Supreme Court: Court should examine medical expert prior to framing of charge in case of medical negligence

“Jacob Mathew Vs. State of Punjab & Anr.”, reported

in (2005) 6 SCC 1. Paragraph 52 of the Judgment

reads as under :-

“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 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.”

As admittedly, no medical expert has been

examined in this case, we set aside the impugned

orders passed by the courts below and remand the case

to the trial court to examine the witnesses and to

take the view of the medical expert on behalf of the

complainant and only thereafter, to form an opinion

whether any charge is made out in the case or not.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2063 OF 2010

ARUNA Vs  MUKUND 

Dated: OCTOBER 03, 2019.

Heard the learned counsel appearing for the

parties.

The appellants have come up in this appeal,

aggrieved by the Judgment and order dated 24.09.2008

passed by the High Court of Judicature of Bombay,

Bench at Nagpur, in Crl. Writ Petition No. 482 of

2006, thereby quashing the order passed by the

Sessions Court of discharging the appellants from the

charges under Section 304 A read with Section 34 IPC.

The matter relates to administering medicine of

Lariago. The Trial Court framed the charges after

examining the witnesses. On revision being filed,

the revision was allowed by the Sessions Court. The

order had been questioned before the High Court. The

High Court has set aside the order of the Sessions

Court and restored the order of the Magistrate.

We have heard the learned counsel for the

parties. Mr. Dhruv Mehta, learned senior counsel,

has placed reliance on a decision of this Court in

“Jacob Mathew Vs. State of Punjab & Anr.”, reported

in (2005) 6 SCC 1. Paragraph 52 of the Judgment

reads as under :-

“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 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.”

As admittedly, no medical expert has been

examined in this case, we set aside the impugned

orders passed by the courts below and remand the case

to the trial court to examine the witnesses and to

take the view of the medical expert on behalf of the

complainant and only thereafter, to form an opinion

whether any charge is made out in the case or not.

Obviously, the trial court shall not be influenced by

any of the observations made by this Court or in the

impugned order passed by the High Court. The matter

to be decided strictly in accordance with law on the

basis of the evidence and after hearing both the

sides.

The appeal is allowed to the aforesaid extent.

.......................J.

[ ARUN MISHRA ]

.......................J.

[ VINEET SARAN ]

.......................J.

[ S. RAVINDRA BHAT ]

New Delhi;

OCTOBER 03, 2019.

Print Page