision of criminal or civil law. A duty arises
from the former when an offence is defined in terms of omission. This is the
-situation where the legislature has made it an offence. A legal duty to act
may also be created by a provision of either criminal or civil separate from
the offence charged. For example, a duty under the Maharashtra Medical
Council’s Code of Ethics and Maharashtra Medical Council Act, 1965.
33.Since there is no moral difference between (i) a positive act and (ii) an
omission when a duty is established, it is to be borne in mind that cases of
omissions, the liability should be exceptional and needs to be adequately
justified in each instance. Secondly, when it is imposed this should be done
27
Page 28 SLP(CRL.)NO. 9568 OF 2012
by clear statutory language. Verbs primarily denoting (and forbidding) active
conduct should not be construed to include omissions except when the
statute contains a genuine implication to this effect. Thirdly, maximum
penalties applied to active wrongdoing should not automatically be
transferred to corresponding omissions; penalties for omissions should be re-
thought in each case. Indeed, the Indian Penal Code, 1860 does include
explicitly the liability due to omissions. And even Indian courts have
affirmed so. In the case of Latifkhan (1895) 20 Bom 394, wherein the law
imposes a duty to act on a person, his illegal omission to act renders him
liable to punishment. While dealing with the imposition of liability for --
omission, certain considerations are required to be kept in mind. Does
section 338 of the I.P.C recognize that the particular offence may be
committed by omission? Some category of offences may, some may not;
Does it include medical profession? If the offence is capable of being
committed by omission, who all were under a duty to act? Who owed the
primary duty? What are the criteria for selecting the culprit? Where the
definition of the crime requires proof that the actor caused a certain result,
and can he be said to have caused that result by doing nothing? These
28
Page 29 SLP(CRL.)NO. 9568 OF 2012
questions cannot be completely separated and sometimes few or all three of
them would arise in the same material which follows. Each of them, perhaps,
also gives rise to yet another question: Is actor’s conduct properly
categorized as an omission, or an act? Indeed section 338 of the I.P.C does
recognize unambiguously that the particular offence can be committed by
omission. More so, the medical profession is included in it. The offence
under section 338 of the I.P.C is capable of being committed by omission.
34.We reiterate that we have stated, explained and clarified the meaning
of expression “act” occurring in Section 338 IPC, to include acts of omission
as well. Its applicability in the instant case has been discussed elaborately at
the relevant portion of this judgment so as not to lose the continuum.
35.As we find that “omission” on the part of the appellant would also be
treated as “act” in the given circumstances, the issue is as to whether this act
of omission was rash & negligent. This is a pivotal & central issue which
needs elaborate and all pervasive attention of the court. To create the edifice,
brick by brick, we intend to proceed in the following order:
29
Page 30 SLP(CRL.)NO. 9568 OF 2012
1.The Doctor-Patient Relationship.
2.Duty of care which a doctor owes towards his patient.
3.When this breach of duty would amount to negligence.
4.Consequences of negligence: Civil and Criminal.
5.When criminal liability is attracted.
6.Whether appellant criminally liable u/s 338 IPC, in the present
case?
(1)The Doctor- Patient relationship
36.Since ancient times, certain duties and responsibilities have been cast
on persons who adopt the sacred profession as exemplified by Charak’s Oath
(1000 BC) and the Hippocracic Oath (460 BC).
-
37.It is the responsibilities that emerge from the doctor-patient
relationship that forms the cornerstone of the legal implications emerging
from medical practice. The existence of a doctor-patient relationship
presupposes any obligations and consequent liability of the doctor to the
patient.
38.It was Talcott Parsons, a social scientist, who first theorized the
doctor-patient relationship. He worked on the hypothesis that illness was a
30
Page 31 SLP(CRL.)NO. 9568 OF 2012
form of dysfunctional deviance that required re-integration with social
organism. Maintaining the social order required the development of a
legitimized sick role to control this deviance, and make illness a transitional
state back to normal role performance. In this process, the physician, who
has mastered a body of technical knowledge, on a functional role to control
the deviance of sick persons who was to be guided by an egalitarian
universalism rather than a personalized particularism. While this basic
notion has remained robust, over a period of time there have been numerous
qualifications to the theory of Parsons. For instance, physicians and the
public consider some illnesses to be the responsibility of the ill, such as lung
cancer, AIDA and obesity.
