Patna High Court
GEETA KUMARI @ GITA KUMARI @ GITA SINHAversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
Holding
The prosecution was an abuse of process and the order taking cognizance was quashed because the FIR was filed after undue delay and without the mandatory expert medical opinion, and the alleged conduct did not meet the threshold of criminal negligence.
Summary
The petitioner, Dr. Geeta Sinha, was charged under IPC sections 420, 324, 326 and 308/34 following a complaint that she negligently damaged a urinary tube during a cesarean operation in 2012, leading to alleged injury and a claim of fraud. The FIR was lodged on 9 December 2014, more than two and a half years after the alleged incident, and the police proceeded without obtaining an independent medical opinion as mandated by Supreme Court precedents. The petitioner argued that the alleged negligence was not proven, that the delay violated procedural guidelines, and that criminal liability requires gross negligence, not ordinary medical error. The High Court, relying on Jacob Mathew and Martin F. D’Souza judgments, held that the prosecution lacked the requisite expert opinion and that the alleged conduct did not rise to the level of criminal negligence. Consequently, the court quashed the magistrate’s order taking cognizance and dismissed the proceedings as an abuse of process.
Issues considered
- The FIR and prosecution were filed after an unreasonable delay and without a prima facie medical expert opinion as required by Jacob Mathew and related Supreme Court guidelines.
- Whether the alleged medical act constitutes criminal negligence under the IPC, requiring a gross degree of negligence.
- Whether the order taking cognizance of the offences should be quashed as an abuse of process.
Legislation cited
- Indian Penal Code — s. 308, 324, 326, 34, 420
Subjects
- medical negligence
- criminal prosecution
- FIR delay
- expert medical opinion
- Jacob Mathew guidelines
- abuse of process
- quash order
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.16675 of 2016
Arising Out of PS. Case No.-558 Year-2014 Thana- JAHANABAD District- Jehanabad
======================================================
Geeta Kumari @ Gita Kumari @ Gita Sinha Wife Of Bimal Kumar, Resident
Of Village- Bedauli, Police Station- Bhagwanganj In The District Of Patna.
... ... Petitioner/s
Versus
The State Of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sunil Kumar
For the Opposite Party/s : Mr. Gopesh Kumar App
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
5 08-01-2026 Heard the learned counsel for the petitioner and the
learned counsel for the State.
2. This application has been filed for quashing the
order dated 8.5.2015 passed by learned Chief Judicial
Magistrate, Jehanabad in Jehanabad P.S. Case No. 558 of 2014
by which cognizance was taken for the offence punishable under
Section 420,324,326,308/34 I.P.C., against the petitioner and
also order issuing summon against her.
3. The prosecution case, in brief, is that on 9.12.2014,
the informant Rita Devi submitted a written application to the
Inspector-cum-SHO, Jehanabad P.S., alleging that on 11.5.2012,
she visited Dr. Geeta Sinha (the petitioner) at Deepshila
Hospital, Jehanabad. On the same day, at about 3:00 A.M.,
following an examination, a cesarean operation was performed,
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resulting in the birth of her daughter. According to the
informant, due to negligence during the operation, the petitioner
damaged her urinary tube, causing her persistent body pain and
continuous discharge of urine. When she complained about this
to the doctor, the petitioner scolded her and her husband and
asked them to leave the hospital. Subsequently, on 3.10.2012,
her husband took her to Dr. Binita Sinha for treatment, where
another operation was performed on 5.10.2012. She was
discharged on 7.11.2012 after recovery. The informant further
alleged that Dr. Binita Sinha informed her that her urinary tube
had been damaged during the petitioner's operation. She claimed
that the petitioner had defrauded her of Rs. 75,000/-.
4. On the basis of aforesaid written application, FIR
vide Jehanabad P.S. Case No. 558 of 2014 was registered under
Sections 420,324,326,308/34 of 1.P.C. After investigation police
submitted charge-sheet vide Charge-sheet No. 121 of 2015
dated 30.4.2015, u/s. 420,324,326,308/34 I.P.C. against the
petitioner. Subsequently, vide the impugned order dated
8.5.2015, learned Chief Judicial Magistrate, Jehanabad took
cognizance for the offences under Sections 420,324,326,308/34
I.P.C.
5. The learned counsel for the petitioner has submitted
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that the prescription, produced by the informant during
investigation clearly shows that the delivery of the informant
was normal. Thus, the allegation of negligence in operation by
the petitioner is itself false and fabricated. He further submits
that no case under any Sections as alleged is made out against
the petitioner and the alleged date of occurrence is 11.05.2012
and the informant had lodged the FIR on 09.12.2014 i.e., after
delay of about more than two and half years.
6. Learned counsel for the petitioner further submits
that before lodging the F.I.R., the police did not follow the
mandatory guidelines issued by the Hon’ble Supreme Court in
the case of Jacob Mathews vs. State of Punjab & Anr., reported
in AIR 2005 SC 3180 and in the case of Martin F. D’Souza vs.
Mohd. Ishfaq reported in AIR 2009 SC 2049.
7. Learned counsel for the State has opposed the
application of the petitioner.
8. I have heard and considered the submissions of the
parties and have gone through the records of the case.
9. In the case of Jacob Mathews vs State of Punjab
and Anr. (supra), the Hon’ble Supreme Court has held in
paragraph nos. 48 to 52 as follows:-
“48. Conclusions summed up we sum up our
conclusions as under:-
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(1) Negligence is the breach of a duty caused by
omission to do something which a
reasonable man guided by those
considerations which ordinarily regulate the
conduct of human affairs would do, or doing
something which a prudent and reasonable
man would not do. The definition of
negligence as given in Law of Torts, Ratanlal
& Dhirajlal (edited by Justice G.P. Singh),
referred to hereinabove, holds good.
