Patna High Court

DR. AVINASH KUMAR SHARAN @ DR. ABHINASH KUMAR SHARAN @ AVINASH KUMARversusTHE STATE OF BIHAR

Decided: 27 January 2026
Disposal: ALLOWED
Bench: SANDEEP KUMAR

Holding

The order taking cognizance against Dr. Avinash Kumar Sharan under Section 304 IPC is quashed as no prima facie case of criminal negligence was established.

Summary

The petitioner, Dr. Avinash Kumar Sharan, sought to quash the order dated 16‑04‑2019 by the Chief Judicial Magistrate that took cognizance of an alleged homicide under Section 304 of the IPC based on a complaint that the deceased died after an injection at his clinic. The prosecution had filed a charge‑sheet under Section 304A IPC relying on witness statements, but the petitioner contended that no injection was administered and the post‑mortem showed no external injury. The petitioner argued that no expert medical opinion establishing negligence was obtained before cognizance was taken, invoking Supreme Court precedents that criminal negligence by doctors requires a ‘gross’ degree of negligence and expert testimony. The Court examined the standards laid down in Jacob Mathews v. State of Punjab and Martin F. D’Souza v. Mohd. Ishfaq, emphasizing the need for a competent medical opinion before proceeding against a doctor. Concluding that the requisite prima facie evidence and expert opinion were absent, the Court quashed the order of cognizance and directed the pending consumer case to be disposed of within three months.

Issues considered

Whether cognizance under Section 304 IPC can be taken against a medical professional without an expert medical opinion establishing criminal negligence.
Whether the alleged act constitutes criminal negligence under Section 304A IPC, requiring a 'gross' degree of negligence.
Whether the absence of evidence of an injection or external injury negates the prima facie case against the doctor.
Whether procedural guidelines mandate obtaining an independent medical opinion before filing FIR or charge‑sheet against a doctor.

Legislation cited

Indian Penal Code — s. 304, 304A

Subjects

medical negligence
criminal negligence
Section 304 IPC
Section 304A IPC
expert medical opinion
quash of cognizance
Bolam test
gross negligence

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.72088 of 2019
Arising Out of PS. Case No.-44 Year-2016 Thana- AURANGABAD TOWN District-
Aurangabad
======================================================
Dr. Avinash Kumar Sharan @ Dr. Abhinash Kumar Sharan @ Avinash Kumar
Son Of Sri Siya Saran Saroj Resident Of Urmila Niwas, East Rupaspur,
Gandhipuram Colony, P.S.- Rupaspur, Town And District- Patna, At Present
Residing At Saryu Bhawan, Near V-Mart Mall, M.G. Road, P.S.- Nagar
(Town), District- Aurangabad.

... ... Petitioner/s
Versus
1. The State Of Bihar
2. Dhananjay Kumar Sharma Son Of Devnandan Sharma Village- Judahi, Ps-
Risiyap, Dist- Aurangabad

... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sanjay Kumar Mishra
For the Opposite Party/s : Mr. Tarun Prasad Mandal
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER

3 27-01-2026 Heard the learned counsel for the petitioner, learned

APP for the State and the learned counsel for the O.P. No.2.

2. The application has been filed for quashing the

order dated 16/04/2019 passed by the learned Chief Judicial

Magistrate, in connection with Town P.S. Case No. 44 of 2016

by which cognizance was taken for the offence under Section

304 of the IPC.

3. The prosecution case, in brief, is that one

Dhananjay Sharma submitted a written application before the

Officer-in-Charge of Town Sadar Police Station, stating that his

elder brother, Ranjay Kumar, had been suffering from neck
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inflammation for the past twenty days and was undergoing

treatment under the care of Dr. Avinash Kumar Sharan at Kritika

Clinic located in Aurangabad. The informant has alleged that

the death of his brother occurred due to the negligence of the

treating doctor. It is further stated that on 05.02.2016, his

brother, who was in healthy condition, arrived at the clinic by

self-driving his bike. Upon arrival, the doctor started treatment,

and during the course of treatment, an injection was

administered to his neck. Immediately after the injection, the

informant claims that his brother collapsed and died. The

informant further alleges that the doctor and his compounder,

upon realizing the death, collectively placed the body of the

deceased on the road and fled from the clinic.

