P.B.Desai Vs State of Maharashtra

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SLP(CRL.)NO. 9568 OF 2012

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1432/2013

(ARISING OUT OF S. L. P. (CRL.) NO. 9568 OF 2012)

Dr. P.B. DESAI …..APPELLANT

VERSUS

STATE OF MAHARASHTRA & ANR. …...RESPONDENTS

J U D G M E N T

A.K. SIKRI, J.

1. Leave granted.

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2. The appellant herein, a renowned surgeon, stands convicted of the

offence punishable under Section 338 r/w Section 109 of the Indian Penal

Code, 1860 (hereinafter to be referred as the ‘I.P.C’). This conviction was

delivered by the Additional Chief Metropolitan Magistrate, 47th Court,

Esplanade, Mumbai, vide judgment and order dated 05.07.2011. The --

appellant was sentenced to suffer simple imprisonment (SI) till the rising of

the Court and to pay Rs. 50,000/- as and by way of compensation, in default

to suffer simple imprisonment for 3 months. This conviction and sentence

had been upheld by the ld. Additional Sessions Judge vide judgment dated

22.03.2012 and is also confirmed by the High Court of Judicature at

Bombay by way of impugned judgment dated 15.10.2012. Still not satisfied,

the appellant has challenged the judgment of the High Court, by way of

present appeal.

3. To give a glimpse of the episode at the outset, we may mention that

one Smt. Leela Singhi (hereinafter to be referred as the ‘patient’), wife of

Shri Padamchandra Singhi, the complainant, was suffering from Cancer for

which she was under medical treatment since the year 1977. As her

condition did not improve and rather deteriorated over a period of time, in

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1987 she was taken to America and was treated in Sloan Kettering Memorial

Hospital in New York. However, it did not yield any positive results. The

doctors in that hospital declared her beyond surgical treatment and she was

sent back to India on 29.11.1987. In India, she had been under the medical

supervision of Dr. A.K. Mukherjee, for a long time, who started --

administering the medication prescribed by the doctors in U.S.A. Within few

days, the patient started suffering from vaginal bleeding because of which

Dr. A.K. Mukherjee advised her for hospitalization. She was admitted to

Bombay Hospital on 9.12.1987. After a few days of hospitalization, she was

examined by the appellant who advised ‘Exploratory Laparotomy (surgery)’,

in order to ascertain whether the patient’s uterus can or cannot be removed in

order to stop the vaginal bleeding.

4. Nod of a patient for Exploratory Laparotomy was duly taken who

signed the consent form. Dr. Mukherjee, assisted by two other doctors,

began the Exploratory Laparotomy procedure on 22.12.1987. On opening

the abdomen, Dr. Mukherjee found plastering of intestines as well as profuse

oozing of ascetic fluids. He immediately called the appellant who was

performing other surgical procedure in another operation theatre. The

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appellant after seeing the condition of the patient from a distance, found that

it was not possible to proceed with the operation. He advised Dr. A.K.

Mukherjee to close the abdomen. Dr. Mukherjee, thus, closed the abdomen.

The condition of the patient, thereafter, deteriorated due to the formation of

fistula. The patient remained in the hospital for treatment of the fistula. After

remaining in the hospital for about 3 months she was discharged and taken

home by the complainant. But she never recovered and ultimately passed

away on 26.2.1989 at Jaipur.

5. The complainant filed a complaint with the Maharashtra Medical

Council against the appellant and also lodged criminal complaint against the

appellant with the Director General of Police, Maharashtra. Main allegation

against the appellant was that he did not take personal care and attention by

preferring the operation himself. On the contrary he did not ever bother to

even remain present there when Dr. A.K. Mukherjee started surgical

procedure and opened the abdomen. Moreover, when Dr. Mukherjee, on

opening of the abdomen, found that Cancer was at a very advanced stage

and it would not be possible to proceed because there was fluid and

intestines were plastered and he called the appellant for advice, even then the

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appellant did not examine the patient minutely. Instead, after seeing her

from the entrance of the operating room, he advised Dr. Mukherjee to close

the abdomen. So much so, even after the formation of the fistula and the

pathetic condition of the patient, the appellant never bothered to examine or

looked after her. It was alleged that the very advise of the appellant for --

surgical operation, even when doctors at U.S.A. had opined to the contrary,

was inappropriate. It was, thus alleged that the aforesaid acts of omission

and commission amounted to professional misconduct as well as offence

punishable under Section 338 of the I.P.C. Since, there was no overt act on

the part of the appellant, as the surgical procedure was performed by Dr.

A.K. Mukherjee, charge of abetment under Section 109 of I.P.C. was also

leveled against the appellant. Dr. A.K. Mukherjee was also made accused in

the said complaint. However, at a later stage, Dr. A.K. Mukherjee was

dropped from the proceedings at the instance of the complainant.

6. It is on the aforesaid allegations, purportedly proved through oral and

documentary evidence, that the conviction of the appellant is returned by the

courts below.

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7. On the complaint of the complainant, Maharashtra Medical Council

initiated disciplinary action against the appellant and found him guilty of

professional mis-conduct under Para 15 of the Warning Notice of the

Maharashtra Medical Council’s Code of Ethics and Para 3 of the disciplinary

action of the Medical Council of India’s Code of Ethics. It resulted in

issuance of warning under Section 22(1) of the Maharashtra Medical --

Council Act, 1965 vide orders dated 11.2.1991 passed by the Maharashtra

Medical Council. The appellant did not challenge the findings of the

disciplinary committee of the Maharashtra Medical Council and accepted the

order of warning.

8. As we are, in this appeal, concerned with the validity of the conviction

of the appellant under Section 338, IPC, we would like to reproduce that

provision at this stage:

“338. Causing grievous hurt by act endangering life or personal safety of others: Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.”

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9. Questions that falls for determination is as to whether the alleged role

of the appellant amounts to “doing any act” and whether it was so rash or

negligent as to endanger the life of the patient.-

10. Mr. Harish Salve, learned Senior Counsel appearing for the appellant,

at the outset, invited the attention of this Court to the exact charge framed by

the Trial Court which reads as under:-

“Does the prosecution prove that on 22.12.1987 at about 9.00 a.m., at Bombay Hospital, Mumbai, the Accused No. 1, Accused No. 2 - Dr. A.K. Mukherjee, caused grievous hurt to the wife of complainant namely, Leela Singhi by doing an operation of abdomen taking out uterus, so rash or negligently as to endanger human life or the personal safety of wife of the complainant namely, Leela Singhi and thereby committed an offence punishable under Section 338 read with Section 109 of the I.P.C?”