-
39.It is not necessary for us to divulge this theoretical approach to the
doctor-patient relationship, as that may be based on model foundation.
Fact remains that when a physician agrees to attend a patient, there is an
unwritten contract between the two. The patient entrusts himself to the
doctor and that doctor agrees to do his best, at all times, for the patient.
Such doctor-patient contract is almost always an implied contract, except
31
Page 32 SLP(CRL.)NO. 9568 OF 2012
when written informed consent is obtained. While a doctor cannot be forced
to treat any person, he/she has certain responsibilities for those whom he/she
accepts as patients. Some of these responsibilities may be recapitulated, in
brief:
(a)to continue to treat, except under certain circumstances
when doctor can abandon his patient;
(b) to take reasonable care of his patient;
(c) to exhibit reasonable skill: The degree of skill a doctor
undertakes is the average degree of skill possessed by his
professional brethren of the same standing as himself.
The best form of treatment may differ when different
choices are available. There is an implied contract
between the doctor and patient where the patient is told,
in effect, “Medicine is not an exact science. I shall use
my experience and best judgment and you take the risk
that I may be wrong. I guarantee nothing.”-
(d) Not to undertake any procedure beyond his control: This
depends on his qualifications, special training and
experience. The doctor must always ensure that he is
reasonably skilled before undertaking any special
procedure/treating a complicated case.
(e) Professional secrets:A doctor is under a moral and
legal obligation not to divulge the
information/knowledge which he comes to learn in
32
Page 33 SLP(CRL.)NO. 9568 OF 2012
confidence from his patient and such a communication is
privileged communication.
Conclusion: The formation of a doctor-patient relationship is integral to the
formation of a legal relationship and consequent rights and duties, forming
the basis of liability of a medical practitioner. Due to the very nature of the
medical profession, the degree of responsibility on the practitioner is higher
than that of any other service provider. The concept of a doctor –patient
relationship forms the foundation of legal obligations between the doctor
and the patient.
In the present case, as already held above, doctor-patient relationship
stood established, contractually, between the patient and the appellant.
(2)Duty of Care which a doctor owes towards his patient.-
40.Once, it is found that there is ‘duty to treat’ there would be a
corresponding ‘duty to take care’ upon the doctor qua/his patient. In certain
context, the duty acquires ethical character and in certain other situations, a
33
Page 34 SLP(CRL.)NO. 9568 OF 2012
legal character. Whenever the principle of ‘duty to take care’ is founded on
a contractual relationship, it acquires a legal character. Contextually
speaking, legal ‘duty to treat’ may arise in a contractual relationship or
governmental hospital or hospital located in a public sector undertaking.
Ethical ‘duty to treat’ on the part of doctors is clearly covered by Code of
Medical Ethics, 1972. Clause 10 of this Code deals with ‘Obligation to the
Sick’ and Clause 13 cast obligation on the part of the doctors with the
captioned “Patient must not be neglected”. Whenever there is a breach of
the aforesaid Code, the aggrieved patient or the party can file a petition
before relevant Disciplinary Committee constituted by the concerned State
Medical Council.
(3) When this breach of duty would amount to negligence?
41.When reasonable care, expected of the medical professional, is not
rendered and the action on the part of the medical practitioner comes within
the mischief of negligence, it can be safely concluded that the said doctor --
did not perform his duty properly which was expected of him under the law
and breached his duty to take care of the patient. Such a duty which a doctor
34
Page 35 SLP(CRL.)NO. 9568 OF 2012
owes to the patient and if not rendered appropriately and when it would
amount to negligence is lucidly narrated by this Court in Kusum Sharma and
others v. Batra Hospital and Medical Research Centre and Others; (2010) 3
SCC 480. The relevant discussions therefrom are reproduced hereinbelow:
“45. According to Halsbury’s Laws of England, 4th Edn., Vol. 26 pp.
