Holding

The Supreme Court held that the material on record does disclose an offence and the High Court was correct in not quashing the criminal complaint.

Summary

The appellant, a doctor who advertised himself as a child specialist, treated a seven‑year‑old girl for tuberculosis. The child’s condition worsened and was later diagnosed as advanced leukemia; she died. The consumer commission held the doctor negligent and awarded damages. A criminal complaint under Section 200 CrPC was filed and the magistrate issued processes. The doctor sought quashing of the criminal proceedings under Section 482 CrPC; the High Court dismissed the petition. The Supreme Court examined whether the material on record disclosed a prima facie case of reckless or gross negligence attracting Section 304A IPC and whether the court could intervene at the quashing stage. It held that the material did disclose an offence, that the accused cannot rely on defence‑only material at this stage, and that the High Court was correct in refusing to quash the proceedings. Consequently, the appeal was dismissed.

Issues considered

Whether the material on record discloses a prima facie case of criminal negligence under Section 304A IPC.
Whether the High Court could quash the criminal complaint under Section 482 CrPC at the stage of taking cognizance.
Whether a doctor who professes to be a child specialist without requisite expertise can be held criminally liable for alleged negligence.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 200, s. 227, s. 482
Indian Penal Code, 1860s. 304A

Subjects

medical negligencecriminal negligenceSection 482quashing of criminal proceedingschild specialistprofessional ethicsgross negligenceSection 304Aconsumer disputeprofessional liability

Judgment

[2008] 17 S.C.R. 606
e )

A B. JAGDISH & ANR.
v. )
STATE OF AP. & ANR.
(Criminal Appeal No. 2049 of 2008)
DECEMBER 16, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

CODE OF CRIMINAL PROCEDURE, 1973:
s.482 - Application by a doctor for quashing a criminal
c complaint of medical negligence - Doctor claiming himself to
be a child specialist, treating a child for Tuberculosis - Later,
the child diagnosed in the advance stage of Leukemia - Death
of child - High Court dismissing the application - HELD: It
cannot be said that materials brought on record by t-
D complainant, even if given face value, do not disclose an
offence - No interference with order of High Court called for.
PROFESSIONAL ETHICS: ~

Medical profession - HELD: A doctor should not profess
himself to be a child specialist unless he has the requisite
E expertise.
Appellant No. 1, a doctor, claiming himself to be a
child specialist, was treating the child of respondent no.
2 since 22.6.2000, for Tuberculosis, but the condition of
· the child kept on deteriorating. On 4.10.2000, at ttie
F instance of another doctor, it was detected that the child
}
was in the advance stage of Leukemia and her liver was
enlarged. The child was taken to Apollo Hospital where
also her ailment because of Leukemia was diagnosed.
The child breathed her last on 10.11.2000. Respondent
G no. 2 filed a complaint uls 200 Cr.PC and ultimately
processes were issued against the appellant by the
Magistrate by his order dated 16.7.2004. The petition of -
~
the appellants filed uls 482 CrPC for quashing of the order i
of the Magistrate, having been dismissed by the High

H 606
~

- , B. JAGDISH & ANR. v. STATE OF A.P. & ANR.

Court, they have filed the appeal.
607

A
.. Dismissing the appeal, the Court
-"'
HELD:1.1. It is now a well settled principle of law that
at the stage of quashing of an order taking cognizance,
an accused cannot be permitted· to use the material,
which would be available to him only as his defence. \t B
would be left to the trial court to consider and weigh
materials brought on record by the parties for the,
+
purpose of marshalling and appreciating the evidence.
The jurisdiction of courts, at this stage, is limited as to
whether a case of reckless/gross negligence has been c
made out or not. In the instant case, the civil liability of
the appellant having been determined, at this stage it may
not be relevant to consider the charges against him on
the touchstone of standard of proof required for proving
a case of criminal negligence, as the same would fall for D
consideration at the hands of the trial court at an
,J. appropriate stage. [Paras 28 and 29] [614-F-G]
1.2. Keeping in view the facts and circumstances of
the case, it cannot be said that the materials brought on .
record by the complainant, even if given face value and E
taken to be correct in their entirety, do not disclose an
~
offence. This is so because there are two sets of
- opinions; one in favour of the complainant and another
-I
in favour of the appellants. Which opinion would
ultimately prevail is essentially a question to be
F
~ determined by the trial court upon considering the
evidence adduced by the parties hereto in their entirety.
[Para 33] (616-~-B]
State of Orissa v. Debendra Nath Padhi (2005) 1 SCC
568, referred to.
G
2. A person should not profess himself to be a child
specialist unless he has the requisite expertise. Unless
the appellant had a special skill to treat the child,
;.
ordinarily he could not have treated her, not because he
was wholly incompetent therefor but because it required
H

