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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 636 OF 2017

[Arising out of SLP (Crl.) No. 7186 of 2014]

Dr. Sou Jayshree Ujwal Ingole . . . . Appellant(s)

Versus

State of Maharashtra & Anr. . . . Respondent(s)

J U D G M E N T

Deepak Gupta, J.

Leave granted.

2.The appellant herein is a doctor and has challenged the

Order dated 18.06.2014 passed by the High Court of Judicature

of Bombay, Nagpur Bench in Criminal Application (APL) No. 354

of 2012, whereby the petition filed by the appellant under Section

482 CrPC for quashing the criminal proceedings initiated against

her under Section 304-A IPC was dismissed.

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3.Briefly stated the facts of the case are that one Shrikrishna

Gawai (hereinafter referred to as the ‘deceased’) was admitted on

account of injuries suffered in a road accident, in the Irvin

Hospital, Amravati on 29.08.1997 for medical treatment. It is the

admitted case of the parties that the deceased was suffering from

Haemophilia, a disease in which there is impairment of blood

clotting. Therefore, special attention was required to be paid

during the treatment of the patient. It is not disputed that one

Dr. Manohar Mohod was on duty as an Emergency Medical

Officer. On 29.08.1997 the patient was treated both by the

appellant and Dr. Mohod. On 30 & 31.08.1997, the deceased

was attended upon by Dr. Dhirendra Wagh. Thereafter also, the

deceased remained in the Hospital under the treatment of the

appellant and Dr. Mohod.

4.Dr. Mohod, the Emergency Medical Officer attended upon

the deceased on 05.09.1997 at 9.00 p.m. and found that he was

suffering from abdominal pain and, thereafter, a call was sent to

the appellant, who was Surgeon on Call. It is not disputed that

the appellant went to the Hospital on being called. She attended

upon the deceased and made a note that a Physician be called.

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Thereafter, she left the Hospital. In the morning on 06.09.1997,

the condition of the deceased worsened and he died.

5.The main allegation against the appellant is that after

having called for a Physician, she did not wait in the hospital and

did not attend upon the patient, especially when the patient was

suffering from Haemophilia. The Physician, Dr. Avinash

Choudhary, who is accused No. 1, did not turn up in the

hospital. Even next morning on 06.09.1997, when Dr. Mohod

again attended upon the deceased, the Physician Dr. Choudhary

was not present and, unfortunately, the patient died.

Thereafter, a complaint was lodged in the police station, wherein

it was alleged by the brother of the deceased that the deceased

died as a result of negligence of the three doctors. The

complaint was investigated as Crime No. 317 of 1997 which was

initially filed against Dr. Avinash Choudhary only but, later on,

the names of the appellant Dr. Jayshree Ujwal Ingole and Dr.

Manohar Mohod were also included.

6.A separate Departmental Enquiry was also carried out and,

in that enquiry, all the three doctors were held negligent in

performing their duties. Dr. Mohod was debarred from an

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annual increment as penalty; the appellant Dr. Jayshree Ingole

was permanently prohibited from entering Irvin Hospital,

Amravati, and Dr. Avinash Choudhary was transferred. It would

be pertinent to mention that Dr. Mohod was discharged in the

criminal case on the ground that no case of negligence was made

out against him.

7.The appellant herein filed a petition for quashing the charge

against her, but this petition was rejected by the learned Single

Judge of the High Court of Bombay at Nagpur mainly on the

ground that the question whether inaction of the appellant in

leaving the deceased at about 11.00 p.m. and not waiting for the

Physician to turn up, amounted to a rash and negligent act on

her behalf, would be decided during trial.

8.We have heard learned counsel for the parties. Learned

counsel for the appellant has placed reliance on the judgment of

this Court in Jacob Mathew v. State of Punjab & Anr.

1

,

wherein this Court held that the court should be circumspect

before instituting criminal proceedings against a medical

professional. This Court has held that negligence comprises of (i)

1

(2005) 6 SCC 1,

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a legal duty to exercise due care on the part of the party

complained of; (ii) breach of the said duty ; and (iii) consequential

damage. It was held that in cases where negligence is alleged

against professionals like doctors the court should be careful

before instituting criminal proceedings. It is not possible for any

doctor to assure or guarantee that the result of treatment would

invariably be positive. The only assurance which a professional

can give is that he is professionally competent, has requisite skill

and has undertaken the task entrusted to him with reasonable

care. It would be pertinent to quote the following relevant

observations made in Jacob Mathew’s case (supra):