11. His submission was that the specific allegations in the charge framed

against the appellant as well as Accused No. 2 – Dr.. A.K. Mukherjee were

that:-

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a) The charge is for a specific act committed at 9.00 a.m. on 22.12.1987.

b) It is a charge against the Appellant (Accused No. 1) and Dr. A.K. Mukherjee (Acquitted Accused No. 2).

c) The charge is against the two accused under Section 338 r/w Section 109 of I.PC.

-

12. Proceeding therefrom, Mr. Harish Salve, argued that the primary

offender, as per the charge under Section 338 of the I.P.C, was Dr. A.K.

Mukherjee, the doctor who actually performed the procedure and the

appellant was charged as an abettor, using Section 109 of the I.P.C.

However, Dr. A.K. Mukherjee was dropped from the prosecution at the

instance of the complainant himself, on the ground that there was no

evidence against him. On the contrary, the complainant in his testimony

(P.W.1) gave glowing compliments to Dr. A.K. Mukherjee, praising his skills

both as a doctor and a surgeon. In such circumstances, argued Mr. Harish

Salve the question of abetment did not survive and, therefore, the case

warranted closure even against the appellant as well, after dropping Dr.

Mukherjee from the prosecution.

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13. Without prejudice to the aforesaid submissions, further arguments of

Mr. Harish Salve were that, in any case, the ingredients of Section 338 of

I.P.C had not been established. It was merely a case of “negligence”

projected by the prosecution. It could not be held, ipso facto, that the

essential ingredients of the offence contained under Section 338 of I.P.C.

were fulfilled. -

14. Mr. Harish Salve endeavored to demonstrate that the decision of the

appellant to advise the operation, in question, namely “Exploratory

Laparotomy” could not even be treated as unreasonable or an act of

negligent advice. Once it was accepted that the appellant was a renowned

Oncologist with great experience, his opinion to conduct the aforesaid

procedure/ surgery, after examining the patient, was an expert opinion and

merely because he differed from the doctors in U.S.A. on this account,

negligence could not be attributed to him because of the same, much less

criminal negligence.

15. That apart, merely on the basis of negligence, it could not be held that

ingredients of Section 338 of I.P.C. stood proved as it could not amount to

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an “act” of causing “grievous hurt”, that too “rationally and negligently”

thereby endangering the life of the patient. He submitted that, in the first

instance, a medical professional who is called upon to treat a patient cannot

possibly be charged for causing hurt, where the patient has come to the

hospital for receiving treatment inter alia by virtue of Section 81, 87 and 88

of the I.P.C. and where consent for such treatment has been freely given.-

Secondly, in the context of a doctor - patient relationship, even

assuming, without accepting that there could be a situation in which a doctor

can be held to have committed an offence of causing hurt (either for want of

consent or acting with wanton negligence in performing a procedure), it is

inconceivable that a doctor can be charged of causing a hurt by not doing

something. An omission by a surgeon to perform a surgery, in certain

extreme circumstances, may constitute acting in a manner that no medical

professional would, and thereby be a case of criminal negligence. It cannot

possibly be an omission by which hurt, by way of a positive act, is inflicted.

16. Mr. Harish Salve argued that once rendering an opinion to perform

such surgical procedure cannot be treated as criminal offence, in so far as

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actual procedure is concerned, that was not performed by the appellant.

Without accepting, that it was the appellant who was to do the surgery

himself, he submitted that the Courts below fell in legal error by attributing

the so called omission to perform the said surgery by the appellant as an

“act” within the meaning of Section 338 of the I.P.C. He pointed out that the

charge as framed did not even remotely mention about the purported “illegal

omission”. He thus, argued that the Respondents could not base their case

on-

plea of “omission” as an “act”. Even otherwise, in the instant case, the so

called omission could not be treated as an “act” of causing grievous hurt in

as much as, such an omission has to be in relation to the operation that

caused the hurt. Dilating this aspect, the learned senior counsel projected

the theory that illegal omissions could result in causing hurt cannot have any

application to a doctor who has not performed a surgery – where the primary

allegation is that the performance of the surgery constituted the infliction of

hurt. Whatever may be the legal consequences of reneging on an assurance

to perform a surgery, if the surgery is performed by a duly qualified

professional, the surgeon who did not perform the surgery could not possibly

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be guilty of causing hurt. A fortiori, where the surgeon who did perform the

surgery is duly qualified, and is blame free, there is no question of charging,

under Section 338 of I.P.C., some other surgeon who may have been

engaged to perform the surgery, but did not do so.

17. Mr. Harish Salve also sought to distract the charge of abetment under

Section 109 of the I.P.C. by attempting to highlight that as per the charge

framed by the Trial Court, the “act” was attributed to Dr. A.K. Mukherjee

and the primary charge against the appellant was only that of abetment.

With the dropping of Dr. A.K. Mukherjee from the prosecution, the charge

of abetment no more survived, more so when no overt act is attributed to the

appellant and there is no medical or other aspect examined to show grievous

hurt resulted because of the surgery. The appellant placed reliance upon the

decisions of this Court in Faguna Kant Nath v. The State of Assam (1959) 2

Suppl. SCR 1; Madan Raj Bhandari v. State of Rajasthan (1969) 2 SCC

385.

18. Mr. B.H. Marlapalle, learned Senior Counsel appearing for the State

invited the attention of this Court to the reasons recorded by the Maharashtra

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Medical Council in its orders dated 11.2.1991 holding the appellant guilty of

misconduct. He pointed out that under the Maharashtra Medical Council

Act, 1965, the proceedings against the appellant were in the nature of

judicial proceedings under Sections 22 of the said Act and since these

findings of the Medical Council had attained finality, there was no basis in

the submission of the appellant that he had not acted negligently. He also

referred to the findings recorded by the trial court and the High Court and

submitted as under:

-

a) The patient Smt. Leela Singhi was admitted at the Bombay

Hospital as the patient of the present accused in Room No.

1005 (MRC I Class).

b) She had given consent for being operated by the present

accused.

c) It was the accused mainly who took the decision to operate the

patient for exploratory surgery despite a written opinion from

the doctors of USA that she was inoperable.

d) As per the evidence of DW.2, Dr. Gajanand Hegade, Dr. A.K.

