Gujarat High Court
Abhay Maheshchandra Shah & vs State Of Gujarat & on 3 December, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/2815/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 2815 of 2015
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ABHAY MAHESHCHANDRA SHAH & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MS. KRUTI M SHAH, ADVOCATE for the Applicant(s) No. 1 - 2
HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 2
MR VINOD M GAMARA, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 03/12/2015
ORAL ORDER
1. Rule returnable forthwith. Mr. H.K. Patel, the learned APP, waives service of notice of rule for and on behalf of the respondent No.1-State of Gujarat. Mr. Gamara, the learned counsel appearing for the first informant i.e. the respondent No.2 waives service of notice of rule.
2. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants husband and wife and doctors by profession seek to invoke the inherent powers of this Court praying for quashing of the First Information Report being C.R. No.I-19/2015 registered at Vyara Police Station, District-Tapi for the offence Page 1 of 27 HC-NIC Page 1 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER punishable under Section 304-A of the Indian Penal Code.
3. The case of the prosecution in brief is as under:-
4. The petitioners, husband and wife are running a hospital in the name of Neil Hospital and ICU at Vyara. The petitioner No.1 an MD and the petitioner No.2 is an anesthetist. The petitioner No.1 is practicing past 25 years and the petitioner No.2 is practicing as Anesthetist, past 10 years. On 28th January, 2015 at about 9.30 morning one Pradipkumar Gamit was admitted in the hospital. He was referred by one doctor Suresh B. Chaudhari of the Jivandeep Surgical Hospital, Vyara. He was admitted in the hospital of the petitioners with the history of pain in the abdomen with a diagnosis of acute pancreatitis with the history of alcoholism of 18 years.
5. It appears that on 31st January, 2015 the condition of the patient became critical. On 2nd January, 2015 tracheotomy was performed. Ultimately, on 2nd January, 2015, the patient passed away. The father of the deceased thought fit to file the First Information Report alleging medical negligence on the part of the petitioners. It appears that the postmortem was performed and the Histopathology report issued by the Department of Pathology, Autopsy, Government Medical College, Surat certified the cause of death on account of the following:-
Pancreas-Acute necrotizing Page 2 of 27 HC-NIC Page 2 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER Pancreatitis Liver- Early changes of Cirrhosis Heart- Advanced Atheromatous lesion in left descener.
6. It appears from the materials on record that the deceased was a chronic alcoholic. On account of the same his liver had deteriorated and there was cirrhosis of the liver. He was also suffering from pancreatitis and due to access intake of alcohol his arteries were also blocked. There was congestion in the lungs with oedena.
7. It goes without saying that the death of the son of the petitioner cannot be termed as negligence on the part of the doctor. No case worth the name is made out to attribute any medical negligence.
8. At this stage, it deserves to be noted that the FIR was registered for the offence under Section 304 of the Indian Penal Code i.e. culpable homicide not amount into murder. However, the Investigating Officer having realized that no case of culpable homicide not amounting to murder was made out, a report was filed in the Court of the learned Magistrate to delete section 304 and substitute the same with section 304-A of the Indian Penal Code.
9. Section 304A was inserted by the Indian Penal Code (Amendment) Act, 1870 (Act XXVII of 1870) and reads Page 3 of 27 HC-NIC Page 3 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER thus:
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.
10. The section deals with homicidal death by rash or negligent act. It does not create a new offence. It is directed against the offences outside the range of Sections 299 and 300, IPC and covers those cases where death has been caused without 'intention' or 'knowledge'. The words "not amounting to culpable homicide" in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It applies to acts which are rash or negligent and are directly the cause of death of another person.
11. Thus, there is a fine distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the 'motivating force' of the act complained of, Section 304A will have to make room for the graver Page 4 of 27 HC-NIC Page 4 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death.
12. In Empress v. Idu Beg, (1881) ILR 3 All 776, Straight, J. made the following pertinent observations which have been quoted with approval by various Courts including the Supreme Court:
"Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that 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".
13. Though the term 'negligence' has not been defined in the Code, it may be stated that negligence is the 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 reasonable and prudent man would not do. [See Mahadev Prasad Kaushik Vs. State of U.P - AIR 2009 SC 125].