26. No sensible professional would intentionally

commit an act or omission which would result in loss or

injury to the patient as the professional reputation of the

person is at stake. A single failure may cost him dear in

his career. Even in civil jurisdiction, the rule of res ipsa

loquitur is not of universal application and has to be

applied with extreme care and caution to the cases of

professional negligence and in particular that of the

doctors. Else it would be counter-productive. Simply

because a patient has not favourably responded to a

treatment given by a physician or a surgery has failed,

the doctor cannot be held liable per se by applying the

doctrine of res ipsa loquitur.

xxx xxx xxx

28. A medical practitioner faced with an emergency

ordinarily tries his best to redeem the patient out of his

suffering. He does not gain anything by acting with

negligence or by omitting to do an act. Obviously,

therefore, it will be for the complainant to clearly make

out a case of negligence before a medical practitioner is

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charged with or proceeded against criminally. A surgeon

with shaky hands under fear of legal action cannot

perform a successful operation and a quivering physician

cannot administer the end-dose of medicine to his

patient.

29. If the hands be trembling with the dangling fear

of facing a criminal prosecution in the event of failure for

whatever reason — whether attributable to himself or

not, neither can a surgeon successfully wield his

life-saving scalpel to perform an essential surgery, nor

can a physician successfully administer the life-saving

dose of medicine. Discretion being the better part of

valour, a medical professional would feel better advised to

leave a terminal patient to his own fate in the case of

emergency where the chance of success may be 10% (or

so), rather than taking the risk of making a last ditch

effort towards saving the subject and facing a criminal

prosecution if his effort fails. Such timidity forced upon a

doctor would be a disservice to society.

30. The purpose of holding a professional liable for

his act or omission, if negligent, is to make life safer and

to eliminate the possibility of recurrence of negligence in

future. The human body and medical science, both are

too complex to be easily understood. To hold in favour of

existence of negligence, associated with the action or

inaction of a medical professional, requires an in-depth

understanding of the working of a professional as also

the nature of the job and of errors committed by chance,

which do not necessarily involve the element of

culpability.

After discussing the entire law on the subject, this Court

concluded as follows:

“48. We sum up our conclusions as under:

(1) Negligence is the breach of a duty caused by

omission to do something which a reasonable man

guided by those considerations which ordinarily regulate

the conduct of human affairs would do, or doing

something which a prudent and reasonable man would

not do. The definition of negligence as given in Law of

Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh),

referred to hereinabove, holds good. Negligence becomes

actionable on account of injury resulting from the act or

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omission amounting to negligence attributable to the

person sued. The essential components of negligence are

three: “duty”, “breach” and “resulting damage”.

(2) Negligence in the context of the medical

profession necessarily calls for a treatment with a

difference. To infer rashness or negligence on the part of

a professional, in particular a doctor, additional

considerations apply. A case of occupational negligence is

different from one of professional negligence. A simple

lack of care, an error of judgment or an accident, is not

proof of negligence on the part of a medical professional.

So long as a doctor follows a practice acceptable to the

medical profession of that day, he cannot be held liable

for negligence merely because a better alternative course

or method of treatment was also available or simply

because a more skilled doctor would not have chosen to

follow or resort to that practice or procedure which the

accused followed. When it comes to the failure of taking

precautions, what has to be seen is whether those

precautions were taken which the ordinary experience of

men has found to be sufficient; a failure to use special or

extraordinary precautions which might have prevented

the particular happening cannot be the standard for

judging the alleged negligence. So also, the standard of

care, while assessing the practice as adopted, is judged in

the light of knowledge available at the time of the

incident, and not at the date of trial. Similarly, when the

charge of negligence arises out of failure to use some

particular equipment, the charge would fail if the

equipment was not generally available at that particular

time (that is, the time of the incident) at which it is

suggested it should have been used.

(3) A professional may be held liable for negligence

on one of the two findings: either he was not possessed of

the requisite skill which he professed to have possessed,

or, he did not exercise, with reasonable competence in

the given case, the skill which he did possess. The

standard to be applied for judging, whether the person

charged has been negligent or not, would be that of an

ordinary competent person exercising ordinary skill in

that profession. It is not possible for every professional to

possess the highest level of expertise or skills in that

branch which he practices. A highly skilled professional

may be possessed of better qualities, but that cannot be

made the basis or the yardstick for judging the

performance of the professional proceeded against on

indictment of negligence.

(4) The test for determining medical negligence as

laid down in Bolam vs. Friern Hospital Management

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Committee (1957) 1 WLR 582 at p. 586 holds good in its

applicability in India.

