Supreme Court of India
DR. P.B. DESAIversusSTATE OF MAHARASHTRA & ANR.
- Citation
- 2013 INSC 621
- Decided
- 13 September 2013
- Disposal
- Appeal(s) allowed
- Bench
- A K PATNAIK
Holding
The surgeon's omission, though constituting professional misconduct and civil negligence, did not satisfy the ingredients of Section 338 IPC and therefore cannot attract criminal liability.
Summary
Dr. P.B. Desai, a renowned surgeon, was convicted under Section 338 read with Section 109 of the IPC for allegedly causing grievous hurt to a cancer patient by advising and then omitting to perform an exploratory laparotomy. The patient later died, and the appellant was also found guilty of professional misconduct by the Maharashtra Medical Council. The Supreme Court examined whether the surgeon's omission could be treated as an "act" under Section 338 and whether a legal duty existed to render personal care. It held that while the omission amounted to civil negligence and professional misconduct, it did not satisfy the statutory ingredients of rash or negligent act causing grievous hurt, nor was it the cause of death. Consequently, the conviction under Section 338 IPC was set aside, though the civil liability remained.
Issues considered
- The omission of the surgeon to personally perform the surgery and to attend the patient – can it be treated as an "act" under Section 338 IPC?
- Whether a legal duty to act arose for the surgeon, making omission punishable under criminal law.
- Whether the elements of Section 338 – grievous hurt, act, rash/negligent conduct, and endangerment – were satisfied.
- Whether the surgeon's conduct amounted to criminal negligence or merely civil negligence.
- Whether the surgeon could be held liable as an abettor under Section 109 IPC.
Legislation cited
- Indian Penal Code, 1860s. 107, s. 109, s. 32, s. 33, s. 338, s. 36
- Maharashtra Medical Council Act, 1965s. 22(1)
Subjects
medical negligencecriminal liabilityomissionSection 338 IPCprofessional misconductdoctor-patient relationshipcivil liabilityrecklessnessmens rea
Judgment
[2013] 11 S.C.R. 863
DR. P.B. DESAI A
v.
STATE OF MAHARASHTRA & ANR.
(Criminal Appeal No. 1432 of 2013)
SEPTEMBER 13, 2013
B
[A.K.PATNAIK AND A.K. SIKRI, JJ.]
Penal Code, 1860 - s. 338 rlw. s. 109 - Prosecution
under - -Of medical practitioner (surgeon). - Conviction by
courts below - Held: The omission on the part of the accused C
to take care of the patient, in the facts of the case, can come
within the realm of professional misconduct and civil liability
(actionable wrong in tort) but not criminal liability - The
omission on the part of the accused was not the cause for
patient's death - Hence he cannot be held liable u/s. 338 as D
the ingredients of s. 338 have not been satisfied - Tort -
Actionable wrong - Professional Misconduct - Medical
Negligence.
s. 338 - Offence under - Scope of - Held: An offence u/
s. 338 is capable of being committed by omission - Medical E
profession is included in it.
Liability - Omission liability - 'Omission to act' whether
amounts to 'act' - Held: Liability for an omission, requires a
legal duty to act arising from either civil or criminal law - A F
moral duty to act is not sufficient for invoking omission liability
- Penal Code and in particular s. 338 /PC does explicitly
include the liability due to omissions.
Medical Negligence:
G
Medical negligence - Liability of the offending doctor -
Negligent act/omission by a doctor gives rise to civil as well
as criminal liability - Distinction is required to be drawn
between the two.
863 H
864 SUPREME COURT REPORTS [2013] 11 S.C.R.
A Medical negligence - Civil liability - If the patient suffers
because of negligent act/omission of doctor, the doctor is
liable to pay damages - Torts.
Medical negligence - Criminal liability - Of the offending
8 doctor - Held: Criminal liability is to be answered in terms of
mens rea - The only state of mind which deserves punishment
is that which demonstrates an intention to cause harm or
where there is deliberate willingness to subject others to the
risk of harm.
c Medical negligence - Ascertainment of - Doctor-patient
relationship - Establishment of - Held: Formation of a doctor-
pa tient relationship is integral to formation of a legal
relationship and consequent rights and duties, forming the
basis of liability of a medical practitioner- A contract between
D doctor and patient is always implied, except when written
informed consent is obtained - When contractual relationship
is established, it gives foundation to legal obligation between
the doctor and patient - Once it is found that there is 'duty to
treat' there would be corresponding 'duty to take care' -
E Whenever the principle of 'duty to take care' is founded on a
contractual relationship it acquires a Legal character.
Negligence:
'Negligence' - Connotation of.
F
'Negligence' and 'Recklessness' - Difference between.
The appellant, a renowned surgeon was prosecuted
u/s. 338 r/w. s. 109 of IPC. The prosecution case was that
G the wife of the complainant was a patient of cancer since
1977. She had also undergone treatment in U.S.A. for the
same, where the hospital declared her beyond surgical
treatment and was sent back to India. Thereafter, she was
on medication under medical supervision of Dr. 'M'. She
was admitted in the hospital with a complaint of 'vaginal
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA 865
bleeding', where the appellant-accused examined her and A
advised 'Exploratory Laporotomy' (surgery), in order to
ascertain whether patient's uterus could or could not be
removed to stop the bleeding. Dr. 'M' began the surgery.
On seeing the condition after opening the abdomen, Dr.
'M' called the appellant-doctor who was performing other B
surgery. Appellant after seeing the condition of the patient
from a distance, advise Dr. 'M' to close the abdomen as
it was not possible to proceed with the operation.
Thereafter, the condition of the patient deteriorated and
she developed other problems and never recovered and c
after about one year died.
The complainant filed a complaint against the
appellant with Maharashtra Medical Council, who took
disciplinary action against the appellant and found him
guilty of professional misconduct and issued warning u/ D
s. 22(1) of Maharashtra Medical Council Act, 1965.
The complainant also lodged a criminal case against
'the appellant u/s. 338 r/w. s. 109 IPC. The trial court
convicted him and sentenced him to simple E
imprisonment till the rising of the Court and fine of Rs.
50,000/- by way of compensation with default clause. High
Court confirmed the order of trial cou.rt. Hence the
present appeal.
Allowing the appeal, the Court F
HELD: 1.1. The defence put by the appellant was that
the complainant's wife was not his patient, b.ut the same
has rightly been rejected by the Courts below in view of
plethora of evidence, establishing otherwise. Thus, it can G
be concluded that she was the patient of the appellant
and it was his responsibility to take care of his patient.
Usually before the operation, consent form is required to
be signed by the patient for agreeing to the risks
involved. The documentary medical records of surgical H
866 SUPREME COURT REPORTS [2013] 11 S.C.R.
A operation pointed to the appellant as the operating
surgeon, the oral and documentary proof both impliedly
and explicitly leads to the creation of contractual
agreement between the patient and the appellant. [Paras
24 and 25] [889-B, C-D]
B
Lambert v. California (355 U.S. 225 (1957) - referred to.
1.2. When a physician agrees to attend a patient,
there is an unwritten contract between the two. The
patient entrusts himself to the doctor and that doctor
C agrees to do his best, at all times, for the patient. Such
doctor-patient contract is almost always an implied
contract, except when written informed consent is
obtained. While a doctor cannot be forced to treat any
person, he/she has certain responsibilities for those
D whom he/she accepts as patients. [Para 39] [894-H; 895-
A-B]
1.3. The formation of a doctor-patient relationship is
integral to the formation of a legal relationship and
consequent rights and duties, forming the basis of
E liability of a medical practitioner. Due to the very nature
of the medical profession, the degree of responsibility on
the practitioner is higher than that of any other service
provider. The concept of a doctor -patient relationship
forms the foundation of legal obligations between the
F doctor and the patient. In the present case, as already
held above, doctor-patient relationship stood established,
contractually, between the patient and the appellant.
[Para 39] [895-H; 896-A-C]
G 1.4. Once, it is found that there is 'duty to treat' there
would be a corresponding 'duty to take care' upon the
doctor qua/his patient. In certain context, the duty
acquires ethical character and in certain other situations,
a legal character. Whenever the principle of 'duty to take
H care' is founded on a contractual relationship, it acquires
DR. P.B. DESAI v. STATE OF MAHARASHTRA 867
a legal character. Contextually speaking, legal 'duty to A
treat' may arise in a contractual relationship or
governmental hospital or hospital located in a public
sector undertaking. Ethical 'duty to treat' on the part of
doctors is clearly covered by Code of Medical Ethics,
1972. Clause 10 of this Code deals with 'Obligation to the B
Sick' and Clause 13 cast obligation on the part of the
doctors with the captioned "Patient must not be
neglected". Whenever there is a breach of the aforesaid
Code, the aggrieved patient or the party can file a petition
before relevant Disciplinary Committee constituted by the c
concerned State Medical Council. [Para 40] [896-D-G]
1.5. When reasonable care, expected of the medical
professional,. is not rendered and the action on the part
of the medical practitioner comes within the mischief of
negligence, it can be safely concluded that the said D
doctor -did not perform his duty properly which was
expected of him under the law and breached his duty to
take care of the patient. [Para 41] [896-H; 897-A]
2.1. There may be various circumstances where 'act' E
would include 'omission to act' as well. This is recognized
even in ss. 32, 33 and 36 IPC. An omission is sometimes
called a negative !!Ct, but this, seems dangerous practice,
for it too easily permits an omission to be substituted for
an act without requiring the special requirement for ' F
omission liability such as legal duty and the physical
capacity to perform the act. Criminal liability for an
omission is also well accepted where the actor has a legal
duty and the capacity to act. It is said that this rather
fundamental exception to the act requirement is permitted G
because an actor's failure to perform a legal duty of which
he is capable, satisfies the purp.oses of the act requirement
or at least satisfies them as well as an act does.
