Gujarat High Court
Milan H Agravat vs State Of Gujarat on 18 July, 2025
NEUTRAL CITATION
R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025
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Reserved On : 30/06/2025
Pronounced On : 18/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3205 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
✔
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MILAN H AGRAVAT
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. ARCHIT P JANI(7304) for the Applicant(s) No. 1
MS POONAM M MAHETA(11265) for the Applicant(s) No. 1
MALAY S PATEL(8901) for the Respondent(s) No. 2
MR. TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. Rule. Learned advocate for respondents waives service of Rule for the respondent-State.
2. By way of the present petition filed under Article 226 of the Constitution of India, the petitioner seeks to quash the impugned Criminal Complaint being 11198053210154 of 2021, registered with Talaja Police Station, for offences punishable under Section 304(A) of the Indian Penal Code (IPC).
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3. BRIEF FACTS OF THE CASE ARE AS UNDER:-
3.1. The petitioner, a qualified medical practitioner holding an M.D. (Obstetrics & Gynaecology) degree, is running a 13-bed hospital under the name "Chiranjeevi Hospital" at Talaja, District Bhavnagar, equipped with requisite infrastructure and facilities. On 14.03.2020, the complainant admitted his wife, Nitaben, to the petitioner's hospital for the delivery of her second child. In view of post-datism and absence of labour pains, medical induction was initiated after obtaining due consent from the complainant and her relatives. Around 9:00 p.m., the patient developed complications, including vomiting and breathlessness, followed by excessive vaginal bleeding. In light of suspected uterine rupture--a known life-threatening obstetric complication--the petitioner, after further informing the complainant and obtaining formal consent, performed a caesarean section to attempt to save the mother and child.
Unfortunately, the baby could not be survived due to complications, and due to non-availability of blood bottles locally, the patient was referred to a higher medical centre at Bhavnagar. Despite the petitioner arranging for ambulance transfer, the patient ultimately succumbed.
3.2. Nearly a year later, on 08.03.2021, an FIR bearing C.R. No. 11980532101540 of 2021 came to be lodged with Talaja Police Station under Section 304A of the Indian Penal Code, alleging medical negligence in the treatment of the deceased patient and her newborn. The complaint was allegedly supported by an expert committee report referring to lack of emergency preparedness and infrastructure at the hospital. Attributing, culpable negligence for Page 2 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined death of deceased Nitaben, aforesaid FIR filed under Section 304(A) of the Indian Penal Code. The petitioner, however, contends that the FIR is baseless, false, and lodged after an inordinate delay without any cogent medical or legal basis. It is further submitted that the case is squarely covered by the principles laid down by the Hon'ble Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, and by this Court in Surendrabhai Ramjibhai Patel v. State of Gujarat, 2018 (2) GLR 1746, requiring prior expert opinion before proceeding against a medical professional under criminal law. On these grounds, the petitioner seeks quashment of the FIR invoking the inherent powers of this Hon'ble Court under Section 482 of the CrPC.
4. SUBMISSION OF THE PETITIONER:-
4.1. Learned Senior Advocate Mr. P.K. Jani, assisted by learned Advocate Mr. Archit P. Jani, appearing for the petitioner, submitted that the petitioner is a certified gynecologist duly authorized to perform caesarean section (C-section) procedures. It is submitted that there was no element of culpable negligence on the part of the petitioner. While the demise of the patient is undeniably grievous and unfortunate, it cannot, by any stretch, be attributed to criminal negligence warranting prosecution under Section 304A of the Indian Penal Code.
4.2. It is further submitted that the petitioner had undertaken all requisite medical measures to save the life of the patient; and to live with the oath taken by medical practitioner however, despite earnest efforts, the patient could not survive. Such an unfortunate outcome, it is argued, cannot be construed as constituting 'gross Page 3 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined negligence'. The FIR itself came to be lodged nearly one year after the incident, and it is trite law that an adverse medical outcome or an error of judgment, by itself, does not constitute gross negligence so as to attract the rigors of criminal liability.
4.3. It is also submitted that the deceased had signed a valid consent form, thereby authorizing the petitioner--a qualified gynecologist--to perform the surgery. Although the surgical intervention, namely laparotomy, was undertaken as a life-saving measure due to uterine rupture, complications such as severe hemorrhage occurred, ultimately resulting in the patient's death.
Nevertheless, the said act, being performed in emergency circumstances in accordance with established medical standards, does not amount to a rash or negligent act under Section 304A of the IPC.
