A.S.V.NARAYANAN RAO Vs RATNAMALA & ANR
Bench: H.L. GOKHALE,J. CHELAMESWAR
Case number: Special Leave Petition (crl.) 649 of 2011
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1433 OF 2013 (Arising out of Special Leave Petition (Criminal) No.649 of 2011)
A.S.V. Narayanan Rao …Appellant
Versus
Ratnamala & Another …Respondents
J U D G M E N T
Chelameswar, J.
1. Leave granted.
2. This appeal arises out of an order dated 28th October
2010 in Criminal Petition No.6506 of 2007 of the High
Court of Andhra Pradesh.
3. The aforementioned criminal petition was filed
praying that the proceedings initiated against the
appellant herein in C.C. No.600 of 2006 on the file of the
XIV Additional Chief Metropolitan Magistrate, Hyderabad
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for the offence punishable under section 304A IPC be
quashed. The said petition along with another similar
petition by one of the co-accused was heard and disposed
of by a common order (order in appeal).
4. While the petition filed by the appellant herein was
dismissed by the High Court, the other petition of the co-
accused was allowed.
5. The appellant is a cardiologist. The husband of the
first respondent (one Divakar) approached the appellant
herein, complaining of a pain in the chest on 22.04.2002.
Divakar was admitted in the hospital where the appellant
was working and kept in the Intensive Care Unit (ICU).
Thereafter, the appellant informed the first respondent
that Divakar had suffered a mild heart attack. On
23.04.2002, an angiogram was conducted which showed
three blocks in the vessels carrying blood to the heart. On
25.04.2002 at 9.30 a.m., the appellant unsuccessfully
attempted to perform an angioplasty on Divakar. Around
1.30 in the afternoon, the appellant informed the first
respondent that the angioplasty failed as the blocks were
calcified. Same day at around 3.30 p.m., by-pass surgery
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was conducted on Divakar in the same hospital.
Subsequently, various complications developed and
eventually Divakar died on 09.05.2002.
6. On 14.05.2002, the first respondent lodged a
complaint against the appellant and others under section
304A IPC which came to be registered as FIR No.416 of
2002.
7. The police on investigation submitted a final report
on 02.02.2005 treating the case to be one of lack of
evidence. The respondent filed objections before the
Metropolitan Magistrate to the final report and prayed the
Magistrate to take cognizance of the offence. The learned
Magistrate by his order dated 11.12.2006 came to the
prima facie conclusion that there exists material to try the
accused for the offence punishable under section 304A
IPC. Challenging the said order the appellant approached
the High Court by way of Criminal Petition No.6506 of
2007.
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8. By judgment under appeal, the High Court opined
that the material on record “clearly shows negligence on
the part of A1”1 and declined to quash the proceedings.
9. Mr. P.S. Narasimha, learned senior counsel appearing
for the appellant submitted that the High Court clearly
erred in dismissing the petition of the appellant herein.
Learned senior counsel argued that the law laid down by
this Court in Jacob Mathew Vs. State of Punjab & Anr.
(2005) 6 SCC 1 has completely been ignored by both the
learned Magistrate and the High Court in deciding to
proceed with the case against the appellant herein. On
the other hand, learned counsel for the first respondent
submitted that the conduct of the appellant in undertaking
the angioplasty without having a standby surgical unit is
clearly in violation of the established practice of the
medical profession and therefore a clear case of
negligence warranting punishment of the appellant.
1 The sworn statement of Dr. P.V.N. Rao also discloses that A1 without consulting the Anesthetist and without a surgical stand conducted Angioplasty, which should be done by the Surgeon, as the surgeon was out of station which fact he came to know through the Anesthetist. The operation was delayed by 5 hours due to want of surgeon who has to come from New Delhi, which clearly shows the negligence on the part of A1. Further as the patient was a chronic smoker he should be prepared before undertaking Angioplasty and the Cardiac Anesthesian should be consulted for fitness of the patient before conducting the same.
The entire record adduced does not indicate as to whether A1 assessed the condition of the patient on consultation of the cardio Anasthesian and obtained the fitness certificate for going Angioplasty on the patient.
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10. This Court in the case of Jacob Mathew (supra)
considered exhaustively the various aspects of negligence
on the part of a doctor and laid down inter alia;
“48. ….(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”.”
11. This Court further opined that though doctors are not
immune from legal proceedings in the event of their
negligence in discharging their professional duties, in the
interest of the society, it is necessary to protect doctors
from frivolous and unjust prosecution. It was further
pointed out the need to frame either statutory rules or
administrative instructions incorporating guidelines for
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prosecuting doctors on charges of criminal negligence.
This Court therefore, ordered that until such guidelines are
laid down, the following procedure is required to be
followed:-
“52. …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 the Bolam 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 investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”
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12. From the final report submitted by the police in the
instant case, it can be gathered that the records
pertaining to the treatment given to the deceased were
forwarded to the Andhra Pradesh Medical Council and also
the Medical Council of India which opined that the “doctors
seem to have made an attempt to do their best as per
records”.
13. However, the High Court thought it fit to continue the
prosecution of the appellant for two reasons (1) that the
appellant chose to conduct the angioplasty without having
a surgical standby unit and such failure resulted in delay
of 5 hours in conducting by-pass after the angioplasty
failed; and (2) that the appellant did not consult a Cardio
Anesthesian before conducting an angioplasty. According
to the High Court, both the above-mentioned ‘lapses’ on
the part of the appellant “clearly show the negligence” of
the appellant.
14. The basis for such conclusion though not apparent
from the judgment, we are told by the learned counsel for
the first respondent, is to be found in the evidence of Dr.
Surajit Dan given before the A.P. State Consumer
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Redressal Commission in C.D. No. 38 of 2004. It may also
be mentioned here that apart from initiating criminal
proceedings against the appellant and others, the first
respondent also raised a consumer dispute against the
appellant and others. It is in the said proceedings, the
above-mentioned Dr. Dan’s evidence was recorded
wherein Dr. Dan in his cross-examination stated as
follows:-
“…Whenever Cardiologist performs an angioplasty, he requests for the surgical team to be ready as standby. I was not put on standby in the instant case….”
He further stated;
“…The failure of angioplasty put the heart in a compromised position of poor coronary perfusion that increases the risk of the emergency surgery after that. In a planned coronary surgery, the risk is less than in an emergency surgery….”
However, the same doctor also stated;
“….The time gap between the angioplasty failure and the surgery is not THE FACTOR for the death of the patient. The time gap may or may not be a factor for the enhancement of the risk.”
15. Unfortunately, the last of the above extracted
statements of Dr. Surajit Dan is not taken into account by
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the High Court which statement according to us is most
crucial in the context of criminal prosecution of the
appellant.
16. The High Court unfortunately overlooked this factor.
We, therefore, are of the opinion that the prosecution of
the appellant is uncalled for as pointed out by this Court in
Jacob Mathew case (supra) that the negligence, if any,
on the part of the appellant cannot be said to be “gross”.
We, therefore, set aside the judgment under appeal and
also the proceedings of the trial court dated 11.12.2006.
17. The appeal is allowed, however, there shall be no
order as to costs.
….………………………………..J. (H.L. Gokhale)
……………………………………J. (J. Chelameswar)
New Delhi; September 13, 2013
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