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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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