4.4. Learned Senior Advocate relied upon the authoritative pronouncement of the Hon'ble Supreme Court in Jacob Mathew v. State of Punjab & Anr., (2005) 6 SCC 1, wherein it has been held that for fastening criminal liability on a medical professional, the degree of negligence must be gross and of a very high degree, as opposed to mere error of judgment.
4.5. Based on the aforesaid submissions, learned Senior Advocate prayed for allowing the petition and quashing the impugned FIR lodged against the petitioner.
5. SUBMISSION OF THE RESPONDENTS:-
Page 4 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined 5.1. Per contra, learned Advocate Mr. Malayakumar S. Patel, appearing for the private respondent-original complainant, submitted that the FIR was registered only after expert opinions were obtained from the Head of the Gynecology Department, SIR T Hospital, Bhavnagar; the Head of the Forensic Medicine Department; and the Resident Medical Officer. As per the expert medical opinion, the petitioner exhibited gross negligence and recklessness by failing to refer the patient to a higher medical center in a timely manner, despite being fully aware of the unavailability of essential resources such as blood and a trained anesthetist at Talaja Taluka.
5.2. It was argued that, had the petitioner exercised prudent clinical judgment and referred the patient to a higher medical facility in time, her life could have been saved. Accordingly, the medical board comprising three experts opined that the petitioner's failure to do so directly contributed to the patient's death due to uterine rupture.
5.3. On the basis of the foregoing, learned Advocate Mr. Patel urged that the petition is devoid of merit and deserves to be dismissed.
6. Learned APP, while adopting the submissions advanced by learned Advocate Mr. Patel, submitted that the factual matrix of the case clearly reveals that the petitioner, though a certified gynecologist, was fully aware of the infrastructural inadequacies prevailing in the rural setup of Talaja. Despite such knowledge, he proceeded to undertake a critical procedure without the requisite Page 5 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined facilities, thereby exhibiting recklessness and medical negligence. It was thus submitted that the petitioner's conduct squarely attracts the provisions of Section 304A of the IPC, and the petition may be dismissed.
7. FINDINGS AND CONCLUSION OF THE COURT:-
7.1. I have heard the learned advocates for both sides and perused the materials on record. The impugned FIR has been filed invoking Section 304A of the Indian Penal Code, which reads as under:
"304A. Causing death by negligence.--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
7.2. Thus, for invoking the offence under Section 304A of the Indian Penal Code, it is imperative to establish that:
1. There has been a death of a person;
2. The accused has caused such death; and
3. The act causing death was rash or negligent, not amounting to culpable homicide.
8. In the present case, the petitioner is charged under Section 304A of the IPC on the ground of alleged medical negligence. Medical negligence refers to a situation wherein a healthcare professional--such as a doctor, nurse, or hospital--fails to provide Page 6 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined the standard of care that a reasonably competent professional would be expected to provide under similar circumstances, resulting in injury or death to the patient.
8.1. The essential elements constituting medical negligence are as follows:
1. Duty of Care: The medical professional owed a legal and professional obligation to provide care to the patient;
2. Breach of Duty: The professional failed to meet the requisite standard of care expected of a reasonably competent practitioner;
3. Causation: The breach of duty directly caused injury or death to the patient; and
4. Damages: The patient suffered actual harm--whether physical, emotional, or financial--as a result of the breach.
8.2. It is well-settled that the standard of care does not imply the highest degree of expertise or extraordinary skills, but rather that of an ordinarily competent practitioner exercising reasonable skill, care, and diligence. This standard has been judicially recognized and applied through the Bolam Test, laid down in the English decision of Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582, which has been adopted in Indian jurisprudence as well.
8.3. Further, in the case of R. v. Adomako, (1995) 1 AC 171, Lord Page 7 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined Mackay of Clashfern (then Lord Chancellor) lucidly explained the concept of gross negligence in the context of criminal liability for medical negligence. This test of gross negligence is integral to the establishment of culpability under Section 304A IPC and emphasizes whether the conduct of the medical professional was so grossly deficient as to amount to a criminal act, as opposed to a mere civil wrong:-
"the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care... If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances... The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it could be judged criminal."
8.4. Therefore, the essential elements of the test to determine criminal medical negligence are:
(i) Duty of Care owed by the medical professional;
(ii) Breach of Duty, i.e., failure to adhere to the standard of care expected;
(iii) Causation, wherein the breach must have significantly contributed to the death of the patient; and
(iv) Gross Negligence, which implies a breach so egregious that it crosses the threshold from civil liability to criminal culpability, Page 8 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined judged by the severity of the deviation from accepted medical standards.