t'
608 SUPREME COURT REPORTS [2008] 17 S.C.R.

A a specialized skill keeping in view the nature of the
disease the child was suffering from. [Para 24 and 25]
[613-G; 614-A-B]
Jacob Mathew v. State of Punjab & Anr. (2005) 6 SCC 1
an~ Suresh Gupta (Dr.) v. Govt. of NCT of Delhi (2004) 6 SCC
B 422, referred to.
Case Law Reference:
(2005) 1 SCC 568 referred to Para 32
(2005) 6 SCC 1 referred to Para 13
(2004) 6 SCC 422 referred to Para 17
c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2049 of 2008.
From the Judgment and Order dated 10.10.2006 of the
High Court of Judicature, Andhra Pradesh at Hyderabad in Crl.
o Petition No. 721 of 2006.
C.S.N. Mohan Rao, R. Santhan Krishnan, Radha Rani,
R.K. Pandey and D. Mahesh Babu for the Appellant.
A.D.N. Rao, A Subba Rao, AT. Rao, Altaf Fathima and
D. Bharathi Reddy for the Respondents.
E The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
2. The second respondent took his seven years' old ailing
daughter to the appellant who is said to be a child specialist
for treatment. He was running a hospital known as 'Disney's
F Medi-Kid Children's Hospital'. He advertised himself as a
. specialist in child diseases. The child was a student of third
standard. On 22.6.2000, she vomited while in school. She was
brought home immediately and thereafter taken to the
appellant's hospital at about 3.p.m. ·
G 3. She was admitted in the hospital for undergoing some
tests. Respondent No.2 was asked to deposit a sum of
Rs.4,000/- therefor. The said amount was deposited. A1>1ood
test was conducted which disclosed abnon:nal increase in white
blood cells. ·
H 4. A second blood test was also carried on which also
- B. JAGDISH & ANR. v. STATE OF A.P. & ANR.
[S.B. SINHA, J.]
609

-
showed abnormality in white blood cells. The child was A
discharged on 25.6.2000. She was advised to take the
medicine prescribed.Appellant diagnosed the disease which
she was suffering from as Tuberculosis. Vomiting by the girl,
however, did not stop. It became more frequent. On 25.6.2000
she developed high fever. Appellantwas consulted again. He B
assured the respondents that there was nothing to worry about
the child and her condition was satisfactory. Respondent No.2
. ..._
was advised to· bring her back on 30.6.2000. Treatment on the
same line was directed to be continued.
5. The child, in the meantime, had become weak. There c
had been considerable increase in the number of times of
,_, vomiting. She was taken to the hospital on 30.6.2000.
Considering her condition, she was again admitted but was
di~vharged in the night with tlie advice to continue the medicine
advised for Tuberculosis with anemia. The treatment continued
but instead of showing improvement, the child became almost D
crippled and was not even able to move. She had been taken
to the hospital on a large number of occasions but respondent
No.2 was on each occasion assured that there was nothing to
worry about. Even his request to refer the child to another
specialist for having a second opinion was not acceded to, E
contending that it was an acute case of Tuberculosis coupled
with anemia and the patient would have slow recovery.
6. On 1.10.2000 early in the morning, the child developed
high fever. She had rashes all over her body. Her face became
swoilen. She had been vomiting also. The child was taken to F
1 the hospital immediat~ly.
7. Appellant, seeing her condition, became panicky. One
Dr. Ramanna was called. He immediately suggested a 'Biopsy
of Bone Marrow' at a hospital. The child underwent the said test.
The report was delivered on 4.10.2000. Dr. Ramanna informed G
the second respondent that the girl had been suffering from
Leukemia which is in advanced stage and her liver was
..
" enlarged. He advised the girl to be admitted either in NIMS or
Apollo Hospital pursuant whereto she was taken to Apollo
Hospital. One Dr. Srinivasa Chakravarthy of Apollo Hospital H