(5) The jurisprudential concept of negligence differs

in civil and criminal law. What may be negligence in civil

law may not necessarily be negligence in criminal law.

For negligence to amount to an offence, the element of

mens rea must be shown to exist. For an act to amount

to criminal negligence, the degree of negligence should be

much higher i.e. gross or of a very high degree.

Negligence which is neither gross nor of a higher degree

may provide a ground for action in civil law but cannot

form the basis for prosecution.

(6) The word “gross” has not been used in Section

304-A IPC, yet it is settled that in criminal law negligence

or recklessness, to be so held, must be of such a high

degree as to be “gross”. The expression “rash or negligent

act” as occurring in Section 304-A IPC has to be read as

qualified by the word “grossly”.

(7) To prosecute a medical professional for

negligence under criminal law it must be shown that the

accused did something or failed to do something which in

the given facts and circumstances no medical

professional in his ordinary senses and prudence would

have done or failed to do. The hazard taken by the

accused doctor should be of such a nature that the injury

which resulted was most likely imminent.

(8) Res ipsa loquitur is only a rule of evidence and

operates in the domain of civil law, specially in cases of

torts and helps in determining the onus of proof in

actions relating to negligence. It cannot be pressed in

service for determining per se the liability for negligence

within the domain of criminal law. Res ipsa loquitur has,

if at all, a limited application in trial on a charge of

criminal negligence.”

9.Applying the law laid down in Jacob Mathew’s case (supra),

we are of the view that this is not a case where the appellant

should face trial especially when 20 years have already elapsed.

The only allegation against the appellant is that she left the

patient. We must remember that the appellant was a Surgeon on

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Call. She came to the hospital when she was called and

examined the patient. As per her judgment, she could find no

evidence of bleeding or injury and, therefore, she had noted that

a Physician be called. Thereafter, she left the hospital at about

11.00 p.m. True it is that she did not wait for the Physician to

come, but it can be assumed that she would have expected that

the Physician would come soon. This may be an error in

judgment but is definitely not a rash and negligent act

contemplated under Section 304-A IPC. It is nobody’s case that

she was called again by the Nursing staff on duty. If the

condition of the patient had worsened between 11.00 p.m. and

5.00 a.m., the next morning, the Nursing staff could have again

called for the appellant, but they did not do so. Next morning,

the doctor on Emergency Duty, Dr. Mohod attended upon the

patient but, unfortunately, he died.

10.In the facts and circumstance of this case, it cannot be said

that the appellant is guilty of criminal negligence. At best it is an

error of judgment.

11.In view of the above discussion, we are of the view that no

case of committing a rash and negligent act contemplated under

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Section 304-A IPC is made out against the appellant. Her case is

similar to that of Dr. Mohod who has been discharged. We,

accordingly, allow the appeal, set aside the judgment dated

18.06.2014, passed by the learned Single Judge of the High

Court of Bombay, Nagpur Bench in Criminal Application (APL)

No.354 of 2012 and quash the criminal proceedings initiated

against the appellant vide order dated 28.02.2001, passed by the

Judicial Magistrate, First Class, Court No.6, Amravati in Regular

Criminal Case No. 310 of 1999 in FIR Crime No.317 of 1997.

Pending application(s), if any, stand(s) disposed of.

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

(MADAN. B. LOKUR)

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

(DEEPAK GUPTA)

New Delhi,

April 06, 2017.

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ITEM NO.1A COURT NO.5 SECTION IIA

(For judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s).

7186/2014

(Arising out of impugned final judgment and order dated

18/06/2014 in CRA No. 354/2012 passed by the High Court of

Bombay at Nagpur)

DR. Sou JAYSHREE UJWAL INGOLE Petitioner(s)

VERSUS

STATE OF MAHARASHTRA & ANR. Respondent(s)

Date : 06/04/2017 This petition was called on for

pronouncement of judgment today.

For Petitioner(s) Mr. Shirish K. Deshpande, AOR

Mr. Mohit Gautam, Adv.

For Respondent(s) Mr.Gagan Sanghi, Adv.

Mr. Rameshwar Prasad Goyal, AOR

Mr. Nishant Ramakantrao Katneshwarkar, AOR

Hon'ble Mr. Justice Deepak Gupta pronounced the

reportable judgment of the Bench comprising Hon'ble Mr.

Justice Madan B. Lokur and His Lordship.

The appeal is allowed in terms of the signed reportable

judgment.

(Meenakshi Kohli) (Sharda Kapoor)

Court Master (SH) Court Master (NS)

[Signed reportable judgment is placed on the file]