9. Adverting to the factual matrix as delineated in the FIR, it emerges that the deceased, Nitaben, was pregnant and undergoing antenatal care under the supervision of the petitioner. However, the record is silent as to the precise duration of such medical supervision. It is, however, not in dispute that the deceased was admitted to the healthcare facility operated by the petitioner. The petitioner, being a duly qualified and certified gynecologist, closely monitored the clinical condition of the patient and awaited the requisite cervical dilation conducive for a normal vaginal delivery, while duly recording relevant clinical parameters. During this interim period, the patient developed obstetric complications, culminating in uterine rupture accompanied by substantial internal hemorrhaging.
10. In view of the emergency, the petitioner was compelled to perform an exploratory laparotomy, which he is medically certified to undertake. It is also pertinent to note that the procedure was carried out in the presence of another gynecologist and an anesthesiologist, using local anesthesia owing to the emergent situation. Despite successfully completing the surgery and delivering the child, the patient unfortunately succumbed due to excessive blood loss.
10.1. The FIR, at best, narrates that the deceased died as a result of hemorrhagic shock due to excessive bleeding. The Medical Board has opined that the petitioner, despite knowing that requisite blood Page 9 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined products and a trained anesthesiologist were not available, proceeded with the surgical intervention instead of referring the patient to a higher medical center. However, this conduct, by itself, cannot be said to amount to gross negligence. On the contrary, considering that the petitioner is a certified gynecologist and the uterus was found to be ruptured during the clinical evaluation, the surgical intervention through emergency laparotomy was not only appropriate but arguably necessary under the circumstances. Anesthesiologist filed affidavit to support case of petitioner and claim unrebuttable presence during emergency laparotomy.
11. Hence, it cannot be said that the petitioner's conduct demonstrates a culpable degree of negligence or any deliberate deviation from standard medical protocol so as to attract penal consequences under Section 304A of the IPC. The expression "negligence" in the context of criminal law has been exhaustively interpreted by the Hon'ble Supreme Court in the case of Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre, (2010) 3 SCC 480, which laid down guiding principles for determining medical negligence in criminal jurisprudence, as extracted hereinbelow:
46. In a celebrated and oft cited judgment in Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582 : (1957) 2 AUl ER 118] (Queen's Bench Division) McNair, L.J. observed:
(i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. (Bolam case |(1957) 1 WLR 582 : (1957) 2 All ER 118), WLR p. 587) "The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow one in preference Page 10 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined to the other accords also with American law; see 70 Corpus Juris Secundum (1951) 952, 953, Para 44. Moreover, it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself, negligence (ibid., 971, Para 48)."
(All ER p. 119 A-B) McNair, L.J. also observed:
Before I turn to that, I must explain what in law we inea 'negligence'. In the ordinary case which does not involve any special skill, negligence in law means this : some failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the cucumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But 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 man exercising and professing to have that special skill. ... A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. (WLR p. 586)
47. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks.
48. In Roe v. Minister of Health (1954) 2 QB 66 : (1954) 2 WLR 915 : (1954) 2 All ER 131 (CA)] Denning, L.J. said: (QB p. 83) "... It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by (unavoidable) /Ed.: The words in the original are "considerable risks".] risks. Every surgical operation is attended Page 11 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined by risks. We cannot take the benefits without taking the risks.
Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way."
49. It was also observed in the same case that :
"... We must not look at the 1947 accident with 1954 spectacles. ...
.. But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure."
50. In Whitehouse v. Jordan ((1981) 1 WLR 246 : (1981) 1 All ER 267 (HL)] House of Lords per Lord Edmund-Davies, Lord Fraser and Lord Russell : (WLR p. 258 B & D) The test whether a surgeon has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon (dictum of McNair, L.J. in Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582 : (1957) 2 All ER
118), WLR p. 586 : All ER at p. 121).
51. In Chin Keow v. Gout. of Malaysia ((1967) 1 WLR 813 (PC)] the Privy Council applied these words of McNair, L.J. in Bolam v. Friern Hospital Management Committee |(1957) 1 WLR 582 : (1957) 2 All ER 118) : (WLR p. 586) • "... 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."
52. This Court in State of Haryana v. Santra |(2000) 5 SCC 182) in the matter of negligence relied upon Bolam v. Friern Hospital Management Committee 1957) 1 WLR 582 : (1957) 2 Page 12 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined All ER 118] and on Whitehouse v. Jordan {(1981) I WLR 246:
(1981) 1 All ER 267 (HL)].