17-18, the definition of negligence is as under:
22. Negligence.—Duties owed to patient. A person
who holds himself out as ready to give medical advice or
treatment impliedly undertakes that he is possessed of
skill and knowledge for the purpose. Such a person,
whether he is a registered medical practitioner or not,
who is consulted by a patient, owes him certain duties,
namely, a duty of care in deciding whether to undertake
the case; a duty of care in deciding what treatment to
give; and a duty of care in his administration of that
treatment. A breach of any of these duties will support an
action for negligence by the patient.”
46. In a celebrated and oft cited judgment in Bolam v. Friern
Hospital Management Committee (Queen’s Bench Division)
McNair, L.J. observed:
(i) A doctor is not negligent, if he is acting in
accordance with a practice accepted as proper by a
reasonable body of medical men skilled in that particular
-art, merely because there is a body of such opinion that
takes a contrary view.
35
Page 36 SLP(CRL.)NO. 9568 OF 2012
“The direction that, where there are two different schools
of medical practice, both having recognition among
practitioners, it is not negligent for a practitioner to
follow one in preference to the other accords also with
American law; see 70 Corpus Juris Secundum (1951)
952, 953, Para 44. Moreover, it seems that by American
law a failure to warn the patient of dangers of treatment
is not, of itself, negligence McNair, L.J. also observed:
Before I turn to that, I must explain what in law we mean
by ‘negligence’. In the ordinary case which does not
involve any special skill, negligence in law means this:
some failure to do some act which a reasonable man in
the circumstances would do, or the doing of some act
which a reasonable man in the circumstances would not
do; and if that failure or the doing of that act results in
injury, then there is a cause of action. How do you test
whether this act or failure is negligent? In an ordinary
case it is generally said, that you judge that by the action
of the man in the street. He is the ordinary man. In one
case it has been said that you judge it by the conduct of
the man on the top of a Clapham omnibus. He is the
ordinary man. But where you get a situation which
involves the use of some special skill or competence,
then the test as to whether there has been negligence or
not is not the test of the man on the top of a Clapham
omnibus, because he has not got this man exercising and
professing to have that special skill. … A man need not
possess the highest expert skill at the risk of being found
negligent. It is well-established law that it is sufficient if
he exercises the ordinary skill of an ordinary competent
man exercising that particular art.”
-
36
Page 37 SLP(CRL.)NO. 9568 OF 2012
(4) Breach of Duty to Take Care: Consequences
42.If the patient has suffered because of negligent act/ omission of the
doctor, it undoubtedly gives right to the patient to sue the doctor for
damages. This would be a civil liability of the doctor under the law tort and/
or contract. This concept of negligence as a tort is explained in Jacob
Mathews v. State of Punjab and Another 2005(6) SCC1, in the following
manner:
“10. The
jurisprudential concept of negligence defines any precise
definition. Eminent jurists and leading judgments have assigned
various meanings to negligence. The concept as has been
acceptable to Indian jurisprudential thought is well stated in the
Law of Torts, Ratanlal & Dhirajlal (24
th
Edn., 2002, edited by
Justice G.P. Singh).
Negligence is the breach of a duty caused by the omission to do
something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and
reasonable man would not do. Actionable negligence consists in
the neglect of the use of ordinary care or skill towards a person
to whom the defendant owes the duty of observing ordinary
care and skill, by which neglect the plaintiff has suffered injury
to his person or property…. The definition involves three
constituents of negligence: (1) A legal duty to exercise due care
on the part of the party complained of towards the party
complaining the former’s conduct within the scope of the duty;
37
Page 38 SLP(CRL.)NO. 9568 OF 2012
(2) breach of the said; and (3) consequential damage. Cause of
-action for negligence arises only when damage occurs; for,
damage is a necessary ingredient of this tort.”
