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CASE NO.:

Appeal (crl.) 144-145 of 2004

PETITIONER:

Jacob Mathew

RESPONDENT:

State of Punjab & Anr.

DATE OF JUDGMENT: 05/08/2005

BENCH:

CJI R.C. LAHOTI,G.P. MATHUR & P.K.BALASUBRAMANYAN

JUDGMENT:

J U D G M E N T

R.C. LAHOTI, CJI

Ashok Kumar Sharma, the respondent no.2 herein filed a First

Information Report with police station, Division No. 3, Ludhiana,

whereupon an offence under Section 304A read with Section 34 of the

Indian Penal Code (for short "the IPC") was registered. The gist of the

information is that on 15.2.1995, the informant's father, late Jiwan Lal

Sharma was admitted as a patient in a private ward of CMC Hospital,

Ludhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in

breathing. The complainant's elder brother, Vijay Sharma who was

present in the room contacted the duty nurse, who in her turn called

some doctor to attend to the patient. No doctor turned up for about

20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant before us

and Dr.Allen Joseph came to the room of the patient. An oxygen

cylinder was brought and connected to the mouth of the patient but

the breathing problem increased further. The patient tried to get up

but the medical staff asked him to remain in the bed. The oxygen

cylinder was found to be empty. There was no other gas cylinder

available in the room. Vijay Sharma went to the adjoining room and

brought a gas cylinder therefrom. However, there was no

arrangement to make the gas cylinder functional and in-between, 5 to

7 minutes were wasted. By this time, another doctor came who

declared that the patient was dead. The latter part of the FIR states

(as per the translation in English as filed by the complainant):\026

"\005\005\005\005\005\005\005\005the death of my father

was occurred due to the carelessness of

doctors and nurses and non availability of

oxygen cylinder and the empty cylinder was

fixed on the mouth of my father and his

breathing was totally stopped hence my

father died. I sent the dead body of my

father to my village for last cremation and

for information I have come to you. Suitable

action be done Sd/- ---- As per statement

of intimator the death of Jiwan Lal Sharma

has occurred due to carelessness of doctors

and nurses concerned and to fit empty gas

cylinder."

On the abovesaid report, an offence under Section 304A/34 IPC

was registered and investigated. Challan was filed against the two

doctors.

The Judicial Magistrate First Class, Ludhiana framed charges

under Section 304A, IPC against the two accused persons, both

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doctors. Both of them filed a revision in the Court of Sessions Judge

submitting that there was no ground for framing charges against

them. The revision was dismissed. The appellant filed a petition in the

High Court under Section 482 of the Code of Criminal Procedure

praying for quashing of the FIR and all the subsequent proceedings.

It was submitted before the High Court that there was no

specific allegation of any act of omission or commission against the

accused persons in the entire plethora of documents comprising the

challan papers filed by the police against them. The learned single

Judge who heard the petition formed an opinion that the plea raised by

the appellant was available to be urged in defence at the trial and,

therefore, a case for quashing the charge was not made out. Vide

order dated 18.12.2002, the High Court dismissed the petition. An

application for recalling the abovesaid order was moved which too was

dismissed on 24.1.2003. Feeling aggrieved by these two orders, the

appellant has filed these appeals by special leave.

According to the appellant, the deceased Jiwan Lal was suffering

from cancer in an advanced stage and as per the information

available, he was, in fact, not being admitted by any hospital in the

country because his being a case of cancer at terminal stage. He was

only required to be kept at home and given proper nursing, food, care

and solace coupled with prayers. But as is apparent from the records,

his sons are very influential persons occupying important positions in

Government. They requested the hospital authorities that come what

may, even on compassionate grounds their father may be admitted in

the hospital for regulated medical treatment and proper management

of diet. It was abundantly made clear to the informant and his other

relations who had accompanied the deceased that the disease was of

such a nature and had attained such gravity, that peace and solace

could only be got at home. But the complainant could prevail over the

doctors and hospital management and got the deceased admitted as

an in-patient. Nevertheless, the patient was treated with utmost care

and caution and given all the required medical assistance by the

doctors and para-medical staff. Every conceivable effort was made by

all the attending staff comprising of doctors and nurses and other

para-medicals to give appropriate medical treatment and the whole

staff danced attendance on the patient but what was ordained to

happen, did happen. The complainant and his relations, who were

misguided or were under mistaken belief as to the facts, lodged police

report against the accused persons \027 wholly unwarranted and

uncalled for.

The matter came up for hearing before a Bench of two learned

judges of this Court. Reliance was placed by the appellant on a recent

two-judge Bench decision of this Court in Dr. Suresh Gupta v. Govt.

of NCT of Delhi and Anr. (2004) 6 SCC 422. The Bench hearing this

appeal doubted the correctness of the view taken in Dr. Suresh

Gupta's case and vide order dated 9.9.2004 expressed the opinion

that the matter called for consideration by a Bench of three Judges.

This is how the case has come up for hearing before this Bench.

In Dr. Suresh Gupta's case, the patient, a young man with no

history of any heart ailment, was subjected to an operation performed

by Dr. Suresh Gupta for nasal deformity. The operation was neither

complicated nor serious. The patient died. On investigation, the cause

of death was found to be "not introducing a cuffed endotracheal tube

of proper size as to prevent aspiration of blood from the wound in the

respiratory passage". The Bench formed an opinion that this act

attributed to the doctor, even if accepted to be true, could be

described as an act of negligence as there was lack of due care and

precaution. But, the Court categorically held \026 "for this act of

negligence he may be liable in tort, his carelessness or want of due

attention and skill cannot be described to be so reckless or grossly

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negligent as to make him criminally liable".

The referring Bench in its order dated 9.9.2004 has assigned

two reasons for their disagreement with the view taken in Dr. Suresh

Gupta's case which are as under:-

(1) Negligence or recklessness being 'gross' is not a requirement of

Section 304A of IPC and if the view taken in Dr. Suresh

Gupta's case is to be followed then the word 'gross' shall have

to be read into Section 304A IPC for fixing criminal liability on a

doctor. Such an approach cannot be countenanced.

