2026 INSC 319

Criminal Appeal arising out of SLP (Crl.) No. 14803/2023

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No……….. OF 2026

(Arising out of SLP (Crl) No.14803/2023)

DR. S. BALAGOPAL …APPELLANT(S)

VERSUS

STATE OF TAMIL NADU & ANR. …RESPONDENT (S)

J U D G M E N T

MANOJ MISRA, J.

1. Leave granted.

2. This appeal arises from a petition

1 filed under Section 482

of the Code of Criminal Procedure, 1973

2 seeking quashing of the

proceedings in C.C. No. 13 of 2008 on the file of Judicial Magistrate

1

CRL. O.P. No. 23349/2016

2

Cr.P.C.

Criminal Appeal arising out of SLP (Crl.) No. 14803/2023

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No.1, Poonamallee

3. By the order impugned dated 25.09.2023, the

High Court of Judicature at Madras

4 rejected the prayer to quash

the proceedings and issued a direction to expedite the same.

FACTS

3. The second respondent (R-2) i.e., the de facto complainant

made a complaint, inter alia, alleging that his son, aged one and

one-half years, was admitted in a hospital for a surgical procedure

as one of his testicles had not descended into the scrotal sac.

According to R-2, doctors had obtained his consent for

Orchidopexy (i.e., the surgical procedure that moves an

undescended testicle into the scrotum), but there was no consent

for Orchidectomy (i.e., removal of testicle). R-2 also alleged that

prior to the surgery, the operating surgeon had explained that in

99 percent of such cases there is no need to remove the testicle.

Therefore, specific consent for Orchidectomy was neither sought

nor given. Yet, Orchidectomy was performed and in the consent

form, by interpolation, Orchidectomy was inserted, which

amounted to an offence of forgery.

3

The learned Magistrate

4

The High Court

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4. Based on the aforesaid allegations, a first information

report

5 was registered at P.S. Ambathur on 08.08.2006 (i.e., FIR

No. 1196 of 2006) under Sections 312, 325, 426, 120-B, 406, 465,

468, 471 and section 501 (1) & (2) of the Indian Penal Code, 1860

6.

5. On the aforesaid FIR, the police, after investigation,

submitted a charge-sheet against the appellant (i.e., the operating

surgeon) on which the learned Magistrate took cognizance and

registered C.C. No. 13 of 2008. Aggrieved therewith, two petitions

under Section 482 of Cr.P.C. were filed before the High Court. One

was by R-2, inter alia, to constitute a Medical Board of three

members so that a fair opinion is obtained. The second was by the

appellant seeking quashing of the proceedings of C.C. No. 13 of

2008. The High Court vide order dated 19.03.2013 disposed of

these two petitions in the following terms:

“14. Accordingly, both the criminal original petitions,

namely Crl. O.P. No.18043 of 2008 and Crl. O.P.

No.7614 of 2008 are disposed of with the following

directions:

a) The prayer for quashing of the criminal proceedings

in CC. No.13 of 2008 made by the accused in his

petition in Crl. O.P. No.7614 of 2008 shall stand

rejected.

5

FIR

6

IPC

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b) Since further investigation has been ordered, all

further proceedings in CC. No.13 of 2008 shall stand

stayed till the completion of the further investigation

and submission of the further report subject to a rider

that the accused shall cooperate with the Investigating

Officer in conducting further investigation.

c) The first part of the prayer made in Crl. O.P.

No.18043 of 2008 filed by the de facto complainant

viz., for a direction to the Investigating Officer to act

impartially is negatived.

d) The second part of the prayer made in Crl. O.P.

No.18043 of 2008 praying for constitution of the

Medical Board is allowed and the Director of Medical

Services, Chennai is directed to constitute a Medical

Board consisting of following persons:

i) A Specialist in Paediatric Surgery in Government

Services;

ii) An expert in Pathology in Government Services;

and

iii) An expert in Oncology in Government Services.

e) The Medical Board should be constituted within one

month from the date of receipt of a copy of this order

and the Medical Board shall submit the report as early

as possible preferably within two months from the date

of constitution of the Medical Board. The report shall

be submitted to the Investigating Officer, marking a

copy to the Registrar Judicial of the Court.

f) The Investigating Officer shall complete the

investigation within two months after the receipt of the

opinion of the Medical Board and submit further Final

report.

g) It shall not be necessary for the accused to make

periodical appearance before the learned Judicial

Magistrate I, Poonamallee till the submission of further

final report.

