Relief to Doctors in Criminal Action for Negligence : Examining a medical Expert is mandatory before framing of charges - Hon. Supreme Court.

Relief to Doctors in Criminal Action for Negligence : Examining a medical Expert is mandatory before framing of charges  

- Hon. Supreme Court.

(Adv. Rohit Erande)

Pune. ©

There are umpteen  number of incidences wherein a patient dies, Doctors get arrested on the alleged ground of Medical Negligence  and charges under Section 304-II  of IPC  are framed instead of Sec.304-A and as a result, the Doctors have to run from this court to that court for bail.. It's the prerogative of Investigating authorities to put the charge or sections, it's legality will be decided by the Courts..

The action for Medical Negligence may be two-fold, Civil action for damages and Criminal Action for punishment and both actions can be initiated simultaneously. In case of Criminal Action, the charge may be framed under Sec.304 (part II) of IPC or Sec.304-A of IPC, depending upon the facts of each case. 

Lets See in Brief and then we shall proceed to the recent Judgment.

304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

If this section is imposed, then it becomes a non-Bailable offense and punishment is 10 years. The job of the Police Authorities is very important in such cases as to which sections are to be imposed.

304A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

The Hon’ble Supreme Court of India (3 Judges bench) , in the year 2005 in the case of Jacob Mathew v/s. State of Punjab (AIR 2005 SC 3180 = 2005(6) SCC 1), itself has given clear cut guidelines on arrest of Doctors in case of Medical Negligence Cases. Please see the following link.

http://judis.nic.in/supremecourt/imgs1.aspx?filename=27088

Recent judgement :

By reiterating this judgment, another 3 judges Bench of Hon. Supreme Court in the case of Aruna & anr. V/s. Mukund & anr (Criminal Appeal no. 2063/201, decided on 03/10/2019) has held that trial court to examine the witnesses and to take the view of the medical expert on behalf of the complainant and only thereafter, to form an opinion whether any charge is made out in the case or not.

This is the case where criminal action was initiated against the Appellant -Doctor in the matter relating  to administering medicine of Lariago. The Trial Court framed the charges without examining any medical Expert and the order of Trial Court was set aside by Sessions Court thereby discharging the Appellant. However Hon. bombay high Court, Bench at Nagpur reverse the order of Sessions Court and hence the Appellants knocked the doors of Hon. Apex court. 

In this case as well as in Dr. Jacob Mathew's case,  Sec.304A was applied against the Doctors. The Hon. Court reiterated the observations in Mathew's case regarding arrest of Doctors :

“52. …we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.

i.) A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.

ii.) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation.

iii.) A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him).

iv.) Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”

This Celebrated judgment has been followed and referred to by all the Courts thereafter. Also See A.S.V. Narayanan Rao V/s. Ratnamala & ors.

You may see following the link :

http://judis.nic.in/supremecourt/imgs1.aspx?filename=40762

Their Lordships lastly observed that , "As admittedly, no medical expert has been examined in this case, we set aside the impugned orders passed by the courts below and remand the case to the trial court to examine the witnesses and to take the view of the medical expert on behalf of the complainant and only thereafter, to form an opinion whether any charge is made out in the case or not. Obviously, the trial court shall not be influenced by any of the observations made by this Court or in the impugned order passed by the High Court."

But technically, the above referred guidelines of Hon. Apex Court are in respect of Sec.304-A. Thus, where Sec.304 (Part II) is applied, then in my opinion, the Doctors can move for anticipatory Bail or can approach Hon. High Court U/Sec.226 r/w Sec.482 of Cr.P.C. for quashing of FIR when charges U/Sec.304-II are imposed. In the States like Uttar Pradesh, there is no provision of anticipatory Bail, in such cases, approaching Hon’ble High Court is the only remedy.

It is also to be remembered there may be some cases, where Doctors might have done some Acts that may attract Sec.304-II. So also a lot depends upon the facts of each independent case. Further civil remedies for claiming compensation against the Doctors may be exercises independently. In any of such cases first approach the expert Lawyer for further steps.

It will be wrong to measure all the police authorities on single scale. If the Doctors could prove  that there was malafide intention behind imposing such section, then a legal action may be initiated against such Police Authorities, subject to the protection available to Police authorities U/Sec.197 of Cr.P.C.

The High handed and illegal action can certainly affect the name and reputation of Doctors. Mental and physical agony is another aspect. Thus if later the case proves to be false, Drs should exercise their right to seek damages for malicious prosecution. Hardly any one does so.. merely venting On social media is of no help...

There is a famous adage which says, " Every murder is culpable homicide, but every culpable homicide is not a murder"

Last but not the least, venting emotions on Social media is of no use. You have to fight on your own. Always remember that "NO DOCUMENTATION IS NO PROOF, POOR DOCUMENTATION IS POOR PROOF"

Thanks and Regards

(Adv. Rohit Erande)

Pune. ©