REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   2049         OF 2008 (Arising out of SLP (Crl.) No.1688 of 2007)

B. Jagdish & Anr. …Appellants

Versus

State of A.P. & Anr. …Respondents

J U D G M E N T  

S.B. Sinha, J.

1. Leave granted.

2. The second respondent took his seven years’ old ailing daughter to

the appellant  who is said to  be a child  specialist  for treatment.   He was

running a hospital known as ‘Disney’s Medi-Kid Children’s Hospital’.  He

advertised himself as a specialist in child diseases.  The child was a student

of third standard.  On 22.6.2000, she vomited while in school.  She was

brought home immediately and thereafter taken to the appellant’s hospital at

about 3.p.m.   

3. She  was  admitted  in  the  hospital  for  undergoing  some  tests.

Respondent No.2 was asked to deposit a sum of Rs.4,000/- therefor.  The

said amount was deposited.  A blood test was conducted which disclosed

abnormal increase in white blood cells.

4. A  second  blood  test  was  also  carried  on  which  also  showed

abnormality in white blood cells.  The child was discharged on 25.6.2000.

She was advised to take the medicine prescribed.  Appellant diagnosed the

disease which she was suffering from as Tuberculosis.   Vomiting by the

girl, however, did not stop.  It became more frequent.  On 25.6.2000 she

developed  high  fever.   Appellant  was  consulted  again.   He  assured  the

respondents  that  there  was  nothing  to  worry  about  the  child  and  her

condition was satisfactory.  Respondent No.2 was advised to bring her back

on 30.6.2000.  Treatment on the same line was directed to be continued.

5. The  child,  in  the  meantime,  had  become  weak.   There  had  been

considerable increase in the number of times of vomiting.  She was taken to

the  hospital  on  30.6.2000.   Considering  her  condition,  she  was  again

admitted but was discharged in the night with the advice to continue the

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medicine advised for Tuberculosis with anemia.  The treatment continued

but instead of showing improvement, the child became almost crippled and

was not even able to move.  She had been taken to the hospital on a large

number of occasions but respondent No.2 was on each occasion assured that

there was nothing to worry about.   Even his request to refer the child to

another  specialist  for  having  a  second  opinion  was  not  acceded  to,

contending that it was an acute case of Tuberculosis coupled with anemia

and the patient would have slow recovery.   

6. On 1.10.2000 early in the morning, the child developed high fever.

She had rashes all over her body.  Her face became swollen.  She had been

vomiting also.  The child was taken to the hospital immediately.   

7. Appellant, seeing her condition, became panicky.  One Dr. Ramanna

was called.   He immediately suggested a ‘Biopsy of  Bone Marrow’ at  a

hospital.  The child underwent the said test.  The report was delivered on

4.10.2000.  Dr. Ramanna informed the second respondent that the girl had

been suffering from Leukemia which is in advanced stage and her liver was

enlarged.   He advised  the  girl  to  be  admitted  either  in  NIMS or  Apollo

Hospital  pursuant  whereto  she  was  taken  to  Apollo  Hospital.   One  Dr.

Srinivasa Chakravarthy of Apollo Hospital informed the second respondent

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that the girl was at advanced stage of Leukemia and chance of her survival

was bleak.  She breathed her last on 10.11.2000.   

8. Thereafter respondent No.2 filed a complaint petition before the A.P.

State Consumer Disputes Redressal Commission on or about 4.12.2000.   

9. He also filed a private complaint in terms of Section 200 of the Code

of  Criminal  Procedure,  1973.   The same was  referred  to  P.S.  Panjagutta

under Section 156(3) of the Code of Criminal Procedure.  A final report was

filed on 30.09.2001 stating that the case was a ‘Mistake of Fact’.  A protest

petition was filed thereagainst.   A re-investigation was directed as earlier

the investigation had been transferred to Police Station, Saifabad whereas

the final report was filed by Panjagutta Police Station.

10. Another final report was filed on 13.3.2004.  Another protest petition

was filed on the basis whereof cognizance was taken and processes were

issued against  the appellant  by the learned Magistrate  by an  order dated

16.7.2004.   

11. Indisputably,  the  Consumer  Disputes  Redressal  Commission  at

Hyderabad  found  the  appellant  to  be  negligent  in  his  performance  of

professional  services  to  the  deceased  child  and  awarded  damages  of

Rs.4,00,000/- by an order dated 13.6.2006.   

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12. Appellant  filed  an  application  for  quashing  of  the  order  issuing

summons to  him in  the criminal  matter  before  the  High Court  which  by

reason of the impugned judgment has been dismissed.

13. Mr. Mohan Rao, learned counsel appearing on behalf of the appellant,

would  submit  that  the  learned  Magistrate  as  also  the  High  Court  have

committed  a  serious  error  in  passing  the  impugned  judgments  insofar  as

they failed to take into consideration the observations made by this Court in

Jacob Mathew v. State of Punjab & Anr. [(2005) 6 SCC 1].   

