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24. Thus, it appears that the Gujarat Medical Council also arrived at the conclusion that it was the lack of post operative care, which led to the patients contracting infection in their eyes and consequently, the loss of vision.

25. In the aforesaid background, I need to now examine the matter whether the two applicants herein could be said to have committed an offence under section 338 of the IPC. Section 338 IPC is extracted hereunder;

"338. Causing grievous hurt by act endangering life or personal safety of others.-Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both."

26. Two questions fall for my determination;(i) whether the alleged role of the applicants amount to "doing any act" and whether it was so rash or negligent as to endanger the life of the patient.

27. The provisions of section 338, IPC have already been reproduced in the earlier part of this judgment. A perusal thereof would clearly demonstrate that before a person is held guilty of the offence, the following ingredients need to be R/CR.MA/17743/2013 JUDGMENT established.

33. Since there is no moral difference between (i) a positive act and (ii) an omission when a duty is established, it is to be borne in mind that cases of omissions, the liability should be exceptional and needs to be adequately justified in each instance. Secondly, when it is imposed this should be done by clear statutory language. Verbs primarily denoting (and forbidding) active conduct should not be construed to include omissions except when the statute contains a genuine implication to this effect. Thirdly, maximum penalties applied to active wrongdoing should not automatically be transferred to corresponding omissions; penalties for omissions should be re- thought in each case. Indeed, the Indian Penal Code, 1860 does include explicitly the liability due to omissions. And even Indian courts have affirmed so. In the case of Latifkhan (1895) 20 Bom 394, wherein the law imposes a duty to act on a person, his illegal omission to act renders him liable to punishment. While dealing with the imposition of liability for -omission, R/CR.MA/17743/2013 JUDGMENT certain considerations are required to be kept in mind. Does section 338 of the I.P.C recognize that the particular offence may be committed by omission? Some category of offences may, some may not; Does it include medical profession? If the offence is capable of being committed by omission, who all were under a duty to act? Who owed the primary duty? What are the criteria for selecting the culprit? Where the definition of the crime requires proof that the actor caused a certain result, and can he be said to have caused that result by doing nothing? These questions cannot be completely separated and sometimes few or all three of them would arise in the same material which follows. Each of them, perhaps, also gives rise to yet another question: Is actor's conduct properly categorized as an omission, or an act? Indeed section 338 of the I.P.C does recognize unambiguously that the particular offence can be committed by omission. More so, the medical profession is included in it. The offence under section 338 of the I.P.C is capable of being committed by omission.

R/CR.MA/17743/2013 JUDGMENT

36. Considering the report of the Expert Committee, referred to above, as well as the communication of the Gujarat Medical Council, the alleged negligent conduct in the nature of omission of the applicants is not so gross as to entail the criminal liability on the applicants under section 338 of the IPC. As observed by the Supreme Court in P.B. Desai (supra) that the crime as mentioned in section 338, IPC requires proof that the applicants caused the condition of the patient to the acute stage. To put it in other words, proof that the applicants omission to act led to the loss of vision. Can the two applicants be said to have caused such a result by their omission to act? I do not find it to be so, considering the report of the expert committee.