Gurbachan Singh vs State of Punjab and Another

Sabina, J.—This petition has been filed by the petitioner u/s 482 of the Code of Criminal Procedure, 1973 for quashing of criminal complaint No. 6 of 3.2.2006 filed under Sections 304/304-A of the Indian Penal Code, 1860 (IPC for short) (Annexure P-1) and all the subsequent proceedings arising therefrom including summoning order dated 23.3.2012 (Annexure P-3). Learned counsel for the petitioner has submitted that the impugned summoning order had been passed without there being any report of the Board to the effect that the petitioner was guilty of medical negligence. In this regard, learned counsel for the petitioner has placed reliance on the decision of the Apex Court in Martin F. D''Souza Vs. Mohd. Ishfaq, , wherein, in para 117, it was held as under:-

We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew''s case (supra), otherwise the policemen will themselves have to face legal action.

Learned counsel for the petitioner has further placed reliance on the decision of the Apex Court in Jacob Mathew Vs. State of Punjab and Another, , wherein it was held as under:-

50 As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law u/s 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.

We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam''s test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

Learned counsel for the respondents on the other hand has opposed the petition.

In the present case, complaint (Annexure P-1) has been filed by respondent No. 2 under Sections 304, 304-A IPC alleging therein that husband of respondent No. 2 had died due to medical negligence of the petitioner.

In view of the decision of the Apex Court in Martin F.D''Souza and Jacob Mathew''s cases (supra), the trial Court should have sought opinion of the expert to prima facie establish that the petitioner was guilty of the medical negligence. Accordingly, this petition is allowed. Impugned summoning order dated 23.3.2012 (Annexure P-3) is set aside. Trial Court is directed to pass a fresh summoning order in accordance with law.