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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 636 OF 2017 [Arising out of SLP (Crl.) No. 7186 of 2014]

Dr. Sou Jayshree Ujwal Ingole  . . . . Appellant(s)

Versus

State of Maharashtra & Anr. . . . Respondent(s)

J U D G M E N T

Deepak Gupta, J.

Leave granted.

2. The  appellant  herein  is  a  doctor  and has  challenged  the

Order dated 18.06.2014 passed by the High Court of Judicature

of Bombay, Nagpur Bench in Criminal Application (APL) No. 354

of 2012, whereby the petition filed by the appellant under Section

482 CrPC for quashing the criminal proceedings initiated against

her under Section 304-A IPC was dismissed.

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3. Briefly stated the facts of the case are that one Shrikrishna

Gawai (hereinafter referred to as the ‘deceased’) was admitted on

account  of  injuries  suffered  in  a  road  accident,  in  the  Irvin

Hospital, Amravati on 29.08.1997 for medical treatment.  It is the

admitted case of the parties that the deceased was suffering from

Haemophilia,  a  disease in which there  is  impairment  of  blood

clotting.   Therefore,  special  attention  was  required  to  be  paid

during the treatment of the patient.   It is not disputed that one

Dr.  Manohar  Mohod  was  on  duty  as  an  Emergency  Medical

Officer.    On 29.08.1997 the  patient  was treated both  by  the

appellant and Dr. Mohod.  On 30 & 31.08.1997, the deceased

was attended upon by Dr. Dhirendra Wagh.   Thereafter also, the

deceased remained in the Hospital  under the treatment of  the

appellant and Dr. Mohod.    

4. Dr. Mohod, the Emergency Medical Officer attended upon

the deceased on 05.09.1997 at 9.00 p.m. and found that he was

suffering from abdominal pain and, thereafter, a call was sent to

the appellant, who was Surgeon on Call.   It is not disputed that

the appellant went to the Hospital on being called.  She attended

upon the deceased and made a note that a Physician be called.

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Thereafter, she left the Hospital.   In the morning on 06.09.1997,

the condition of the deceased worsened and he died.    

5. The  main  allegation  against  the  appellant  is  that  after

having called for a Physician, she did not wait in the hospital and

did not attend upon the patient, especially when the patient was

suffering  from  Haemophilia.  The  Physician,  Dr.  Avinash

Choudhary,  who  is  accused  No.  1,  did  not  turn  up  in  the

hospital.  Even next morning on 06.09.1997, when Dr. Mohod

again attended upon the deceased, the Physician Dr. Choudhary

was  not  present  and,  unfortunately,  the  patient  died.

Thereafter, a complaint was lodged in the police station, wherein

it was alleged by the brother of the deceased that the deceased

died  as  a  result  of  negligence  of  the  three  doctors.    The

complaint was investigated as Crime No. 317 of 1997 which was

initially filed against Dr. Avinash Choudhary only but, later on,

the names of  the appellant Dr. Jayshree Ujwal Ingole and Dr.

Manohar Mohod were also included.   

6. A separate Departmental Enquiry was also carried out and,

in  that  enquiry,  all  the  three  doctors  were  held  negligent  in

performing  their  duties.   Dr.  Mohod  was  debarred  from  an

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annual increment as  penalty; the appellant Dr. Jayshree Ingole

was  permanently  prohibited  from  entering  Irvin  Hospital,

Amravati, and Dr. Avinash Choudhary was transferred.  It would

be pertinent to mention that Dr. Mohod was discharged in the

criminal case on the ground that no case of negligence was made

out against him.   

7. The appellant herein filed a petition for quashing the charge

against her, but this petition was rejected by the learned Single

Judge of  the High Court  of  Bombay at  Nagpur mainly  on the

ground that  the question whether  inaction of  the appellant  in

leaving the deceased at about 11.00 p.m. and not waiting for the

Physician to turn up, amounted to a rash and negligent act on

her behalf, would be decided during trial.   