53. In Poonam Verma v. Ashwin Patel (1996) 4 SCC 332) where the question of medicall megligence was considered in the context of treatment of a patient, it was observed as under : (SCC p. 348, para 42) "42. Negligence has many manifestations- it may be active negligence, collateral negligence, comparative megingence, concurrent negligence, contimed negligence, criminal negligence, gross negligence, hazardous megligence, active and passive negligence, wilful or reckless megligence or negligence per se...."
54. In the instant case, Dr. Kapil Kumar, Respondent 3 who performed the operation had reasonable degree of skill and knowledge. According to the findings of the National Commission, he cannot be held guilty of negligence by any stretch of imagination.
55. Negligence per se is defined in Black's Law Dictionary as under:
"Negligence per se.-Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes."
12. In Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1, the Hon'ble Supreme Court noted that it is often all too easy to cast aspersions on medical professionals and observed as under:
"Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No Page 13 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse"
13. The Hon'ble Apex Court in Jacob Mathew v. State of Punjab (supra), after referring to a catena of authoritative pronouncements, ultimately proceeded to summarise its 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 Judgement 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 Page 14 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined 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 (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 give case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case, 1957 1 WLR 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 Sec. 3044 of Indian Penal Code, 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 Sec. 304A of the Indian Penal Code 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 Page 15 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined 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."
14. In backdrop of above, the essential elements carved to establish medical or professional negligence are: (i) that the person was not possessed of the requisite skill which he professed to have; or (ii) that he failed to exercise, with reasonable competence, the skill which he did possess. Additionally, the element of mens rea must be established, and the negligence must be of such a degree as to amount to gross negligence.
15. In order to prosecute a medical professional for criminal negligence under the provisions of criminal law, it must be demonstrated that the accused either did something or omitted to do something which, in the given facts and circumstances, no reasonably prudent and competent medical professional would have done or failed to do.
16. In the present case, even if the findings of the Medical Board comprising experts from SIR T Hospital, Bhavnagar, are taken at face value, they fail to satisfy the criteria required to establish criminal medical negligence. It is nobody's case that the petitioner lacked the requisite qualifications to perform an emergency exploratory laparotomy. Nor is it the case of the prosecution that the medical condition faced by the patient did not warrant an emergency laparotomy procedure, or that failure to perform such a Page 16 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined procedure would not have endangered the patient's life. Furthermore, it is not alleged that the petitioner lacked the skill or competence to perform the said procedure.
17. It is also not the prosecution's case that the petitioner performed any act or omission that directly caused the death of the patient. The petitioner has filed an additional affidavit, wherein he has addressed the observations made by the Medical Board and submitted that such observations are not in consonance with the contemporaneous medical records. He has further explained the findings and relevant aspects of the patient's clinical condition, including documented instances of vomiting at around 9:00 p.m., and subsequent symptoms of breathlessness and dizziness noted at approximately 10:30 p.m. These entries corroborate the critical deterioration of the patient's condition.
18. The petitioner has also pointed out that the Medical Board failed to consider essential facts such as the patient's dehydration, severe abdominal pain, passage of blood in urine, and exhaustion
--vital clinical details that were either missed or underappreciated in the Board's evaluation.
19. It is also submitted that the petitioner adhered to the standard medical protocols as required in cases involving uterine rupture. Even the Medical Board has not disputed that the petitioner provided appropriate treatment once the rupture was identified. The only adverse inference drawn is that the petitioner ought to have referred the patient to a higher medical center owing to the unavailability of blood products. However, the petitioner has clarified that the issue regarding the unavailability of blood products was duly communicated to the relatives of the patient. In Page 17 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined the given emergent circumstances, performing an exploratory laparotomy was not only necessary but medically justified.
20. Thus, the explanation tendered by the petitioner, supported by clinical records and contemporaneous entries, discloses no prima facie act of gross negligence so as to attract the rigors of Section 304A of the IPC. The petitioner, a qualified gynecologist, exercised his professional judgment in an emergency setting, and his actions, viewed in their entirety, do not constitute criminal medical negligence.