Specifically these two special requirements for omission
liability help to exclude from liability cases of -fantasizing
H
868 SUPREME COURT REPORTS [2013] 11 S.C.R.
A and irresolute intentions, important purposes of the act
requirement. [Paras 29 and 30] [890-E; 891-C-E]
2.2. However, a failure to act, by itself does nothing
to screen out mere fantasies. It is the actor's failure to act
8 in the light of his capacity to do so that suggests the
actor's willingness to go beyond mere fantasizing and to
have the harm or evil of the offence occur. Even then,
however, the screening effect seems weak; "letting
something happen" simply does not carry the same
C implication of resolute intention that is shown in "causing
something to happen" by affirmative action. While an
actor's failure to perform a legal duty provides some
evidentiary support for the existence of an intention to
have the harm or evil occur, the force of the implication
is similarly weak. Inaction often carries no implication of
0 intention unless it is shown that the actor knows of his
or her duty to act and the opportunity to do so. [Para 31]
[891-F-H; 892-A]
2.3. Liability for an omission requires a legal duty to
E act; a moral duty to act is not sufficient. The duty may
arise either from the .offence definition itself or from some
other provision of criminal or civil law. A duty arises from
the former when an offence is defined in terms of
omission. This is the -situation where the legislature has
F made it an offence. A legal duty to act may also be
created by a provision of either criminal or civil, separate
from the offence charged. [Para 32] [892-B-C]
2.4. Since there is no moral difference between (i) a
positive act and (ii) an omission, when a duty is
G established, it is to be borne in m.ind that cases of
omissions, the liability should be exceptional and needs
to be· adequately justified in each instance. Secondly,
when it is imposed, this should be done by clear statutory
language. Verbs primarily denoting (and forbidding)
H active conduct should not be construed to include
DR. P.B. DESAI v. STATE OF MAHARASHTRA 869
omissions except when the statute contains a genuine A
implication to this effect. Thirdly, maximum penalties
applied to active wrongdoing should not automatically be
transferred to corresponding omissions; penalties for
omissions should be re-thought in each case. Indeed, IPC
does include explicitly the liability due to omissions. And B
even Indian courts have affirmed so. Section 338 of l.P.C
does recognize unambiguously that the particular
offence can be committed by omission. More so, the
medical profession is included in it. [Para 33) [892-D-F;
893-C] C
Latifkhan (1895) 20 Born 394 - referred to.
Kusum Sharma and others v. Batra Hospital and Medical
Research Centre and Others (2010) 3 SCC 480: 2010 (2)
SCR 685 - relied on. D
3.1. If the patient has suffered because of negligent
act/ omission of the doctor, it undoubtedly gives right to
the patient to sue the doctor for damages. This would be
a civil liability of the doctor under the law tort and/ or E
contract. Such a negligent act, normally a tort, may also
give rise to criminal liability as well, though
jurisprudentially the distinction has to be drawn between
negligence under Civil Law and negligence under
Criminal Law. [Paras 42 and 43) [899-B, H; 900-A]
F
Jacob Mathews v. State of Punjab and Another 2005 (6)
SCC 1: 2005 (2) .Suppl. SCR 307 - relied on.
3.2. Thus, in the civil context, the moral implications
of negligent conduct, a clear view of the state of mind of G
the negligent doctor might not require strictly. This is for
the reason that the law of tort is ultimately not concerned
with the moral culpability of the defendant, even if the
language of fault is used in determining the standard of
care. From the point of view of civil law, it may be H
870 SUPREME COURT REPORTS (2013] 11 S.C.R.
A appropriate to impose liability irrespective of moral
blameworthiness. This is because in civil law two
questions are at issue: Was the defendant negligent? If
so, should the defendant bear the loss in this particular
set of circumstances? In most cases where negligence
B has been established, the answer to the second question
will be in the affirmativP-, unless the doctrine of
remoteness or lack of foresee ability militates against a
finding of liability, or where there is some policy reason
precluding compensation. The question in the civil
C context is, therefore, not about moral blame, even though
there will be many cases where the civilly liable defendant
is also morally culpable. [Para 44] [903-B-E]
3.3. So far as the sphere of criminal liability is
concerned, as mens rea is not abandoned, the subjective
D state of mind of the accused lingers a critical
consideration. In the context of criminal law, the basic
question is quite different. Here the question is: Does the
accused deserve to be punished for the outcome caused
by his negligence? This is a very different question from
E the civil context and must be answered in terms of mens
rea. Only if a person has acted in a morally culpable
fashion can this question be answered positively, at least
as far as non strict liability offences are concerned. [Para
45] [903-F-H; 904-A]
F
3.4. The only state of mind which is deserving of
punishment is that which demonstrates an intention to
cause harm to others, or where there is a deliberate
willingness to subject others to the risk of .harm.
G Negligent conduct does not entail an intention to cause
harm, but only involves a deliberate act subjecting
another to the risk of harm where the actor is aware -of
the existence of the risk and, nonetheless, proceeds in
the face of the risk. This, however, is the classic definition
of recklessness, which is conceptually different from
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA 871
negligence and which is widely accepted as being a basis A
for criminal liability. [Para 46) [904-B-C]
3.5. The solution to the issue of punishing what is
described loosely, and possibly inaccurately, as
negligence is to make a clear distinction between
B
negligence and recklessness and to reserve criminal
punishment for the latter. If the conduct in question
involves elements of recklessness, then it is punishable
and should not be described as merely negligent. If,
however, there is nothing to suggest that the actor was
aware of the risk deliberately taken, then he is morally C
blameless and should face, at the most, a civil action for
damages. [Para 47] ~904-D-E]
4.1. A perusal of s. 338 IPC would clearly
demonstrate that before a person is held guilty of the D
offence, following ingredients need to be ~stablished: a)
Causing grievous hurt to a person. b) Grievous hurt
should be the result of an act. c) Such act ought to have
been rash and negligent. d) The intensity of commission
of such an act ought to endanger human life or the E
personal safety of oth_ers. [Para 23) [887-E-G]
4.2. In the present case, the concern revolves around
the acts of omission and commission which amounted
to an 'act' so rashly or negligently as to have had
endangered the life of the patient constituting an offence F
punishable u/s. 338 IPC. Since there was no overt act on
the part of the appellant, as the surgical procedure was
performed by another doctor, charge of abetment under
Section 109 of l.P.C. was also leveled. The other doctor
was also made accused in the said complaint. However, G
at a later stage, he was dropped from the proceedings at
the instance of the complainant. [Para 51] [905-D-E]
4.3. The appellant was leveled a specific charge
which was framed against him. The prosecution was H
872 SUPREME COURT REPORTS [2013) 11 S.C.R.
A required to prove that particular charge and not to go
beyond that and attribute "rash and negligent" acts
which are not the part of the charge. Culpability is
specifically related to the act of performing surgical
procedure. It is, thus, this act alone, and nothing more,
B for which the appellant and the other doctors were
charged and the appellant is supposed to meet this
charge alone. [Para 52] [905-F-H]
4.4. Just because the advise of the appellant that
C 'Exploratory Laparotomy' be conducted on the patient,
was given in the teeth of the advise of the doctors in the
U.S.A, it would not automatically follow that the view
expressed by the appellant was blemished. The two
experts in medical field may differ on decision to
undertake the surgical operation. The critical condition of
0 the patient at that time has to be kept in mind. She was
sent home by the American doctors as inoperable. She
was advised to take certain medicines. These medicines
were being administered by Dr. 'M'. However, further
complications arose in the meantime as vagina started
E bleeding which was not coming to a halt. Obviously, it
was terminal stage for the patient. It is in this situation,
opinion of the appellant was sought. The dilemma of a
doctor in such a scenario can be clearly visualized viz.,
whether to leave the ·patient as it is or to take a chance,
F may be a very slim chance, to save or at least to try to
prolong the life of the patient. It was not an easy choice.
Overcoming this difficult situation, the appellant took the
bold decision viz. that surgical operation was worth
taking a risk, as even otherwise, the condition of the
G patient was deplorable. The appellant has even given his
justification and rationale for adopting this course of
action. [Paras 53 and 54) [906-A, C-G]
4.5. During trial, a doctor (DW.2) has endorsed the
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA 873
opinion of the appellant and has gone to the extent of A
saying· that it was the best possible option for the
treatment of the patient. Moreover, Dr. 'M' has also
accepted/ agreed that the advise tendered by the
appellant on the basis of CT Scan Report, and, that the
call to operate was "unanimous". In this scenario, it B
cannot be said that advise of the appellant for taking the
surgical procedure was an act of wanton negligence.
[Para 55] [907-E-F] ·
4.6. No doubt, in the present case the appellant not
only possesses requisite skills but is also an expert in this C
line. However, having advised the operation, he failed to
take care of the patient. Thereafter, at various stages, he
was held to be negligent by the Maharashtra Medical
Council and thus found to be guilty of committing
professional misconduct. Thus, it was the appellant's D
"duty" to act contractually, professionally as well as
morally and such an omission can be treated as an "act".
Within the realm of civil liability, the appellant has
breached the well essence of "duty" to the patient. [Paras
60 and 61] [911-A-C] E
4.7. Opening of the abdomen and performing the
surgery cannot be treated as causing grievous hurt. It
could have been only if the doctors would have faltered
and acted in rash and gross negligent manner in F
performing that procedure. It is not so. At the same time,
his act of omission, afterwards, in not doing the surgery
himself and remaining absent from the scene and
neglecting the patient, even thereafter, when she was
suffering the consequences of fistula, is an act of
negligence and is definitely blame worthy (though that is G
not the part of criminal charge). However, the omission
is not of a kind which has given rise to criminal liability
under the given circumstances. [Para 62] [911-F-H]
4.8. However, the appellant's omission in not H
874 SUPREME COURT REPORTS [2013] 11 S.C.R.
A rendering complete and undivided legally owed duty to
patient and not performing the procedure himself, has not
made any difference. It was not the cause of the patient's
death which was undoubtedly because of the acute
chronic cancer condition. In such a scenario, it is enough
B to keep off the clutches of criminal law. The negligent
conduct in the nature of omission of the appellant is not
so gross as to entail criminal liability on the appellant u/
s. 338 IPC. The crimes as mentioned in s. 338 IPC require
proof that the appellant caused the patient's condition to
c the acute stage. [Paras 66 and 67] [913-C-E]
R. v. Adomako (1994) 3 WLR 288 - referred to.
4.9. The conduct of the appellant constituted not only
professional misconduct for which adequate penalty has
D been meted out to him by the Medical Council, the
negligence on his part also amounts to actionable wrong
in tort, it does not transcend into the criminal liability, and
in no case makes him liable for offence under Section 338
IPC, as the ingredients of that provision have not been
E satisfied. [Para 69] [914-C-D]
Faguna Kant Nath v. The State of Assam (1959) 2 Suppl.
SCR 1; Madan Raj Bhandari v. State of Rajasthan (1969) 2
SCC 385: 1970 (1) SCR 688 ·referred to.
F Case Law Reference:
(1959) 2 Suppl. SCR 1 referred to Para 17
1970 (1) SCR 688 referred to Para 17
355 U.S. 225 (1957) referred to Para 26
G
2010 (2) SCR685 referred to · Para 55
2005 (2) Suppl. SCR 307 relied on Para 43, 59
(1994) 3 WLR 288 referred to Para 68
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA 875
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal A
No. 1432 of 2013.
From the Judgment & Order dated 15.10.2012 of the High
Court of Bombay in CRLRP No. 166 of 2012.
