Kar HC | Cognizance of complaint about negligence against a medical practitioner cannot be taken without obtaining an opinion from an expert doctor

Karnataka High Court: Alok Aradhe, J. allowed a petition praying for quashing an order whereby the Principal Civil Judge took cognizance of an alleged negligent act against a doctor; on the grounds of violation of the due process of law and action being barred by limitation.

The petitioner, a medical practitioner, on being consulted by the respondent who was a chronic tobacco chewer having difficulty in opening his mouth, administered treatment to the respondent for a period of 13 days. Following which, the respondent allegedly encountered side effects of medicines and developed a puss formation in the back jaw. Three years later, the respondent filed a complaint against the petitioner for offences under Sections 284 and 326 of the Penal Code, 1860. The same was taken cognizance of and the petitioner inter alia sought quashing of proceedings. Hence, this petition.

Issue: Whether cognizance of a complaint about offence constituting medical negligence can be taken without referring to an expert’s opinion?

The petitioner was represented by Bharath Kumar who contested that taking cognizance for offence as alleged was in violation of the prescribed process of law inasmuch as no expert opinion was obtained before doing so. Reliance was placed on Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1. Further, it was contested that limitation for one year was overdue to which the complaint could not have been admitted. else the same would be impermissible in law. The counsel for the respondent, however, did not concur with such claims and supported the passed order.

The Court’s conclusion relied on the two-fold argument presented. It relied on the Martin F D’Souza case and held that taking cognizance of offence against a medical practitioner without referring to an opinion of an expert doctor is impermissible. It was also held that and the complaint filed by the respondent was barred by limitation as it was filed beyond the statutorily prescribed period of one year.

In light of the aforesaid rationale, the Court allowed the petition and quashed the impugned order. [Prabhakar v. K. Sigbathulla, Criminal Petition No. 2678 of 2017, decided on 31-05-2019]

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