(2) Different standards cannot be applied to doctors and others. In

all cases it has to be seen whether the impugned act was rash

or negligent. By carrying out a separate treatment for doctors

by introducing degree of rashness or negligence, violence would

be done to the plain and unambiguous language of section

304A. If by adducing evidence it is proved that there was no

rashness or negligence involved, the trial court dealing with the

matter shall decide appropriately. But a doctor cannot be

placed at a different pedestal for finding out whether rashness

or negligence was involved.

We have heard the learned counsel for the appellant, the

respondent-State and the respondent complainant. As the question of

medical negligence arose for consideration, we thought it fit to issue

notice to Medical Council of India to assist the Court at the time of

hearing which it has done. In addition, a registered society \026 'People

for Better Treatment', Kolkata; Delhi Medical Council, Delhi Medical

Association and Indian Medical Association sought for intervention at

the hearing as the issue arising for decision is of vital significance for

the medical profession. They too have been heard. Mainly, the

submissions made by the learned counsel for the parties and the

intervenors have centred around two issues : (i) Is there a difference

in civil and criminal law on the concept of negligence?; and (ii)

whether a different standard is applicable for recording a finding of

negligence when a professional, in particular, a doctor is to be held

guilty of negligence?

With the awareness in the society and the people in general

gathering consciousness about their rights, actions for damages in tort

are on the increase. Not only civil suits are filed, the availability of a

forum for grievance redressal under the Consumer Protection Act,

1986 having jurisdiction to hear complaints against professionals for

'deficiency in service', which expression is very widely defined in the

Act, has given rise to a large number of complaints against

professionals, in particular against doctors, being filed by the persons

feeling aggrieved. Criminal complaints are being filed against doctors

alleging commission of offences punishable under Section 304A or

Sections 336/337/338 of the IPC alleging rashness or negligence on

the part of the doctors resulting in loss of life or injury (of varying

degree) to the patient. The present one is such a case. The order of

reference has enabled us to examine the concept of 'negligence', in

particular 'professional negligence', and as to when and how it does

give rise to an action under the criminal law. We propose to deal with

the issues in the interests of settling the law.

Negligence as a tort

The jurisprudential concept of negligence defies 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 (Twenty-fourth Edition 2002, edited by Justice G.P.

Singh). It is stated (at p.441-442) ___ "Negligence is the breach of a

duty caused by the omission to do something which a reasonable man,

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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. \005\005\005\005\005\005\005 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; (2) breach of the said duty; and

(3) consequential damage. Cause of action for negligence arises only

when damage occurs; for, damage is a necessary ingredient of this

tort."

According to Charlesworth & Percy on Negligence (Tenth Edition,

2001), in current forensic speech, negligence has three meanings.

They are: (i) a state of mind, in which it is opposed to intention; (ii)

careless conduct; and (iii) the breach of duty to take care that is

imposed by either common or statute law. All three meanings are

applicable in different circumstances but any one of them does not

necessarily exclude the other meanings. (Para 1.01) The essential

components of negligence, as recognized, are three: "duty", "breach"

and "resulting damage", that is to say:-

1. the existence of a duty to take care, which is

owed by the defendant to the complainant;

2. the failure to attain that standard of care,

prescribed by the law, thereby committing a

breach of such duty; and

3. damage, which is both causally connected

with such breach and recognized by the law,

has been suffered by the complainant. (Para

1.23)

If the claimant satisfies the court on the evidence that these three

ingredients are made out, the defendant should be held liable in

negligence. (Para 1.24)

Negligence __ as a tort and as a crime

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 upto 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 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,

[1981] 1 All ER 974 (HL), Lord Diplock spoke in a Bench of five and

the other Law Lords agreed with him. He reiterated his opinion in R.

v. Caldwell 1981(1) All ER 961 (HL) 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 "Recklessness on

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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 recognized

that there was such risk, he nevertheless goes on to do it."

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

optimizing violations, may be motivated by thrill-seeking. These are

clearly reckless.

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, [1937] A.C. 576, stated, "Simple lack of care \027 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. Lord Porter said in his speech in the

same case ___ "A higher degree of negligence has always been

demanded in order to establish a criminal offence than is sufficient to

create civil liability. (Charlesworth & Percy, ibid, Para 1.13)

The fore-quoted statement of law in Andrews has been noted

with approval by this Court in Syad Akbar v. State of Karnataka

(1980) 1 SCC 30. 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 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.

Law laid down by Straight, J. in the case Reg v. Idu Beg

(1881) 3 All. 776, has been held good in cases and noticed in

Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J.

423 ? a three-Judge Bench decision of this Court. It has been held

that while negligence is an omission to do something which a

reasonable man, guided upon those considerations which ordinarily

regulate the conduct of human affairs, would do, or doing something

which a prudent and reasonable man would not do; criminal

negligence is the gross and culpable neglect or failure to exercise that

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reasonable and proper care and precaution to guard against injury

either to the public generally or to an individual in particular, which

having regard to all the circumstances out of which the charge has

arisen, it was the imperative duty of the accused person to have

adopted.

In our opinion, the factor of grossness or degree does assume

significance while drawing distinction in negligence actionable in tort

and negligence punishable as a crime. To be latter, the negligence has

to be gross or of a very high degree.

Negligence by professionals

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 and 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 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 practices. In Michael Hyde and Associates v. J.D.

Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, 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. (Charlesworth & Percy, ibid, Para 8.03)

Oft'quoted passage defining negligence by professionals,

generally and not necessarily confined to doctors, is to be found in the

opinion of McNair J. in Bolam v. Friern Hospital Management

Committee, [1957] 1 W.L.R. 582, 586 in the following words:

"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 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."

