Dr. Jeyalakshmi vs Kasirajan

S. Nagamuthu, J.—The petitioner is a registered medical practitioner having M.B.B.S. degree and Diploma in gynaecology and Obstetrics

to her credit.

The respondent''s wife by name Kasiammal was admitted in her hospital on 11.11.2004 at 1.00 p.m. for delivery. She delivered twins on the

same day. Thereafter, at about 4.00 p.m., it was reported that Mrs. Kasiammal had postpartum haemorrhage and within a short while she died in

the hospital.

The respondent has filed the above private complaint alleging negligence on the part of the petitioner in giving treatment to Kasiammal. The

offence alleged in the complaint is punishable u/s 304A IPC. Seeking to quash the same, the petitioner has come forward with this petition.

The learned Counsel for the petitioner would submit that the allegations which are found in the complaint would not even make out a prima facie

so as to allow the prosecution to proceed further. He would also rely on a Judgment of the Honourable Supreme Court in Jacob Mathew v. State

of Punjab and Anr. Criminal Appeal No. 144-145 of 2004 to substantiate his argument. In conclusion, the learned Counsel would pray for

quashing the private complaint.

Per contra, the learned Counsel for the respondent Mr. V. Kadirvelu would submit that it would come to light that the petitioner was negligent, if

only the trial is allowed to proceed and an opportunity is offered to the respondent to examine an expert. He would further submit that the

allegations found in the complaint would make out an offence punishable u/s 304A IPC.

I have considered the rival contentions of both the counsel and also perused the records carefully.

In the complaint, I am able to see that the only allegation made against the petitioner is that though the petitioner had been telling that the

deceased was alright, only after her death, the petitioner told that the deceased died due to Jaundice. Though these allegations may be sufficient to

institute a civil litigation, in my considered opinion to maintain a criminal case for offence u/s 304A IPC something more is required i.e., for civil

liability, mere negligence would be enough to institute a case where as to institute a criminal case, not negligence simplicitor but gross negligence is

required. In the Judgment stated supra, the Honourable Supreme Court has reiterated this. To be precise, the Honourable Supreme Court has held

as follows:

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.

The word ""gross"" has not been used in Section 304A of 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 304A of the IPC has to be read as qualified

by the word ''grossly''.

To prosecute a medical practitioner 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.

Applying the said principles to the facts of the case on hand, I do not find any allegation or any material whatsoever to bring the act of the

petitioner even prima facie within the ambit of the term ""gross"". Therefore, the prosecution launched against the petitioner is not maintainable.

Therefore, I have no hesitation to quash the said case. Allowing the prosecution to proceed further would be a wasteful exercise and waste of

public time.

In the result, criminal original petition is allowed and the case in C.C. No. 178 of 2005 on the file of the Judicial Magistrate, Tenkasi is quashed.

Consequently, connected miscellaneous petition is closed. It is made clear that this order will not stand in the way of the respondent from

approaching a civil forum and if any such litigation is initiated, the said forum shall not be influenced by any of the observation made in this order.