-
610 SUPREME COURT REPORTS [2008] 17 S.C.R. e
....
A informed the second respondent that the girl was at advanced
stage of Leukemia and chance of her survival was bleak. She
breathed her last on 10.11.2000.
8. Thereafter respondent No.2 filed a complaint petition
before the A.P. State Consumer Disputes Redressal
B Commission on or about 4.12.2000.
9. He also filed a private complaint in terms of Section 200
of the Code of Criminal Procedure, 1973. The same was
referred to P.S. Panjagutta under Section 156(3) of the Code
of Criminal Procedure. A final report was filed on 30.09.2001
c stating that the case was a 'Mistake of Fact'. A protest petition
was filed Jhereagainst. A re-investigation was directed as
earlier the investigation had been transferred to Police Station,
.......
Saifabad whereas the final report was filed by Panjagutta Police
Station.
D 10. Another final report was filed on 13.3.2004. Another
protest petition was filed on the basis whereof cognizance was
taken and processes were issued against the appellant by the ~
learned Magistrate by an order dated 16.7.2004.
11. Indisputably, the Consumer Disputes Redressal
E Commission at Hyderabad found the appellant to be negligent
in his performance of professional services to the deceased

F
child and awarded damages of Rs.4,00,000/- by an order dated
13.6.2006.
12. Appellant filed an application for quashing of the order
issuing summons to him in the criminal matter before the High
-
Court which by reason of the impugned judgment has been }
dismissed.
13. Mr. Mohan Rao, learned counsel appearing on behalf
of the appellant, would submit that the learned Magistrate as
G also the High Court have committed a serious error in passing
the impugned judgments insofar as they failed to take into
consideration the observations made by this Court in Jacob
Mathew v. State of Punjab & Anr. [(2005) 6 SCC 1). f
"
14. Medical negligence being not an ordinary type of
H negligence, it was urged, the courts below should have
- 8. JAGDISH & ANR. v. STATE OF AP. & ANR.
[S.B. SINHA, J.]
611

.. evaluated the evidence by shifting through the materials brought
on record by the parties for the purpose of ascertaining as to
whether there is prima facie material available for pointing out
A

reckless negligence on the part of the doctor causing death of
the patient, as in this case there were conflicting opinions of
the experts; one opining that there was no negligence on the
B
part of the appellant and the other opining that there was gross
and reckless negligence on his part and, thus, the court should
have held that the appellant cannot be said to be guilty of gross
and reckless negligence so as to attract the provisions of
Section 304A of the Indian Penal Code.
15. The learned counsel would contend that the doctors
c
examined by the complainant being not experts on the subject,
the same should not have been taken into consideration by the
learned Magistrate at the time of taking cognizance of the
offence.
D
16. Mr. A.D.N. Rao, learned counsel appearing on behalf
of the respondent, on the other hand, would contend
(1) The power of the High Court under Section 482 of
the Code of Criminal Procedure being limited and
charges having been directed to be framed, this
E
Court should not exercise its extra-ordinary
jurisdiction under Article 136 of the Constitution of
India.
(2) The revisional court as also the High Court has
rightly refused to exercise their jurisdiction as it has
F
come in evidence that the doctors examined on
behalf of the appellant admitted that they had based
their opinion on different materials and, thus, no
reliance can be placed thereupon.
(3) Appellant having not made out a case of misuse of G
the process of law, the High Court was right in its
view particularly when the appellant wrongly
advertised himself as a child specialist although he
,..... did not hold the requisite qualifications therefor.
17. The question as to the extent of negligence on the part
H
612 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
~