(Charlesworth & Percy, ibid, Para 8.02)

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The water of Bolam test has ever since flown and passed under

several bridges, having been cited and dealt with in several judicial

pronouncements, one after the other and has continued to be well

received by every shore it has touched as neat, clean and well-

condensed one. After a review of various authorities Bingham L.J. in

his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1, 79

summarised the Bolam test in the following words:-

"From these general statements it follows that a

professional man should command the corpus of

knowledge which forms part of the professional

equipment of the ordinary member of his

profession. He should not lag behind other

ordinary assiduous and intelligent members of his

profession in knowledge of new advances,

discoveries and developments in his field. He

should have such an awareness as an ordinarily

competent practitioner would have of the

deficiencies in his knowledge and the limitations on

his skill. He should be alert to the hazards and

risks in any professional task he undertakes to the

extent that other ordinarily competent members of

the profession would be alert. He must bring to

any professional task he undertakes no less

expertise, skill and care than other ordinarily

competent members of his profession would bring,

but need bring no more. The standard is that of

the reasonable average. The law does not require

of a professional man that he be a paragon

combining the qualities of polymath and prophet."

(Charlesworth & Percy, ibid, Para 8.04)

The degree of skill and care required by a medical practitioner is

so stated in Halsbury's Laws of England (Fourth Edition, Vol.30,

Para 35):-

"The practitioner must bring to his task a

reasonable degree of skill and knowledge, and

must exercise a reasonable degree of care. Neither

the very highest nor a very low degree of care and

competence, judged in the light of the particular

circumstances of each case, is what the law

requires, and a person is not liable in negligence

because someone else of greater skill and

knowledge would have prescribed different

treatment or operated in a different way; nor is he

guilty of negligence if he has acted in accordance

with a practice accepted as proper by a responsible

body of medical men skilled in that particular art,

even though a body of adverse opinion also existed

among medical men.

Deviation from normal practice is not

necessarily evidence of negligence. To establish

liability on that basis it must be shown (1) that

there is a usual and normal practice; (2) that the

defendant has not adopted it; and (3) that the

course in fact adopted is one no professional man

of ordinary skill would have taken had he been

acting with ordinary care."

Abovesaid three tests have also been stated as determinative of

negligence in professional practice by Charlesworth & Percy in their

celebrated work on Negligence (ibid, para 8.110)

In the opinion of Lord Denning, as expressed in Hucks v. Cole,

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[1968] 118 New LJ 469, a medical practitioner was not to be held

liable simply because things went wrong from mischance or

misadventure or through an error of judgment in choosing one

reasonable course of treatment in preference of another. A medical

practitioner would be liable only where his conduct fell below that of

the standards of a reasonably competent practitioner in his field.

The decision of House of Lords in Maynard v. West Midlands

Regional Health Authority, [1985] 1 All ER 635 (HL) by a Bench

consisting of five Law Lords has been accepted as having settled the

law on the point by holding that it is not enough to show that there is

a body of competent professional opinion which considers that decision

of the defendant professional was a wrong decision, if there also exists

a body of professional opinion, equally competent, which supports the

decision as reasonable in the circumstances. It is not enough to show

that subsequent events show that the operation need never have been

performed, if at the time the decision to operate was taken, it was

reasonable, in the sense that a responsible body of medical opinion

would have accepted it as proper. Lord Scarman who recorded the

leading speech with which other four Lords agreed quoted the

following words of Lord President (Clyde) in Hunter v. Hanley 1955

SLT 213 at 217, observing that the words cannot be bettered \026 "In the

realm of diagnosis and treatment there is ample scope for genuine

difference of opinion and one man clearly is not negligent merely

because his conclusion differs from that of other professional men\005The

true test for establishing negligence in diagnosis or treatment on the

part of a doctor is whether he has been proved to be guilty of such

failure as no doctor of ordinary skill would be guilty of if acting with

ordinary care\005". Lord Scarman added \026 "a doctor who professes to

exercise a special skill must exercise the ordinary skill of his speciality.

Differences of opinion and practice exist, and will always exist, in the

medical as in other professions. There is seldom any one answer

exclusive of all others to problems of professional judgment. A court

may prefer one body of opinion to the other, but that is no basis for a

conclusion of negligence." His Lordship further added "that a judge's

'preference' for one body of distinguished professional opinion to

another also professionally distinguished is not sufficient to establish

negligence in a practitioner whose actions have received the seal of

approval of those whose opinions, truthfully expressed, honestly held,

were not preferred."

The classical statement of law in Bolam's case has been widely

accepted as decisive of the standard of care required both of

professional men generally and medical practitioners in particular. It

has been invariably cited with approval before Courts in India and

applied to as touchstone to test the pleas of medical negligence. In

tort, it is enough for the defendant to show that the standard of care

and the skill attained was that of the ordinary competent medical

practitioner exercising an ordinary degree of professional skill. The

fact that a defendant charged with negligence acted in accord with the

general and approved practice is enough to clear him of the charge.

Two things are pertinent to be noted. Firstly, the standard of care,

when 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. Secondly, 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 point of time on which it

is suggested as should have been used.

A mere deviation from normal professional practice is not

necessarily evidence of negligence. Let it also be noted that a mere

accident is not evidence of negligence. So also an error of judgment

on the part of a professional is not negligence per se. Higher the

acuteness in emergency and higher the complication, more are the

chances of error of judgment. At times, the professional is confronted

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with making a choice between the devil and the deep sea and he has

to choose the lesser evil. The medical professional is often called upon

to adopt a procedure which involves higher element of risk, but which

he honestly believes as providing greater chances of success for the

patient rather than a procedure involving lesser risk but higher

chances of failure. Which course is more appropriate to follow, would

depend on the facts and circumstances of a given case. The usual

practice prevalent nowadays is to obtain the consent of the patient or

of the person incharge of the patient if the patient is not be in a

position to give consent before adopting a given procedure. So long

as it can be found that the procedure which was in fact adopted was

one which was acceptable to medical science as on that date, the

medical practitioner cannot be held negligent merely because he chose

to follow one procedure and not another and the result was a failure.