14. In the aforesaid context, I may quote with profit a decision of the Supreme Court in the case of Naresh Giri Page 5 of 27 HC-NIC Page 5 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER Vs. State of M.P., reported in (2008) 1 SCC (Cri.) 324. In the said case, a bus was going from Ahrauli towards Kailaras. While it was near a Railway crossing, an accident took place. A train hit the bus at the railway crossing. In the accident, the bus which was being driven by the appellant was badly damaged and as a result of the accident, several passengers got injured and two persons died. After completion of the investigation, charge-sheet was filed. The charges were framed in relation to the offence punishable under Section 302 IPC and alternatively, under Sections 304, 325 and 323 of the Penal Code. Questioning the correctness of the charges framed, the revision petition was filed. The case of the appellant was that Section 302 IPC had no application to the facts of the case. The High Court rejected the plea of the appellant. The High Court was of the view that on the basis of the material available, the charges were rightly framed and the intention of the appellant could be gathered at the time when the evidence would be adduced. It was his case that at the best Section 304A IPC would be attracted.
15. In the aforesaid background, the Supreme Court made the following observations, which are worth taking note of.
7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are Page 6 of 27 HC-NIC Page 6 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.
8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence, a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.
9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) as follows :
"Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the Page 7 of 27 HC-NIC Page 7 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two".
10. In this context the following passage from Kenny's Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted :
"Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. The event may be harmless or harmful, if harmful, the question rises whether there is legal liability for it. In tort, (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. The common habit of lawyers to qualify the word "negligence" with some moral epithet such as 'wicked' 'gross' or 'culpable' has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself."
11. "Negligence", says the Restatement of the law of Torts published by the American Law Institute (1934) Vol. I. Section 28 "is conduct which falls below the standard established for the protection of others against unreasonable Page 8 of 27 HC-NIC Page 8 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER risk of harm". It is stated in Law of Torts by Fleming at page 124 (Australian Publication 1957) that this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In Director of Public Prosecutions v. Camplin (1978) 2 All ER 168 it was observed by Lord Diplock that "the reasonable man"
was comparatively late arrival in the laws of provocation. As the law of negligence emerged in the first half of the 19th century it became the anthropomorphic embodiment of the standard of care required by law. In order to objectify the law's abstractions like "care" "reasonableness" or "foreseeability" the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform.
12. In Syed Akbar v. State of Karnataka, (1980) 1 SCC 30, it was held that "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.As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions ((1937) (2) All ER 552) simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case."
13. According to the dictionary meaning 'reckless' means 'careless', 'regardless' or heedless of the possible harmful consequences of one's acts'. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it. In R. v. Briggs (1977) 1 All ER 475 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless continues in the performance of that act.
14. In R. v. Caldwell (1981) 1 All ER 961, it was observed that :-
"Nevertheless, to decide whether someone has been 'reckless', whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the Page 9 of 27 HC-NIC Page 9 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER possibility of that kind of harmful consequence, the accused would not be described as 'reckless' in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual on due consideration of the risk would not be deterred from treating it as negligible, could the accused be described as reckless in its ordinary sense, if, having considered the risk, he decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor. To endanger life must be one of the most grave). So, to this extent, even if one ascribes to 'reckless' only the restricted meaning adopted by the Court of Appeal in Stephenson and Briggs, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as 'objective' in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective."
15. The decision of R. v Caldwell (supra) has been cited with approval in R v. Lawrence (1981) 1 All ER 974 and it was observed that :
"........Recklessness on 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".
14A. Normally, as rightly observed by the High Court charges can be altered at any stage subsequent to the framing of charges. But the case at hand is one where prima facie Section 302 IPC has no application."
16. The requirements of Sec. 304-A IPC are that there must be a direct nexus between the death of a person and a rash and negligent act of the accused. A remote nexus is not enough. For the purpose of criminal law there are Page 10 of 27 HC-NIC Page 10 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER degrees of negligence and a very high degree of negligence is required to be proved before a charge can be sustained under this section and also Sections 337 and 338 of the IPC. A reasonable foresight is the criterion of negligence. In the case of negligence, the person accused does not do an act which he is bound to do. Mere negligence is not enough to bring a case within the ambit and scope of these sections. Negligence or rashness must be such as should carry with it a criminal liability. Criminal rashness is hazarding a dangerous act with the knowledge that it is so and that it may cause an injury. There is a breach of a positive duty.
17. To constitute an offence under Sec. 304A, it is necessary for the prosecution to establish that the act of the accused is rash or negligent and by such act the death has occurred and that act does not amount to culpable homicide. The question therefore is whether in the facts and circumstances as on record, act of respondent can be said to be rash or negligent.