Mukherjee was the Assistant Surgeon under the present accused

and it was not permissible for him to perform any procedure

independently.

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e) The accused had accepted two different surgeries in two

different operation theatres (OT 1 and OT 2) at the same time

on 20.12.1987 at the Bombay Hospital and Mrs. Leela Singhi

was taken in OT 2. He instructed Dr. A.K. Mukherjee to open

the abdomen of Mrs. Leela Singhi and went to OT1 to attend

another surgery. After Dr. A.K. Mukherjee, as per the

instructions of the present accused, Dr. P.B. Desai took a cut he

immediately noticed that the process was unmanageable for

him and the said process was started in the absence of Dr.

Desai. Dr. Mukherjee, therefore, in deperation sent for Dr.

Desai to come to OT 2 and attend to Mrs. Singhi for further

procedure. Dr. Desai did not turn up and, therefore, after

waiting for some time -and leaving the patient, Dr. Mukherjee

went to OT1 to request Dr. Desai to come and attend to Mrs.

Singhi. Dr. Desai came to OT 2 and by standing at a distance of

6 feet, instructed Dr. Mukherjee to stitch the abdomen as the

case was inoperable. He did not touch the patient, leave alone

stitching the abdomen by himself. The patient remained in the

Hospital for over three months and for about initial one month

she required dressing every one hour because of the bleeding

from the stitches. This pain and suffering of the patient could

have been avoided/ reduced if Dr. Desai himself had stitched

the abdomen. After the wound was stitched and till the patient

was discharged on 5.4.1998, Dr. Desai did not, even once,

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attend to Mrs. Singhi and the patient missed the healing touch

of the surgeon who was authorized to operate her.

f) After the patient’s husband (PW.1) started writing complaints,

Dr. Desai flatly denied that Mrs. Singhi was his patient. And Dr.

Desai continued the denial even till the end of the trial despite

the fact that the Maharashtra Medical Council had held him

guilty after a full fledged enquiry under Section 22 of the

Maharashtra Medical Council Act, 1965 and warned him, so

also three witnesses from the hospital i.e. PW.2, PW.3 and PW.5

were examined by the prosecution to prove that Mrs. Leela

Singhi was the patient of Dr. Desai. This entire behavior of Dr.

Desai during the operation stage and post operation and -post

complaint/ during trial was not commensurate with his

professional eminence.

19. Submissions of Mr. B.H. Marlapalle were that the aforesaid admitted

facts were sufficient to establish commission of offence under Section 338

of the I.P.C., in as much as, it has been proved beyond reasonable doubts

that because of the procedure with which the patient was subjected to, under

the instructions of the appellant, the patient suffered grievous hurt which

also endangered her life and it was he alone who was negligent and acted

rashly from 20.12.1987 till the patient was discharged on 5.4.1988. He

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argued that it is not necessary to evaluate as to whether his decision to

operate Mrs. Singhi could be said to be rash or negligent, (though it was

hazardous) but surely having taken the decision to operate her, the appellant

did not operate her and instead instructed Dr. Mukherjee to proceed with the

first cut and Dr. Desai even abandoned the patient and went to the other

operation theatre. When he came back to OT 2, he did not attend to Mrs.

Singhi and stitched the cut. This was second act of rash and negligent

behavior of the appellant. Thirdly, even after the operation, he never

attended to Mrs. Leela Singhi till she was discharged and thus again this was

another act of rash and negligent behavior. Though this could be said to be

omissions of Dr. Desai, the word “doing any act” as appearing in Section

338 is required to be read with Section 32, 33 and 36 of I.P.C. The learned

counsel pointed out that in every part of this Code, except where a contrary

intention appears from the context, words which refer to acts done extend

also to illegal omissions. Section 33 of I.P.C. states that the word “act”

denotes as well a series of acts as a single act and the word “omission”

denotes as well as series of omissions as a single omission. Whereas, as per

Section 36 of the I.P.C. - wherever the causing of a certain effect, or an

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attempt to cause that effect, by an act or by an omission, is an offence, it is to

be understood that the causing of that effect partly by an act and partly by an

omission is the same offence. It was thus, argued that all the acts proved

against the appellant and the omissions attributable to him, form the part of

the same offence viz., an offence under Section 338 of causing grievous hurt

by rash and negligent acts/ omissions. The said offence is not attributable to

a single act or omission but it denotes a series of omissions/ acts as a single

omission/ act. -

20. According to the learned State Counsel even the offence under Section

109 of I.P.C. was proved, notwithstanding the fact that Dr. Mukherjee was

dropped from the proceedings. He referred to Section 107 of I.P.C. which

defines Abetment of a thing - by stating that a person abets a doing of a

thing who, inter alia, intentionally aids, by any act or illegal omission the

doing of that thing. As per Section 109 of I.P.C. whoever abets any offence

shall, if the act abetted is committed in consequence of the abetment, and no

express provision is made by the I.P.C. for the punishment of such abetment,

be punished with punishment provided for the offence. Thus, the offence

under Section 109 is an independent offence but the punishment is related

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with other offence. In the instant case, with the offence punishable under

Section 338, as the appellant instructed Dr. Mukherjee to open the abdomen

of Mrs. Singhi who was not authorized to do so and left the operation theatre

leaving the patient in the charge of Dr. Mukherjee, the appellant abetted

through Dr. Mukherjee. The words “intentionally acts” used in Section 107

(thirdly) of I.P.C. are required, to be read, in the instant case as “knowingly

instructs”. The prosecution case has not in any way effected because of the

discharge of Dr. Mukherjee by allowing an -application under Section 321 of

Cr. PC. as Dr. Mukherjee was not competent to undertake the procedure

independently and he undertook the procedure solely as per the instructions

of the appellant. Hence, the prosecution urged that the accused has been

rightly convicted under Section 338 r/w Section 109 of I.P.C.

21. Mr. Gonsalves, ld. Senior Counsel, argued for the complainant/

Respondent No. 2, and pleaded that the conviction recorded by the Court

below were perfectly justified which required no interference. He referred to

the following facts which according to him, were established by sufficient

and cogent evidence.

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(a) The appellant alone was the doctor of the patient to whom the patient was specifically referred to by Dr. Mukherjee from the stage of examining the patient and advising surgical operation. The entire responsibility was that of the appellant even to do the surgery in as much as the patient as well as the complainant recognized only one doctor namely the appellant.