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.

Res ipsa loquitur is a rule of evidence which in reality belongs to

the law of torts. Inference as to negligence may be drawn from

proved circumstances by applying the rule if the cause of the accident

is unknown and no reasonable explanation as to the cause is coming

forth from the defendant. In criminal proceedings, the burden of

proving negligence as an essential ingredient of the offence lies on the

prosecution. Such ingredient cannot be said to have been proved or

made out by resorting to the said rule (See Syad Kabar v. State of

Karnataka (1980) 1 SCC 30). Incidentally, it may be noted that in

Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 the Court

has observed that there may be a case where the proved facts would

themselves speak of sharing of common intention and while making

such observation one of the learned judges constituting the Bench has

in his concurring opinion merely stated "res ipsa loquitur'. Nowhere it

has been stated that the rule has applicability in a criminal case and an

inference as to an essential ingredient of an offence can be found

proved by resorting to the said rule. In our opinion, a case under

Section 304A IPC cannot be decided solely by applying the rule of res

ipsa loquitur.

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 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.

If the hands be trembling with the dangling fear of facing a

criminal prosecution in the event of failure for whatever reason\027

whether attributable to himself or not, neither a surgeon can

successfully wield his life-saving scalper to perform an essential

surgery, nor can a physician successfully administer the life-saving

dose of medicine. Discretion being 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

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his effort fails. Such timidity forced upon a doctor would be a

disservice to the society.

The purpose of holding a professional liable for his act or

omission, if negligent, is to make the life safer and to eliminate the

possibility of recurrence of negligence in future. Human body and

medical science \027 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.

The subject of negligence in the context of medical profession

necessarily calls for treatment with a difference. Several relevant

considerations in this regard are found mentioned by Alan Merry and

Alexander McCall Smith in their work "Errors, Medicine and the Law"

(Cambridge University Press, 2001). There is a marked tendency to

look for a human actor to blame for an untoward event \026 a tendency

which is closely linked with the desire to punish. Things have gone

wrong and, therefore, somebody must be found to answer for it. To

draw a distinction between the blameworthy and the blameless, the

notion of mens rea has to be elaborately understood. An empirical

study would reveal that the background to a mishap is frequently far

more complex than may generally be assumed. It can be

demonstrated that actual blame for the outcome has to be attributed

with great caution. For a medical accident or failure, the responsibility

may lie with the medical practitioner and equally it may not. The

inadequacies of the system, the specific circumstances of the case, the

nature of human psychology itself and sheer chance may have

combined to produce a result in which the doctor's contribution is

either relatively or completely blameless. Human body and its working

is nothing less than a highly complex machine. Coupled with the

complexities of medical science, the scope for misimpressions,

misgivings and misplaced allegations against the operator i.e. the

doctor, cannot be ruled out. One may have notions of best or ideal

practice which are different from the reality of how medical practice is

carried on or how in real life the doctor functions. The factors of

pressing need and limited resources cannot be ruled out from

consideration. Dealing with a case of medical negligence needs a

deeper understanding of the practical side of medicine.

At least three weighty considerations can be pointed out which

any forum trying the issue of medical negligence in any jurisdiction

must keep in mind. These are: (i) that legal and disciplinary

procedures should be properly founded on firm, moral and scientific

grounds; (ii) that patients will be better served if the real causes of

harm are properly identified and appropriately acted upon; and (iii)

that many incidents involve a contribution from more than one person,

and the tendency is to blame the last identifiable element in the chain

of causation \026 the person holding the 'smoking gun'.

Accident during the course of medical or surgical treatment has

a wider meaning. Ordinarily, an accident means an unintended and

unforeseen injurious occurrence; something that does not occur in the

usual course of events or that could not be reasonably anticipated

(See, Black's Law Dictionary, 7th Edition). Care has to be taken to see

that the result of an accident which is exculpatory may not persuade

the human mind to confuse it with the consequence of negligence.

Medical Professionals in Criminal Law

The criminal law has invariably placed the medical professionals

on a pedestal different from ordinary mortals. The Indian Penal Code

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

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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 harm to a person and that person has not consented to

suffer such harm. There are four exceptions listed in the Section

which is not necessary in this context to deal with. Section 93 saves

from criminality certain communications made in good faith. To these

provisions are appended the following illustrations:-

Section 88

A, a surgeon, knowing that a particular operation

is likely to cause the death of Z, who suffers under

a painful complaint, but not intending to cause Z's

death and intending in good faith, Z's benefit,

performs that operation on Z, with Z's consent. A

has committed no offence.

Section 92

Z is thrown from his horse, and is insensible. A, a

surgeon, finds that Z requires to be trepanned. A,

not intending Z's death, but in good faith, for Z's

benefit, performs the trepan before Z recovers his

power of judging for himself. A has committed no

offence.

A, a surgeon, sees a child suffer an accident

which is likely to prove fatal unless an operation be

immediately performed. There is no time to apply

to the child's guardian. A performs the operation in

spite of the entreaties of the child, intending, in

good faith, the child's benefit. A has committed

no offence.

Section 93

A, a surgeon, in good faith, communicates to a

patient his opinion that he cannot live. The patient

dies in consequence of the shock. A has committed

no offence, though he knew it to be likely that the

communication might cause the patient's death.

It is interesting to note what Lord Macaulay had himself to say

about Indian Penal Code. We are inclined to quote a few excerpts from

his speech to the extent relevant for our purpose from "Speeches and

Poems with the Report and Notes on the Indian Penal Code" by Lord

Macaulay (Houghton, Mifflin and Company, published in 1874).

