High Court of J&K at Jammu: A Bench comprising of M.K. Hanjura J., recently dealt with a petition wherein the petitioner primarily seeked the quashment of the order passed by the Chief Judicial Magistrate in the case wherein an FIR had been filed under Section 304-A of the Ranbir Penal Code against the petitioner and investigation was asked to be undertaken without considering the medical opinion of a team of experts.

The facts of the case are that the petitioner, a B-Grade Surgeon Specialist in a Government Hospital at Sarwal and a lecturer at the Surgery Department of the Government Medical College, Jammu, had treated upon Jai Kumar (patient in question) at the Government Hospital Sarwal, for Gallbladder stones. Following the operation for removal of the stones, owing to the patient complaining of discharge from the drain that was inserted into him during surgery, he was referred to the Government Medical College Jammu for specialized treatment on the 19/1/2013. But on 23/1/2013, he left the hospital despite not being cleared for discharge since the treatment was ongoing. Following this, the patient admitted himself to another hospital wherein, according to a report on the 11/2/2013, he was found to be fit and hence, discharged. 4 days later, the patient passed away. Despite this, the petitioner was made aware that the patient’s father had filed a complaint before the Director of Health Department alleging negligence on the petitioner’s part. An experts’ committee was set up to investigate the complaint which came to the conclusion that even though an injury had occurred to the Bile Duct which was common in such cases, the petitioner had taken appropriate care pre and post operation and had followed the standard protocols of treatment for saving the life of the patient. Despite the aforesaid observation made by the experts’ committee, the complainant went ahead and filed a criminal complaint before the CJM alleging medical negligence on the basis of false and frivolous allegations and the petitioner was not given notice of the criminal complaint until after the order had been passed consequent to which the SHO was directed to conduct a preliminary inquiry in the matter and to get opinions from a Board of Doctors. Following this, despite the medical board giving a unanimous opinion of no medical negligence having occurred in the case, the CJM directed the SHO to file an FIR under Sec. 304-A of the RPC which was simply based on the opinion of a private doctor. Besides, the petitioner was also made aware of the FIR through a news report in the local newspaper and subsequent to which he filed the petition under Sec. 561-A of the Cr.P.C.

The Court pointed out to cases like Ghulam Ahmad Wani v. State of J&K and Dr. Mufti Mehmood Ahmad Farooqi v. State of J&K wherein it was held that negligence would only be proved if it could be shown authoritatively that the acts of omission and commission were such that no medical professional in his ordinary senses and prudence would have done or failed to do. The Court then referred to Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi wherein the Court had held that for conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct. To prosecute a medical professional for negligence under criminal law it would need to 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 Court applied the ratio of law laid down in the above-mentioned cases and held that a simple lack of care, an error of judgment or an accident cannot form a proof of the negligence on the part of a medical professional. In a case, where a medical professional is accused of gross negligence, the Investigating Officer and the private complainants cannot be supposed to have the knowledge of medical science which will give them the stick to determine whether the act attributed to the accused (medical professional), does or does not amount to rash or negligent act under the provisions of Section 304(A) RPC. It also acknowledged that resorting to registering cases against medical practitioners under Sec. 304 of the RPC on the mere asking by private complainants will also deter medical professionals from working since the threat of criminal prosecution will always loom over their heads. The Court noted that in Jacob Mathew v. State of Punjab, the Supreme Court had held that a private complaint may not be entertained unless the complainant has produced, prima facie, evidence before the Court in the form a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor and that such an opinion should come from someone who will give an impartial and unbiased opinion applying the Bolam’s test to the facts collected in the investigation. Thus, keeping in mind the precedents, the Court thought it fit to allow the petitioner’s petition and hence, directed the police to quash the FIR. [Dr. Shyam Kumar Gupta v. State;  2017 SCC OnLine J&K 815, decided on 26.12.2017]

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