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Consequently, the connected miscellaneous petitions

are closed.”

6. Pursuant to the aforesaid directions, a Medical Board was

constituted which submitted its report dated 29.07.2010. The

same is reproduced below:

“FACT FINDING INQUIRY REPORT BY THE MEDICAL

BOARD CONSTITUTED IN RESPECT OF CRL. O. P

No. 18043 of 2008, MP No.2, 4 & 5 of 2008 & CRL. O.

P No. 7614 OF 2008 AND MP No.1 of 2008

As per the directions of the Hon'ble High Court of

Madras issued in Crl. O P No. 18043 of 2008

M.P.No.2, 4 & 5 of 2008 and Crl. O.P No 7614 of 2008

& M.P. No 1 of 2008, I, the Director of Medical and

Rural Health Services, Chennai-6 have constituted a

Medical Board comprising the following specialists

from Government Stanley Medical College Hospital,

Chennai-1 to offer their expert medical opinion for the

Left orchidectomy surgery done to one male child

namely, (xxxx) (name masked), aged 2 years, son of

(yyyy) (name masked).

1. Dr. Mary Lilly, Professor and Head of Department,

Department of Pathology, Government Stanley

Medical College Hospital, Chennai-1

2. Dr. J. Muthukumaran, Paediatric Surgeon,

Government Stanley Medical College Hospital,

Chennai 1

3. Dr. Ravel Naveen, Professor and Head of

Department, Department of Medical Oncology,

Government Stanley Medical College Hospital,

Chennai – l

The left Orchidectomy surgery was done to the child

by one doctor namely Dr. Balagopal at M/s Sri

Ramachandra Medical Centre Hospital, Porur on

24/08/2005. Orchidectomy surgery means removal

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of testis from the body. Orchidopexy means retaining

the testis and placing in the anatomical position in

the body. The constituted Medical Board was

convened on 01/07/20 13 and opined as follows:

The Professor of Pathology, Government Stanley

Medical College Hospital, Chennai-1 has opined as

The Histopathology Report carrying Hospital

No.0000339902 of (xxxx) (name masked) 2 years a

Male child.

Accession No G.1852/05 under the unit by Dr.

Balagopal S. dated 31/08/2005. Histopathology

Report copy received shows:

1. Microscopy describes the tissue received and

studied as on soft tissue l X 0.5 cm. No special

features/ organ mentioned.

2. Microscopy describes the tissues to be testis and

Epididymis with focal fibrotic areas.

The pathological changes observed is 'Focal fibrosis’.

No other pathological character is described.

The change described as focal fibrosis is consistent

with pathological changes observed in undescended

testis.

The Professor of Medical Oncology, Government

Stanley Medical College Hospital, Chennai-1 has

opined as

2 years old child had a history of left undescended

testis and had undergone left orchidectomy.

Pathology report shows no features of malignancy in

the undescended testis specimen.

According to the operative findings the left testis was

very small, cystic and dysplastic and hence probably

a left orchidectomy was done.

Undescended testis is a risk factor for development of

malignancy.

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The Professor and Head of Department,

Department of Pediatric Surgery, Government

Stanley Medical College Hospital, Chennai-1 has

opined as

In case of undescended Testis generally the affected

Testis will be smaller than the normal size (or) it may

present as nubbin of tissue as the child grows (or) it

may go in form Torsion and gangrene of the testis as

a complication.

In case of Nubbin of tissue as it does not serve the

purpose (testis shape, sperm production) and more

chance of malignant transformation orchidectomy is

preferred than doing orchidopexy.

In case of torsion testis and gangrene, orchidectomy

is preferred.

As per the case sheet and operation theatre notes, the

left testis seems to be (small, cystic, dysplastic, 0.7cm

size) a nubbin of tissue when compared with the testis

on the other side. In that situation the nubbin of

tissue could have been removed after:

1. Explaining in detail about the problems of retaining

the affected testis.