21. In Neeraj Sud v. Jaswinder Singh (Minor); 2024 INSC 825, the Hon'ble Supreme Court reiterated that to establish medical negligence, three essential elements must be proven: (i) a legal duty owed by the medical professional; (ii) a breach of that duty; and
(iii) resultant damage. The Apex Court emphasized that an adverse outcome or failure of treatment does not, by itself, constitute negligence. It held that a doctor cannot be held criminally or civilly liable merely because the treatment did not yield the desired result, unless it is shown that the doctor lacked the requisite qualification or failed to exercise the skill he possessed with reasonable competence. Applying the Bolam test, the Apex Court clarified that if a medical professional acts in accordance with a practice accepted as proper by a responsible body of medical opinion, he is not negligent--even if other doctors might have adopted a different approach. Therefore, in the absence of gross negligence or recklessness, a medical practitioner should not be subjected to prosecution merely on the basis of an unfortunate or unintended result. Findings and observation of Hon'ble Supreme Court is extracted below:-
Page 18 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined "15. A medical professional may be held liable for negligence only when he is not possessed with the requisite qualification or skill or when he fails to exercise reasonable skill which he possesses in giving the treatment. None of the above two essential conditions for establishing negligence stand satisfied in the case at hand as no evidence was brought on record to prove that Dr. Neeraj Sud had not exercised due diligence, care or skill which he possessed in operating the patient and giving treatment to him.
16. When reasonable care, expected of the medical professional, is extended or rendered to the patient unless contrary is proved, it would not be a case for actionable negligence. In a celebrated and very often cited decision in Bolam v. Friern Hospital Management Committee (Queens Bench Division), English Law (1957) 1 WLR 582 it was observed that a doctor is not negligent if he is acting in accordance with the acceptable norms of practice unless there is evidence of a medical body of skilled persons in the field opining that the accepted principles/procedure were not followed. The test so laid down popularly came to be known as Bolams test and stands approved by the Supreme Court in Jacob Mathews v. State of Punjab and Another, 2005(6) SCC 1 .
If we apply the same in the present case, we would find that Dr. Neeraj Sood was a competent and a skilled doctor possessing requisite qualification to perform PTOSIS surgery and to administer the requisite treatment and that he had followed the accepted mode of practice in performing the surgery and that there was no material to establish any overt act or omission to prove negligence on his part. As stated earlier, no evidence was adduced to prove that he had not exercised sufficient care or has failed to exercise due skill in performing the surgery.
17. In Jacob Mathews (supra) this Court held that a professional may be held liable for negligence if he is not possessed of the requisite skill which he supposes to have or has failed to exercise the same with reasonable competence. The complainant has not adduced any evidence to establish that Dr. Neeraj Sud or the PGI were guilty of not exercising the expertise or the skill possessed by them, so as to hold them liable for negligence. No evidence was produced of any expert body in the medical field to prove that requisite skill possessed by Dr. Neeraj Sood was not exercised by him in discharge of his duties.
18. In other words, simply for the reason that the patient has not responded favourably to the surgery or the treatment administered by a doctor or that the surgery has failed, the Page 19 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined doctor cannot be held liable for medical negligence straightway by applying the doctrine of Res Ipsa Loquitor unless it is established by evidence that the doctor failed to exercise the due skill possessed by him in discharging of his duties."
22. In view of the foregoing discussion, the treatment administered by the petitioner to the patient--although ultimately not resulting in the survival of the deceased--cannot, by itself, be construed as medical negligence so as to warrant prosecution under Section 304A of the IPC. The prosecution initiated against the petitioner appears to be an abuse of the process of law, in absence of any prima facie material indicating gross negligence or recklessness.
23. The petitioner, being a duly qualified and certified medical practitioner, ought not to be compelled to face the rigors of a criminal trial merely on the basis that the surgical procedure he performed--despite being within his competence and carried out in an emergent situation--did not culminate in a successful outcome and resulted in the unfortunate death of the patient.
24. Criminal liability cannot be foisted upon a medical professional simply because a treatment did not yield the desired result, especially in the absence of any overt act indicating culpable or gross negligence. In aforesaid discussion could it be said that FIR against petitioner is abuse of process of law or allegation levelled in FIR on face value taken on true, would constitute offence.
25. It would be apposite to refer the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, wherein, in Paragraph 102, it is Page 20 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined held as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Ch. XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art. 226 or the inherent powers under sec. 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec. 156(1) of the Code except under an order of a Magistrate within the purview of sec. 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec. 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in Page 21 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025 NEUTRAL CITATION R/SCR.A/3205/2021 CAV JUDGMENT DATED: 18/07/2025 undefined any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
26. ORDER:-
25.1. Accordingly, the present petition deserves to be allowed and is hereby allowed. The Criminal Complaint being 11198053210154 of 2021, registered with Talaja Police Station, along with all subsequent proceedings arising therefrom, is hereby quashed and set aside qua the petitioner. Rule is made absolute. Direct service is permitted.
(J. C. DOSHI,J) MANISH MISHRA Page 22 of 22 Uploaded by MANISH MISHRA(HC01776) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:24:55 IST 2025