18. A rash act is primarily an overhasly act, and is thus opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due care and caution. Illegal omission is act under this Section and may constitute an offence if it is negligent. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it Page 11 of 27 HC-NIC Page 11 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that 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. Negligence is the 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. Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. It is clear, however, that if the words not amounting to culpable homicide are a part of the definition, the offence defined by this section consists of the rash or negligent act not falling under that category, as much as of its fulfilling the Page 12 of 27 HC-NIC Page 12 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER positive requirement of being the cause of death. In order to amount to criminal rashness or criminal negligence one must find that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences (See: State of Gujarat Vs. Maltiben Valjibhai Shah, 1993 (2) GLR 1600).
19. The requirements of this section are not at all satisfied in this case. There is no evidence on the record to show that it was rash or negligent act of the applicants- accused that caused the death of the deceased.
20. In the case of Dr. P.B. Desai v. State of Maharastra and another [AIR 2014 SC 795], the Supreme Court, while explaining what is medical negligence, observed as under:
35. As we find that "omission" on the part of the appellant would also be treated as "act" in the given circumstances, the issue is as to whether this act of omission was rash and negligent. This is a pivotal and central issue which needs elaborate and all pervasive attention of the court. To create the edifice, brick by brick, we intend to proceed in the following order:
1. The Doctor-Patient Relationship.
2. Duty of care which a doctor owes towards his patient.
3. When this breach of duty would amount to negligence.
4. Consequences of negligence: Civil and Criminal.
5. When criminal liability is attracted.
6. Whether appellant criminally liable u/S. 338, IPC, in the present case?
(1)The Doctor-Patient relationship Page 13 of 27 HC-NIC Page 13 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER
36. Since ancient times, certain duties and responsibilities have been cast on persons who adopt the sacred profession as exemplified by Charak's Oath (1000 BC) and the Hippocracic Oath (460 BC).
37. It is the responsibilities that emerge from the doctor- patient relationship that forms the cornerstone of the legal implications emerging from medical practice. The existence of a doctor-patient relationship presupposes any obligations and consequent liability of the doctor to the patient.
38. It was Talcott Parsons, a social scientist, who first theorized the doctor-patient relationship. He worked on the hypothesis that illness was a form of dysfunctional deviance that required re-integration with social organism. Maintaining the social order required the development of a legitimized sick role to control this deviance, and make illness a transitional state back to normal role performance. In this process, the physician, who has mastered a body of technical knowledge, on a functional role to control the deviance of sick persons who was to be guided by an egalitarian universalism rather than a personalized particularism. While this basic notion has remained robust, over a period of time there have been numerous qualifications to the theory of Parsons. For instance, physicians and the public consider some illnesses to be the responsibility of the ill, such as lung cancer, AIDS and obesity.
39. It is not necessary for us to divulge this theoretical approach to the doctor-patient relationship, as that may be based on model foundation. Fact remains that when a physician agrees to attend a patient, there is an unwritten contract between the two. The patient entrusts himself to the doctor and that doctor agrees to do his best, at all times, for the patient. Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to treat any person, he/she has certain responsibilities for those whom he/she accepts as patients. Some of these responsibilities may be recapitulated, in brief:
(a)to continue to treat, except under certain circumstances when doctor can abandon his patient;
(b)to take reasonable care of his patient;
(c)to exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and patient where the patient is told, in effect, "Medicine is not an exact science. I shall use my experience and best judgment and you take the risk that I may be wrong. I guarantee nothing."Page 14 of 27
HC-NIC Page 14 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER
(d)Not to undertake any procedure beyond his control: This depends on his qualifications, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure/treating a complicated case.
(e)Professional secrets: A doctor is under a moral and legal obligation not to divulge the information/knowledge which he comes to learn in confidence from his patient and such a communication is privileged communication.
Conclusion:The formation of a doctor-patient relationship is integral to the formation of a legal relationship and consequent rights and duties, forming the basis of liability of a medical practitioner. Due to the very nature of the medical profession, the degree of responsibility on the practitioner is higher than that of any other service provider. The concept of a doctor-patient relationship forms the foundation of legal obligations between the doctor and the patient.
In the present case, as already held above, doctor-patient relationship stood established, contractually, between the patient and the appellant.
(2)Duty of Care which a doctor owes towards his patient.
