Sunday, 3 November 2019

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

No comments:

Post a comment