"Under the provisions of our Code, this case would

be very differently dealt with according to

circumstances. If A. kills Z. by administering

abortives to her, with the knowledge that those

abortives are likely to cause her death, he is guilty

of voluntary culpable homicide, which will be

voluntary culpable homicide by consent, if Z.

agreed to run the risk, and murder if Z. did not so

agree. If A causes miscarriage to Z., not intending

to cause Z.'s death, nor thinking it likely that he

shall cause Z.'s death, but so rashly or negligently

as to cause her death, A. is guilty of culpable

homicide not voluntary, and will be liable to the

punishment provided for the causing of

miscarriage, increased by imprisonment for a term

not exceeding two years. Lastly, if A took such

precautions that there was no reasonable

probability that Z.'s death would be caused, and if

the medicine were rendered deadly by some

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accident which no human sagacity could have

foreseen, or by some peculiarity in Z.'s constitution

such as there was no ground whatever to expect,

A. will be liable to no punishment whatever on

account of her death, but will of course be liable to

the punishment provided for causing miscarriage.

It may be proper for us to offer some arguments in

defence of this part of the Code.

It will be admitted that when an act is in itself

innocent, to punish the person who does it because

bad consequences, which no human wisdom could

have foreseen, have followed from it, would be in

the highest degree barbarous and absurd." (P.419)

"To punish as a murderer every man who, while

committing a heinous offence, causes death by

pure misadventure, is a course which evidently

adds nothing to the security of human life. No man

can so conduct himself as to make it absolutely

certain that he shall not be so unfortunate as to

cause the death of a fellow-creature. The utmost

that he can do is to abstain from every thing which

is at all likely to cause death. No fear of

punishment can make him do more than this; and

therefore, to punish a man who has done this can

add nothing to the security of human life. The only

good effect which such punishment can produce

will be to deter people from committing any of

those offences which turn into murders what are in

themselves mere accidents. It is in fact an addition

to the punishment of those offences, and it is an

addition made in the very worst way." (p.421)

"When a person engaged in the commission of an

offence causes death by rashness or negligence,

but without either intending to cause death, or

thinking it likely that he shall cause death, we

propose that he shall be liable to the punishment of

the offence which he was engaged in committing,

superadded to the ordinary punishment of

involuntary culpable homicide.

The arguments and illustrations which we have

employed for the purpose of showing that the

involuntary causing of death, without either

rashness or negligence, ought, under no

circumstances, to be punished at all, will, with

some modifications, which will readily suggest

themselves, serve to show that the involuntary

causing of death by rashness or negligence, though

always punishable, ought, under no circumstances

to be punished as murder." (P.422)

The following statement of law on criminal negligence by

reference to surgeons, doctors etc. and unskillful treatment contained

in Roscoe's Law of Evidence (Fifteenth Edition) is classic:

"Where a person, acting as a medical man, &c.,

whether licensed or unlicensed, is so negligent in

his treatment of a patient that death results, it is

manslaughter if the negligence was so great as to

amount to a crime, and whether or not there was

such a degree of negligence is a question in each

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case for the jury. "In explaining to juries the test

which they should apply to determine whether the

negligence in the particular case amounted or did

not amount to a crime, judges have used many

epithets, such as 'culpable,' 'criminal', 'gross',

'wicked', 'clear', 'complete.' But whatever epithet

be used and whether an epithet be used or not, in

order to establish criminal liability the facts must

be such that, in the opinion of the jury, the

negligence of the accused went beyond a mere

matter of compensation between subjects and

showed such disregard for the life and safety of

others as to amount to a crime against the State

and conduct deserving punishment." (p. 848-849)

xxx xxx xxx

"whether he be licensed or unlicensed, if he display

gross ignorance, or gross inattention, or gross

rashness, in his treatment, he is criminally

responsible. Where a person who, though not

educated as an accoucheur, had been in the habit

of acting as a man-midwife, and had unskilfully

treated a woman who died in childbirth, was

indicted for the murder, L. Ellenborough said that

there was no evidence of murder, but the jury

might convict of man-slaughter. "To substantiate

that charge the prisoner must have been guilty of

criminal misconduct, arising either from the

grossest ignorance or the [most?] criminal

inattention. One or other of these is necessary to

make him guilty of that criminal negligence and

misconduct which is essential to make out a case of

manslaughter." (p.849)

A review of Indian decisions on criminal negligence

We are inclined to, and we must - as duty bound, take note of

some of the relevant decisions of the Privy Council and of this Court.

We would like to preface this discussion with the law laid down by the

Privy Council in John Oni Akerele v. The King AIR 1943 PC 72. A

duly qualified medical practitioner gave to his patient the injection of

Sobita which consisted of sodium bismuth tartrate as given in the

British Pharmacopoea. However, what was administered was an

overdose of Sobita. The patient died. The doctor was accused of

manslaughter, reckless and negligent act. He was convicted. The

matter reached in appeal before the House of Lords. Their Lordships

quashed the conviction. On a review of judicial opinion and an

illuminating discussion on the points which are also relevant before us,

what their Lordships have held can be summed up as under:-

(i) That a doctor is not criminally responsible for a

patient's death unless his negligence or

incompetence went beyond a mere matter of

compensation between subjects and showed such

disregard for life and safety of others as to amount

to a crime against the State.;

(ii) That the degree of negligence required is that it

should be gross, and that neither a jury nor a court

can transform negligence of a lesser degree into

gross negligence merely by giving it that

appellation. \005\005\005\005 There is a difference in kind

between the negligence which gives a right to

compensation and the negligence which is a crime.

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(iii) It is impossible to define culpable or

criminal negligence, and it is not possible to make

the distinction between actionable negligence and

criminal negligence intelligible, except by means of

illustrations drawn from actual judicial opinion.

\005\005.. The most favourable view of the conduct of an

accused medical man has to be taken, for it would

be most fatal to the efficiency of the medical

profession if no one could administer medicine

without a halter round his neck."