Harish Salve, K.V. Vishwanatha, R.N. Karanjawala, B
Sandeep Kapur, Shivek Trehan, Shridhar Y. Chitale, Mehul
Gupta, Gayatri Goswami, Manik Karanjawala (for Karanjawala
& Co.) for the Appellant.
B.H~ Marlapalle, Colin Gonsalves, Asha Gopalan Nair, C
Abhishek Kr. Pandey, Jubli Momalia, Jyoti Mendiratta for the
Respondents.
The Judgment of the Court was delivered by
A.K. SIKRI, J. 1. Leave granted.
D
2. The appellant herein, a renowned surgeon, stands
convicted of the offence punishable under Section 338 r/w
Section 109 of the Indian Penal Code, 1860 (hereinafter to be
referred as the 'l.P.C'). This conviction was delivered by the E
Additional Chief Metropolitan Magistrate, 47th Court,
Esplanade, Mumbai, vide judgment and order dated
05.07 .2011. The -appellant was sentenced to suffer simple
imprisonment (SI) till the rising of the Court and to pay Rs.
50,000/- as and by way of compensation, in default to suffer F
simple imprisonment for 3 months. This conviction and sentence
had been upheld by the Id. Additional Sessions Judge vide
judgment dated 22.03.2012 and is also confirmed by the High
Court of Judicature at Bombay by way of impugned judgment
dated 15.10.2012. Still not satisfied, the appellant has G
challenged the judgment of the High Court, by way of present
appeal.
3. To give a glimpse of the episode at the outset, we may
mention that one Smt. Leela Singhi (hereinafter to be referred H
876 SUPREME COURT REPORTS [2013] 11 S.C.R.
A as the 'patient'}, wife of Shri Padamchandra Singhi, the
complainant, was suffering from Cancer for which she was
under medical treatment since the year 1977. As her condition
did not improve and rather deteriorated over a period of time,
in 1987 she was taken to America and was treated in Sloan
B Kettering Memorial Hospital in New York. However, it did not
yield any positive results. The doctors in that hospital declared
her beyond surgical treatment and she was sent back to India
on 29.11.1987. In India, she had been under the medical
supervision of Dr. A.K. Mukherjee, for a long time, who started
C -administering the medication prescribed by the doctors in
U.S.A. Within few days, the patient started suffering from vaginal
bleeding because of which Dr. A.K. Mukherjee advised her for
hospitalization. She was admitted to Bombay Hospital on
9.12.1987. After a few days of hospitalization, she was
D examined by the appellant who advised 'Exploratory
Laparotomy (surgery)', in order to ascertain whether the
patient's uterus can or cannot be removed in order to stop the
vaginal bleeding.
E 4. Nod of a patient for Exploratory Laparotomy was duly
taken who signed the consent form. Dr. Mukherjee, assisted
by two other doctors, began the Exploratory Laparotomy
procedure on 22.12.1987. On opening the abdomen, Dr.
Mukherjee found plastering of intestines as well as profuse
F oozing of ascetic fluids. He immediately called the appellant
who was performing other surgical procedure in another
operation theatre. The appellant after seeing the condition of
the patient from a distance, found that it was not possible to
proceed with the operation. He advised Dr. A.K. Mukherjee to
G close the abdomen. Dr. Mukherjee, thus, closed the abdomen.
The condition of the patient, thereafter, deteriorated due to the
formation of fistula. The patient remained in the hospital for
treatment ofthe fistula. After remaining in the hospital for about
3 months she was discharged and taken home by the
H
DR. P.B!:DESAI v. STATE OF, MAHARASHTRA 877
[A.K.SIKRI, J.]
complainant. But she never recovered and ultimately passed A
away on 26.2.1 ~89 at Jaipur. · · ·
·~
., 5. The compfainant filed a complaint with the Maharashtra
Medical Council against the appellant and also lodged criminal
complaint against the appellant with the Director General of B
Police, Maharashtra. Main allegation against the appellant was·
that he did not take personal care and attention by preferring
the operation himself. On the contrary he did not ever bother
to even remain present there when Dr. A.K. Mukherjee started
surgical procedure and opened the abdomen, Moreover, when c
Dr. Mukherjee, on opening of the abdomen, found that Cancer
was at a very advanced stage and it would not be possible to
proceed beeause there was fluid.and intestines were plastered
and he called the appellant for advice, even then the appellant
did not examine the patient minutely. Instead, after seeing her D
from the entrance of the operating room, he advised Dr.
·Mukherjee to close the abdomen. So much so, even after the
formatiol"! of the fistula and the· pathetic 'condition of the patient,
the appellant never bothered to examine or looked after her. It
was alleged that the very advise of thil'appellant for -surgical E
operation,. even when .
doctors at U.S.A. had opined to the
~·· -
contrary,, was inappropriate. It was, thus alleged that the
aforesaid acts of omission and commission amounted to
professional misconduct as well as offence punishable under
Section 338 of the l.P.C. Since, there was no overt act on the F
part of the appellant, as the surgical procedure was performed
by Dr. A.K. Mukherjee, charge of abetment under .section 109
of l.P.C. was also leveled against the appellant. Dr. A.K.
Mukherjee'.was also made accused in the said complaint.
However, at'a later stage, Dr. A.K. Mukherjee was dropped G
from the proceedings at the instance Of the COmplainant. 1 • I
6. It is on the aforesaid allegations, purportedly proved
through oral and documentary evidence, that the conviction of
the appellant is returned by the courts below.. - ·
. . : , .• . . , t-'. H
878 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 7. On the complaint of the complainant, Maharashtra
Medical Council initiated disciplinary action against the
appellant and found him guilty of professional mis-conduct under
Para 15 of the Warning Notice of the Maharashtra Medical
Council's Code of Ethics and Para 3 of the disciplinary action
B of the Medical Council of ~ndia's Code of Ethics. It resulted in
issuance of warning under Section 22(1) of the Maharashtra
Medical -Council Act, 1965 vide orders dated 11.2.1991
passed by the Maharashtra Medical Council. The appellant did
not challenge the findings of the disciplinary committee of the
C Maharashtra Medical Council and accepted the order of
warning.
8. As we are, in this appeal, concerned with the validity of
the conviction of the appellant under Section 338, IPC, we
would like to reproduce that provision at this stage:
0
"338. Causing grievous hurt by act endangering life or
personal safety of others: Whoever causes grievous hurt
to any person by doing any act so rashly or negligently as
to endanger human life, or the personal safety of others,
E shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine which
may extend to one thousand rupees, or with both."
9. Questions that falls for determination is as to whether
F the alleged role of the appellant amounts to "doing any acf' and
whether it was so rash or negligent as to endanger the life of
the patient.-
10. Mr. Harish Salve, learned Se.nior Counsel appearing
G for the appellant, at the outset, invited the attention of this Court
to the exact charge framed by the Trial Court which reads as
under:-
"Does the prosecution prove that on 22.12.1987 at about
9.00 a.m., at Bombay Hospital, Mumbai, the Accused No.
H 1, Accused No. 2 - Dr. A. K. Mukherjee, caused grievous
DR. P.B. DESAI v. STATE OF MAHARASHTRA 879
[AK.SIKRI, J.]
hurt to the wife of complainant namely, Leela Singhi by A
doing an pperation of abdomen taking out uterus, so rash
or negligently as to endanger human life or the personal
safety of wife of the complainant namely, Leela Sing hi and
thereby committed an offence punishable under Section
338 read with Section 109 of the 1.P.C?" B
11. His submission was that the specific allegations in the
charge framed against the appellant as well as Accused No. 2
- Dr.. AK. Mukherjee were that:-
(a) The charge is for a specific act committed at 9.00 C
a.m. on 22.12.1987.
(b) It is a charge against the Appellant (Accused No.
1) and Dr. A.K. Mukherjee (Acquitted Accused No.
2). D
(c) The charge is against the two accused under
Section 338 r/w Section 109 of I.PC.
12. Proceeding therefrom, Mr. Harish Salve, argued that
the primary offender, as per the charge under Section 338 of E
the 1.P.C, was Dr. AK. Mukherjee, the doctor who actually
performed the procedure and the appellant was charged as an
abettor, using Section 109 of the l.P.C. However, Dr. AK. _
Mukherjee was dropped from the prosecution at the instance
of the complainant himself, on the ground that there was no F
evidence against him. On the contrary, the complainant in his
testimony (P.W.1) gave glowing compliments to Dr. AK.
Mukherjee, praising his skllls both as a doctor and a surgeon.
In such circumstances, argued Mr. Harish Salve the question
of abetment did not survive and, therefore, the case warranted G
closure even against the appellant as well, after dropping Dr.
Mukherjee from the prosecution.
13. Without prejudice to the aforesaid submissions, further
arguments of Mr. Harish Salve were that, in any case, the H
880 SUPREME COURT REPORTS [2013] 11 S.C.R.
A ingredients of Section 338 of l.P.C had not been established.
It was merely a case of "negligence" projected by the
prosecution. It could not be held, ipso facto, that the essential
ingredients of the offence contained under Section 338 of l.P.C ..
were fulfilled.
B
14. Mr. Harish Salve endeavored to demonstrate that the
decision of the appellant to advise the operation, in question,
namely "Exploratory Laparotomy'' could not even be treated as
unreasonable or an act of negligent advice. Once it was
c accepted that the appellant was a renowned Oncologist with
great experience, his opinion to conduct the aforesaid
procedure/ surgery, after examining the patient, was an expert
opinion and merely because he differed from the doctors in
U.S.A. on this account, negligence could not be attributed to
0 him because of the same, much less criminal negligence.
15. That apart, merely on the basis of negligence, it could
not be held that ingredients of Section 338 of l.P.C. stood
proved as it could not amount to an "act" of causing "grievous
hurt", that too "rationally and negligently" thereby endangering
E the life of the patient. He submitted that, in the first instance, a
medical professional who is called upon to treat a patient
cannot possibly be charged for causing hurt, where the patient
has come to the hospital for receiving treatment inter alia by
virtue of Section 81, 87 and 88 of the l.P.C. and where consent
F for such treatment has been freely given.-
Secondly, in the context of a doctor - patient relationship,
even assuming, without accepting that there could be a
situation in which a doctor can be held to have committed an
G offence of causing hurt (either for want of consent or acting with
wanton negligence in performing a procedure), it is
inconceivable that a doctor can be charged of causing a hurt •
by not doing something. An omission by a surgeon to perform
a surgery, in certain extreme circumstances, may constitute
H acting in a manner that no medical professional would, and
..,.
DR. P.B. DESAI v. STATE OF MAHARASHTRA 881
[A.K.SIKRI, J.]
thereby be a case of criminal negligence. It cannot possibly be A
an omission by which hurt, by way of a positive act, is inflicted.