40. Once, it is found that there is 'duty to treat' there would be a corresponding 'duty to take care' upon the doctor qua/his patient. In certain context, the duty acquires ethical character and in certain other situations, a legal character. Whenever the principle of 'duty to take care' is founded on a contractual relationship, it acquires a legal character. Contextually speaking, legal 'duty to treat' may arise in a contractual relationship or governmental hospital or hospital located in a public sector undertaking. Ethical 'duty to treat' on the part of doctors is clearly covered by Code of Medical Ethics, 1972. Clause 10 of this Code deals with 'Obligation to the Sick' and Clause 13 cast obligation on the part of the doctors with the captioned "Patient must not be neglected". Whenever there is a breach of the aforesaid Code, the aggrieved patient or the party can file a petition before relevant Disciplinary Committee constituted by the concerned State Medical Council.
(3) When this breach of duty would amount to negligence?
41. When reasonable care, expected of the medical professional, is not rendered and the action on the part of the medical practitioner comes within the mischief of negligence, it can be safely concluded that the said doctor did not perform his duty properly which was expected of him under the law and breached his duty to take care of the patient. Such a duty which a doctor owes to the patient and if not rendered Page 15 of 27 HC-NIC Page 15 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER appropriately and when it would amount to negligence is lucidly narrated by this Court in Kusum Sharma and others v. Batra Hospital and Medical Research Centre and others (2010) 3 SCC 480 : (AIR 2010 SC 1050). The relevant discussions therefrom are reproduced hereinbelow:
"45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:
22. Negligence.-Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."
46. In a celebrated and oft cited judgment in Bolam v. Friern Hospital Management Committee ((1957) 1 WLR 582) (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.
"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 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 McNair, L.J. also observed:
Before I turn to that, I must explain what in law we mean by '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 circumstances 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 Page 16 of 27 HC-NIC Page 16 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER 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."
(4) Breach of Duty to Take Care: Consequences
42. If the patient has suffered because of negligent act/ omission of the doctor, it undoubtedly gives right to the patient to sue the doctor for damages. This would be a civil liability of the doctor under the law tort and/or contract. This concept of negligence as a tort is explained in Jacob Mathews v. State of Punjab and another, 2005 (6) SCC 1 : (AIR 2005 SC 3180), in the following manner:
"10. The jurisprudential concept of negligence defines 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 and Dhirajlal (24th Edn., 2002, edited by Justice G.P. Singh).
Negligence is the breach of a duty caused by the 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. 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?. 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; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
43. Such a negligent act, normally a tort, may also give rise to criminal liability as well, though it was made clear by this Court in Jacob's case (supra) that jurisprudentially the distinction has to be drawn between negligence under Civil Law and negligence under Criminal Law. This distinction is lucidly explained in Jacob's case, as can be seen from the following paragraphs:
"12. 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 Page 17 of 27 HC-NIC Page 17 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER from the established terrain of thought running eversince the beginning of the emergence of the concept of negligence up to 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 Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell 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: (All ER p. 982e-f) "Recklessness on 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 recognised that there was such risk, he nevertheless goes on to do it."
13. 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 optimising violations, may be motivated by thrill- seeking. These are clearly reckless.
14. 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 stated: (All ER p. 556 C) Page 18 of 27 HC-NIC Page 18 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER "
Simple lack of care 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. In Riddell v. Reid (AC at p.
31) Lord Porter said in his speech -
"A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability."
15. The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka (AIR 1979 SC 1848). 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."
44. Thus, in the civil context while we consider the moral implications of negligent conduct, a clear view of the state of mind of the negligent doctor might not require strictly. This is for the reason the law of tort is ultimately not concerned with the moral culpability of the defendant, even if the language of fault is used in determining the standard of care. From the point of view of civil law it may be appropriate to impose liability irrespective of moral blameworthiness. This is because in civil law two questions are at issue: Was the defendant negligent? If so, should the defendant bear the loss in this particular set of circumstances? In most cases where negligence has been established, the answer to the second question will be in the affirmative, unless the doctrine of remoteness or lack of foresee ability militates against a finding of liability, or where there is some policy reason precluding compensation. The question in the civil context is, therefore, not about moral blame, even though there will be many cases where the civilly liable defendant is also morally culpable.
(5) Criminal Liability : When attracted
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45. It follows from the above that as far as the sphere of criminal liability is concerned, as mens rea is not abandoned, the subjective state of mind of the accused lingers a critical consideration. In the context of criminal law, the basic question is quite different. Here the question is: Does the accused deserve to be punished for the outcome caused by his negligence? This is a very different question from the civil context and must be answered in terms of mens rea . Only if a person has acted in a morally culpable fashion can this question be answered positively, at least as far as non strict liability offences are concerned.