(emphasis supplied)

Their Lordships refused to accept the view that criminal negligence

was proved merely because a number of persons were made gravely ill

after receiving an injection of Sobita from the appellant coupled with a

finding that a high degree of care was not exercised. Their Lordships

also refused to agree with the thought that merely because too strong

a mixture was dispensed once and a number of persons were made

gravely ill, a criminal degree of negligence was proved.

The question of degree has always been considered as relevant

to a distinction between negligence in civil law and negligence in

criminal law. In Kurban Hussein Mohamedalli Rangawalla v.

State of Maharashtra (1965) 2 SCR 622, while dealing with Section

304A of IPC, the following statement of law by Sir Lawrence Jenkins in

Emperor v. Omkar Rampratap 4 Bom LR 679, was cited with

approval:-

"To impose criminal liability under Section 304-A,

Indian Penal Code, it is necessary that the death

should have been the direct result of a rash and

negligent act of the accused, and that act must be

the proximate and efficient cause without the

intervention of another's negligence. It must be

the causa causans; it is not enough that it may

have been the causa sine qua non."

K.N. Wanchoo, J. (as he then was), speaking for the Court,

observed that the abovesaid view of the law has been generally

followed by High Courts in India and was the correct view to take of

the meaning of Section 304A. The same view has been reiterated in

Kishan Chand & Anr. v. The State of Haryana (1970) 3 SCC 904.

In Juggankhan v. The State of Madhya Pradesh (1965) 1

SCR 14, the accused, a registered Homoeopath, administered 24 drops

of stramonium and a leaf of dhatura to the patient suffering from

guinea worm. The accused had not studied the effect of such

substances being administered to a human being. The poisonous

contents of the leaf of dhatura, were not satisfactorily established by

the prosecution. This Court exonerated the accused of the charge

under Section 302 IPC. However, on a finding that stramonium and

dhatura leaves are poisonous and in no system of medicine, except

perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea

worm, the act of the accused who prescribed poisonous material

without studying their probable effect was held to be a rash and

negligent act. It would be seen that the profession of a Homoeopath

which the accused claimed to profess did not permit use of the

substance administered to the patient. The accused had no knowledge

of the effect of such substance being administered and yet he did so.

In this background, the inference of the accused being guilty of rash

and negligent act was drawn against him. In our opinion, the principle

which emerges is that a doctor who administers a medicine known to

or used in a particular branch of medical profession impliedly declares

that he has knowledge of that branch of science and if he does not, in

fact, possess that knowledge, he is prima facie acting with rashness or

negligence.

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Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole

and Anr. (1969) 1 SCR 206 was a case under Fatal Accidents Act,

1855. It does not make a reference to any other decided case. The

duties which a doctor owes to his patients came up for consideration.

The Court held that a person who holds himself out ready to give

medical advice and treatment impliedly undertakes that he is

possessed of skill and knowledge for that purpose. Such a person

when consulted by a patient owes him certain duties, viz., a duty of

care in deciding whether to undertake the case, a duty of care in

deciding what treatment to be given or a duty of care in the

administration of that treatment. A breach of any of those duties

gives a right of action for negligence to the patient. The practitioner

must bring to his task a reasonable degree of skill and knowledge and

must exercise a reasonable degree of care. Neither the very highest

nor a very low degree of care and competence judged in the light of

the particular circumstances of each case is what the law requires. The

doctor no doubt has a discretion in choosing treatment which he

proposes to give to the patient and such discretion is relatively ampler

in cases of emergency. In this case, the death of patient was caused

due to shock resulting from reduction of the fracture attempted by

doctor without taking the elementary caution of giving anaesthetic to

the patient. The doctor was held guilty of negligence and liability for

damages in civil law. We hasten to add that criminal negligence or

liability under criminal law was not an issue before the Court \027as it

did not arise and hence was not considered.

In the year 1996, there are 3 reported decisions available.

Indian Medical Association v. V.P. Shantha and Ors. (1995) 6

SCC 651 is a three-Judge Bench decision. The principal issue which

arose for decision by the Court was whether a medical practitioner

renders 'service' and can be proceeded against for 'deficiency in

service' before a forum under the Consumer Protection Act, 1986. The

Court dealt with how a 'profession' differs from an 'occupation'

especially in the context of performance of duties and hence the

occurrence of negligence. The Court noticed that medical professionals

do not enjoy any immunity from being sued in contract or tort (i.e. in

civil jurisdiction) on the ground of negligence. However, in the

observation made in the context of determining professional liability

as distinguished from occupational liability, the Court has referred to

authorities, in particular, Jackson & Powell and have so stated the

principles, partly quoted from the authorities :-

"In the matter of professional liability professions

differ from occupations for the reason that

professions operate in spheres where success

cannot be achieved in every case and very often

success or failure depends upon factors beyond the

professional man's control. In devising a rational

approach to professional liability which must

provide proper protection to the consumer while

allowing for the factors mentioned above, the

approach of the Courts is to require that

professional men should possess a certain

minimum degree of competence and that they

should exercise reasonable care in the discharge of

their duties. In general, a professional man owes

to his client a duty in tort as well as in contract to

exercise reasonable care in giving advice or

performing services. (See : Jackson & Powell on

Professional Negligence, 3rd Edn., paras 1-04, 1-05,

and 1-56)."

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In Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC

332 a doctor registered as medical practitioner and entitled to practice

in Homoeopathy only, prescribed an allopathic medicine to the patient.

The patient died. The doctor was held to be negligent and liable to

compensate the wife of the deceased for the death of her husband on

the ground that the doctor who was entitled to practice in

homoeopathy only, was under a statutory duty not to enter the field of

any other system of medicine and since he trespassed into a

prohibited field and prescribed the allopathic medicine to the patient

causing the death, his conduct amounted to negligence per se

actionable in civil law. Dr. Laxman Balkrishna Joshi's case (supra)

was followed. Vide para 16, the test for determining whether there

was negligence on the part of a medical practitioner as laid down in

Bolam's case (supra) was cited and approved.