16. Mr. Harish Salve argued that once rendering an
opinion to perform such surgical procedure cannot be treated
as criminal offence, in so far as actual procedure is concerned, B
that was not performed by the appellant. Without accepting, that
it was the appellant who was to do the surgery himself, he
submitted that the Courts below fell in legal error by attributing
the so called omission to perform the said surgery by the
appellant as an "act" within the meaning of Section 338 ofthe c
l.P.C. He pointed out that the charge as framed did not even
remotely mention about the purported "illegal omission". He
thus, argued that the Respondents could not base their case
on plea of "omission" as an "acf'. Even otherwise, in the instant
case, the so called omission could not be treated as an "act" D
of causing grievous hurt in as much as, such an omission has
to be in relation to the operation that caused the hurt. Dilating
this aspect, the learned senior counsel projected the theory that
illegal omissions could result in causing hurt cannot have any
application to a doctor who has not performed a surgery - E
where the primary allegation is that the performance of the
surgery constituted the infliction of hurt. Whatever may be the
legal consequences of reneging on an assurance to perform
a surgery, if the surgery is performed by a duly qualified
professional, the surgeon who did not perform the surgery could
F
not possibly be guilty of causing hurt. A fortiori, where the
surgeon who did perform the surgery is duly qualified, and is
blame free, there is no question of charging, under Section 338
of 1.P.C., some other surgeon who may have been engaged to
perform the surgery, but did not do so.
G
17. Mr. Harish Salve also sought to distract the charge of
abetment under Section 109 of the l.P.C. by attempting to
highlight that as per the charge framed by the Trial Court, the
"act" was attributed to Dr. AK. Mukherjee and the primary
charge against the appellant was only that of abetment. With H
882 SUPREME COURT REPORTS [2013) 11 S.C.R.
A the dropping of Dr. AK. Mukherjee from the prosecution, the
charge of abetment no more survived, more so when no overt
act is attributed to the appellant and there is no medical or other
aspect examined to show grievous hurt resulted because of the
surgery. The appellant placed reliance upon the decisions of
B this Court in Faguna Kant Nath v. The State of Assam (1959)
2 Suppl. SCR 1; Madan Raj Bhandari v. State of Rajasthan
(1969) 2 sec 385.
18. Mr. B.H. Marlapalle, learned Senior Counsel
c appearing for the State invited the attention of this Court to the
reasons recorded by the Maharashtra Medical Council in its
order$ dated 11.2.1991 holding the appellant guilty of
misconduct. He pointed out that under the Maharashtra Medical
Council Act, 1965, the proceedings against the appellant were
D in the nature of judicial proceedings under Sections 22 of the
said Act and since these findings of the Medical Council had
attained finality, there was no basis in the submission of the
appellant that he had not acted negligently. He also referred to
the findings recorded by the trial court and the High Court and
E submitted as under:
(a) The patient Smt. Leela Singhi was admitted at the
Bombay Hospital as the patient of the present
accused in Room No. 1005 (MRC I Class).
F (b) She had given consent for being operated by the
present accused.
(c) It was the accused mainly who took the decision to
operate the patient for exploratory surgery despite
a written opinion from the doctors of USA that she
G was inoperable.
(d) As per the evidence of DW.2, Dr. Gajanand
Hegade, Dr. A.K. Mukherjee. was the Assistant
Surgeon under the present accused and it was not
H permissible for him to perform any procedure
DR. P.B. DESAI v. STATE OF MAHARASHTRA 883
[A.K.SIKRI, J.]
independently. A
(e) The accused had accepted tWo different surgeries
in two different operation theatres (OT 1 and OT 2)
at the same time on 20.12.1987 at the Bombay
Hospital and Mrs. Leela Singhi was taken in OT 2. s
He instructed Dr. A.K. Mukherjee to open the
abdomen of Mrs. Leela Singhi and went to OT1 to
attend another surgery. After Dr. A.K. Mukherjee, as
per the instructions of the present accused, Dr. P .8.
Desai took a cut he immediately noticed that the c
process was unmanageable for him and the said \
process was started in the absence of Dr. Desai.
Dr. Mukherjee, therefore, in deperation sent for Dr.
Desai to come to OT 2 and attend to Mrs. Singhi
for further procedure. Dr. Desai did not turn up and, D
therefore, after waiting for some time -and leaving
the patient, Dr. Mukherjee went to OT1 to request
Dr. Desai to come and attend to Mrs. Singhi. Dr.
Desai came to OT 2 and by standing at a distance
of 6 feet, instructed Dr. Mukherjee to stitch the E
abdomen as the case was inoperable. He did not
touch the patient, leave alone stitching the abdomen
by himself. The patient remained in the Hospital for
over three months and for about initial one month
she required dressing every one hour because of
the bleeding from the stitches. This pain and F
suffering of the patient could have been avoided/
reduced if Dr. Desai himself had stitched the
abdomen. After the wound was stitched and till the
patient was discharged on 5.4.1998, Dr. Desai did
not, even once, attend to Mrs. Singhi and the patient G
missed the healing touch of the surgeon who was
authorized to operate her.
(f) After the patient's husband (PW.1) started writing
complaints, Dr. Desai flatly denied that Mrs. Singhi H
884 SUPREME COURT REPORTS [2013] 11 S.C.R.
A was his patient. And Dr. Desai continued the denial
even till the end of the trial despite the fact that the
Maharashtra Medical Council had held him guilty
after a full fledged enquiry under Section 22 of the
Maharashtra Medical Council Act, 1965 and
B warned him, so also three witnesses from the
hospital i.e. PW.2, PW.3 and PW.5 were examined
by the prosecution to prove that Mrs. Leela Singhi
was the patient of Dr. Desai. This entire behavior
of Dr. Desai during the operation stage and post
c operation and -post complaint/ during trial was not
commensurate with his professional eminence.
19. Submissions of Mr. B.H. Marlapalle were that the
aforesaid admitted facts were sufficient to establish commission
D of offence under Section 338 of the l.P.C., in as much as, it has
been proved beyond reasonable doubts that because of the
procedure with which the patient was subjected to, under the
instructions of the appellant, the patient suffered grievous hurt
which also endangered her life and it was he alone who was
E negligent and acted rashly from 20.12.1987 till the patient was
discharged on 5.4.1988. He argued that it is not necessary to
evaluate as to whether his decision to operate Mrs. Singhi could
be said to be rash or negligent, (though it was hazardous) but
surely having taken the decision to operate her, the appellant
did not operate her and instead instructed Dr. Mukherjee to
F proceed with the first cut and Dr. Desai even abandoned the
patient and went to the other operation theatre. When he came
back to OT 2, he did not attend to Mrs. Singhi and stitched the
cut. This was second act of rash and negligent behavior of the
appellant. Thirdly, even after the operation, he never attended
G to Mrs. Leela Singhi till she was discharged and thus again this
was another act of rash and negligent behavior. Though this
could be said to be omissions of Dr. Desai, the word "doing
any act'' as appearing in Section 338 is required to be read
with Section 32, 33 and 36 of l.P.C. The learned counsel
H pointed out that in every part of this Code, except where a
DR. P.B. DESAI v. STATE OF MAHARASHT~A 885
[A.K.SIKRI, J.]
contrary intention appears from the context, words which refer A
to acts done extend also to illegal omissions. Section 33 of
l.P.C. states that the word "act" denotes as well a series of acts
as a single act and the word "omission" denotes as well as
series of omissions as a single omission. Whereas, as per
Section 36 of the l.P.C. - wherever t~e causing of a certain B
effect, or an attempt to cause that effect, by an act or by an
omission, is an offence, it is to be understood that the causing
of that effect partly by an act and partly by an omission is the
same offence. It was thus, argued that all the acts proved
against the appellant and the omissions attributable to him, c
form the part of the same offence viz., an offence under Section
338 of causing grievous hurt by rash and negligent acts/
omissions. The said offence is not attributable to a single act
or omission but it denotes a series of omissions/ acts as a
single omission/ act. - D
20. According to the learned State Counsel even the
offence under Section 109 of l.P.C. was proved,
notwithstanding the fact that Dr. Mukherjee was dropped from
the proceedings. He r,~ferred to Section 107 of l.P.C. which
E
defines Abetment of a thing - by stating that a person abets a
doing of a thing who, inter alia, intentionally aids, by any act or
illegal omission the doing of that thing. As per Section 109 of
l.P.C. whoever abets any offence shall, if the act abetted is
committed in consequence of the abetment, and no express
F
provision is made by the l.P.C. for the punishment of such
abetment, be punished with punishment provided for the
offence. Thus, the offence under Section 109 is an independent
offence but the punishment is related with other offence. In the
instant case, with the offence punishable under Section 338, G
as the appellant instructed Dr. Mukherjee to open the abdomen
of Mrs. Singhi who was not authorized to do so and left the
operation theatre leaving the patient in the charge of Dr.
Mukherjee, the ap'Pellant abetted through Dr. Mukherjee. The
words "intentional(Y acts" used in Section 107 (thirdly) of l.P.C.
H
886 SUPREME COURT REPORTS [2013] 11 S.C.R.
A are required, to be read, in the instant case as "knowingly
instructs". The prosecution case has not.in any way effected
because of the discharge of Dr. Mukherjee by allowing an --
application under Section 321 of Cr. PC. as Dr. Mukherjee was
not competent to undertake the procedure independently and
B he undertook the procedure solely as per the instructions of the
appellant. Hence, the prosecution urged that the accused has
been rightly convicted under Section 338 r/w Section 109 of
1.P.C.
c 21. Mr. Gonsalves, Id. Senior Counsel, argued for the
complainant/ Respondent No. 2, and pleaded that the
conviction recorded by the Court below were perfectly justified
which required no interference. He referred to the following facts
which. according to him, were established by sufficient and
D cogent evidence.
{a) The appellant alone was the doctor of the patient to
whom the patient was specifically referred to by Dr.
Mukherjee from the stage of examining the patient
and advising surgical operation. The entire
E responsibility was that of the appellant even to do
the surgery in as much as the patient as well as the
complainant recognized only one doctor namely the
appellant.
F {b) The appellant took a particular decision viz., to
perform Exploratory Laparotomy and this itself was
"rash and negligent" act on the part of the appellant,
when examined the same in juxtaposition with the
advise rendered by the doctors in U.S.A.-
G {c) The instruction of the appellant to Dr. Mukherjee to
operate, when Dr. Mukherjee was not authorized by
the Complainant/ Respondent No. 2 was another
act of rash and negligent nature.