43.Such a negligent act, normally a tort, may also give rise to criminal
liability as well, though it was made clear by this Court in Jacob’s Case
(supra) that jurisprudentially the distinction has to be drawn between
negligence under Civil Law and negligence under Criminal Law. This
distinction is lucidly explained in Jacob’s Case, as can be seen from the
following paragraphs:
“12. The term “negligence” is used for the purpose of fastening
the defendant with liability under the civil law and, at
times, under the criminal law. It is contended on behalf of
the respondents that in both the jurisdictions, negligence
is negligence, and jurisprudentially no distinction can be
drawn between negligence under civil law and
negligence under criminal law. The submission so made
cannot be countenanced inasmuch as it is based upon a
total departure from the established terrain of thought
running ever since the beginning of the emergence of the
concept of negligence up to the modern times. Generally
speaking, it is the amount of damages incurred which is
determinative of the extent of liability in tort; but in
criminal law it is not the amount of damages but the
amount and degree of negligence that is determinative
of liability. To fasten liability in criminal law, the degree
of negligence has to be higher than that of negligence
enough to fasten liability for damages in civil law. The
38
Page 39 SLP(CRL.)NO. 9568 OF 2012
essential ingredient of mens -rea cannot be excluded
from consideration when the charge in a criminal
court consists of criminal negligence. In R. v. Lawrence
Lord Diplock spoke in a Bench of five and the other Law
Lords agreed with him. He reiterated his opinion in R. v.
Caldwell
3
and dealt with the concept of recklessness as
constituting mens rea in criminal law. His Lordship
warned against adopting the simplistic approach of
treating all problems of criminal liability as soluble by
classifying the test of liability as being “subjective” or
“objective”, and said: (All ER p. 982e-f)
“Recklessness on the part of the doer of an act does
presuppose that there is something in the circumstances
that would have drawn the attention of an ordinary
prudent individual to the possibility that his act was
capable of causing the kind of serious harmful
consequences that the section which creates the offence
was intended to prevent, and that the risk of those
harmful consequences occurring was not so slight that an
ordinary prudent individual would feel justified in
treating them as negligible. It is only when this is so that
the doer of the act is acting ‘recklessly’ if, before doing
the act, he either fails to give any thought to the
possibility of there being any such risk or, having
recognised that there was such risk, he nevertheless goes
on to do it.”
13. The moral culpability of recklessness is not located in a
desire to cause harm. It resides in the proximity of the
reckless state of mind to the state of mind present when
there is an intention to cause harm. There is, in other
words, a disregard for the possible consequences. The
consequences entailed in the risk may not be wanted, and
indeed the actor may hope that they do not occur, but this
hope nevertheless fails to inhibit the taking of the risk.
Certain types of violation, called optimising violations, --
39
Page 40 SLP(CRL.)NO. 9568 OF 2012
may be motivated by thrill-seeking. These are clearly
reckless.
14. In order to hold the existence of criminal rashness or
criminal negligence it shall have to be found out that the
rashness was of such a degree as to amount to taking
a hazard knowing that the hazard was of such a
degree that injury was most likely imminent. The
element of criminality is introduced by the accused
having run the risk of doing such an act with recklessness
and indifference to the consequences. Lord Atkin in his
speech in Andrews v. Director of Public Prosecutions
4
stated: (All ER p. 556 C)
“Simple lack of care such as will constitute civil liability
is not enough. For purposes of the criminal law there are
degrees of negligence, and a very high degree of
negligence is required to be proved before the felony is
established.”
Thus, a clear distinction exists between “simple lack of
care” incurring civil liability and “very high degree of
negligence” which is required in criminal cases. In
Riddell v. Reid
4a
(AC at p. 31) Lord Porter said in his
speech —
“A higher degree of negligence has always been
demanded in order to establish a criminal offence than is
sufficient to create civil liability.”
15.The fore-quoted statement of law in Andrews has been
noted with approval by this Court in Syad Akbar v. State
of Karnataka
5
. The Supreme Court has dealt with and
pointed out with reasons the distinction between
negligence in civil law and in criminal law. Their
Lordships have opined that there is a marked difference
as to the effect of evidence viz. the proof, in civil and
criminal proceedings. In civil proceedings, a mere
40
Page 41 SLP(CRL.)NO. 9568 OF 2012
preponderance of probability is sufficient, and the --
defendant is not necessarily entitled to the benefit of
every reasonable doubt; but in criminal proceedings, the
persuasion of guilt must amount to such a moral
certainty as convinces the mind of the Court, as a
reasonable man, beyond all reasonable doubt. Where
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.”
