Patna High Court - Orders
Dr. Avinash Kumar Sharan @ Dr. Abhinash ... vs The State Of Bihar on 27 January, 2026
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.72088 of 2019
Arising Out of PS. Case No.-44 Year-2016 Thana- AURANGABAD TOWN District-
Aurangabad
======================================================
Dr. Avinash Kumar Sharan @ Dr. Abhinash Kumar Sharan @ Avinash Kumar
Son Of Sri Siya Saran Saroj Resident Of Urmila Niwas, East Rupaspur,
Gandhipuram Colony, P.S.- Rupaspur, Town And District- Patna, At Present
Residing At Saryu Bhawan, Near V-Mart Mall, M.G. Road, P.S.- Nagar
(Town), District- Aurangabad.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. Dhananjay Kumar Sharma Son Of Devnandan Sharma Village- Judahi, Ps-
Risiyap, Dist- Aurangabad
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sanjay Kumar Mishra
For the Opposite Party/s : Mr. Tarun Prasad Mandal
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
3 27-01-2026Heard the learned counsel for the petitioner, learned APP for the State and the learned counsel for the O.P. No.2.
2. The application has been filed for quashing the order dated 16/04/2019 passed by the learned Chief Judicial Magistrate, in connection with Town P.S. Case No. 44 of 2016 by which cognizance was taken for the offence under Section 304 of the IPC.
3. The prosecution case, in brief, is that one Dhananjay Sharma submitted a written application before the Officer-in-Charge of Town Sadar Police Station, stating that his elder brother, Ranjay Kumar, had been suffering from neck Patna High Court CR. MISC. No.72088 of 2019(3) dt.27-01-2026 2/13 inflammation for the past twenty days and was undergoing treatment under the care of Dr. Avinash Kumar Sharan at Kritika Clinic located in Aurangabad. The informant has alleged that the death of his brother occurred due to the negligence of the treating doctor. It is further stated that on 05.02.2016, his brother, who was in healthy condition, arrived at the clinic by self-driving his bike. Upon arrival, the doctor started treatment, and during the course of treatment, an injection was administered to his neck. Immediately after the injection, the informant claims that his brother collapsed and died. The informant further alleges that the doctor and his compounder, upon realizing the death, collectively placed the body of the deceased on the road and fled from the clinic.
4. On the basis of aforesaid application, an FIR vide Town P.S. Case No. 44 of 2016 has been registered for the Offence under section 304 of the Indian Panel Code.
5. It is submitted by the learned counsel for the petitioner that after the institution of the FIR, the police conducted an investigation into the matter and subsequently filed a charge sheet bearing No. 222/2016 dated 30/04/2016, under Section 304A of the Indian Penal Code (IPC). The charge sheet was submitted by the investigating officer based on the Patna High Court CR. MISC. No.72088 of 2019(3) dt.27-01-2026 3/13 statements of five witnesses, including the informant, three independent witnesses, and the doctor who conducted the postmortem examination of the deceased. The learned Chief Judicial Magistrate took cognizance of the case against the sole accused, Dr. Avinash Kumar Sharan, under Section 304 of the IPC, stating that a prima facie case had been established based on the materials available on record.
6. The learned counsel for the petitioner further submits that the petitioner is innocent and has not committed any offence as alleged against him. He further submits that on 01/02/2016, the deceased, Ranjay Kumar, was brought to the petitioner's Kritika Clinic for treatment. After a physical examination, the petitioner advised the patient to undergo certain pathological tests and prescribed some medication in tablet form. On 05/02/2016, Ranjay Kumar returned to the clinic with his brother, presenting the pathological reports. After reviewing the report and assessing the patient's condition, the petitioner immediately referred him to A.N.M.C.H. Gaya for further treatment. He further submits that the petitioner did not administer any injection to Ranjay Kumar and this fact is corroborated by the postmortem report, which does not show any signs of injection or external injury on the deceased's body. Patna High Court CR. MISC. No.72088 of 2019(3) dt.27-01-2026 4/13
7. The learned counsel for the petitioner has further submitted that no prima facie case under Section 304 of IPC has been made out against the petitioner. The order of cognizance has been passed in a routine manner, even though, at the time of passing the order, no expert opinion regarding the cause of death was available on record. Therefore, the learned court below has failed to apply its mind before taking cognizance. He further submits that in the absence of an expert opinion and definitive evidence, no case under Section 304 IPC can be made out against him. The Hon'ble Apex Court has consistently held that allegations of medical negligence can only be determined with the assistance of expert opinion, and in the present case, such expert opinion was not obtained before taking cognizance. It is further submitted that the continuation of these proceedings on the basis of the cognizance order passed in the absence of expert opinion and without considering crucial evidence would constitute an abuse of the process of the court. The continuation of such proceedings will serve no useful purpose and will result in a miscarriage of justice.
8. In support of his submission, the learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court passed in the case of Jacob Mathews vs. State Patna High Court CR. MISC. No.72088 of 2019(3) dt.27-01-2026 5/13 of Punjab & Anr., reported in AIR 2005 SC 3180 and in the case of Martin F. D'Souza vs. Mohd. Ishfaq reported in AIR 2009 SC 2049.
9. Learned counsel for the State has opposed the application of the petitioner.
10. I have heard and considered the submissions of the parties and have gone through the records of the case.
11. In the case of Jacob Mathews vs State of Punjab and Anr. (supra), the Hon'ble Supreme Court has held in paragraph nos. 48 to 52 as follows:-
"48. 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'.
Patna High Court CR. MISC. No.72088 of 2019(3) dt.27-01-2026 6/13 (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 Patna High Court CR. MISC. No.72088 of 2019(3) dt.27-01-2026 7/13 available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam'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 Patna High Court CR. MISC. No.72088 of 2019(3) dt.27-01-2026 8/13 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 Patna High Court CR. MISC. No.72088 of 2019(3) dt.27-01-2026 9/13 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.
49. 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 re: prosecuting medical professionals
50. 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 medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal Patna High Court CR. MISC. No.72088 of 2019(3) dt.27-01-2026 10/13 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.
51. 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.
52. 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 Patna High Court CR. MISC. No.72088 of 2019(3) dt.27-01-2026 11/13 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."
12. Further, in the case of Martin F. D'Souza vs. Mohd. Ishfaq (supra) the Hon'ble Supreme Court has held in paragraph no.17 with regard to obtaining expert's opinion before lodging the F.I.R. against a doctor, which is as under:-
"117. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing Patna High Court CR. MISC. No.72088 of 2019(3) dt.27-01-2026 12/13 notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action."
13. In light of the judgments referred to above and the fact that no expert opinion has been obtained in the present case to establish prima facie medical negligence, the order taking cognizance under Section 304 of IPC appears to have been passed without application of mind and without considering the essential evidence required to establish negligence.
14. In view of the facts of the case, submissions of the parties and the law laid down by the Hon'ble Supreme Court in the afore-quoted judgments, the present application stands Patna High Court CR. MISC. No.72088 of 2019(3) dt.27-01-2026 13/13 allowed and the order dated 16.04.2019 passed by the learned Chief Judicial Magistrate, Aurangabad in Town P.S. Case No. 44 of 2016 taking cognizance against the petitioner under Section 304 of IPC is hereby quashed.
15. The case pending in the District Consumer Commission, Aurangabad vide Consumer Case No. 38 of 2016 is directed to be disposed of within three months of communication/receipt of a copy of this order.
(Sandeep Kumar, J) Shishir/-
U T