(b) The appellant took a particular decision viz., to perform Exploratory Laparotomy and this itself was “rash and negligent” act on the part of the appellant, when examined the same in juxtaposition with the advise rendered by the doctors in U.S.A.-

c) The instruction of the appellant to Dr. Mukherjee to operate, when Dr. Mukherjee was not authorized by the Complainant/ Respondent No. 2 was another act of rash and negligent nature.

d) The appellant had consciously and deliberately abandoned his patient twice – one at the time of operation and thereafter, not attending and treating her to ameliorate her pain and suffering, which was another rash and negligent act.

These acts, according to Mr. Gonsalve, were sufficient to specify the

ingredients of Section 338 of I.P.C.

22. Mr. Gonsalves, also pointed out that the only defence of the appellant

was that Smt. Leela Singhi was not her patient which has been proved to be

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false. Therefore, the appellant could not be allowed to argue to the contrary.

Mr. Gonsalves also referred to the findings of the Maharashtra Medical

Council, as argued by the State Counsel, to buttress his submission that the

guilt of the appellant stood proved.

23. We have given our deep thoughts to the aforesaid submissions made

by the learned Senior Counsel appearing for different parties. The provisions

of Section 338 IPC have already been reproduced in the earlier part of this --

judgment. A perusal thereof would clearly demonstrate that before a person

is held guilty of the offence, following ingredients need to be established:

a) Causing grievous hurt to a person. b) Grievous hurt should be the result of an act. c) Such act ought to have been rash and negligent. d) The intensity of commission of such an act ought to endanger

human life or the personal safety of others.

24. Before we find out as to whether these essential ingredients have been

satisfied in the present case or not, another aspects needs discussion, viz.,

whether Smt. Leela was the patient of the appellant or not.

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The Established Facts

To find an answer to this question, let us revert to those facts which

have been established by evidence. Respondent No.2 on the advice of Dr.

A.K. Mukherjee admitted her in the unit of the appellant at Bombay Hospital

on the basis of a note for admission given by Dr. A. Mukherjee. The

operation namely “Exploratory Laprotomy Panhyxtroctomy” was advised by

the appellant. At Bombay Hospital, a number of medical tests referred by the

appellant including CT Scan, Blood Analysis, Blood transfusion report, --

examination of urine, microscopic examination of centrifugalised deposits

were done on the patient. As per the Bombay Hospital records, the patient -

Smt. Leela Singhi was admitted as the indoor patient from 09.12.1987 to

4.5.1988 in Room No. 1005 under the appellant. Room No. 1005 was

earmarked for the appellant and never allotted to any other patient without

instructions of the appellant. The date of operation was fixed as per the

convenience and on instructions of the appellant five days after his advice.

The patient was examined by the appellant after preliminary investigations

by Dr. A. K Mukherjee. A bill of Rs. 5000/- as the operation fee rendered by

the operating surgeon Accused No 1 - the appellant, was raised by Bombay

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Hospital which was sent to Government of Rajasthan for payment. The

documents also showed the appellant as operating surgeon. The constant

reminders for the clearance of the bill were made to the Government of

Rajasthan for releasing of the payment. The Respondent No. 2 had objected

for charging of Rs. 5000/- in the name of the appellant for the operation

which admittedly the appellant had never carried on his wife, the operation

which according to the Bombay Hospital records was to be conducted by the

appellant. Thereafter, Respondent No.2 made a complaint to the Board of --

Management of the Bombay Hospital regarding the behaviour of the

appellant and even met the chairman of the hospital. Resultantly, the charges

of Rs. 5,000/- against the appellant were waived. After the correspondence,

Bombay Hospital sent a duplicate bill deleting Rs. 5,000/- which was the

operation fee charges for the appellant.

We may record that the defence put by the appellant in the Trial Court

was that Smt. Leela Singhi was not her patient but the same has rightly been

rejected by the Courts below in view of plethora of evidence, establishing

otherwise. Thus, it can be concluded that Smt. Leela was the patient of the

appellant and it was his responsibility to take care of his patient.

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25. The answer can also be founded on the nature of professional duty

which appellant owed to the patient. Usually before the operation, consent

form is required to be signed by the patient for agreeing to the risks

involved. The documentary medical records of surgical operation pointed to

the appellant as the operating surgeon, the oral and documentary proof both

impliedly and explicitly leads to the creation of contractual agreement

between the patient and the appellant. -

26. In Lambert v. California ( 355 U.S 225 (1957), the Supreme Court of

United States seems to recognize the unfairness of imposing liability where

an actor is unaware of a duty to act. Similarly the Indian Constitution

mandates under Articles 20(1) & 21 of the Constitution of India that the due

process of law requires that everyone who is tried under any law before

court must have some awareness of, or at least a reasonable opportunity to

become aware of their legal owed duty towards its recipient. In this case, at

hand, the appellant was aware of his duty towards the patient - Smt. Leela as

the appellant was the patient’s operating surgeon. To the utter disregard of

the patient, the appellant vehemently denied her to be his patient. Since the

documentary evidences are conclusive in nature also all the facts which had

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been perused below in the courts undoubtedly point to the undeniable fact

that the patient - Smt. Leela was indeed the appellant’s patient.

27. Thus, brushing aside the objection of the appellant that Smt. Leela

Singhi was not his patient, on the facts of this case we proceed to find out

whether conviction u/s 338 is sustainable or not.

28. For time being we keep aside the first element, viz. whether the

surgical procedure of opening the abdomen of the patient resulted in --

grievous hurt. That is dealt with at appropriate stage. Before that we

discuss the preliminary submission as to whether this act can be attributed to

the appellant. Vehemence in the submission was that there is no “overt” act

on the part of the appellant. Therefore, question arises, in the context of

second ingredient, as to whether “omission to act”, would also be covered by

the expression “act” occurring therein.

29. Whether “act” includes “omission”? Though this aspects needs

elaboration alongwith discussion with regard to other ingredients as these

are inextricably mixed up and can’t be discussed in isolation and, therefore,

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we have proceeded in that manner at appropriate stage. Here, we are

narrating the legal position only. In this behalf, we may point out that there

may be various circumstances where “act” would include “omission to act”

as well. This is so recognized even in Sections 32, 33 & 36 of I.P.C.