8. We have  heard learned counsel  for  the  parties.   Learned

counsel for the appellant has placed reliance on the judgment of

this  Court  in  Jacob  Mathew  v.  State  of  Punjab  &  Anr.1,

wherein this  Court  held that  the court  should be circumspect

before  instituting  criminal  proceedings  against  a  medical

professional.  This Court has held that negligence comprises of (i)

1

(2005) 6 SCC 1,

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a  legal  duty  to  exercise  due  care  on  the  part  of  the  party

complained of; (ii) breach of the said duty ; and (iii) consequential

damage.  It was held that in cases where negligence is alleged

against  professionals  like  doctors  the  court  should  be  careful

before instituting criminal proceedings.  It is not possible for any

doctor to assure or guarantee that the result of treatment would

invariably be positive.  The only assurance which a professional

can give is that he is professionally competent, has requisite skill

and has undertaken the task entrusted to him with reasonable

care.   It  would  be  pertinent  to  quote  the  following  relevant

observations made in Jacob Mathew’s  case (supra):  

26. No  sensible  professional  would  intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of  res ipsa loquitur is  not  of  universal  application  and  has  to  be applied  with extreme care and caution to  the  cases of professional  negligence  and  in  particular  that  of  the doctors.  Else  it  would  be  counter-productive.  Simply because  a  patient  has  not  favourably  responded  to  a treatment given by a physician or a surgery has failed, the doctor cannot be held liable  per se by applying the doctrine of res ipsa loquitur.

xxx xxx xxx

28. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering.  He  does  not  gain  anything  by  acting  with negligence  or  by  omitting  to  do  an  act.  Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is

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charged with or proceeded against criminally. A surgeon with  shaky  hands  under  fear  of  legal  action  cannot perform a successful operation and a quivering physician cannot  administer  the  end-dose  of  medicine  to  his patient.

29. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever  reason  — whether  attributable  to  himself  or not,  neither  can  a  surgeon  successfully  wield  his life-saving  scalpel  to  perform an essential  surgery,  nor can  a  physician  successfully  administer  the  life-saving dose  of  medicine.  Discretion  being  the  better  part  of valour, a medical professional would feel better advised to leave a terminal  patient  to his own fate in the case of emergency where the chance of success may be 10% (or so),  rather than taking the risk of  making a last  ditch effort  towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society.

30. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence  of  negligence,  associated  with  the  action  or inaction of a medical professional, requires an in-depth understanding of  the working of  a professional as also the nature of the job and of errors committed by chance, which  do  not  necessarily  involve  the  element  of culpability.

After  discussing  the  entire  law  on  the  subject,  this  Court

concluded as follows:

“48. We sum up our conclusions as under: (1)  Negligence  is  the  breach  of  a  duty  caused  by

omission  to  do  something  which  a  reasonable  man guided by those considerations which ordinarily regulate the  conduct  of  human  affairs  would  do,  or  doing something which a prudent and reasonable man would not do. The definition of negligence as given in  Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or

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omission  amounting  to  negligence  attributable  to  the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”.

(2)  Negligence  in  the  context  of  the  medical profession  necessarily  calls  for  a  treatment  with  a difference. To infer rashness or negligence on the part of a  professional,  in  particular  a  doctor,  additional considerations apply. A case of occupational negligence is different  from one  of  professional  negligence.  A  simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or  method  of  treatment  was  also  available  or  simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions,  what  has  to  be  seen  is  whether  those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary  precautions  which  might  have  prevented the  particular  happening  cannot  be  the  standard  for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the  light  of  knowledge  available  at  the  time  of  the incident, and not at the date of trial. Similarly, when the charge  of  negligence  arises  out  of  failure  to  use  some particular  equipment,  the  charge  would  fail  if  the equipment was not generally available at that particular time  (that  is,  the  time  of  the  incident)  at  which  it  is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or,  he did not exercise, with reasonable competence in the  given  case,  the  skill  which  he  did  possess.  The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary  competent  person  exercising  ordinary  skill  in that profession. It is not possible for every professional to possess  the  highest  level  of  expertise  or  skills  in  that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made  the  basis  or  the  yardstick  for  judging  the performance  of  the  professional  proceeded  against  on indictment of negligence.