Negligence becomes actionable on account
of injury resulting from the act or omission
amounting to negligence attributable to the
person sued. The essential components of
negligence are three: 'duty', 'breach' and
'resulting damage'.
(2) Negligence in the context of medical
profession necessarily calls for a treatment
with a difference. To infer rashness or
negligence on the part of a professional, in
particular a doctor, additional
considerations apply. A case of
occupational negligence is different from
one of professional negligence. A simple
lack of care, an error of judgment or an
accident, is not proof of negligence on the
part of a medical professional. So long as a
doctor follows a practice acceptable to the
medical profession of that day, he cannot be
held liable for negligence merely because a
better alternative course or method of
treatment was also available or simply
because a more skilled doctor would not
have chosen to follow or resort to that
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practice or procedure which the accused
followed. When it comes to the failure of
taking precautions what has to be seen is
whether those precautions were taken which
the ordinary experience of men has found to
be sufficient; a failure to use special or
extraordinary precautions which might have
prevented the particular happening cannot
be the standard for judging the alleged
negligence. So also, the standard of care,
while assessing the practice as adopted, is
judged in the light of knowledge available
at the time of the incident, and not at the
date of trial. Similarly, when the charge of
negligence arises out of failure to use some
particular equipment, the charge would fail
if the equipment was not generally
available at that particular time (that is, the
time of the incident) at which it is suggested
it should have been used.
(3) A professional may be held liable for
negligence on one of the two findings:
either he was not possessed of the requisite
skill which he professed to have possessed,
or, he did not exercise, with reasonable
competence in the given case, the skill
which he did possess. The standard to be
applied for judging, whether the person
charged has been negligent or not, would
be that of an ordinary competent person
exercising ordinary skill in that profession.
It is not possible for every professional to
possess the highest level of expertise or
skills in that branch which he practices. A
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highly skilled professional may be
possessed of better qualities, but that
cannot be made the basis or the yardstick
for judging the performance of the
professional proceeded against on
indictment of negligence.
(4) The test for determining medical
negligence as laid down in Bolam's case
[1957] 1 W.L.R. 582, 586 holds good in
its applicability in India.
(5) The jurisprudential concept of
negligence differs in civil and criminal
law. What may be negligence in civil law
may not necessarily be negligence in
criminal law. For negligence to amount to
an offence, the element of mens rea must
be shown to exist. For an act to amount to
criminal negligence, the degree of
negligence should be much higher i.e.
gross or of a very high degree. Negligence
which is neither gross nor of a higher
degree may provide a ground for action in
civil law but cannot form the basis for
prosecution.
(6) The word 'gross' has not been used in
Section 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'.
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(7) To prosecute a medical professional for
negligence under criminal law it must be
shown that the accused did something or
failed to do something which in the given
facts and circumstances no medical
professional in his ordinary senses and
prudence would have done or failed to
do. The hazard taken by the accused
doctor should be of such a nature that
the injury which resulted was most likely
imminent.
(8) Res ipsa loquitur is only a rule of
evidence and operates in the domain of
civil law specially in cases of torts and
helps in determining the onus of proof
in actions relating to negligence. It
cannot be pressed in service for
determining per se the liability for
negligence within the domain of
criminal law. Res ipsa loquitur has, if at
all, a limited application in trial on a
charge of criminal negligence.
49. In view of the principles laid down
hereinabove and the preceding discussion, we
agree with the principles of law laid down in
Dr. Suresh Gupta's case (2004) 6 SCC 422 and
re-affirm the same. Ex abundanti cautela, we
clarify that what we are affirming are the legal
principles laid down and the law as stated in
Dr. Suresh Gupta's case. We may not be
understood as having expressed any opinion on
the question whether on the facts of that case
the accused could or could not have been held
guilty of criminal negligence as that question is
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not before us. We also approve of the passage
from Errors, Medicine and the Law by Alan
Merry and Alexander McCall Smith which has
been cited with approval in Dr. Suresh Gupta's
case (noted vide para 27 of the report).
Guidelines re: prosecuting medical professionals
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 under Section 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.
51. 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
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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.
52. 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
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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.”
10. Further, in the case of Martin F. D’Souza vs.
Mohd. Ishfaq (supra) the Hon’ble Supreme Court has held in
paragraph no.17 with regard to obtaining expert’s opinion
before lodging the F.I.R. against a doctor, which is as under:-
“117. 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
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facts clearly come within the parameters
laid down in Jacob Mathew's case
(supra), otherwise the policemen will
themselves have to face legal action.”
11. From reading of the aforesaid decisions of the
Hon’ble Supreme Court, it is clear that it is incumbent upon the
police to take an expert’s opinion before registering the F.I.R.
against a doctor and any F.I.R. registered against the directions
of the Hon’ble Supreme Court is bad in law. The FIR was filed
after delay of four and half years.
12. In view of the above discussions, the
prosecution of the petitioner is nothing but an abuse of the
process of the Court.
13. Accordingly, this application is allowed and the
order dated 8.5.2015 passed by learned Chief Judicial
Magistrate, Jehanabad in Jehanabad P.S. Case No. 558 of 2014
and all consequential proceedings arising out of the aforesaid
F.I.R. are hereby quashed in the interest of justice.
(Sandeep Kumar, J)
Shishir/-
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