These provisions are reproduced below:

“32. Words referring to acts include illegal omissions. - In every part of the said code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions. -

33. “Act”, “Omission”. - The word “act” denotes as well a series of acts as a single act: the word “omission” denotes as well a series of omissions as a single omission.

36. Effect caused partly by act and partly by omission. - Wherever the causing of certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence."

30. The legal understanding of omission is indispensable at the juncture.

An omission is sometimes called a negative act, but this seems dangerous

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practice, for it too easily permits an omission to be substituted for an act

without requiring the special requirement for omission liability such as legal

duty and the physical capacity to perform the act. Criminal liability for an

omission is also well accepted where the actor has a legal duty and the

capacity to act. It is said that this rather fundamental exception to the act

requirement is permitted because an actor’s failure to perform a legal duty of

which he is capable, satisfies the purposes of the act requirement or at least

satisfies them as well as an act does. Specifically these two special

requirements for omission liability help to exclude from liability cases of --

fantasizing and irresolute intentions, important purposes of the act

requirement.

31. However, a failure to act, by itself does nothing to screen out mere

fantasies. It is the actor’s failure to act in the light of his capacity to do so

that suggests the actor’s willingness to go beyond mere fantasizing and to

have the harm or evil of the offence occur. Even then, however, the

screening effect seems weak; “letting something happen” simply does not

carry the same implication of resolute intention that is shown in causing

something to happen by affirmative action. While an actor’s failure to

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perform a legal duty provides some evidentiary support for the existence of

an intention to have the harm or evil occur, the force of the implication is

similarly weak. Inaction often carries no implication of intention unless it is

shown that the actor knows of his or her duty to act and the opportunity to

do so.

32. Liability for an omission requires a legal duty to act; a moral duty to

act is not sufficient. The duty may arise either from the offence definition

itself or from some other provision of criminal or civil law. A duty arises

from the former when an offence is defined in terms of omission. This is the

-situation where the legislature has made it an offence. A legal duty to act

may also be created by a provision of either criminal or civil separate from

the offence charged. For example, a duty under the Maharashtra Medical

Council’s Code of Ethics and Maharashtra Medical Council Act, 1965.

33. Since there is no moral difference between (i) a positive act and (ii) an

omission when a duty is established, it is to be borne in mind that cases of

omissions, the liability should be exceptional and needs to be adequately

justified in each instance. Secondly, when it is imposed this should be done

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by clear statutory language. Verbs primarily denoting (and forbidding) active

conduct should not be construed to include omissions except when the

statute contains a genuine implication to this effect. Thirdly, maximum

penalties applied to active wrongdoing should not automatically be

transferred to corresponding omissions; penalties for omissions should be re-

thought in each case. Indeed, the Indian Penal Code, 1860 does include

explicitly the liability due to omissions. And even Indian courts have

affirmed so. In the case of Latifkhan (1895) 20 Bom 394, wherein the law

imposes a duty to act on a person, his illegal omission to act renders him

liable to punishment. While dealing with the imposition of liability for --

omission, certain considerations are required to be kept in mind. Does

section 338 of the I.P.C recognize that the particular offence may be

committed by omission? Some category of offences may, some may not;

Does it include medical profession? If the offence is capable of being

committed by omission, who all were under a duty to act? Who owed the

primary duty? What are the criteria for selecting the culprit? Where the

definition of the crime requires proof that the actor caused a certain result,

and can he be said to have caused that result by doing nothing? These

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questions cannot be completely separated and sometimes few or all three of

them would arise in the same material which follows. Each of them, perhaps,

also gives rise to yet another question: Is actor’s conduct properly

categorized as an omission, or an act? Indeed section 338 of the I.P.C does

recognize unambiguously that the particular offence can be committed by

omission. More so, the medical profession is included in it. The offence

under section 338 of the I.P.C is capable of being committed by omission.

34. We reiterate that we have stated, explained and clarified the meaning

of expression “act” occurring in Section 338 IPC, to include acts of omission

as well. Its applicability in the instant case has been discussed elaborately at

the relevant portion of this judgment so as not to lose the continuum.

35. As we find that “omission” on the part of the appellant would also be

treated as “act” in the given circumstances, the issue is as to whether this act

of omission was rash & negligent. This is a pivotal & central issue which

needs elaborate and all pervasive attention of the court. To create the edifice,

brick by brick, we intend to proceed in the following order:

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1. The Doctor-Patient Relationship. 2. Duty of care which a doctor owes towards his patient. 3. When this breach of duty would amount to negligence. 4. Consequences of negligence: Civil and Criminal. 5. When criminal liability is attracted. 6. Whether appellant criminally liable u/s 338 IPC, in the present

case?

(1) The Doctor- Patient relationship

36. Since ancient times, certain duties and responsibilities have been cast

on persons who adopt the sacred profession as exemplified by Charak’s Oath

(1000 BC) and the Hippocracic Oath (460 BC).

-

37. It is the responsibilities that emerge from the doctor-patient

relationship that forms the cornerstone of the legal implications emerging

from medical practice. The existence of a doctor-patient relationship

presupposes any obligations and consequent liability of the doctor to the

patient.

38. It was Talcott Parsons, a social scientist, who first theorized the

doctor-patient relationship. He worked on the hypothesis that illness was a

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form of dysfunctional deviance that required re-integration with social

organism. Maintaining the social order required the development of a

legitimized sick role to control this deviance, and make illness a transitional

state back to normal role performance. In this process, the physician, who

has mastered a body of technical knowledge, on a functional role to control

the deviance of sick persons who was to be guided by an egalitarian

universalism rather than a personalized particularism. While this basic

notion has remained robust, over a period of time there have been numerous

qualifications to the theory of Parsons. For instance, physicians and the

public consider some illnesses to be the responsibility of the ill, such as lung

cancer, AIDA and obesity.

-

39. It is not necessary for us to divulge this theoretical approach to the

doctor-patient relationship, as that may be based on model foundation.

Fact remains that when a physician agrees to attend a patient, there is an

unwritten contract between the two. The patient entrusts himself to the

doctor and that doctor agrees to do his best, at all times, for the patient.