2. Getting consent from the parents for doing

orchidectomy to the child.

CONCLUSIVE OPINION

Pathology Speciality report reveals that at the time of

histopathological examination there is focal fibrosis

present in the sample. (No evidence of malignant

changes).

Department of Medical Oncology report reveals that

the left testis was very small, cystic and dysplastic

and hence probably a left orchidectomy was done.

Undescended testis is a risk factor for development of

malignancy.

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Department of Pediatric Surgery report reveals that

In case of Nubbin of tissue as it does not serve the

purpose (testis shape, sperm production) and more

chance of malignant transformation, orchidectomy is

preferred than doing orchidopexy.

a. Explaining in detail about the problems of retaining

the affected testis.

b. Getting consent from the parents for doing

orchidectomy to the child.

Hence it is opined that left orchidectomy surgery done

to the child (xxxx) (name masked), 2 years old, son of

(yyyy) (name masked) is an appropriate surgical

procedure as per medical ethics and it should have

been done with the consent of parents.

Sd/- Director of Medical and Rural Health Services”

7. On receipt of the aforesaid report, the Investigating Officer

wrote a letter to the Director, Directorate of Medical and Rural

Health Services, Chennai seeking an opinion on the consent form

which was obtained before the surgery. In response to the letter of

the Investigating Officer, a letter was issued from the office of the

Director of Medical and Rural Health Services, Chennai to the

Investigating Officer on 24.02.2014, stating as follows:

“MEDICAL AND RURAL HEALTH SERVICES

DEPARTMENT

From

Dr. A. Chandranathan, M.D.,

Director of Medical and Rural Health Services,

Chennai - 6.

To

Inspector of Police,

Criminal Appeal arising out of SLP (Crl.) No. 14803/2023

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T-15, SRMC Police Station,

Porur, Chennai - 600 116.

Sir,

Ref. No. 32780/ E7/ 3/ 2014, dated 24.02.2014.

Sub: Criminal case in Cr.No.1196/2006 of T 15

SRMC PS – investigation pending - ascertain

clarification required - in the interest of successful

prosecution of the case -regarding.

Ref:

1. Letter along with the findings of the Tamil Nadu

Directorate of Medical and Rural Health Services

dated 27.07.2013.

2. The case is T15 SRMC PS Cr. No .1196/ 2006.

3. Your letter date is 18.01.2014.

********

1. The left Orchidectomy surgery done to the child

namely xxxx (name masked), 2 years old boy, Son of

yyyy (name masked) is an appropriate Surgery

Procedure as per medical ethics and it should have

been done with the consent of parents.

For this above point it is clarified that in the case

sheet it is seen that informed consent for surgery in

the printed form is attached. This printed consent is

a general procedure for all the surgeries / treatment

and is being obtained from patients in each and every

hospital. In this context, it is mentioned “I

understand that a diagnosis of Bilateral undescended

testis has been made on me and that surgical

operation Bilateral Orchidopexy / Left Orchidectomy

has been advised by my doctor”.

In any surgery, the surgeon should have explained

"what procedure he is going to do with the patient and

its complication / nature of surgery in person, to ·the

relative. In this case the doctor has adopted general

procedure of obtaining consent in the printed form in

which the 'Orchidectomy' is written, medical terms

which the parents could not understand.

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In this particular surgery, it is ascertained that

only after opening; the surgeon have come to a

conclusion of removing the unwanted testis and

before removing the testis he has obtained the

consent in the printed form may be without

explaining the nature of surgery in detail to the

parents.

(a) He has obtained the consent of the parents of the

child specifically to conduct the surgery towards

removal of left testis of xxxx (name masked) in printed

form.

(b) Yes per used.

(c) The consent is obtained by Dr. Balagopal

explaining the consequences of retaining the left

testis, which may develop into malignancy or abscess

formation (discharge summary).

(d) Prosecution could not be made against the doctor

since he has done the procedure as per medical ethics

and as he has explained the consequences of

retaining the left testis in the body, which may form

abscess or turn malignant.