14. Medical negligence being not an ordinary type of negligence, it was

urged,  the  courts  below  should  have  evaluated  the  evidence  by  shifting

through the materials brought on record by the parties for the purpose of

ascertaining  as  to  whether  there  is  prima  facie  material  available  for

pointing out reckless negligence on the part of the doctor causing death of

the patient, as in this case there were conflicting opinions of the experts; one

opining that there was no negligence on the part of the appellant and the

other opining that there was gross and reckless negligence on his part and,

thus,  the  court  should  have held  that  the  appellant  cannot  be said  to  be

guilty of  gross  and reckless  negligence so as  to attract  the provisions  of

Section 304A of the Indian Penal Code.   

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15. The learned counsel would contend that the doctors examined by the

complainant being not experts on the subject, the same should not have been

taken  into  consideration  by the  learned  Magistrate  at  the  time of  taking

cognizance of the offence.

16. Mr.  A.D.N.  Rao,  learned  counsel  appearing  on  behalf  of  the

respondent, on the other hand, would contend  

(1) The power of the High Court under Section 482 of the Code of

Criminal  Procedure  being  limited  and  charges  having  been

directed to be framed, this Court should not exercise its extra-

ordinary  jurisdiction  under  Article  136  of  the  Constitution  of

India.   

(2) The revisional court as also the High Court has rightly refused to

exercise  their  jurisdiction  as  it  has  come in  evidence  that  the

doctors examined on behalf of the appellant admitted that they

had  based  their  opinion  on  different  materials  and,  thus,  no

reliance can be placed thereupon.   

(3) Appellant having not made out a case of misuse of the process of

law, the High Court was right in its view particularly when the

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appellant  wrongly  advertised  himself  as  a  child  specialist

although he did not hold the requisite qualifications therefor.   

17. The  question  as  to  the  extent  of  negligence  on  the  part  of  the

members of the medical profession would attract criminal liability came up

before this  Court  on  more than  one  occasion.   In  Suresh  Gupta  (Dr.) v.

Govt. of NCT of Delhi [(2004) 6 SCC 422], a case involving negligence in

performance of rhinoplasty; the cause of death whereof was said to be non-

introduction  of  cuffed  endotracheal  tube  of  proper  size  as  to  prevent

aspiration of blood from wound in respiratory passage, was held to be an act

of negligence.  It was opined :

“22. This approach of the courts in the matter of fixing  criminal  liability  on  the  doctors,  in  the course of medical treatment given by them to their patients,  is  necessary  so  that  the  hazards  of medical men in medical profession being exposed to civil  liability, may not unreasonably extend to criminal  liability and expose them to  the  risk of landing themselves in prison for alleged criminal negligence.

23.  For  every  mishap  or  death  during  medical treatment,  the medical  man cannot  be  proceeded against for punishment.  Criminal prosecutions of doctors without adequate medical opinion pointing to their  guilt  would be doing great  disservice to the community at large because if the courts were to  impose  criminal  liability  on  hospitals  and doctors  for  everything  that  goes  wrong,  the doctors  would  be more worried  about  their  own

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safety  than  giving  all  best  treatment  to  their patients.  This would lead to shaking the mutual confidence  between  the  doctor  and  the  patient. Every  mishap  or  misfortune  in  the  hospital  or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.”

18. A  distinction  was  drawn  therein  between  a  civil  liability  and  a

criminal liability.   

19. This  Court  while  acknowledging  the  limited  jurisdiction  the  High

Court  exercises  under  Section  482  of  the  Code  of  Criminal  Procedure,

proceeded to consider the question of criminal liability on the basis of the

medical documents produced by the prosecution itself.  The fact admitted,

according to this Court, did not attract the provisions of Section 80 and 88

of the Indian Penal Code.   

20. Correctness  of  the  said  decision  was  questioned  in  Jacob  Mathew

(supra) by a Division Bench of this Court.   The matter was referred to a

larger Bench.  A Three Judge Bench, inter alia, opined that the averments

made in the complaint therein even if held to be proved did not make out a

case of criminal offence on the part of the accused-appellant, stating :

“It  is  not  a  case  of  the  complainant  that  the accused-appellant  was  not  a  doctor  qualified  to treat the patient whom he agreed to treat.”

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21. In  that  case,  an  Oxygen  cylinder  was  not  available  and  on  that

premise, it was held that the hospital having failed to keep available a gas

cylinder and/or the gas cylinder having been found empty, the hospital may

be  liable  to  civil  law but  the  doctor  cannot  be  proceeded  against  under

Section 304A of the Indian Penal Code.  In Jacob Mathew’s judgment also

the expression ‘gas cylinder’ appears twice in Para 53.  But it is obvious

from  the  facts  of  the  case  that  it  was  ‘oxygen  cylinder’  (and  not  gas

cylinder) that was not available.