A of the members of the medical profession would attract criminal
liability came up before this Court on more than one occasion.
In Suresh Gupta (Dr.) v. Govt. of NCT of Delhi [(2004) 6 SCC
..
422], a case involving negligence in..performance of rhinoplasty;
the cause of death whereof was said to be non-int,~09uction of
cuffed endotracheal tube of proper size as to prevent aspiration
B
of blood from wound in respiratory passage, was held to be
an act of negligence. It was opined :
"22. This approach of the courts in the matter of fixing
criminal liability on the doctors, in the course of medical
c treatment given by them to their patients, is necessary so
'-- that the hazards of medical men in medical profession
being exposed to civil liability, may not unreasonably
extend to criminal liability and expose them to the risk of
landing 1hemselves in prison for alleged criminal ~

negligence.
D
23. For every mishap or death during medical treatment,
the medical man· cannot pe proceeded against for ~
punishment. Criminal prosecutions of doctors without
adequate medical opinion pointing to their guilt would be
doing great disservice to the community at large because
E if the courts were to impose criminal liability on_ hospitals
and doctors for everything ttiat goes wrong, the doctors
would be more worried about their own safety than giving
all best treatment to their patients. This would lead to
shaking the mutual confidence between the doctor and the
F patient. Every mishap or misfortune in the hospital or clinic
,_
of a doctor is not a gross act of negligence to try him for
an-offence of culpable negligence."
18. A distinction was drawn therein between a civil liability
and a ~riminal liability.
G 19. This Court while acknowledging the limited jurisdiction
the High Court exercises under Section 482 of the Code of
Criminal Procedure, proceeded to consider the question of ~
criminal liability on the basis of the medical documents "
._
produced by the prosecution itself: The fact admitted, according
H to this Court, did not attract the provisions of Sectl'on 80 and

,.
-
8. JAGDISH & ANR. v. STATE OF A.P. & ANR. 613
[S.B. SINHA, J.]

88 of the Indian Penal Code. A
20. Correctness of the said decision was questioned in
" ),I
Jacob Mathew (supra) by a Division Bench of this Court. The
matter was referred to a larger Bench. A Three Judge Bench,
inter alia, opined that the averments made in the complaint
therein even if held to be proved did not make out a case of B
criminal offence on the part of the accused-appellant, stating :
"It is not a case of the complainant that the accused-
appellant was not a doctor qualified to treat the patient
whom he agreed to treat."
21. In that case, anbxygen cylinder'was not available and c
..... on that premise, it was held that th7/flospital having failed to
keep available a gas cylinder and/or the gas cylinder having
been found empty, the hospital may be liable to civil law but the
doctor cannot be proceeded against under Section 304A of the
Indian Penal Code. In Jacob Mathew's judgment also the D
expression 'gas cylinder' appears twice in Para 53. But it is
obvious from the facts of the case that it was 'oxygen cylinder'
(and not gas cylinder) that was not available.
22. In arriving at the said finding, reliance was placed on
Bo/am v. Friem Hospital Management Committee [1957 (2) E
All.ER 118], wherein the plaintiff, a voluntary patient in the
defendant's mental hospital sustained fractures in course of
electroconvulsive therapy. There were differences of opinion in
the profession about the mode of treatment; one favouring the
use of relaxant drugs or manual control as a general practice
F
and the other opining that as the use of those drugs was
-+ attended by mortality risks, use thereof should have been
confined to cases where there were particular reasons for their
use.
23. We are in this case not faced with such a situation, at
G
least at this stage.
24. A person should not profess himself to be a child
, _, specialist unless he has the requisite expertise. In Bo/am
~
(supra) the Court was concerned with a situation involving use
of some special skills or .competence. The test which was -H
A
614 SUPREME COURT REPORTS

applied is the standard of special skill.
. [2008] 17 S.C.R.
- ...
25. Unless a person has a special skill to treat a child, ., /