In Achutrao Haribhau Khodwa and Ors. v. State of

Maharashtra and Ors. (1996) 2 SCC 634 the Court noticed that in

the very nature of medical profession, skills differs from doctor to

doctor and more than one alternative course of treatment are

available, all admissible. Negligence cannot be attributed to a doctor

so long as he is performing his duties to the best of his ability and with

due care and caution. 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. It was a case where a mop was left inside the lady

patient's abdomen during an operation. Peritonitis developed which

led to a second surgery being performed on her, but she could not

survive. Liability for negligence was fastened on the surgeon because

no valid explanation was forthcoming for the mop having been left

inside the abdomen of the lady. The doctrine of res ipsa loquitur was

held applicable 'in a case like this'.

M/s Spring Meadows Hospital and Anr. v. Harjol

Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is

again a case of liability for negligence by a medical professional in civil

law. It was held that an error of judgment is not necessarily

negligence. The Court referred to the decision in Whitehouse &

Jorden, [1981] 1 ALL ER 267, and cited with approval the following

statement of law contained in the opinion of Lord Fraser determining

when an error of judgment can be termed as negligence:-

"The true position is that an error of

judgment may, or may not, be negligent, it

depends on the nature of the error. If it is

one that would not have been made by a

reasonably competent professional man

professing to have the standard and type of

skill that the defendant holds himself out as

having, and acting with ordinary care, then it

is negligence. If, on the other hand, it is an

error that such a man, acting with ordinary

care, might have made, then it is not

negligence."

In State of Haryana and Ors. v. Smt. Santra, (2000) 5 SCC

182 also Bolam's test has been approved. This case too refers to

liability for compensation under civil law for failure of sterilisation

operation performed by a surgeon. We are not dealing with that

situation in the case before us and, therefore, leave it to be dealt

within an appropriate case.

Before we embark upon summing up our conclusions on the

several issues of law which we have dealt with hereinabove, we are

inclined to quote some of the conclusions arrived at by the learned

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authors of "Errors, Medicine and the Law" (pp. 241-248), (recorded at

the end of the book in the chapter titled \026 'Conclusion') highlighting

the link between moral fault, blame and justice in reference to medical

profession and negligence. These are of significance and relevant to

the issues before us. Hence we quote :-

(i) The social efficacy of blame and related sanctions in particular

cases of deliberate wrongdoings may be a matter of dispute, but

their necessity \026 in principle \026 from a moral point of view, has

been accepted. Distasteful as punishment may be, the social,

and possibly moral, need to punish people for wrongdoing,

occasionally in a severe fashion, cannot be escaped. A society

in which blame is overemphasized may become paralysed. This

is not only because such a society will inevitably be backward-

looking, but also because fear of blame inhibits the uncluttered

exercise of judgment in relations between persons. If we are

constantly concerned about whether our actions will be the

subject of complaint, and that such complaint is likely to lead to

legal action or disciplinary proceedings, a relationship of

suspicious formality between persons is inevitable. (ibid, pp.

242-243)

(ii) Culpability may attach to the consequence of an error in

circumstances where substandard antecedent conduct has been

deliberate, and has contributed to the generation of the error or

to its outcome. In case of errors, the only failure is a failure

defined in terms of the normative standard of what should have

been done. There is a tendency to confuse the reasonable

person with the error-free person. While nobody can avoid

errors on the basis of simply choosing not to make them, people

can choose not to commit violations. A violation is culpable.

(ibid, p. 245).

(iii) Before the court faced with deciding the cases of professional

negligence there are two sets of interests which are at stake :

the interests of the plaintiff and the interests of the defendant.

A correct balance of these two sets of interests should ensure

that tort liability is restricted to those cases where there is a

real failure to behave as a reasonably competent practitioner

would have behaved. An inappropriate raising of the standard of

care threatens this balance. (ibid, p.246). A consequence of

encouraging litigation for loss is to persuade the public that all

loss encountered in a medical context is the result of the failure

of somebody in the system to provide the level of care to which

the patient is entitled. The effect of this on the doctor-patient

relationship is distorting and will not be to the benefit of the

patient in the long run. It is also unjustified to impose on those

engaged in medical treatment an undue degree of additional

stress and anxiety in the conduct of their profession. Equally, it

would be wrong to impose such stress and anxiety on any other

person performing a demanding function in society. (ibid,

p.247). While expectations from the professionals must be

realistic and the expected standards attainable, this implies

recognition of the nature of ordinary human error and human

limitations in the performance of complex tasks. (ibid, p. 247).

(iv) Conviction for any substantial criminal offence requires that the

accused person should have acted with a morally blameworthy

state of mind. Recklessness and deliberate wrongdoing, are

morally blameworthy, but any conduct falling short of that

should not be the subject of criminal liability. Common-law

systems have traditionally only made negligence the subject of

criminal sanction when the level of negligence has been high \026 a

standard traditionally described as gross negligence. In fact,

negligence at that level is likely to be indistinguishable from

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recklessness. (ibid, p.248).

(v) Blame is a powerful weapon. Its inappropriate use distorts

tolerant and constructive relations between people.

Distinguishing between (a) accidents which are life's misfortune

for which nobody is morally responsible, (b) wrongs

amounting to culpable conduct and constituting grounds for

compensation, and (c) those (i.e. wrongs) calling for

punishment on account of being gross or of a very high degree

requires and calls for careful, morally sensitive and scientifically

informed analysis; else there would be injustice to the larger

interest of the society. (ibid, p. 248).

Indiscriminate prosecution of medical professionals for criminal

negligence is counter-productive and does no service or good to the

society.

Conclusions summed up

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 omission amounting to negligence attributable to the person

sued. The essential components of negligence are three: 'duty',

'breach' and 'resulting damage'.