Such doctor-patient contract is almost always an implied contract, except

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when written informed consent is obtained. While a doctor cannot be forced

to treat any person, he/she has certain responsibilities for those whom he/she

accepts as patients. Some of these responsibilities may be recapitulated, in

brief:

(a) to continue to treat, except under certain circumstances when doctor can abandon his patient;

(b) to take reasonable care of his patient;

(c) to exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and patient where the patient is told, in effect, “Medicine is not an exact science. I shall use my experience and best judgment and you take the risk that I may be wrong. I guarantee nothing.”-

(d) Not to undertake any procedure beyond his control: This depends on his qualifications, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure/treating a complicated case.

(e) Professional secrets: A doctor is under a moral and legal obligation not to divulge the information/knowledge which he comes to learn in

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confidence from his patient and such a communication is privileged communication.

Conclusion: The formation of a doctor-patient relationship is integral to the

formation of a legal relationship and consequent rights and duties, forming

the basis of liability of a medical practitioner. Due to the very nature of the

medical profession, the degree of responsibility on the practitioner is higher

than that of any other service provider. The concept of a doctor –patient

relationship forms the foundation of legal obligations between the doctor

and the patient.

In the present case, as already held above, doctor-patient relationship

stood established, contractually, between the patient and the appellant.

(2) Duty of Care which a doctor owes towards his patient.-

40. Once, it is found that there is ‘duty to treat’ there would be a

corresponding ‘duty to take care’ upon the doctor qua/his patient. In certain

context, the duty acquires ethical character and in certain other situations, a

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legal character. Whenever the principle of ‘duty to take care’ is founded on

a contractual relationship, it acquires a legal character. Contextually

speaking, legal ‘duty to treat’ may arise in a contractual relationship or

governmental hospital or hospital located in a public sector undertaking.

Ethical ‘duty to treat’ on the part of doctors is clearly covered by Code of

Medical Ethics, 1972. Clause 10 of this Code deals with ‘Obligation to the

Sick’ and Clause 13 cast obligation on the part of the doctors with the

captioned “Patient must not be neglected”. Whenever there is a breach of

the aforesaid Code, the aggrieved patient or the party can file a petition

before relevant Disciplinary Committee constituted by the concerned State

Medical Council.

(3) When this breach of duty would amount to negligence?

41. When reasonable care, expected of the medical professional, is not

rendered and the action on the part of the medical practitioner comes within

the mischief of negligence, it can be safely concluded that the said doctor --

did not perform his duty properly which was expected of him under the law

and breached his duty to take care of the patient. Such a duty which a doctor

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owes to the patient and if not rendered appropriately and when it would

amount to negligence is lucidly narrated by this Court in Kusum Sharma and

others v. Batra Hospital and Medical Research Centre and Others; (2010) 3

SCC 480. The relevant discussions therefrom are reproduced hereinbelow:

“45. According to Halsbury’s Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:

22. Negligence.—Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”

46. In a celebrated and oft cited judgment in Bolam v. Friern Hospital Management Committee (Queen’s Bench Division)

McNair, L.J. observed:

(i) A doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular -art, merely because there is a body of such opinion that takes a contrary view.

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“The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow one in preference to the other accords also with American law; see 70 Corpus Juris Secundum (1951) 952, 953, Para 44. Moreover, it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself, negligence McNair, L.J. also observed:

Before I turn to that, I must explain what in law we mean by ‘negligence’. In the ordinary case which does not involve any special skill, negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this man exercising and professing to have that special skill. … A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

-

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(4) Breach of Duty to Take Care: Consequences

42. If the patient has suffered because of negligent act/ omission of the

doctor, it undoubtedly gives right to the patient to sue the doctor for

damages. This would be a civil liability of the doctor under the law tort and/

or contract. This concept of negligence as a tort is explained in Jacob

Mathews v. State of Punjab and Another 2005(6) SCC1, in the following

manner:

“10. The jurisprudential concept of negligence defines any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well stated in the Law of Torts, Ratanlal & Dhirajlal (24th Edn., 2002, edited by Justice G.P. Singh).

Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property…. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty;

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(2) breach of the said; and (3) consequential damage. Cause of -action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.”

43. Such a negligent act, normally a tort, may also give rise to criminal

liability as well, though it was made clear by this Court in Jacob’s Case

(supra) that jurisprudentially the distinction has to be drawn between

negligence under Civil Law and negligence under Criminal Law. This

distinction is lucidly explained in Jacob’s Case, as can be seen from the

following paragraphs:

“12. The term “negligence” is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The

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essential ingredient of mens -rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R. v. Lawrence Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell3 and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being “subjective” or “objective”, and said: (All ER p. 982e-f) “Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.”

13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimising violations, --

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may be motivated by thrill-seeking. These are clearly reckless.

14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions4 stated: (All ER p. 556 C) “Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established.” Thus, a clear distinction exists between “simple lack of care” incurring civil liability and “very high degree of negligence” which is required in criminal cases. In Riddell v. Reid4a (AC at p. 31) Lord Porter said in his speech — “A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability.”

15. The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka5. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere

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preponderance of probability is sufficient, and the -- defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.”

44. Thus, in the civil context while we consider the moral implications of

negligent conduct, a clear view of the state of mind of the negligent doctor

might not require strictly. This is for the reason the law of tort is ultimately

not concerned with the moral culpability of the defendant, even if the

language of fault is used in determining the standard of care. From the point

of view of civil law it may be appropriate to impose liability irrespective of

moral blameworthiness. This is because in civil law two questions are at

issue: Was the defendant negligent? If so, should the defendant bear the loss

in this particular set of circumstances? In most cases where negligence has

been established, the answer to the second question will be in the

affirmative, unless the doctrine of remoteness or lack of foresee ability

militates against a finding of liability, or where there is some policy reason

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precluding compensation. The question in the civil context is, therefore, not

about moral blame, even though there will be many cases where the civilly

liable defendant is also morally culpable.

(5) Criminal Liability : When attracted

45. It follows from the above that as far as the sphere of criminal liability

is concerned, as mens rea is not abandoned, the subjective state of mind of

the accused lingers a critical consideration. In the context of criminal law,

the basic question is quite different. Here the question is: Does the accused

deserve to be punished for the outcome caused by his negligence? This is a

very different question from the civil context and must be answered in terms

of mens rea. Only if a person has acted in a morally culpable fashion can this

question be answered positively, at least as far as non strict liability offenses

are concerned.

46. The only state of mind which is deserving of punishment is that which

demonstrates an intention to cause harm to others, or where there is a

deliberate willingness to subject others to the risk of harm. Negligent

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conduct does not entail an intention to cause harm, but only involves a

deliberate act subjecting another to the risk of harm where the actor is aware

-of the existence of the risk and, nonetheless, proceeds in the face of the risk.