4. On the basis of aforesaid application, an FIR vide

Town P.S. Case No. 44 of 2016 has been registered for the

Offence under section 304 of the Indian Panel Code.

5. It is submitted by the learned counsel for the

petitioner that after the institution of the FIR, the police

conducted an investigation into the matter and subsequently

filed a charge sheet bearing No. 222/2016 dated 30/04/2016,

under Section 304A of the Indian Penal Code (IPC). The charge

sheet was submitted by the investigating officer based on the
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statements of five witnesses, including the informant, three

independent witnesses, and the doctor who conducted the

postmortem examination of the deceased. The learned Chief

Judicial Magistrate took cognizance of the case against the sole

accused, Dr. Avinash Kumar Sharan, under Section 304 of the

IPC, stating that a prima facie case had been established based

on the materials available on record.

6. The learned counsel for the petitioner further

submits that the petitioner is innocent and has not committed

any offence as alleged against him. He further submits that on

01/02/2016, the deceased, Ranjay Kumar, was brought to the

petitioner’s Kritika Clinic for treatment. After a physical

examination, the petitioner advised the patient to undergo

certain pathological tests and prescribed some medication in

tablet form. On 05/02/2016, Ranjay Kumar returned to the clinic

with his brother, presenting the pathological reports. After

reviewing the report and assessing the patient's condition, the

petitioner immediately referred him to A.N.M.C.H. Gaya for

further treatment. He further submits that the petitioner did not

administer any injection to Ranjay Kumar and this fact is

corroborated by the postmortem report, which does not show

any signs of injection or external injury on the deceased's body.
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7. The learned counsel for the petitioner has further

submitted that no prima facie case under Section 304 of IPC has

been made out against the petitioner. The order of cognizance

has been passed in a routine manner, even though, at the time of

passing the order, no expert opinion regarding the cause of death

was available on record. Therefore, the learned court below has

failed to apply its mind before taking cognizance. He further

submits that in the absence of an expert opinion and definitive

evidence, no case under Section 304 IPC can be made out

against him. The Hon'ble Apex Court has consistently held that

allegations of medical negligence can only be determined with

the assistance of expert opinion, and in the present case, such

expert opinion was not obtained before taking cognizance. It is

further submitted that the continuation of these proceedings on

the basis of the cognizance order passed in the absence of expert

opinion and without considering crucial evidence would

constitute an abuse of the process of the court. The continuation

of such proceedings will serve no useful purpose and will result

in a miscarriage of justice.

8. In support of his submission, the learned counsel

for the petitioner has relied upon a judgment of the Hon’ble

Supreme Court passed in the case of Jacob Mathews vs. State
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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.

9. Learned counsel for the State has opposed the

application of the petitioner.

10. I have heard and considered the submissions of

the parties and have gone through the records of the case.

11. 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:-

(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'.
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(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
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
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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
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
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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'.

(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
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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
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
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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
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
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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.”

12. 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
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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.”

13. In light of the judgments referred to above and the

fact that no expert opinion has been obtained in the present case

to establish prima facie medical negligence, the order taking

cognizance under Section 304 of IPC appears to have been

passed without application of mind and without considering the

essential evidence required to establish negligence.

14. In view of the facts of the case, submissions of the

parties and the law laid down by the Hon'ble Supreme Court in

the afore-quoted judgments, the present application stands
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allowed and the order dated 16.04.2019 passed by the learned

Chief Judicial Magistrate, Aurangabad in Town P.S. Case No. 44

of 2016 taking cognizance against the petitioner under Section

304 of IPC is hereby quashed.

15. The case pending in the District Consumer

Commission, Aurangabad vide Consumer Case No. 38 of 2016

is directed to be disposed of within three months of

communication/receipt of a copy of this order.

(Sandeep Kumar, J)
Shishir/-

U T

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