(4)  The test  for  determining medical  negligence  as laid  down  in  Bolam  vs.  Friern  Hospital  Management

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Committee (1957) 1 WLR 582 at p. 586 holds good in its applicability in India.

(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”.

(7)  To  prosecute  a  medical  professional  for negligence under criminal law it must 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  hazard  taken  by  the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

(8)  Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts  and  helps  in  determining  the  onus  of  proof  in actions  relating  to  negligence.  It  cannot  be  pressed  in service for determining  per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if  at  all,  a  limited  application  in  trial  on  a  charge  of criminal negligence.”

9. Applying the law laid down in Jacob Mathew’s case (supra),

we are of  the view that this is not a case where the appellant

should face trial especially when 20 years have already elapsed.

The  only  allegation  against  the  appellant  is  that  she  left  the

patient.  We must remember that the appellant was a Surgeon on

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Call.   She  came  to  the  hospital  when  she  was  called  and

examined the patient.  As per her judgment, she could find no

evidence of bleeding or injury and, therefore, she had noted that

a Physician be called.  Thereafter, she left the hospital at about

11.00 p.m.   True it is that she did not wait for the Physician to

come, but it can be assumed that she would have expected that

the  Physician  would  come  soon.    This  may  be  an  error  in

judgment  but  is  definitely  not  a  rash  and  negligent  act

contemplated under Section 304-A IPC.  It is nobody’s case that

she  was  called  again  by  the  Nursing  staff  on  duty.    If  the

condition of the patient had worsened between 11.00 p.m. and

5.00 a.m., the next morning, the Nursing staff could have again

called for the appellant, but they did not do so.  Next morning,

the doctor on Emergency Duty,  Dr.  Mohod attended upon the

patient but, unfortunately, he died.   

10. In the facts and circumstance of this case, it cannot be said

that the appellant is guilty of criminal negligence.  At best it is an

error of judgment.   

11. In view of the above discussion, we are of the view that no

case of committing a rash and negligent act contemplated under

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Section 304-A IPC is made out against the appellant.  Her case is

similar  to  that  of  Dr.  Mohod  who  has  been  discharged.   We,

accordingly,  allow  the  appeal,  set  aside  the  judgment  dated

18.06.2014,  passed  by  the  learned  Single  Judge  of  the  High

Court of  Bombay, Nagpur Bench in Criminal  Application (APL)

No.354  of  2012  and  quash  the  criminal  proceedings  initiated

against the appellant vide order dated 28.02.2001, passed by the

Judicial Magistrate, First Class, Court No.6, Amravati in Regular

Criminal  Case No.  310 of  1999 in FIR Crime No.317 of 1997.

Pending application(s), if any, stand(s) disposed of.

................................J. (MADAN. B. LOKUR)

................................J. (DEEPAK GUPTA)

New Delhi, April 06, 2017.

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ITEM NO.1A               COURT NO.5               SECTION IIA (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Petition(s)  for  Special  Leave  to  Appeal  (Crl.)   No(s). 7186/2014

(Arising  out  of  impugned  final  judgment  and  order  dated 18/06/2014 in CRA No. 354/2012 passed by the High Court of Bombay at Nagpur)

DR. Sou JAYSHREE UJWAL INGOLE                   Petitioner(s)

                               VERSUS

STATE OF MAHARASHTRA & ANR.                     Respondent(s)

Date : 06/04/2017 This petition was called on for  pronouncement of judgment today.

For Petitioner(s) Mr. Shirish K. Deshpande, AOR Mr. Mohit Gautam, Adv.

                     For Respondent(s) Mr.Gagan Sanghi, Adv.

Mr. Rameshwar Prasad Goyal, AOR

                  Mr. Nishant Ramakantrao Katneshwarkar, AOR                       

Hon'ble  Mr.  Justice  Deepak  Gupta  pronounced  the reportable  judgment  of  the  Bench  comprising  Hon'ble  Mr. Justice Madan B. Lokur and His Lordship.

The appeal is allowed in terms of the signed reportable judgment.

(Meenakshi Kohli)                            (Sharda Kapoor) Court Master (SH)                           Court Master (NS)

[Signed reportable judgment is placed on the file]