This, however, is the classic definition of recklessness, which is

conceptually different from negligence and which is widely accepted as

being a basis for criminal liability.

47. The solution to the issue of punishing what is described loosely, and

possibly inaccurately, as negligence is to make a clear distinction between

negligence and recklessness and to reserve criminal punishment for the

latter. If the conduct in question involves elements of recklessness, then it is

punishable and should not be described as merely negligent. If, however,

there is nothing to suggest that the actor was aware of the risk deliberately

taken, then he is morally blameless and should face, at the most, a civil

action for damages.

(6) Whether the appellant criminally liable under Section 338 IPC, in the present case?

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48. We have to keep in mind that by the impugned judgment, the appellant

is convicted of an offence under Section 338 read with Section 109 of I.P.C.

Therefore, the relevant question to be decided is as to whether, the -acts of

omission and commission, imputed to the appellant, are sufficient to hold

that all the ingredients of Section 338 of the I.P.C. stand satisfied.

49. The section explicitly lays down that only that ‘act’ which is “so

rashly or negligently as to endanger human life, or the personal safety of

others, shall be punished....”. Thus the section itself carves out the standard

of criminal negligence intended to distinguish between those whose failure

is culpable and those whose conduct, although not up to standard, is not

deserving of punishment.

50. One of the several questions which arise in the factual situation at

hand is this: Whether the appellant-doctor, who acted negligently,

manifested such a state of mind which justifies moral censure? This is

conceivably best answered by identifying what was nature of act owed by

the appellant towards the patient.

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51. In the case at hand, the concern revolves around the acts of omission

and commission which amounted to an “act” so rashly or negligently as to

have had endangered the life of Smt. Leela constituting an offence

punishable under Section 338 of the I.P.C. Since, there was no overt act on

the part of the appellant - as the surgical procedure was performed by Dr. --

A.K. Mukherjee, charge of abetment under Section 109 of I.P.C. was also

leveled. . Dr. A.K. Mukherjee was also made accused in the said complaint.

However, at a later stage, Dr. A.K. Mukherjee was dropped from the

proceedings at the instance of the complainant.

52. We would also like to make another aspect very explicit. The

appellant was leveled a specific charge which was framed against him. The

prosecution was required to prove that particular charge and not to go

beyond that and attribute “rash and negligent” acts which are not the part of

the charge. Culpability is specifically related to the “act” committed on

22.12.1987 at about 9 a.m. in the hospital viz., the act of performing surgical

procedure. It is, thus, this act alone, and nothing more, for which the

appellant and Dr. Mukherjee were charged and the appellant is supposed to

meet this charge alone.

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53. In this scenario, the first and foremost question that needs to be

determined is as to whether the advise of the appellant that ‘Exploratory

Laparotomy’ be conducted on the patient was inappropriate, and if so,

amounted to wanton negligence, giving rise to criminal liability, in as much

-as the opening of the abdomen of the patient, even by Dr. Mukherjee, was

the consequence of that advise.

54. No doubt, such an opinion was given in the teeth of the advise of the

doctors in the U.S.A where the patient was examined earlier. However, only

because of this reason, it would not automatically follow that the view

expressed by the appellant was blemished. The two experts in medical field

may differ on decision to undertake the surgical operation. But for the sake

of life which, any way was struggling to live is the respect to doctors in their

position to operate the patient or not. We have to keep in mind the critical

condition of the patient at that time. She was sent home by the American

doctors as inoperable. She was advised to take certain medicines. These

medicines were being administered by Dr. Mukherjee. However, further

complications arose in the meantime as vagina started bleeding which was

not coming to a halt. Obviously, it was terminal stage for the patient. It is in

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this situation, opinion of the appellant was sought. The dilemma of a doctor

in such a scenario can be clearly visualized viz., whether to leave the patient

as it is or to take a chance, may be a very slim chance, to save or at least to

try to prolong the life of the patient. It was not -an easy choice.

Overcoming this difficult situation, the appellant took the bold decision viz.

that surgical operation was worth taking a risk, as even otherwise, the

condition of the patient was deplorable. The appellant has even given his

justification and rationale for adopting this course of action. The appellant

states that the decision to operate was taken having regard to the following

circumstances:

(a) The patient was suffering from metastatic breast cancer

for ten long years and the said cancer was spreading to

other parts of the body. As such the patient was unable to

follow her ordinary pursuits irrespective of the surgical

procedure advised by the appellant herein.

(b) The patient was repeatedly suffering from vaginal

bleeding and bodily pain and as such the patient was

unable to follow her ordinary pursuits irrespective of the

surgical procedure advised by the appellant herein.

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(c) The formation of a fistula is a complication which may or

may not arise out of surgical procedures and the advice

for surgical procedure was tendered with a view to

alleviate her suffering rather than endanger her life. -

55. During trial, Dr. Gajanand Hegade (DW.2) has endorsed the opinion

of the appellant and has gone to the extent of saying that it was the best

possible option for the treatment of the patient. Moreover, Dr. Mukherjee has

also accepted/ agreed that the advise tendered by the appellant on the basis

of CT Scan Report, and, that the call to operate was “unanimous”. Thus,

even Dr. Mukherjee endorsed the opinion which appears to be his opinion as

well. In this scenario, it cannot be said that advise of the appellant for taking

the surgical procedure was an act of wanton negligence. Dilemma of a

doctor, in such circumstances, is beautifully explained by this Court in

Kusum Sharma (Supra), in the following words:

“89(V) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

(VI) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but

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which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/ her suffering which did not yield the desired result may not amount to negligence.-

(VII) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

56. It also needs to be emphasized, as contended by Mr. Harish Salve, that

the experts from New York are not oncological surgeons. Dr. Ernest

Greenberg is a physician while Dr. Brokunier is a Gynecologist. On the

other hand, even as per the complainants own version, the appellant is a

renowned oncologist and surgeon.

57. At this juncture, an important observation is needed. When such a

decisional shift is taken against the line of other doctors who had earlier

treated the patient, the appellant was required to give personal attention to

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the patient during the operation. He was, even otherwise, contractually

bound to do so.