ordinarily he could not have treated her, not because he was
wholly incompetent therefor but because it required a
specialized skill keeping in view the nature of the disease the
B child was suffering from.
26. It may not be a valid argument at least at this stage
that the child would have otherwise died having been suffering
from Leukemia. The question which has been raised is that if
on the face of the first blood report medical opinion other than
c the diagnosis of cancer was possible, whether it will fall within
the ambit of medical negligence, is a matter which in our
,.....,.
opinion requires deeper consideration.
27. For the said purpose, the opinion of the experts will
have to be thoroughly examined. Their opinion must be tested.
D We are given to understand that th.ere are two views; which
view ultimately would prevail is a matter of evidence.
28. The civil liability of the appellant having been
determined, we are of the opinion that at this stage it may not
be relevant to consider the charges of criminal negligence on
E the part of the appellant herein on the touchstone of standard
of proof required for proving' a case of criminal neglige9ce as
the same would fall for consideration at the hands of the Trial
court at an appropriate stage.
29. The question is as to whether the High Court sho1,lld
F have interfered with the order summoning the appellant at this
stage? It is now a well settled principle of law that at the stage +-
of quashing of an order taking cognizance, an accused cannot
be permitted to use the material which would be available to
him only as his defence. In his defence, the court would be left
to consider and weigh materials brought on record by the
G parties for the purpose of marshalling and appreciating the
evidence. The jurisdiction of the Courts, at this stage, is limited
as whether a case of reckless/gross negligence has been
f
made out or not will depend upon the facts of each case.
~
30. Mr. Rao has brought to our notice the evidence of one
H

........
B. JAGDISH & ANR. v. STATE OF AP. & ANR. 615
[S.B. SINHA, J.]
of the doctors, who had deposed in favour of the appellant to A
\ show that he_was not supplied with all the documents.. This
contention of Mr. Rao has been seriously disputed by Mr.
Mohan Rao contending that all the medical opinions were
obtained by the investigating agency. This may be so or may
not be, but it is accepted at the Bar that the doctors who had B
rendered their opinion in favour of the complainant stated that"
no member of the medical profession could treat the child for
'Tuberculosis' and it was a clear case where the diagnoses at
the outset should have been one of 'Leukemia'.
31. We need not take this discussion any further as it may c
_, prejudice the case of either of the parties at the trial.
32. We may, however, refer to a decision of this Court in
State of Orissa v. Debendra Nath Padhi ((2005) 1, SCC 568]
wherein this Court upon considering a large number of
decisions opined : D
"It is evident from the above that this Court was considering
.. the rare and exceptional cases where the High Court may
consider unimpeachable evidence while exercising
II( jurisdiction for quashing under Section 482 of the Code.
In the present case, however, the question involved is not
' about the exercise of jurisdiction under Section 482 of the
E
Code where along with the petition the accused may file
unimpeachable evidence of sterling quality and on that
basis seek quashing, but is about the right claimed by the
accused to produce material at the stage of framing of
charge." F
-t
It was furthermore held :
"23. As a result of the aforesaid discussion, in our view,
clearly the law is that at the time of framing charge or taking
cognizance the accused has no right to produce any
G
material. Satish Mehra case (2000) 6 SCC 338 holding
that the trial court has powers to consider even materials

- which the accused may produce at the stage of Section
227 of the Code has not been correctly decided.
H
616 SUPREME COURT REPORTS [2008] 17 S.C.R.

A 33. Keeping in view the facts and circumstances of this
case, we are of the opinion that it cannot be said that the
materials brought on record by the complainant, even if given
face value and taken to be correct in their entirety. do not
disclose an offence. We say so because there are two sets of
8 opinions; one in favour of the complainant and another in favour
of the appellants. Which opinion would ultimately prevail is
essentially a question to be determined by the learned Trial
Judge upon considering the evidence adduced by the parties
hereto in their entirety.
C 34. For the reasons aforementioned, we do not find any
merit in this case. It is dismissed·. accordingly with costs.
Counsel's fee assessed at Rs.25,000/-.
R.P. Appeal dismissed.