44.Thus, in the civil context while we consider the moral implications of
negligent conduct, a clear view of the state of mind of the negligent doctor
might not require strictly. This is for the reason the law of tort is ultimately
not concerned with the moral culpability of the defendant, even if the
language of fault is used in determining the standard of care. From the point
of view of civil law it may be appropriate to impose liability irrespective of
moral blameworthiness. This is because in civil law two questions are at
issue: Was the defendant negligent? If so, should the defendant bear the loss
in this particular set of circumstances? In most cases where negligence has
been established, the answer to the second question will be in the
affirmative, unless the doctrine of remoteness or lack of foresee ability
militates against a finding of liability, or where there is some policy reason
41
Page 42 SLP(CRL.)NO. 9568 OF 2012
precluding compensation. The question in the civil context is, therefore, not
about moral blame, even though there will be many cases where the civilly
liable defendant is also morally culpable.
(5) Criminal Liability : When attracted
45.It follows from the above that as far as the sphere of criminal liability
is concerned, as mens rea is not abandoned, the subjective state of mind of
the accused lingers a critical consideration. In the context of criminal law,
the basic question is quite different. Here the question is: Does the accused
deserve to be punished for the outcome caused by his negligence? This is a
very different question from the civil context and must be answered in terms
of mens rea. Only if a person has acted in a morally culpable fashion can this
question be answered positively, at least as far as non strict liability offenses
are concerned.
46.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 a
deliberate willingness to subject others to the risk of harm. Negligent
42
Page 43 SLP(CRL.)NO. 9568 OF 2012
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.
This, however, is the classic definition of recklessness, which is
conceptually different from negligence and which is widely accepted as
being a basis for criminal liability.
47.The solution to the issue of punishing what is described loosely, and
possibly inaccurately, as negligence is to make a clear distinction between
negligence and recklessness and to reserve criminal punishment for the
latter. If the conduct in question involves elements of recklessness, then it is
punishable and should not be described as merely negligent. If, however,
there is nothing to suggest that the actor was aware of the risk deliberately
taken, then he is morally blameless and should face, at the most, a civil
action for damages.
(6)Whether the appellant criminally liable under Section 338
IPC, in the present case?
43
Page 44 SLP(CRL.)NO. 9568 OF 2012
48.We have to keep in mind that by the impugned judgment, the appellant
is convicted of an offence under Section 338 read with Section 109 of I.P.C.
Therefore, the relevant question to be decided is as to whether, the -acts of
omission and commission, imputed to the appellant, are sufficient to hold
that all the ingredients of Section 338 of the I.P.C. stand satisfied.
49.The section explicitly lays down that only that ‘act’ which is “so
rashly or negligently as to endanger human life, or the personal safety of
others, shall be punished....”. Thus the section itself carves out the standard
of criminal negligence intended to distinguish between those whose failure
is culpable and those whose conduct, although not up to standard, is not
deserving of punishment.
50.One of the several questions which arise in the factual situation at
hand is this: Whether the appellant-doctor, who acted negligently,
manifested such a state of mind which justifies moral censure? This is
conceivably best answered by identifying what was nature of act owed by
the appellant towards the patient.
44
Page 45 SLP(CRL.)NO. 9568 OF 2012
51.In the case at hand, the concern revolves around the acts of omission
and commission which amounted to an “act” so rashly or negligently as to
have had endangered the life of Smt. Leela constituting an offence
punishable under Section 338 of the I.P.C. Since, there was no overt act on
the part of the appellant - as the surgical procedure was performed by Dr. --
A.K. Mukherjee, charge of abetment under Section 109 of I.P.C. was also
leveled. . Dr. A.K. Mukherjee was also made accused in the said complaint.
However, at a later stage, Dr. A.K. Mukherjee was dropped from the
proceedings at the instance of the complainant.
52.We would also like to make another aspect very explicit. The
appellant was leveled a specific charge which was framed against him. The
prosecution was required to prove that particular charge and not to go
beyond that and attribute “rash and negligent” acts which are not the part of
the charge. Culpability is specifically related to the “act” committed on
22.12.1987 at about 9 a.m. in the hospital viz., the act of performing surgical
procedure. It is, thus, this act alone, and nothing more, for which the
appellant and Dr. Mukherjee were charged and the appellant is supposed to
meet this charge alone.