22. In arriving at the said finding, reliance was placed on Bolam v. Friern

Hospital  Management  Committee [1957  (2)  All.ER  118],  wherein  the

plaintiff,  a  voluntary patient  in  the defendant’s  mental  hospital  sustained

fractures in course of electroconvulsive therapy.  There were differences of

opinion in the profession about the mode of treatment; one favouring the

use of relaxant drugs or manual control as a general practice and the other

opining that as the use of those drugs was attended by mortality risks, use

thereof  should  have  been  confined  to  cases  where  there  were  particular

reasons for their use.   

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23. We are in this case not  faced with such a situation, at least at  this

stage.

24. A person should not profess himself to be a child specialist unless he

has the requisite expertise.  In Bolam (supra) the Court was concerned with

a situation involving use of some special  skills  or competence.   The test

which was applied is the standard of special skill.   

25. Unless a person has a special skill to treat a child, ordinarily he could

not have treated her, not because he was wholly incompetent therefor but

because  it  required  a  specialized  skill  keeping in  view the  nature  of  the

disease the child was suffering from.   

26. It may not  be a valid  argument at  least  at  this  stage that  the child

would  have  otherwise  died  having  been  suffering  from Leukemia.   The

question which has been raised is that if on the face of the first blood report

medical opinion other than the diagnosis of cancer was possible, whether it

will fall within the ambit of medical negligence, is a matter which in our

opinion requires deeper consideration.   

27. For  the  said  purpose,  the  opinion  of  the  experts  will  have  to  be

thoroughly  examined.   Their  opinion  must  be  tested.   We are  given  to

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understand that there are two views; which view ultimately would prevail is

a matter of evidence.   

28. The civil liability of the appellant having been determined, we are of

the opinion that at this stage it may not be relevant to consider the charges

of criminal negligence on the part of the appellant herein on the touchstone

of standard of proof required for proving a case of criminal negligence as

the same would fall for consideration at the hands of the Trial court at an

appropriate stage.   

29. The question is as to whether the High Court should have interfered

with  the order  summoning the appellant  at  this  stage?   It  is  now a well

settled  principle  of  law that  at  the  stage  of  quashing  of  an  order  taking

cognizance, an accused cannot be permitted to use the material which would

be available to him only as his defence.  In his defence, the court would be

left to consider and weigh materials brought on record by the parties for the

purpose of marshalling and appreciating the evidence.  The jurisdiction of

the  Courts,  at  this  stage,  is  limited  as  whether  a  case  of  reckless/gross

negligence has been made out or not  will  depend upon the facts of each

case.   

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30. Mr. Rao has brought to our notice the evidence of one of the doctors,

who had deposed in favour of the appellant to show that he was not supplied

with  all  the  documents.   This  contention  of  Mr.  Rao has  been seriously

disputed by Mr. Mohan Rao contending that all the medical opinions were

obtained by the investigating agency.  This may be so or may not be, but it

is accepted at the Bar that the doctors who had rendered their opinion in

favour of the complainant stated that no member of the medical profession

could treat the child for ‘Tuberculosis’ and it was a clear case where the

diagnoses at the outset should have been one of ‘Leukemia’.   

31. We need not take this discussion any further as it may prejudice the

case of either of the parties at the trial.   

32. We may, however, refer to a decision of this Court in State of Orissa

v.  Debendra  Nath  Padhi [(2005)  1  SCC  568]  wherein  this  Court  upon

considering a large number of decisions opined :

“It is evident from the above that this Court was considering the rare and exceptional cases where the  High  Court  may  consider  unimpeachable evidence  while  exercising  jurisdiction  for quashing  under  Section  482  of  the  Code.  In  the present case, however, the question involved is not about  the  exercise  of  jurisdiction  under  Section 482 of the Code where along with the petition the accused  may  file  unimpeachable  evidence  of sterling  quality  and on that  basis  seek  quashing,

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but  is  about  the  right  claimed by the accused to produce  material  at  the  stage  of  framing  of charge.”

It was furthermore held :

“23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge  or  taking  cognizance  the  accused  has  no right to produce any material.  Satish Mehra case (2000) 6 SCC 338 holding that the trial court has powers  to  consider  even  materials  which  the accused may produce at the stage of Section  227 of the Code has not been correctly decided.

33. Keeping in view the facts and circumstances of this case, we are of

the opinion that it cannot be said that the materials brought on record by the

complainant,  even  if  given  face  value  and  taken  to  be  correct  in  their

entirety do not disclose an offence.  We say so because there are two sets of

opinions;  one in  favour  of the  complainant  and another  in  favour  of  the

appellants.  Which opinion would ultimately prevail is essentially a question

to be determined by the learned Trial Judge upon considering the evidence

adduced by the parties hereto in their entirety.

34. For the reasons aforementioned, we do not find any merit in this case.

It  is  dismissed  accordingly  with  costs.    Counsel’s  fee  assessed  at

Rs.25,000/-.

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……………………………….J. [S.B. Sinha]

..…………………………..…J. [Cyriac Joseph]

New Delhi; December 16, 2008

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