(e) No

(f) Not Applicable

As per the opinion of the Professor of Pediatric

Surgery Dr. Balagopal has obtained the formal

consent in ·the printed form (for all the surgical

purpose duly filled in) explaining in detail about the

problem of retaining the affected testis. In case of

Nubbin of tissue as it does not serve the purpose

(testis shape, sperm production) and more chance of

malignant transformation.

Hence it is opined that the Left Orchidectomy done to

one xxxx (name masked) son of Mr. yyyy (name

masked) is an appropriate surgical procedure.

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Dr. Balagopal has obtained the consent in the

common printed form and explained in detail about

the problem of retaining the affected testis to parents,

saying the affected testis may transform to

malignancy in future.

Yours faithfully,

For Director of Medical and Rural Health Services.”

(Emphasis supplied)

8. After obtaining the report dated 24.02.2014, an additional

report was submitted giving details of the opinion of the Medical

Board as reproduced above. The charge sheet submitted reads as

under:

“CHARGE SHEET

CHARGE SHEET IN T-15 SRMS POLICE

STATION

Crime No. 1196/2006

U/S 336, 201, 465, & 471 IPC.

……….

ACCUSED: Dr. Balagopal, Age 38/2007 S/O K.

Subramani, No. 7 Suriya Bharani Colony,

Saligramam, Chennai – 600093

The accused noted in the margin is working as

Consultant Pediatric Surgeon in SRMC Center at

Porur, within the limits of SRMC PS. The hospital

authority has authorized the accused to perform all

kinds of surgery including orchidopexy and

orchidectomy. The witness (yyyy) (name masked) is

the father of male child (xxxx) (name masked) aged

about 1 1/2 years. The witness (yyyy) (name masked)

had admitted his child (xxxx) (name masked) on

23.08.2005 at SRMC Hospital for Hernia Operation.

The hospital authority had referred the child (xxxx) to

the accused for performing Hernia Operation on the

child of witness (yyyy) (name masked) about the

nature of the operation on which he is going to

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perform on the child i.e., hernia operation and also

obtained consent letter from the witness (yyyy) (name

masked) by clearly mentioning that the operation of

positioning of testis (bilateral Orchidopexy). The

accused has not mentioned anything about the

removal of left testicle of the child in the consent

letter. Therefore, the witness has also signed in the

document believing that the accused would perform

only bilateral Orchidopexy.

That on 24.08.2005 at about 3.30 P.M. at SRMC

Hospital Operation theatre when the child (xxxx)

(name masked) aged about 1 ½ year was admitted in

the operation theatre for hernia operation, the

accused noted in the margin being the surgeon of

SRMC Hospital had acted in a rash and negligent

manner at the time of performing the operation on the

child and due to rash and negligent act, the accused

had removed the left testicle of the child during the

hernia operation. Therefore, the accused has

committed the offence punishable u/s 336 IPC.

During the course of the same transaction the

accused, the surgeon of the same hospital, knowing

that he had performed the operation in a rash and

negligent manner which is punishable with

imprisonment, intentionally caused the

disappearance of the evidence of his rash negligent

act to escape from the legal punishment, altered the

medical documents and consent letter for performing

surgery. Thereby the accused has committed the

offence punishable u/s 201 IPC.

During the course of the same transaction, the

accused noted the margin has created a forged

document by inserting a letter “left orchidectomy” in

the consent letter of the complainant to make other to

believe that this witness (yyyy) (name masked) had

given consent for the removal of left testicle of his

child, and also used the above said forged document

as genuine to escape (sic) the legal punishment for the

offence of negligent act. Thereby the accused has

further committed the offences punishable u/s 465,

471 IPC

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Hence the charge.

Sd/-

Inspector of Police

T-15 S.R.M.C. P.S.

Porur, Chennai - 116”

9. Aggrieved by the charge-sheet and the consequential

proceedings, which continued even after the additional reports of

medical experts, the appellant filed Crl. O.P. No. 23349 of 2016 for

quashing the entire proceeding pending as C.C. No. 13 of 2008 on

the file of the learned Magistrate.