H {d) The appellant had consciously and deliberately
DR. P.B. DESAI v. STATE OF MAHARASHTRA 887
[A.K.SIKRI, J.]
abandoned his patient twice - one at the time of A
operation and thereafter, not attending and treating
her to ameliorate her pain and suffering, which was
another rash and negligent act.
These acts, according to Mr. Gonsalve, were sufficient to 8
specify the ingredients of Section 338 of l.P.C.
22. Mr. Gonsalves, also pointed out that the only defence
of the appellant was that Smt. Leela Singhi was not her patient
which has been proved to be false. Therefore, the appellant
could not be allowed to argue to the contrary. Mr. Gonsalves C
also referred to the findings of the Maharashtra Medical Council,
as argued by the State Counsel, to buttress his submission that
the guilt of the appellant stood proved.
23. We have given our deep thoughts to the aforesaid D
submissions made by the learned Senior Counsel appearing
for different parties. The provisions of Section 338 IPC have
already been reproduced in the earlier part of this -judgment.
A perusal thereof would clearly demonstrate that before a
person is held guilty of the offence, following ingredients need E
to be established:
(a) Causing grievous hurt to a person.
· (b) Grievous hurt should be the result of an act.
F
(c) Such act ought to have been rash and negligent.
(d) The intensity of commission of such an act ought
to endanger human life or the personal safety of
others.
G
24. Before we find out as to whether these essential
ingredients have been satisfied in the present case or not,
another aspects needs discussion, viz., whether Smt. Leela
was the patient of the appellant or not.
H
888 SUPREME COURT REPORTS [2013] 11 S.C.R.
A The Established Facts
To find an answer to this question, let us revert to those
facts which have been established by evidence. Respondent
No.2 on the advice of Dr. A.K. Mukherjee admitted her in the
B unit of the appellant at Bombay Hospital on the basis of a note
for admission given by Dr. A. Mukherjee. The operation namely
"Exploratory Laprotomy Panhyxtroctomy" was advised by the
appellant. At Bombay Hospital, a number of medical tests
referred by the appellant including CT Scan, Blood Analysis,
c Blood transfusion report, -examination of urine, microscopic
examination of centrifugalised deposits were done on the
patient. As per the Bombay Hospital records, the patient - Smt.
Leela Singhi was admitted as the indoor patient from
09.12.1987 to 4.5.1988 in Room No. 1005 under the appellant.
D Room No. 1005 was earmarked for the appellant and never
allotted to any other patient without instructions of the appellant.
The date of operation was fixed as per the convenience and
on instructions of the appellant five days after his advice. The
patient was ~xamined by the appellant after preliminary
E . investigations by Dr. A K Mukherjee. A bill of Rs. 5000/- as
the operation fee rendered by the operating surgeon Accused
No 1 - the appellant, was raised by Bombay Hospital which
was sent to Government of Rajasthan for payment. The
documents also showed the appellant as operating surgeon.
F The constant reminders for the clearance of the bill were made
to the Government of Rajasthan for releasing of the payment.
The Respondent No. 2 had objected for charging of Rs. 5000/
- in the name of the appellant for the operation which admittedly
the appellant had never carried on his wife, the operation which
G according to the Bombay Hospital records was to be
conducted by the appellant. Thereafter, Respondent No.2
made a complaint to the Board of -Management of the
Bombay Hospital regarding the behaviour of the appellant and
even met the chairman of the hospital. Resultantly, the charges
H of Rs. 5,000/- against the appellant were waived. After the
DR. P.B. DESAI v. STATE OF MAHARASHTRA 889
[A.K.SIKRI, J.]
correspondence, Bombay Hospital sent a duplicate bill deleting A
Rs. 5,000/- which was the operation fee charges for the
appellant.
We may record that the defence put by the appellant in the
Trial Court was that Smt. Leela Singhi was not her patient but B
the same has rightly been rejected by the Courts below in view
of plethora of evider:ice, establishing otherwise. Thus, it can be
concluded that Smt. Leela was the patient of the appellant and
it was his responsibility to take care of his patient.
25. The answer can also be founded on the nature of C
professional duty which appellant owed to the patient. Usually
before the operation, consent form is required to be signed by
fhe patient for agreeing to the/ risks involved. The documentary
medical records of surgical operation pointed to the appellant
as the operating surgeon, the oral and documentary proof both D
impliedly and explicitly leads/to the creation of contractual
agreement between the patient and the appellant. -
26. In Lambert v. California ( 355 U.S 225 (1957), the
Supreme Court of United States seems to recognize the E
unfairness of imposing liability where an actor is unaware of a
duty to act. Similarly the Indian Constitution mandates under
Articles 20(1) & 21 of the Constitution of India that the due
process of law requires that everyone who is tried under any
law before court must have some awareness of, or at least a F
reasonable opportunity to become aware of their legal owed
duty towards its recipient. In this case, at hand, the appellant
was aware of his duty towards the patient - Smt. Leela as the
appellant was the patient's operating /surgeori. To the utter
disregard of the patient, the appellant vehemently denied her G
to be his patient. Since the documentary evidences are
conclusive in nature also all the facts which had been perused
below in the courts undoubtedly point to the undeniable fact that
the patient - Smt. Leela was indeed the appellant's patient.
H
890 SUPREME COURT REPORTS [2013) 11 S.C.R.
A 27. Thus, brushing aside the objection of the appellant that
Smt. Leela Singhi was not his patient, on the facts of this case
we proceed to find out whether conviction u/s 338 is sustainable
or not.
B 28. For time being we keep aside the first element, viz.
whether the surgical procedure of opening the abdomen of the
patient resulted in -grievous hurt. That is dealt with at
appropriate stage. Before that we discuss the preliminary
submission as to whether this act can be attributed to the
c appellant. Vehemence in the submission was that there is no
"overt" act on the part of the appellant. Therefore, question
arises, in the context of second ingredient, as to whether
"omission to act'', would also be covered by the expression "act"
occurring therein.
D 29. Whether "act" includes "omission"? Though this
aspects needs elaboration alongwith discussion with regard to
other ingredients as these are inextricably mixed up and can't
be discussed in isolation and, therefore, we have proceeded
in that manner at appropriate stage. Here, we are narrating the
E legal position only. In this behalf, we may point out that there
may be various circumstances where "act" would include
"omission to act" as well. This is so recognized even in
Sections 32, 33 & 36 of l.P.C.
F These provisions are reproduced below:
"32. Words referring to acts include illegal
omissions. - In every part of the said code, except
where a contrary intention appears from the context,
words which refer to acts done extend also to illegal
G
omissions. -
33. "Act", "Omission". - The word "act" denotes as
well a series of acts as a single act: the word
"omission" denotes as well a series of omissions
H as a single omission.
DR. P.B. DESAI v. STATE OF MAHARASHTRA 891
[A.K.SIKRI, J.]
36. Effect caused partly by act and partly by A
omission. - Wherever the causing of certain effect,
or an attempt to cause that effect, by an act or by
an omission, is an offence, it is to be understood
that the causing of that effect partly by an act and
partly by an omission is the same offence." B
30. The legal understanding of omission is indispensable
at the juncture. An omission is sometimes called a negative act,
but this seems dangerous practice, for it too easily permits an
omission to be substituted for an act without requiring the c
special requirement for omission liability such as legal duty and
the physical capacity to perform the act. Criminal liability for an
omission is also well accepted where the actor has a legal duty
and the capacity to act. It is said that this rather fundamental
exception to the act requirement is permitted because an D
actor's failure to perform a legal duty of which he is capable,
satisfies the purposes of the act requirement or at least satisfies
them as well as an act does. Specifically these two special
requirements for omission liability help to exclude from liability
cases of -fantasizing and irresolute intentions, important E
purposes of the act requirement.
31. However, a failure to act, by itself does nothing to
screen out mere fantasies. It is the actor's failure to act in the
light of his capacity to do so that suggests the actor's
willingness to go beyond mere fantasizing arid to have the harm F
or evil of the offence occur. Even then, however, the screening
effect seems weak; "letting something happen" simply does not
carry the same implication of resolute intention that is shown
in causing something to happen by affirmative action. While an
actor's failure to perform a legal duty provides some evidentiary G
support for the existence of an intention to have the harm or
evil occur, the force of the implication is similarly weak. Inaction
often carries no implication of intention unless it is shown that
the actor knows of his or her duty to act and the opportunity to
do so. H
892 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 32. Liability for an omission requires a legal duty to act; a
moral duty to act is not sufficient. The duty may arise either from
the offence definition itself or from some other provision of
criminal or civil law. A duty arises from the former when an
offence is defined in terms of omission. This is the -situation
B where the legislature has made it an offence. A legal duty to
act may also be created by a provision of either criminal or civil
separate from the offence charged. For example, a duty under
the Maharashtra Medical Council's Code of Ethics and
Maharashtra Medical Council Act, 1965.
c
33. Since there is no moral difference between (i) a
positive act and (ii) an omission when a duty is established, it
is to be borne in mind that cases of omissions, the liability
should be exceptional and needs to be adequately justified in
D each instance. Secondly, when it is imposed this should be
done by clear statutory language. Verbs primarily denoting (and
forbidding) active cond\JCt should not be construed to include
omissions except when the statute contains a genuine
E implication to this effect. Thirdly, maximum penalties applied
to active wrongdoing should not automatically be transferred
to corresponding omissions; penalties for omissions should be
re-thought in each case. Indeed, the Indian Penal Code, 1860
does include explicitly the liability due to omissions. And even
F Indian courts have affirmed so. In the case ofLatifkhan (1895)
20 Bom 394, wherein the law imposes a duty to act on a
person, his illegal omission to act renders him liable to
punishment. While dealing with the imposition of liability for --
omission, certain considerations are required to be kept in
G mind. Does section 338 of the l.P.C recognize that the
particular offence may be committed by omission? Some
category of offences may, some may not; Does it include
medical profession? If the offence is capable of being
committed by omission, who all were under a duty to act? Who
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA 893
[A.K.SIKRI, J.]
owed the primary duty? What are the criteria for selecting the A
culprit? Where the definition of the crime requires proof that the
actor caused a certain result, and can he be said to have
caused that result by doing nothing? These questions cannot
be completely separated and ~ometimes few or all three of
them would arise in the.same material which follows. Each of B
them, perhaps, also gives rise to yet another question: Is· actor's
conduct properly categorized as an omission, or an act? Indeed
section 338 of the 1.P.C does recognize unamb.iguously that the
particular offence can be committed by omission. More so, the
medical profession is included in it. The offence under-section C
338 of the l.P.C is capable of being committed by omission.
34. We reiterate that we have stated, explained and
clarified the meaning of expression "act" occurring in Section
338 IPC, to include acts of omission as well. Its applicability in D
_the instant case has been discussed elaborately at the relevant
portion of this judgment so as not to lose the continuum.