45
Page 46 SLP(CRL.)NO. 9568 OF 2012
53.In this scenario, the first and foremost question that needs to be
determined is as to whether the advise of the appellant that ‘Exploratory
Laparotomy’ be conducted on the patient was inappropriate, and if so,
amounted to wanton negligence, giving rise to criminal liability, in as much
-as the opening of the abdomen of the patient, even by Dr. Mukherjee, was
the consequence of that advise.
54.No doubt, such an opinion was given in the teeth of the advise of the
doctors in the U.S.A where the patient was examined earlier. However, only
because of this reason, it would not automatically follow that the view
expressed by the appellant was blemished.The two experts in medical field
may differ on decision to undertake the surgical operation. But for the sake
of life which, any way was struggling to live is the respect to doctors in their
position to operate the patient or not. We have to keep in mind the critical
condition of the patient at that time. She was sent home by the American
doctors as inoperable. She was advised to take certain medicines. These
medicines were being administered by Dr. Mukherjee. However, further
complications arose in the meantime as vagina started bleeding which was
not coming to a halt. Obviously, it was terminal stage for the patient. It is in
46
Page 47 SLP(CRL.)NO. 9568 OF 2012
this situation, opinion of the appellant was sought. The dilemma of a doctor
in such a scenario can be clearly visualized viz., whether to leave the patient
as it is or to take a chance, may be a very slim chance, to save or at least to
try to prolong the life of the patient. It was not -an easy choice.
Overcoming this difficult situation, the appellant took the bold decision viz.
that surgical operation was worth taking a risk, as even otherwise, the
condition of the patient was deplorable. The appellant has even given his
justification and rationale for adopting this course of action. The appellant
states that the decision to operate was taken having regard to the following
circumstances:
(a)The patient was suffering from metastatic breast cancer
for ten long years and the said cancer was spreading to
other parts of the body. As such the patient was unable to
follow her ordinary pursuits irrespective of the surgical
procedure advised by the appellant herein.
(b)The patient was repeatedly suffering from vaginal
bleeding and bodily pain and as such the patient was
unable to follow her ordinary pursuits irrespective of the
surgical procedure advised by the appellant herein.
47
Page 48 SLP(CRL.)NO. 9568 OF 2012
(c)The formation of a fistula is a complication which may or
may not arise out of surgical procedures and the advice
for surgical procedure was tendered with a view to
alleviate her suffering rather than endanger her life. -
55.During trial, Dr. Gajanand Hegade (DW.2) has endorsed the opinion
of the appellant and has gone to the extent of saying that it was the best
possible option for the treatment of the patient. Moreover, Dr. Mukherjee has
also accepted/ agreed that the advise tendered by the appellant on the basis
of CT Scan Report, and, that the call to operate was “unanimous”. Thus,
even Dr. Mukherjee endorsed the opinion which appears to be his opinion as
well. In this scenario, it cannot be said that advise of the appellant for taking
the surgical procedure was an act of wanton negligence. Dilemma of a
doctor, in such circumstances, is beautifully explained by this Court in
Kusum Sharma (Supra), in the following words:
“89(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
48
Page 49 SLP(CRL.)NO. 9568 OF 2012
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.
56.It also needs to be emphasized, as contended by Mr. Harish Salve, that
the experts from New York are not oncological surgeons. Dr. Ernest
Greenberg is a physician while Dr. Brokunier is a Gynecologist. On the
other hand, even as per the complainants own version, the appellant is a
renowned oncologist and surgeon.
57.At this juncture, an important observation is needed. When such a
decisional shift is taken against the line of other doctors who had earlier
treated the patient, the appellant was required to give personal attention to
49
Page 50 SLP(CRL.)NO. 9568 OF 2012
the patient during the operation. He was, even otherwise, contractually
bound to do so.
58.While the two experts might differ on the level of risks involved in the
critical surgical operation but for the sake of life which in anyway was
struggling to live, is a mild respite to doctors in their decision to operate the
-patient or not. A long catena of medical cases on this theme does provide
relief to doctors. One of the many indispensable duties which is of utmost
importance is that when such a decisional shift is taken by a doctor against
the line of renowned doctor who had earlier treated the patient, that doctor
must exercise required personal attention to the patient during the operation.