10. By the impugned order, the High Court dismissed the

petition. Hence, this appeal.

11. We have heard learned counsel for the appellant as well as

the counsel appearing for the State. We also heard R-2 in person

on one date.

SUBMISSIONS ON BEHALF OF THE APPELLANT

12. The learned counsel for the appellant submitted that the

medical report submitted by the Medical Board as well as the Final

Report submitted by the Investigating Officer does not castigate the

appellant for any kind of negligence. Moreover, it is now clear that

Orchidectomy was the appropriate procedure. The only point of

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dispute is whether the de facto complainant i.e., father of the child

was informed about the surgical procedure to be undertaken and

whether there was a proper consent for that surgical procedure. In

this regard, what is important is that there was a consent letter

signed by R-2 for the surgery. The consent form was in a printed

format and the column regarding the nature of surgery advised

indicated “Bilateral Orchidopexy/Orchidectomy.” The allegation is

that Orchidectomy was added by interpolation in the consent form

to save the doctor from the allegation of conducting surgery without

consent. It is contended that this very consent letter was sent to

the Director for his opinion and the Director had opined that there

was nothing suspicious about the consent. Besides, there is no

forensic report regarding interpolation of ‘Orchidectomy’ made in

the consent letter either by a different ink or in a different

handwriting. It is also submitted that a bare perusal of the consent

letter/form would indicate that it is in order. In these

circumstances, it was argued, the High Court had erred in not

quashing the criminal proceeding, particularly when there was a

medical report in support of appellant’s case.

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SUBMISSIONS ON BEHALF OF THE STATE

13. Learned counsel appearing for the State submitted that

though there may be no negligence on the part of the doctor in

performing Orchidectomy, the doctor ought to have obtained a

prior consent for the said surgical procedure. Once the de facto

complainant alleges that he had not consented to Orchidectomy, it

is a matter of trial whether such consent was there or not. In such

circumstances, whether there was a valid consent or not, and

whether the consent letter has been manipulated or not, can best

be determined in a trial. Hence, the order of the High Court calls

for no interference.

SUBMISSIONS ON BEHALF OF THE DE-FACTO COMPLAINANT

14. The de-facto complainant (R-2), who appeared in person,

submitted that during surgery the doctor had asked him on phone

whether he should perform Orchidectomy or not. Further, the

doctor informed that if Orchidectomy is not performed, possibility

of malignancy in future cannot be ruled out. According to R-2, this

question of the doctor was answered in the negative and R-2 had

specifically stated that he would later consider whether removal of

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testis is to be undertaken. Despite that, the doctor proceeded with

the surgery and removed the testicle without R-2’s consent and, to

save himself, later, the consent form was manipulated to show that

the consent was taken for Orchidectomy. In these circumstances,

he prayed that prima facie commission of offence is made out and

therefore, appeal be dismissed.

DISCUSSION

15. We have accorded due consideration to the rival submissions

and have also perused the materials available on record.

16. Before we proceed to address the rival contentions, we must

bear in mind that appellant-accused is a surgeon/doctor whose

credentials as a surgeon /doctor are not in issue. The criminal law

has invariably placed medical professionals on a pedestal different

from ordinary mortals. The IPC enacted as far back as in the year

1860 sets out a few vocal examples. Section 88 in the Chapter on

General Exceptions provides exemption for acts not intended to

cause death, done by consent in good faith for person’s benefit.

Section 92 provides for exemption for acts done in good faith for

the benefit of a person without his consent though the acts cause

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harm to the person and that person has not consented to suffer

such harm. Based on above, and upon a review of various decisions

and reports, in Jacob Mathew v. State of Punjab

7 this Court

observed:

“48 (7). To prosecute a medical professional for

negligence under criminal law it must be shown that

the accused did something or failed to do something

which in the given facts and circumstances no

medical professional in his ordinary senses and

prudence would have done or failed to do. The hazard

taken by the accused doctor should be of such a

nature that the injury which resulted was most likely

imminent.”