35_. As we find that "omission" on the part of the appellant
· would also be treated as "acf' in the given circumstances, the
issue is as to whether this act of omission was rash & negligent. E
This is a pivotal & central issue which needs elaborate and all
pervasive attention of the court. To create the edifice, brick by
brick, we intend to proceed in the following order:.
1. The Doctor-Patient Relationship. F
2. Duty of care which a doctor owes towards his
patient.
3. When this breach of duty would amount to
negligence. G
4. Consequences of negligence: Civil and Criminal.
5. When criminal liability is attracted.
H
894 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 6. Whether appellant criminally liable u/s 338 IPC, in
the present case?
(1) The Doctor- Patient relationship
36. Since ancient times, certain duties and responsibilities
B have been cast on persons who adopt the sacred profession
as exemplified by Charak's Oath ( 1000 BC) and the
Hippocracic Oath (460 BC).
37. It is the responsibilities that emerge from the doctor-
C patient relationship that forms the cornerstone of the legal
implications emerging from medical practice. The existence of
a doctor-patient relationship presupposes any obligations and
consequent liability of the doctor to the patient.
D 38. It was Talcott Parsons, a social scientist, who first
theorized the doctor-patient relationship. He worked on the
hypothesis that illness was a form of dysfunctional deviance that
required re-integration with social organism. Maintaining the
social order required the development of a legitimized sick role
E to control this deviance, and make illness a transitional state
back to normal role performance. In this process, the physician,
who has mastered a body of technical knowledge, on a
functional role to control the deviance of sick persons who was
to be guided by an egalitarian universalism rather than a
personalized particularism. While this basic notion has
F
remained robust, over a period of time there have been
numerous qualifications to the theory of Parsons. For instance,
physicians and the public consider some illnesses to be the
responsibility of the ill, such as lung cancer, AIDA and obesity.
G
39. It is not necessary for us to divulge this theoretical
approach to the doctor-patient relationship, as that may be
based on model foundation. Fact remains that when a
physician agrees to attend a patient, there is an unwritten
H contract between the two. The patient entrusts himself to the
DR. P.B. DESAI v. STATE OF MAHARASHTRA 895
[A.K.SIKRI, J.]
doctor and that doctor agrees to do his best, at all times, for A
the patient. Such doctor-patient contract is almost always an
implied contract, except when written informed consent is
obtained. While a doctor cannot be forced to treat any person,
he/she has certain responsibilities for those whom he/she
accepts as patients. Some of these responsibilities may be 8
recapitulated, in brief:
(a) to continue to treat. except under certain
circumstances when doctor can abandon his
patient; c
(b) to take reasonable care of his patient;
(c) to exhibit reasonable skill: The degree of skill a
doctor undertakes is the average degree of skill
possessed by his professional brethren of the same D
standing as himself. The best form of treatment may
differ when different choices are available. There is
an implied contract between the doctor and patient
where the.patient is told, in effect, "Medicine is not
an exact science. I shall use my experience and E
best judgment and you take the risk that I may be
wrong. I guarantee nothing."-
(d) Not to undertake an~ 12rocedure be~ond his control:
This depends on his qualifications, special training
and experience. The doctor must always ensure that F
he is reasonably skilled before undertaking any
special proeedure/treating a complicated case .
.
(e) Professional secrets:A doctor is under a moral and
legal obligation not to divulge the information/ G
knowledge which he comes to learn in confidence
from his patient and such a communication is
privileged communication.
Conclusion: The formation of a doctor-patient
H
896 SUPREME COURT REPORTS [2013) 11 S.C.R.
A relationship is integral to the formation of a legal relationship
and consequent rights and duties, forming the basis of liability
of a medical practitioner. Due to the very nature of the medical
profession, the degree of responsibility on the practitioner is
higher than that of any other service provider. The concept of
B a doctor -patient relationship forms the foundation of legal
obligations between the doctor and the patient.
In the present case, as already held above, doctor-patient
relationship stood established, contractually, between the
c patient and the appellant.
(2) Duty of Care which a doctor owes towards his
patient-
40. Once, it is found that there is 'duty to treat' there would
D be a corresponding 'duty to take care' upon the doctor qua/his
patient. In certain context, the duty acquires ethical character
and in certain other situations, a legal character. Whenever the
principle of 'duty to take care' is founded on a contractual
relationship, it acquires a legal character. Contextually
E speaking, legal 'duty to treat' may arise in a contractual
relationship or governmental hospital or hospital located in a
public sector undertaking. Ethical 'duty to treat' on the part of
doctors is clearly covered by Code of Medical Ethics, 1972.
Clause 1O of this Code deals with 'Obligation to the Sick' and
F Clause 13 cast obligation on the part of the doctors with the
captioned "Patient must not be neglected". Whenever there is
a breach of the aforesaid Code, the aggrieved patient or the
party can file a petition before relevant Disciplinary Committee
constituted by the concerned State Medical Council.
G
(3) When this breach of duty would amount to
negligence?
41. When reasonable care, expected of the medical
professional, is not rendered and the action on the part of the
H medical practitioner comes within the mischief of negligence,
DR. P.8. DESAI v. STATE OF MAHARASHTRA 897
[A.K.SIKRI, J.]
it can be safely concluded that the said doctor -did not perform A
his duty properly which was expected of him under the law and
breached his duty to take care of the patient. Such a duty which
a doctor owes to the patient and if not rendered appropriately
and when it would amount to negligence is lucidly narrated by
this Court in Kusum Sharma and others v. Batra Hospital and 8
Medical Research Centre and Others; (2010) 3 SCC 480. The
relevant discussions therefrom are reproduced hereinbelow:
"45. According to Halsbury's Laws of England, 4th Edn.,
Vol. 26 pp. 17-18, the definition of negligence is as under: C
22. Neg/igence.-Duties owed to patient. A person
who holds himself out as ready to give medical
advice or treatment impliedly undertakes that he is
possessed of skill and knowledge for the purpose.
Such a person, whether he is a registered medical D
practitioner or not, who is consulted by a patient,
owes him certain duties, namely, a duty of care in
deciding whether to undertake the case; a duty of
care in deciding what treatment to give; and a duty
of care in his administration of that treatment. A E
breach of any of these duties will support an action
for negligence by the patient."
46. In a celebrated and oft cited judgment in Bo/am v.
Friem Hospital Management Committee (Queen's Bench
F
Division)
McNair. L.J. observed:
(1) A doctor is not negligent, if he is acting in
accordance with a practice accepted as proper by G
a reasonable body of medical men skilled in that
particular -art, merely because there is a body of
such opinion that takes a contrary view.
"The direction that, where there are two different
H
898 SUPREME COURT REPORTS [2013] 11 S.C.R.
A schools of medical practice, both having recognition
among practitioners, it is not negligent for a
practitioner to follow one in preference to the other
accords also with American law; see 70 Corpus
Juris Secundum (1951) 952, 953, Para 44.
B Moreover, it seems that by American law a failure
to warn the patient of dangers of treatment is not,
of itself, negligence McNair. L.J; also observed:
Before I turn to that, I must explain what in law we
c mean by 'negligence'. In the ordinary case which
does not involve any special skill, negligence in law
means this: some failure to do some act which a
reasonable man in the circumstances would do, or
the doing of some act which a reasonable man in
D
the circumstances would not do; and if that failure
or the doing of that act results in injury, then there
is a cause of action. How do you test whether this
act or failure is negligent? In an ordinary case it is
generally said, that you judge that by the action of
the man in the street. He is the ordinary man. In one
E
case it has been said that you judge it by the
conduct of the man on the top of a Clapham
omnibus. He is the ordinary man. But where you get
a situation which involves the use of some special
skill or competence, then the test as to whether
F there has been negligence or not is not the test of
the man on the top of a Clapham omnibus, because
he has not got this man exercising and professing
to have that special skill. ... A man need not
possess the highest expert skill at the risk of being
G found negligent. It is well-established law that it is
sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular
art." ·
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA 899
[A.K.SIKRI, J.]
(4) Breach of Duty to Take Care: Consequences A
42. If the patient has suffered because of negligent act/
omission of the doctor, it undoubtedly gives right to the patient
to· sue the doctor for damages. This would be a civil liability of
the doctor under the law tort and/ or contract. This concept of 8
negligence as a tort is explained in Jacob Mathews v. State of
Punjab and Another 2005(6) SCC1, in the following manner:
"10. The jurisprudential concepl of negligence defines any
precise definition. Eminent jurists and leading judgments
have assigned various meanings to negligence. The C
concept as has been acceptable to Indian jurisprudential
thought is well stated in the Law of Torts, Ratanlal &
Dhirajlal (24th Edn., 2002, edited by Justice G.P. Singh).
Negligence is the breach of a duty caused by the omission o
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 ma~n would not do. Actionable
negligence consists in the neglect of the use of ordinary E
care or skill towards a person to whom the defendant owes
the duty of observing ordinary care and skill, by which
neglect the plaintiff has suffered injury to his person or
property .... The definition involves three constituents of
negligence: (1) A legal duty to exercise due care on the F
part of the party complained of towards the party
complaining the farmer's conduct within the scope of the
. duty; (2) breach of the said; and (3) consequential damage.
Cause of -action for negligence arises only wl\en damage
occurs; for, damage is a necessary ingredient 9f this tort." G
43. Such a negligent act, normally a tort, may also give rise
to criminal liability as well, though it was made clear by this
Court in Jacob's Case (supra) that jurisprudentially the
distinction has to be drawn between negligence under Civil Law H
900 SUPREME COURT REPORTS [2013] 11 S.C.R.
A and negligence under Criminal Law. This distinction is lucidly
explained in Jacob's Case, as can be seen from the following
paragraphs:
"12. The term "negligence" is used for the purpose of
fastening the defendant with liability under the civil
law and, at times, under the criminal law. It is
contended on behalf of the respondents that in both
the jurisdictions, negligence is negligence, and
jurisprudentially no distinction can be drawn
between negligence under civil law and negligence
c under criminal law. The submission so made
cannot be countenanced inasmuch as it is based
upon a total departure from the established terrain
of thought running ever since the beginning of the
emergence of the concept of negligence up to the
D
modern times. Generally speaking, it is the amount
of damages incurred which is determinative of the
extent of liability in tort; but in criminal law it is not
the amount of damages but the amount and
degree of negligence that is determinative of
E liability. To fasten liability in criminal law, the degree
of negligence has to be higher than that of
negligence enough to fasten liability for damages
in civil law. The essential ingredient of mens -rea
cannot be excluded from consideration when
F the charge in a criminal court consists of
criminal negligence. In R. v. Lawrence Lord
Diplock spoke in a Bench of five and the other Law
Lords agreed with him. He reiterated his opinion in
R. v. Caldwe/P- and dealt with the concept of
G recklessness as constituting mens rea in
criminal law. His Lordship warned against
adopting the simplistic approach of treating all
problems of criminal liability as soluble by
classifying the test of liability as being "subjective"
H or "objective", and said: (All ER p. 982e-f)
DR. P.B. DESAI v. STATE OF MAHARASHTRA 901
[A.K.SIKRI, J.]