(2) Negligence in the context of medical profession necessarily calls

for a treatment with a difference. To infer rashness or

negligence on the part of a professional, in particular a doctor,

additional considerations apply. A case of occupational

negligence is different from one of professional negligence. A

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

proof of negligence on the part of a medical professional. So

long as a doctor follows a practice acceptable to the medical

profession of that day, he cannot be held liable for negligence

merely because a better alternative course or method of

treatment was also available or simply because a more skilled

doctor would not have chosen to follow or resort to that practice

or procedure which the accused followed. When it comes to the

failure of taking precautions what has to be seen is whether

those precautions were taken which the ordinary experience of

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

extraordinary precautions which might have prevented the

particular happening cannot be the standard for judging the

alleged negligence. So also, the standard of care, while

assessing the practice as adopted, is judged in the light of

knowledge available at the time of the incident, and not at the

date of trial. Similarly, when the charge of negligence arises out

of failure to use some particular equipment, the 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

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an ordinary competent person exercising ordinary skill in that

profession. It is not possible for every professional to possess

the highest level of expertise or skills in that branch which he

practices. A highly skilled professional may be possessed of

better qualities, but that cannot be made the basis or the

yardstick for judging the performance of the professional

proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in

Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its

applicability in India.

(5) The jurisprudential concept of negligence differs in civil and

criminal law. What may be negligence in civil law may not

necessarily be negligence in criminal law. For negligence to

amount to an offence, the element of mens rea must be shown

to exist. For an act to amount to criminal negligence, the degree

of negligence should be much higher i.e. gross or of a very high

degree. Negligence which is neither gross nor of a higher degree

may provide a ground for action in civil law but cannot form the

basis for prosecution.

(6) The word 'gross' has not been used in Section 304A of IPC, yet it

is settled that in criminal law negligence or recklessness, to be

so held, must be of such a high degree as to be 'gross'. The

expression 'rash or negligent act' as occurring in Section 304A

of the IPC has to be read as qualified by the word 'grossly'.

(7) To prosecute a medical professional for negligence under

criminal law it must be shown that the accused did something or

failed to do something which in the given facts and

circumstances no medical professional in his ordinary senses

and prudence would have done or failed to do. The hazard

taken by the accused doctor should be of such a nature that the

injury which resulted was most likely imminent.

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

domain of civil law specially in cases of torts and helps in

determining the onus of proof in actions relating to negligence. It

cannot be pressed in service for determining per se the liability

for negligence within the domain of criminal law. Res ipsa loquitur

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

negligence.

In view of the principles laid down hereinabove and the

preceding discussion, we agree with the principles of law laid down in

Dr. Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same.

Ex abundanti cautela, we clarify that what we are affirming are the

legal principles laid down and the law as stated in Dr. Suresh Gupta's

case. We may not be understood as having expressed any opinion on

the question whether on the facts of that case the accused could or

could not have been held guilty of criminal negligence as that question

is not before us. We also approve of the passage from Errors,

Medicine and the Law by Alan Merry and Alexander McCall Smith which

has been cited with approval in Dr. Suresh Gupta's case (noted vide

para 27 of the report).

Guidelines \026 re: prosecuting medical professionals

As we have noticed hereinabove that the cases of doctors

(surgeons and physicians) being subjected to criminal prosecution are

on an increase. Sometimes such prosecutions are filed by private

complainants and sometimes by police on an FIR being lodged and

cognizance taken. The investigating officer and the private

complainant cannot always be supposed to have knowledge of

medical science so as to determine whether the act of the accused

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medical professional amounts to rash or negligent act within the

domain of criminal law under Section 304-A of IPC. The criminal

process once initiated subjects the medical professional to serious

embarrassment and sometimes harassment. He has to seek bail to

escape arrest, which may or may not be granted to him. At the end

he may be exonerated by acquittal or discharge but the loss which he

has suffered in his reputation cannot be compensated by any

standards.

We may not be understood as holding that doctors can never be

prosecuted for an offence of which rashness or negligence is an

essential ingredient. All that we are doing is to emphasize the need

for care and caution in the interest of society; for, the service which

the medical profession renders to human beings is probably the

noblest of all, and hence there is a need for protecting doctors from

frivolous or unjust prosecutions. Many a complainant prefers recourse

to criminal process as a tool for pressurizing the medical professional

for extracting uncalled for or unjust compensation. Such malicious

proceedings have to be guarded against.

Statutory Rules or Executive Instructions incorporating certain

guidelines need to be framed and issued by the Government of India

and/or the State Governments in consultation with the Medical Council

of India. So long as it is not done, we propose to lay down certain

guidelines for the future which should govern the prosecution of

doctors for offences of which criminal rashness or criminal negligence

is an ingredient. 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 Bolam's test to the facts collected in the

investigation. A doctor accused of rashness or negligence, may not be

arrested in a routine manner (simply because a charge has been

levelled against him). Unless his arrest is necessary for furthering the

investigation or for collecting evidence or unless the investigation

officer feels satisfied that the doctor proceeded against would not

make himself available to face the prosecution unless arrested, the

arrest may be withheld.

Case at hand

Reverting back to the facts of the case before us, we are

satisfied that all the averments made in the complaint, even if held to

be proved, do not make out a case of criminal rashness or negligence

on the part of the accused appellant. It is not the case of the

complainant that the accused-appellant was not a doctor qualified to

treat the patient whom he agreed to treat. It is a case of non-

availability of oxygen cylinder either because of the hospital having

failed to keep available a gas cylinder or because of the gas cylinder

being found empty. Then, probably the hospital may be liable in civil

law (or may not be \027 we express no opinion thereon) but the accused

appellant cannot be proceeded against under Section 304A IPC on the

parameters of Bolam's test.

Result

The appeals are allowed. The prosecution of the accused

appellant under Section 304A/34 IPC is quashed.

All the interlocutory applications be treated as disposed of.

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