On this aspect, the Medical council of Maharashtra, while reprimanding,
reasoned that Dr. P.B Desai, instead of merely advising surgery which was
inspite of the opinion of cancer specialists from U.S.A, ought to have
voluntarily taken more interest and personally seen the situation faced by
Dr. A.K Mukherjee which he did not do so. Since the appellant has not
challenged the findings of the Medical Council who had found him guilty of
misconduct, those findings does provide the legal fortification and along
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with the oral and documentary evidences adduced before court below speaks
much on the professional duty which the appellant owed to the patient.
59.Thus, one thing is crystal clear. Failure to act on the part of the
appellant, in conducting surgical procedure, and not taking care thereafter as
well, established his negligence in tort law i.e. in civil domain. We refer to
and rely on the judgment of this Court in Jacob’s Case once again, where --
the Court explained as to under what circumstances professional can be
liable for negligence. It is necessary for this purpose that one of the two
findings, as set out therein, should be established.
“18.In the law of negligence, professionals such as lawyers,
doctors, architects and others are included in the category
of persons professing some special skill or skilled
persons generally. Any task which is required to be
performed with a special skill would generally be
admitted or undertaken to be performed only if the
person possesses the requisite skill for performing that
task. Any reasonable man entering into a profession
which requires a particular level of learning to be called a
professional of that branch, impliedly assures the person
dealing with him that the skill which he professes to
possess shall be exercised with reasonable degree of care
and caution. He does not assure his client of the result. A
lawyer does not tell his client that the client shall win the
case in all circumstances. A physician would not assure
the patient of full recovery in every case. A surgeon
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cannot and does not guarantee that the result of surgery
would invariably be beneficial, much less to the extent of
100% for the person operated on. The only assurance
which such a professional can give or can be understood
to have given by implication is that he is possessed of the
requisite skill in that branch of profession which he is
practising and while undertaking the performance of the
task entrusted to him he would be exercising his skill
with reasonable competence. This is all what the person
approaching the professional can expect. Judged by this
standard, a professional may be held liable for negligence
on one of 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 necessary for every professional to
possess the highest level of expertise in that branch
which he practises. In Michael Hyde and Associates v.
J.D. Williams & Co. Ltd.
Sedley, L.J. said that where a
profession embraces a range of views as to what is an
acceptable standard of conduct, the competence of the
defendant is to be judged by the lowest standard that
would be regarded as acceptable.”
60.No doubt, in the present case the appellant not only possesses requisite
skills but also an expert in this line. However, having advised the operation,
he failed to take care of the patient. Thereafter, at various stages, as observed
by the courts below, he was held to be negligent by the Maharashtra Medical
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Council and thus found to be guilty of committing professional misconduct.
61.Thus, it was the appellant’s “duty” to act contractually, professionally
as well as morally and such an omission can be treated as an “act”. We again
clarify that undoubtedly, within the realm of civil liability, the appellant has
breached the well essence of “duty” to the patient. -
62.Having reached this conclusion, we proceed to the next stage viz., the
criminal liability of the appellant. However, we once again emphasize that
the question of criminal liability has also to be examined in the context of
Section 338 of I.P.C. which is the real issue. To recapitulate some important
aspects, we have concluded that decision of the appellant advising
Exploratory Laparatomy was not an act of negligence, much less wanton
negligence, and under the circumstances it was a plausible view which an
expert like the appellant could take keeping in view the deteriorating and
worsening health of the patient. As a consequence, opening of the abdomen
and performing the surgery cannot be treated as causing grievous hurt. It
could have been only if the doctors would have faltered and acted in rash
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Page 54 SLP(CRL.)NO. 9568 OF 2012
and gross negligent manner in performing that procedure. It is not so. At
the same time, his act of omission, afterwards, in not doing the surgery
himself and remaining absent from the scene and neglecting the patient,
even thereafter, when she was suffering the consequences of fistula, is an act
of negligence and is definitely blame worthy. (though that is not the part of
criminal charge) However, we are of the opinion that the omission is not of
a kind which has given rise to criminal liability under the given
circumstances.