46.The only state of mind which is deserving of punishment is that which demonstrates an intention to cause harm to others, or where there is a deliberate willingness to subject others to the risk of harm. Negligent conduct does not entail an intention to cause harm, but only involves a deliberate act subjecting another to the risk of harm where the actor is aware of the existence of the risk and, nonetheless, proceeds in the face of the risk. This, however, is the classic definition of recklessness, which is conceptually different from negligence and which is widely accepted as being a basis for criminal liability.
47.The solution to the issue of punishing what is described loosely, and possibly inaccurately, as negligence is to make a clear distinction between negligence and recklessness and to reserve criminal punishment for the latter. If the conduct in question involves elements of recklessness, then it is punishable and should not be described as merely negligent. If, however, there is nothing to suggest that the actor was aware of the risk deliberately taken, then he is morally blameless and should face, at the most, a civil action for damages.
21. In the case of Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and others [2009 (2) GLH 395], the Supreme Court observed in paras 20, 21 and 22 as under:
20. The broad principles under which medical negligence as a tort have to be evaluated, have been laid down in the celebrated case of Jacob Mathew v. State of Punjab & Anr.
(2005) 6 SCC 1. In this judgment, it has been observed that the complexity of the human body, and the uncertainty involved in medical procedures is of such great magnitude that it is impossible for a doctor to guarantee a successful result and the only assurance that he "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 practicing and while undertaking the Page 20 of 27 HC-NIC Page 20 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER performance of the task entrusted to him he would be exercising his skill with reasonable competence." The Bench also approved the opinion of McNair,J in (Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 (QBD), in the following words:
"[W]here you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence because 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) The Bench finally concluded its opinion as follows:
"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 the 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 Page 21 of 27 HC-NIC Page 21 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER 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 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 case (1957) 2 All ER 118 (QBD)holds good in its applicability in India.
21. The observations in the aforesaid case were reiterated in State of Punjab v. Shiv Ram & Ors. (2005) 7 SCC 1. In this case, a suit had been filed against State of Punjab and a lady doctor, a State Government employee, claiming damages for a failed tubectomy as the woman conceived and gave birth to a child notwithstanding the procedure. The suit was decreed against the State Government. This is what this Court had to say while allowing the appeal:
"The plaintiffs have not alleged that the lady surgeon who performed the sterilization operation was not competent to perform the surgery and yet ventured into doing it. It is neither the case of the plaintiffs, nor has any finding been arrived at by any of the courts below that the lady surgeon was negligent in performing the surgery. The present one is not a case where the surgeon who performed the surgery has committed breach of any duty cast on her as a surgeon. The surgery was performed by a technique known and recognized by medical science. It is a pure and simple case of sterilization operation having failed though duly performed. The learned Additional Advocate General has also very fairly not disputed the vicarious liability of the State, if only its employee doctor is found to have performed the surgery negligently and if the unwanted pregnancy thereafter is attributable to such negligent act or omission Page 22 of 27 HC-NIC Page 22 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER on the part of the employee doctor of the State."
22. The Court further held forth a caution that if doctors were frequently called upon to answer charges having criminal and civil consequences, it would frustrate and render ineffective the functioning of the medical profession as a whole and if the medical profession was "hemmed by threat of action, criminal and civil, the consequence will be a loss to the patients.... and no doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the face of an unexpected problem that confronts him during the treatment or the surgery."
22. In Dr. Suresh Gupta v. Government of NCT of Delhi and another [(2004)6 SCC 422], the Supreme Court observed from para 12 onwards as under:
12. It is on these medical papers produced by the prosecution, we have to decide whether the High Court was right in holding that criminal liability prima facie has arisen against the surgeon and he must face the trial. The legal position is almost firmly established that where a patient dies due to the negligent medical treatment of the doctor, the doctor can be made liable in civil law for paying compensation and damages in tort and at the same time, if the degree of negligence is so gross and his act was so reckless as to endanger the life of the patient, he would also be made criminally liable for offence under Section 304-A IPC.
13. Section 304-A IPC reads thus:
304-A. Causing death by negligence.µWhoever 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.
14. On behalf of the doctor learned counsel referred to Section 80 and Section 88 IPC to contend that in various kinds of medical treatment and surgical operation, likelihood of an accident or misfortune leading to death cannot be ruled out. A patient willingly takes such a risk.
This is part of doctor-patient relationship and mutual trust between them.