58. While the two experts might differ on the level of risks involved in the

critical surgical operation but for the sake of life which in anyway was

struggling to live, is a mild respite to doctors in their decision to operate the

-patient or not. A long catena of medical cases on this theme does provide

relief to doctors. One of the many indispensable duties which is of utmost

importance is that when such a decisional shift is taken by a doctor against

the line of renowned doctor who had earlier treated the patient, that doctor

must exercise required personal attention to the patient during the operation.

On this aspect, the Medical council of Maharashtra, while reprimanding,

reasoned that Dr. P.B Desai, instead of merely advising surgery which was

inspite of the opinion of cancer specialists from U.S.A, ought to have

voluntarily taken more interest and personally seen the situation faced by

Dr. A.K Mukherjee which he did not do so. Since the appellant has not

challenged the findings of the Medical Council who had found him guilty of

misconduct, those findings does provide the legal fortification and along

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with the oral and documentary evidences adduced before court below speaks

much on the professional duty which the appellant owed to the patient.

59. Thus, one thing is crystal clear. Failure to act on the part of the

appellant, in conducting surgical procedure, and not taking care thereafter as

well, established his negligence in tort law i.e. in civil domain. We refer to

and rely on the judgment of this Court in Jacob’s Case once again, where --

the Court explained as to under what circumstances professional can be

liable for negligence. It is necessary for this purpose that one of the two

findings, as set out therein, should be established.

“18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon

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cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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 necessary for every professional to possess the highest level of expertise in that branch which he practises. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd. Sedley, L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.”

60. No doubt, in the present case the appellant not only possesses requisite

skills but also an expert in this line. However, having advised the operation,

he failed to take care of the patient. Thereafter, at various stages, as observed

by the courts below, he was held to be negligent by the Maharashtra Medical

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Council and thus found to be guilty of committing professional misconduct.

61. Thus, it was the appellant’s “duty” to act contractually, professionally

as well as morally and such an omission can be treated as an “act”. We again

clarify that undoubtedly, within the realm of civil liability, the appellant has

breached the well essence of “duty” to the patient. -

62. Having reached this conclusion, we proceed to the next stage viz., the

criminal liability of the appellant. However, we once again emphasize that

the question of criminal liability has also to be examined in the context of

Section 338 of I.P.C. which is the real issue. To recapitulate some important

aspects, we have concluded that decision of the appellant advising

Exploratory Laparatomy was not an act of negligence, much less wanton

negligence, and under the circumstances it was a plausible view which an

expert like the appellant could take keeping in view the deteriorating and

worsening health of the patient. As a consequence, opening of the abdomen

and performing the surgery cannot be treated as causing grievous hurt. It

could have been only if the doctors would have faltered and acted in rash

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and gross negligent manner in performing that procedure. It is not so. At

the same time, his act of omission, afterwards, in not doing the surgery

himself and remaining absent from the scene and neglecting the patient,

even thereafter, when she was suffering the consequences of fistula, is an act

of negligence and is definitely blame worthy. (though that is not the part of

criminal charge) However, we are of the opinion that the omission is not of

a kind which has given rise to criminal liability under the given

circumstances.

63. As already noted above, we are conscious of the fact that when the

appellant decided to operate on the patient against the U.S doctor’s advice,

the level of attention expected from the appellant towards the patient was

immense and undivided kind. The operating surgeon along with the fellow

junior doctors was supposed to conduct operation. The junior doctor

rendered his complete and undivided assistance to the patient but the

appellant abstained.

64. However, the important and relevant point is: Had the appellant

undertaken the surgical procedure by himself, the result would have been

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different? Or, to put it otherwise, whether opening of abdomen by Dr.

Mukherjee and not by the appellant who was supposed to do it, made any

difference? In the given case, we do not find it to be so.

65. To appreciate, we need to reiterate certain facts. On opening the

abdomen, Dr. A.K. Mukherjee found plastering of intestines as well as

profuse oozing of ascetic fluids. He immediately called the appellant who --

was performing other surgical procedures in another operation theatre. The

appellant after seeing the condition of the patient, albeit, from the distance

found that it was not possible to proceed with the operation. He advised Dr.

A.K. Mukherjee to close the abdomen. Dr. Mukherjee, thus, closed the

abdomen. Significantly, Section 109 IPC was also pressed into service at the

time of framing of the charge on the premise that Dr. Mukherjee caused

grievous hurt and omission on the part of the appellant to not to personally

intervene in the operation of the patient amounted to abetment. However,

the position which emerges is that the junior doctor rendered complete care.

He did not falter in his act of cutting open the abdomen. It is only at that

stage, it was found, that there was a lot of discharge from fistula and surgery

was not possible. The appellant advised Dr. Mukherjee to close the

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abdomen. No doubt, he did not do it himself but it is not the case of the

prosecution that Dr. Mukherjee did not do it deftly either. It is because of

the deplorable condition of the patient, the surgery could not be completed

as on the opening of the abdomen other complications were revealed. This

would have happened in any case, irrespective whether abdomen was

opened by Dr. Mukherjee or by the appellant himself. On the contrary, the --

complainant’s own case is that Dr. Mukherjee’s performance was not

lacking; nay, it was of superlative quality.

66. The appellant’s omission in not rendering complete and undivided

legally owed duty to patient and not performing the procedure himself has

not made any difference. It was not the cause of the patient’s death which

was undoubtedly because of the acute chronic cancer condition. In such a

scenario, it is enough to keep off the clutches of criminal law.

67. The negligent conduct in the nature of omission of the appellant is not

so gross as to entail criminal liability on the appellant under section 338 of

the I.P.C. It is to be kept in mind that the crime as mentioned in section 338

I.P.C requires proof that the appellant caused the patient’s condition to the

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acute stage. Can he be said to have caused such a result, by his omission to

act? We do not find it to be so.

68. In the common law case R v Adomako [1994] 3 WLR 288 wherein,

Lord Mackay LC set the test for gross negligence in manslaughter:

"On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.”

69. For the aforesaid reasons, we have no option but to conclude that

though the conduct of the appellant constituted not only professional

misconduct for which adequate penalty has been meted out to him by the

Medical Council, and the negligence on his part also amounts to actionable

wrong in tort, it does not transcend into the criminal liability, and in no case

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makes him liable for offence under Section 338, IPC as the ingredients of

that provision have not been satisfied. We, therefore, allow this appeal and

set aside the impugned judgments of the courts below. No costs.

………………………..J. [A.K. Patnaik]

New Delhi. September 13, 2013

………………………..J. [A.K. Sikri]

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