"Recklessness on the part of the doer of an act A
does presuppose that there is something in the
circumstances that would have drawn the attention
of an ordinary prudent individual to the possibility
that his act was capable of causing the kind of
serious harmful consequences that the section B
which creates the offence was intended to prevent,
and that the risk of those harmful consequences
occurring was not so slight that an ordinary prudent
individual would feel justified in treating them as
negligible. It is only when this is so that the doer of c
the act is acting 'recklessly' if, before doing the act,
he either fails to give any thought to the possibility
of there being any such risk or, having recognised
that there was such risk, he nevertheless goes on
to do it." D
13. The moral culpability of recklessness is not located
in a desire to cause harm. It resides in the proximity
of the reckless state of mind to the state of mind
present when there is an intention to cause harm.
E
There is, in other words, a disregard for the
possible consequences. The consequences
entailed in the risk may not be wanted, and indeed
the actor may hope that they do not occur, but this
hope nevertheless fails to inhibit the taking of the
F
risk. Certain types of violation, called optimising
violations, -may be motivated by thrill-seeking.
These are clearly reckless.
14. In order to hold the existence of criminal rashness
or criminal negligence it shall have to be found out G
that the rashness was of such a degree as to
amount to taking a hazard knowing that the
hazard was of such a degree that injury was
most likely imminent. The element of criminality
H
902 SUPREME COURT REPORTS [2013] 11 S.C.R.
A is introduced by the accused having run the risk of·
doing such an act with recklessness and
indifference to the consequences. Lord Atkin in his
speech in Andrews v. Director of Public
Prosecutions! stated: (All ER p. 556 C)
B
"Simple lack of care such as will constitute civil
liability is not enough. For purposes of the criminal
law there are degrees of negligence, and a very
high degree of negligence is required to be proved
c before the felony is established."
Thus, a clear distinction exists between "simple lack
of care" incurring civil liability and "very high degree
of negligence" which is required in criminal cases.
In Riddell v. Reicf'J. (AC at p. 31) Lord Porter said
D in his speech -
"A higher degree of negligence has always been
demanded in order to establish a criminal offence
than is sufficient to create civil liability."
E
15. The fore-quoted statement of law in Andrews has
been noted with approval by this Court in Syad
Akbarv. State of Kamataka2. The Supreme Court
has dealt with and pointed out with reasons· the
F distinction between negligence in civil law and in
criminal law. Their Lordships have opined that there
is a marked difference as to the effect of evidence
viz. the proof, in civil and criminal proceedings. In
civil proceedings, a mere preponderance of
G probability is sufficient, and the -defendant is not
necessarily entitled to the benefit of every
reasonable doubt; but in criminal proceedings, the
persuasion of guilt must amount to such a
moral certainty as convinces the mind of the
H
Court, as a reasonable man, beyond all
DR. P.B. DESAI v. STATE OF MAHARASHTRA 903
. [A.K.SIKRI, J.]
reasonable doubt. Where negligence is an A
essential ingredient of the offence, the negligence
to be established by the prosecution must be
culpable or gross and not the negligence merely
based upon an error of judgment."
8
44. Thus, in the civil context while we consider the moral
implications of negligent conduct, a clear view of the state of
mind of the negligent doctor might not require strictly. This is
for the reason the law of tort is ultimately not concerned with
the moral culpability of the defendant, even if the language of c
fault is used in determining the standard of care. From the point
of view of civil law it may be appropriate to impose liability
irrespective of moral blameworthiness. This is because in civil
law two questions are at issue: Was the defendant negligent?
If so, should the defendant bear the loss in this particular set of D
circumstances? In most cases where negligence has been
established, the answer to the second question will be in the
affirmative, unless the doctrine of remoteness or lack of foresee
ability militates against a finding of liability, or where there is
some policy reason precluding compensation. The question in E
the civil context is, therefore, not about moral blame, even
though there will be many cases where the civilly liable
defendant is also morally culpable .
. (5) Criminal Liability : When attracted
F
45. It follows from the above that as far as the sphere of
criminal liability is concerned, as mens rea is not abandoned,
the subjective state of mind of the accused lingers a critical
consideration. In the context of criminal law, the basic question
is quite different. Here the question is: Does the accused G
deserve to be punished for the outcome caused by his
negligence? This is a very different question from the civil
context and must be answered in terms of mens rea. Only if a
person has acted in a morally culpable fashion can this question
be answered positively, at least as far as non strict liability H
904 SUPREME COURT REPORTS [2013] 11 S.C.R.
A offenses are concerned.
46. The· only state of mind which is deserving of
punishment is that which demonstrates an intention to cause
harm to others, or where there is a deliberate willingness to
B subject others to the risk of harm. Negligent conduct does not
entail an intention to cause harm, but only involves a deliberate
act subjecting another to the risk of harm where the actor is
aware -of the existence of the risk and, nonetheless, proceeds
in the face of the risk. This, however, is the classic definition of
c recklessness, which is conceptually different from negligence
and which is widely accepted as being a basis for criminal
liability.
47. The solution to the issue of punishing what is
described loosely, and possibly inaccurately, as negligence is
0
to make a clear distinction between negligence and
recklessness and to reserve criminal punishment for the latter.
If the conduct in question involves elements of recklessness,
then it is punishable and should not be described as merely
E negligent. If, however, there is nothing to suggest that the actor
was aware of the risk deliberately taken, then he is morally
blameless and should face, at the most, a civil action for
damages.
(6) Whether the appellant criminally liable under
F Section 338 IPC, in the present case?
48. We have to keep in mind that by the impugried
judgment, the appellant is convicted of an offence under Section
338 read with Section 109 of l.P.C. Therefore, the relevant
G question to be decided is as to whether, the -acts of omission
and commission, imputed to the appellant, are sufficient to hold
that all the ingredients of Section 338 of the l.P.C. stand
satisfied.
49. The section explicitly lays down that only that 'act' which
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA 905
[A.K.SIKRI, J.]
is "so rashly or negligently as to endanger human life, or the A
personal safety of others, shall be punished.... ". Thus the
section itself carves out the standard of criminal negligence
intended to distinguish between those whose failure is culpable
and those whose conduct, although not up to standard, is not
deserving of punishment. B
50. One of the several questions which arise in the factual
situation at hand is this: Whether the appellant-doctor, who
acted negligently, manifested such a state of mind which
justifies moral censure? This is conceivably best answered by c
identifying what was nature of act owed by the appellant
towards the patient.
51. In the case at hand, the concern revolves around the
acts of omission and commission which amounted to an "act"
so rashly or negligently as to have had endangered the life of D
Smt. Leela constituting an offence punishable under Section
338 of the l.P.C. Since, there was no overt act on the part of
the appellant - as the surgical procedure was performed by Dr.
-A.K. Mukherjee, charge of abetment under Section 109 of
l.P.C. was also leveled .. Dr. A.K. Mukherjee was also made E
accused in the said complaint. However, at a later stage, Dr.
A.K. Mukherjee was dropped from the proceedings at the
instance of the complainant.
52 .. We would also like to make another aspect very F
explicit. The appellant was leveled a specific charge which was
framed against him. The prosecution was required to prove that
particular charge and not to go beyond that and attribute "rash
and negligent" acts which are not the part of the charge.
Culpability is specifically related to the "act" committed on G
22.12.1987 at about 9 a.m. in the hospital viz., the act of
performing surgical procedure. It is, thus, this act alone, and
nothing more, for which the appellant and Dr. Mukherjee were
charged and the appellant is supposed to meet this charge
alone. H
906 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 53. In this scenario, the first and foremost question that
needs to be determined is as to whether the advise of the
appellant that 'Exploratory Laparotomy' be conducted on the
patient was inappropriate, and if so, amounted to wanton
negligence, giving rise to criminal liability, in as much -as the
B opening of the abdomen of the patient, even by Dr. Mukherjee,
was the consequence of that advise.
54. No doubt, such an opinion was given in the teeth of
the advise of the doctors in the U.S.A where the patient was
C examined earlier. However, only because of this reason, it
would not automatically follow that the view expressed by the
appellant was blemished. The two experts in medical field may
differ on decision to undertake the surgical operation. But for
the sake of life which, any way was struggling to live is the
respect to doctors in their position to operate the patient or not.
0
We have to keep in mind the critical condition of the patient at
that time. She was sent home by the American doctors as
inoperable. She was advised to take certain medicines. These
medicines were being administered by Dr. Mukherjee.
E However, further complications arose in the meantime as
vagina started bleeding which was not coming to a halt.
Obviously, it was terminal stage for the patient. It is in this
situation, opinion of the appellant was sought. The dilemma of
a doctor in such a scenario can be clearly visualized viz.,
F whether to leave the patient as it is or to take a chance, may
be a very slim chance, to save or at least to try to prolong the
life of the patient. It was not -an easy choice. Overcoming this
difficult situation, the appellant took the bold decision viz. that
surgical operation was worth taking a risk, as even otherwise,
the condition of the patient was deplorable. The appellant has
G even given his justification and rationale for adopting this
course of action. The appellant states that the decision to
operate was taken having regard to the following
circumstances:
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA 907
[A.K.SIKRI, J.]
(a) The patient was suffering from metastatic breast A
cancer for ten long years and the said cancer was
spreading to other parts of the body. As such the
patient was unable to follow her ordinary pursuits
irrespective of the surgical procedure advised by
the appellant herein. B
(b) The patient was repeatedly suffering from vaginal
bleeding and bodily pain and as such the patient
was unable to follow her ordinary pursuits
irrespective of the surgical procedure advised by C
the appellant herein.
(c) The formation of a fistula is a complication which
may or may not arise out of surgical procedures
and the advice for surgical procedure was tendered
with a view to alleviate her suffering rather than D
endanger her life. -
55. During trial, Dr. Gajanand Hegade (DW.2) has
endorsed the opinion of the appellant and has gone to the
extent of saying that it was the best possible option for the E
treatment of the patient. Moreover, Dr. Mukherjee has also
accepted/ agreed that the advise tendered by the appellant on
the basis of CT Scan Report, and, that the call to operate was
"unanimous". Thus, even Dr. Mukherjee endorsed the opinion
which appears to be his opinion as well. In this scenario, it
F
cannot be said that advise of the appellant for taking the surgical
procedure was an act of wanton negligence. Dilemma of a
doctor, in such circumstances, is beautifully explained by this
Court in Kusum Sharma (Supra), in the following words:
"89(V) In the realm of diagnosis and treatment there G
is scope for genuine difference of opinion and one
professional doctor is clearly not negligent merely
because his conclusion differs from that of other
professional doctor.