15. Sections 80 and 88 read as under:
80. Accident in doing a lawful act.µNothing is an offence which is done by accident or misfortune, and without any Page 23 of 27 HC-NIC Page 23 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
88. Act not intended to cause death, done by consent in good faith for persons benefit.µNothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
16. Applying the laid-down test for quashing or refusing to quash the criminal proceedings under Section 482 of the Criminal Procedure Code, we have to find out whether from the complaint and the accompanying medical papers and by accepting the entire case alleged by the prosecution to be true, an order of conviction of the doctor for offence under Section 304-A IPC can be passed.
17. The operation was performed on 18-4-1994 and the patient is alleged to have died on the same day. The post- mortem was performed after three days i.e. on 21-4-1994. According to the post-mortem report, the cause of death was: blockage of respiratory passage by aspirated blood consequent upon surgically incised margin of nasal septum.
18. The medical experts constituting the Special Medical Board set up by the investigation have opined that the blockage of air passage was due to aspiration of blood from the wound and it was not likely in the presence of cuffed endotracheal tube of proper size being introduced before the operation and which remained in position. The team of experts also opined that presence of fluid and clotted blood in respiratory passage is likely, as it invariably occurs ante- mortem due to aspiration from operation site. But they also opined that presence of fluid and clotted blood in the respiratory passage, as noted in the post-mortem report, due to trickling of decomposing bloody fluid and some clot present in the nostril from the site of incision in the nose, cannot be ruled out after the tube is taken out.
19. Dr. Jagannatham, one of the members of the Special Medical Team constituted during investigation has, however, given separate opinion, the details of which we have quoted above. It seems to be to some extent in favour of the accused surgeon. From the post-mortem report and the opinion of the three medical experts of the medical team specially constituted, the case of the prosecution laid against the surgeon is that there was negligence in not putting a cuffed endotracheal tube of proper size and in a manner so as to prevent aspiration of blood blocking respiratory passage.
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20. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as gross negligence or recklessness. It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. v. Adomako relied upon on behalf of the doctor elucidates the said legal position and contains the following observations:
Thus a doctor cannot be held criminally responsible for patients death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.
21. Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as criminal. It can be termed criminal only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patients safety and which is found to have arisen from gross ignorance or gross negligence. Where a patients death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.
22. This approach of the courts in the matter of fixing criminal liability on the doctors, in the course of medical treatment given by them to their patients, is necessary so that the hazards of medical men in medical profession being exposed to civil liability, may not unreasonably extend to criminal liability and expose them to the risk of landing themselves in prison for alleged criminal negligence.
23. For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and the patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.
24. No doubt, in the present case, the patient was a young man with no history of any heart ailment. The operation to Page 25 of 27 HC-NIC Page 25 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER be performed for nasal deformity was not so complicated or serious. He was not accompanied even by his own wife during the operation. From the medical opinions produced by the prosecution, the cause of death is stated to be not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage. This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.
25. Between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrongdoing i.e. a higher degree of morally blameworthy conduct.
26. To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against the doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.
27. See the following concluding observations of the learned authors in their book on medical negligence under the title Errors, Medicine and the Law (by Alan Merry and Alexander McCall Smith at pp. 247-48). The observations are apt on the subject and a useful guide to the courts in dealing with the doctors guilty of negligence leading to death of their patients:
Criminal punishment carries substantial moral overtones. The doctrine of strict liability allows for criminal conviction in the absence of moral blameworthiness only in very limited circumstances. Conviction of any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrongdoing, levels four and five are classification of blame, are normally 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 µ a Page 26 of 27 HC-NIC Page 26 of 27 Created On Sat Dec 05 01:53:49 IST 2015 R/CR.MA/2815/2015 ORDER standard traditionally described as gross negligence.
*** Blame is a powerful weapon. When used appropriately and according to morally defensible criteria, it has an indispensable role in human affairs. Its inappropriate use, however, distorts tolerant and constructive relations between people. Some of lifes misfortunes are accidents for which nobody is morally responsible. Others are wrongs for which responsibility is diffuse. Yet others are instances of culpable conduct, and constitute grounds for compensation and at times, for punishment. Distinguishing between these various categories requires careful, morally sensitive and scientifically informed analysis."
9. In view of the above, this application is allowed. The First Information Report being C.R. No. I-19/2015 registered at Vyara Police Station, District-Tapi is hereby ordered to be quashed.
(J.B.PARDIWALA, J.) Manoj Page 27 of 27 HC-NIC Page 27 of 27 Created On Sat Dec 05 01:53:49 IST 2015