Having observed so, this Court proceeded to hold:

“52. … A private complaint may not be entertained

unless the complainant has produced prima facie

evidence before the court in the form of a credible

opinion given by another competent doctor to support

the charge of rashness or negligence on the part of the

accused doctor. The investigating officer should,

before proceeding against the doctor accused of rash

or negligent act or omission, obtain an independent

and competent medical opinion preferably from a

doctor in government service, qualified in that branch

of medical practice who can normally be expected to

give an impartial and unbiased opinion applying the

Bolam

8

test to the facts collected in the investigation.

..”

7

(2005) 6 SCC 1

8

Bolam v. Frien Hospital Management Committee, (1957) 1 WLR 582: (1957) 2 All ER 118 (QBD)

“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 test of the man on the top of a Clapham omnibus, because he has not got

this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that

special skill. A man need not possess the highest expert skill … It is well established law that it is sufficient if

he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

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17. In the instant case, the dispute is not regarding negligence

on part of the appellant, therefore the law laid down in Jacob

Mathew (supra) may not stricto sensu apply. However, the

importance of Medical Review Board’s report cannot be

undermined. It highlights the importance of Orchidectomy in cases

related to undescended testicle. Though it is alleged by the de facto

complainant that he had not consented for Orchidectomy, it is clear

from the materials on record that prior to the surgery consent form

was obtained from the father of the child. Thus, the issue is

whether the consent was limited to surgical procedure of

Orchidopexy. According to the appellant, the consent form had

limited space in the column where the nature of surgery had to be

mentioned therefore, Orchidectomy was written by putting a slash

just below Orchidopexy in the consent form. What is important is

that the consent form was sent by the Investigating Officer to the

Director of the Medical and Rural Health Services for his opinion.

The Director had not found any fault in the consent form. Rather,

the Medical Board opines that Orchidectomy is an alternative

procedure which may be undertaken to obviate chances of

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malignancy in future. Thus, in the opinion of the Medical Board

the procedure adopted was appropriate. Moreover, the operating

surgeon is the best judge of which one of the two procedures is to

be adopted. Therefore, the only issue which requires consideration

is whether there was any interpolation in the consent form to add

the alternative procedure (i.e., Orchidectomy).

18. Ordinarily, an issue of tampering/ interpolation in a

document being a question of fact is to be determined in a trial

based on evidence led therein and, therefore, courts must be loath

to examine such issues in a summary proceeding, like the one

under Section 482 Cr.P.C. However, there can be no absolute bar

on High Court’s power to consider questions of fact in exercise of

jurisdiction under Section 482 Cr.P.C., particularly when such

consideration is necessary to prevent the abuse of the process of

the court or to secure the ends of justice.

19. In the instant case, no malice is attributed to the doctor and

there is no dispute that the consent form was executed for

undertaking a medical procedure. Further, the medical opinion is

to the effect that the procedure adopted by the doctor was one of

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the alternatives recognized to meet such a medical exigency. No

doubt, Medical Board’s opinion indicates that such procedure

should be carried out after obtaining consent, but there is nothing

to indicate that the consent form already obtained was not in order

or that no consent was obtained. Besides, the consent letter has

been brought on record as Annexure P-2. A perusal thereof would

indicate that in the column where the nature of proposed surgery

is to be mentioned, both types of surgery i.e., Orchidopexy and

Orchiectomy are mentioned by putting a slash (/), which means

that the other surgery, namely, Orchidectomy, was one of the

options available.

20. Taking a conspectus of all the facts and circumstances as

also that there is no material on record that alternative surgery,

namely, Orchidectomy, was entered by a different ink or in a

different handwriting, and having regard to the Medical Board’s

opinion that in such medical situations Orchidectomy is a normal

alternative, we are of the view that continuance of criminal

proceeding against the appellant would be nothing but abuse of the

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process of the court and, therefore to secure the ends of justice,

the same is liable to be quashed.

21. Accordingly, the appeal is allowed. The impugned judgment

and order of the High Court is set aside. The proceedings of C.C.

No. 13 of 2008 on the file of the learned Magistrate are hereby

quashed. There is no order as to costs.

….............................................J.

(Pamidigantam Sri Narasimha)

................................................J.

(Manoj Misra)

New Delhi;

April 06, 2026