63.As already noted above, we are conscious of the fact that when the
appellant decided to operate on the patient against the U.S doctor’s advice,
the level of attention expected from the appellant towards the patient was
immense and undivided kind. The operating surgeon along with the fellow
junior doctors was supposed to conduct operation. The junior doctor
rendered his complete and undivided assistance to the patient but the
appellant abstained.
64.However, the important and relevant point is: Had the appellant
undertaken the surgical procedure by himself, the result would have been
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different? Or, to put it otherwise, whether opening of abdomen by Dr.
Mukherjee and not by the appellant who was supposed to do it, made any
difference? In the given case, we do not find it to be so.
65.To appreciate, we need to reiterate certain facts. On opening the
abdomen, Dr. A.K. Mukherjee found plastering of intestines as well as
profuse oozing of ascetic fluids. He immediately called the appellant who --
was performing other surgical procedures in another operation theatre. The
appellant after seeing the condition of the patient, albeit, from the distance
found that it was not possible to proceed with the operation. He advised Dr.
A.K. Mukherjee to close the abdomen. Dr. Mukherjee, thus, closed the
abdomen. Significantly, Section 109 IPC was also pressed into service at the
time of framing of the charge on the premise that Dr. Mukherjee caused
grievous hurt and omission on the part of the appellant to not to personally
intervene in the operation of the patient amounted to abetment. However,
the position which emerges is that the junior doctor rendered complete care.
He did not falter in his act of cutting open the abdomen. It is only at that
stage, it was found, that there was a lot of discharge from fistula and surgery
was not possible. The appellant advised Dr. Mukherjee to close the
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Page 56 SLP(CRL.)NO. 9568 OF 2012
abdomen. No doubt, he did not do it himself but it is not the case of the
prosecution that Dr. Mukherjee did not do it deftly either. It is because of
the deplorable condition of the patient, the surgery could not be completed
as on the opening of the abdomen other complications were revealed. This
would have happened in any case, irrespective whether abdomen was
opened by Dr. Mukherjee or by the appellant himself. On the contrary, the --
complainant’s own case is that Dr. Mukherjee’s performance was not
lacking; nay, it was of superlative quality.
66.The appellant’s omission in not rendering complete and undivided
legally owed duty to patient and not performing the procedure himself has
not made any difference. It was not the cause of the patient’s death which
was undoubtedly because of the acute chronic cancer condition. In such a
scenario, it is enough to keep off the clutches of criminal law.
67.The negligent conduct in the nature of omission of the appellant is not
so gross as to entail criminal liability on the appellant under section 338 of
the I.P.C. It is to be kept in mind that the crime as mentioned in section 338
I.P.C requires proof that the appellant caused the patient’s condition to the
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acute stage. Can he be said to have caused such a result, by his omission to
act? We do not find it to be so.
68.In the common law case R v Adomako [1994] 3 WLR 288 wherein,
Lord Mackay LC set the test for gross negligence in manslaughter:
"On this basis in my opinion the ordinary principles of the law
of negligence apply to ascertain whether or not the defendant
has been in breach of a duty of care towards the victim who has
died. If such breach of duty is established the next question is
whether that breach of duty caused the death of the victim. If
so, the jury must go on to consider whether that breach of duty
should be characterised as gross negligence and therefore as a
crime. This will depend on the seriousness of the breach of duty
committed by the defendant in all the circumstances in which
the defendant was placed when it occurred. The jury will have
to consider whether the extent to which the defendant's conduct
departed from the proper standard of care incumbent upon him,
involving as it must have done a risk of death to the patient,
was such that it should be judged criminal.”
69.For the aforesaid reasons, we have no option but to conclude that
though the conduct of the appellant constituted not only professional
misconduct for which adequate penalty has been meted out to him by the
Medical Council, and the negligence on his part also amounts to actionable
wrong in tort, it does not transcend into the criminal liability, and in no case
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makes him liable for offence under Section 338, IPC as the ingredients of
that provision have not been satisfied. We, therefore, allow this appeal and
set aside the impugned judgments of the courts below. No costs.
………………………..J.
[A.K. Patnaik]
New Delhi.
September 13, 2013
………………………..J.
[A.K. Sikri]
58
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