H
908 SUPREME COURT REPORTS [2013] 11 S.C.R.
A (VI) The medical professional is often called upon to
adopt a procedure which involves higher element
of risk, but which he honestly believes as providing
greater chances of success for ttie patient rather
than a procedure involving lesser risk but higher
B chances of failure. Just because a professional
looking to the gravity of illness has taken higher
element of risk to redeem the patient out of his/ her
suffering which did not yield the desired result may
not amount to negligence.-
c (Vll) Negligence cannot be attributed to a doctor so long
as he performs his duties with reasonable skill and
competence. Merely because the doctor chooses
one course of action in preference to the other one
available, he would not be liable if the course of
D action chosen by him was acceptable to the
medical profession.
56. It also needs to be emphasized, as contended by Mr.
Harish Salve, that the experts from New York are not
E oncological surgeons. Dr. Ernest Greenberg is a physician
while Dr. Brokunier is a Gynecologist. On the other hand, even
as per the complainants own version, the appellant is a
renowned oncologist and surgeon.
F 57. At this juncture, an important observation is needed.
When such a decisional shift is taken against the line of other
doctors who had earlier treated the patient, the appellant was
required to give personal attention to the patient during the
operation. He was, even otherwise, contractually bound to do
G so.
58. While the two experts might differ on the level of risks
involved in the critical surgical operation but for the sake of life
which in anyway was struggling to live, is a mild respite to
doctors in their decision to operate the -patient or not. A long
H catena of medical cases on this theme does provide relief to
DR. P.B. DESAI v. STATE OF MAHARASHTRA 909
[A.K.SIKRI, J.]
doctors. One of the many indispensable duties which is of A
utmost importance is that when such a decisional shift is taken
by a doctor against the line of renowned doctor who had earlier
treated the patient, that doctor must exercise required personal
attention to the patient during the operation. On this aspect, the
Medical council of Maharashtra, while reprimanding, B
reasoned that Dr. P.B Desai, instead of merely advising
surgery which was inspite of the opinion of cancer specialists
from U.S.A, ought to have voluntarily taken more interest and
personally seen the situation faced by Dr. A.K Mukherjee
which he did not do so. Since the appellant has not challenged c
the findings of the Medical Council who had found him guilty of
misconduct, those findings does provide the legal fortification
and along with the oral and documentary evidences adduced
before court below speaks much on the professional duty which
the appellant owed to the patient. D
59. Thus, one thing is crystal clear. Failure to act on the
part of the appellant, in conducting surgical procedure, and not
taking care thereafter as well, established his negligence in tort
law i.e. in civil domain. We refer to and rely on the judgment of E
this Court in Jacob's Case once again, where -the Court
explained as to under what circumstances professional can be
liable for negligence. It is necessary for this purpose that one
of the two findings, as set out therein, should be established.
"18. In the law of negligence, professionals such as F
lawyers, doctors, architects and others are included
in the category of persons professing some special
skill or skilled persons generally. Any task which is
required to be performed with a special skill would
generally be admitted or undertaken to be G
performed only if the person possesses the
requisite skill for performing that task. Any
reasonable man entering into a profession-which
requires a particular level of learning to be called
a professional of that branch, impliedly assures the H
910 SUPREME COURT REPORTS [2013] 11 S:C.R.
A person dealing with him that the skill which he
professes to possess shall be exercised with
reasonable degree of care and caution. He does
• not assure his client of the result. A lawyer does not
tell his client that the client shall win the case in all
B circumstances. A physician would not assure the
patient of full recovery in every case. A surgeon
cannot and does not guarantee that the result of
surgery would invariably be beneficial, much less to
the extent of 100% for the person operated on. The
c only assurance which such a professional can give
or can be understood to have given by implication
is that he is possessed of the requisite skill in that
branch of profession which he is practising and
while undertaking the performance of the task
entrusted to him he would be exercising his skill with
D
reasonable competence. This is all what the person
approaching the professional can expect. Judged
by this standard, a professional may be held liable
for negligence on one of two findings: either he was
not possessed of the requisite skill which he
E 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
F of an ordinary competent person exercising
ordinary skill in that profession. It is not necessary
for every professional to possess the highest level
of expertise in that branch which he practises. In
Michael Hyde and Associates v. J.D. Williams &
G Co. Ltd. Sedley, L.J. said that where a profession
embraces a range of views as to what is an
acceptable standard of conduct, the competence of
the defendant is to be judged by the lowest
standard that would be regarded as acceptable."
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA 911
[A.K.SIKRI, J.]
60. No doubt, in the present case the appellant not only A
possesses requisite skills but also an expert in this line.
However, having advised the operation, he failed to take care
of the patient. Thereafter, at various stages, as observed by the
courts below, he was held to be negligent by the Maharashtra
Medical Council and thus found to be guilty .of committing B
professional misconduct.
61. Thus, it was the appellant's "duty" to act contractually,
professionally as well as morally and such an omission can be
treated as an "act''. We again clarify that undoubtedly, within the c
realm of civil liability, the appellant has breached the well
essence of "duty" to the patient. -
62. Having reached this conclusion, we proceed to the next
stage viz., the criminal liability of the appellant. However, we
once again emphasize that the question of criminal liability has D
also to be examined in the context of Section 338 of 1.P.C.
which is the real issue. To recapitulate some important aspects,
we have concluded that decision of the appellant advising
Exploratory Laparatomy was not an act of negligence, m'uch
less wanton negligence, and under the circumstances it was a E
plausible view which an expert like the appellant could take
keeping in view the deteriorating and worsening health of the
patient. As a consequence, opening of the abdomen and
performing the surgery cannot be treated as causing grievous
hurt. It could have been only if the doctors would have faltered F
and acted in rash and gross negligent manner in performing
that procedure. It is not so. At the same time, his act of
omission, afterwards, in not doing the surgery himself and
remaining absent from the scene and neglecting the patient,
even thereafter, when she was suffering the consequences of G
fistula, is an act of negligence and is definitely blame worthy.
(though that is not the part of criminal charge) However, we are
of the opinion that the omission is not of a kind which has given
rise to criminal liability under the given circumstances.
H
912 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 63. As already noted above, we are conscious of the fact
that when the appellant decided to operate on the patient
against the U.S doctor's advice, the level of attention expected
from the appellant towards the patient was immense and
undivided kind. The operating surgeon along with the fellow
B junior doctors was supposed to conduct operation. The junior
doctor rendered his complete and undivided assistance to the
patient but the appellant abstained.
64. However, the important and relevant point is: Had the
C appellant undertaken the surgical procedure by himself, the
result would have been different? Or, to put it otherwise,
whether opening of abdomen by Dr. Mukherjee and not by the
appellant who was supposed to do it, made any difference? In
the given case, we do not find it to be so.
D 65. To appreciate, we need to reiterate certain facts. On
opening the abdomen, Dr. AK. Mukherjee found plastering of
intestines as well as profuse oozing of ascetic fluids. He
immediately called the appellant who -was performing other
surgical procedures in another operation theatre. The appellant
E after seeing the condition of the patient, albeit, from the
distance found that it was not possible to proceed with the
operation. He advised Dr. A.K. Mukherjee to close the
abdomen. Dr. Mukherjee, thus, closed the abdomen.
Significantly, Section 109 IPC was also pressed into service
F at the time of framing of the charge on the premise that Dr.
Mukherjee caused grievous hurt and omission on the part of
the appellant to not to personally intervene in the operation of
the patient amounted to abetment. However, the position which
emerges is that the junior doctor rendered complete care. He
G did not falter in his act of cutting open the abdomen. It is only
at that stage, it was found, that there was a lot of discharge from
fistula and surgery was not possible. The appellant advised Dr.
Mukherjee to close the abdomen. No doubt, he did not do it
himself but it is not the case of the prosecution that Dr.
H
DR. P.B. DESAI v. STATE OF' MAHARASHTRA 913
[A.K.SIKRI, J.]
Mukherjee did not do it deftly either. It is because of the A
deplorable condition of the patient, the surgery could not be
completed as on the opening of the abdomen other
complications were revealed. This would have happened in any
case, irrespective whether. abdomen was opened by Dr.
Mukherjee or by the appellant himself. On the contrary, the -- B
complainant's own case is that Dr. Mukherjee's performance
was not lacking; nay, it was of superlative quality.
66. The appellant's omission in not rendering complete and
undivided legally owed duty to patient and not performing the c
procedure himself has not made any difference. It was not the
cause of the patient's death which was undoubtedly because
of the acute chronic cancer condition. In such a scenario, it is
enough to keep off the clutches of criminal law.
67. The negligent conduct in the nature of omission of the D
appellant is not so gross as to entail criminal liability on the
appellant under section 338 of the 1.P.C. It is to be kept in mind
that the crime as mentioned in section 338 l.P.C requires proof
that the appellant caused the patient's condition to the acute
stage. Can he be said to have caused such a result, by his E
omission to act? We do not find it to be so.
68. In the common law case R v Adomako [1994] 3 WLR
288 wherein, Lord Mackay LC set the test for gross negligence
in manslaughter: F
"On this basis in my opinion the ordinary principles of the
law of negligence apply to ascertain whether or not the
defendant has been in breach of a duty of care towards
the victim who has died. If such breach of duty is
established the next question is whether that breach of duty G
caused the death of the victim. If so, the jury must go on to
consider whether that breach of duty should be
characterised as gross negligence and therefore as a
crime. This will depend on the seriousness of the breach
H
914 SUPREME COURT REPORTS [2013) 11 S.C.R.
A of duty committed by the defendant in all the
circumstances in which the defendant was placed when it
occurred. The jury will have to consider whether the extent
to which the defendant's conduct departed from the proper
standard of care incumbent upon him, involving as it must
B have done a risk of death to the patient, was such that it
should be judged criminal."
69. For the aforesaid reasons, we have no option but to
conclude that though the conduct of the appellant constituted
C not only professional misconduct for which adequate penalty
h~s been meted out to him by the Medical Council, and the
negligence on his part also amounts to actionable wrong in tort,
it does not transcend into the criminal liability, and in no case
makes him liable for offence under Section 338, IPC as the
ingredients of that provision have not been satisfied. We,
0 therefore, allow this appeal and set aside the impugned
judgments of the courts below. No costs.
K.K.T. Appeal allowed.
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