DR. SOU JAYSHREE UJWAL INGOLEversusSTATE OF MAHARASHTRA & ANR.

                          [2017] 2 S.C.R. 865


              DR. SOU JAYSHREE UJWAL INGOLE                                   A

                                    v.
               STATE OF MAHARASHTRA & ANR.

                   (Criminal Appeal No.636of2017)
                                                                              B
                            APRIL 06, 2017

       [MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
       Code of Criminal Procedure, 197 3 - s.482 - Criminal
proceedings u/s.304-A against medical professional - Petition for             c
quashing the proceedings - In the instant case, deceased was
admitted in hospital for treatment of Haemophilia and attended upon
by doctors - After a week, emergency medical officer attended upon
the deceased and found that he was suffering fiwn abdominal pai1i
and sent a call to appellant who was surgeon on call - Appellant
went to hospital on being called and attended upon the deceased               D
and made a note that a physician be called and thereafter she left
the hospital - Next 111orning the condition of deceased worsened
and he died - Criminal complaint filed against appellant alleging
that after having called a physician she did not wait in the hospital
and did not attend upon the patient especially when the patient was           E
suffering from Hae111ophilia - Charge of negligence - Petition for
quashing not allowed 111ainly on the ground that question whether
inaction of the appellant in leaving the deceased and not waiting
for the physician to turn up a111ounted to rash and negligent act on
her behalf was to be decided during trial - On appeal, held: The
only allegation •against the appellant was that she left the patient -        F
Appellant was a surgeon. on call - She ca111e to the hospital when
she was called and examined the patient - As per her judgment, she
could find no evidence of bleeding or injury and, therefore. she
noted that a physician be called - Thereafter, she left the hospital
at about 11. 00 p.111. - True it is that she did not wait for the physician   G
to come, but it can. be assu111ed that she would have expected that
the physician would come soon - This may be an error in judg111ent
but definitely not a rash and negligent act conte111plated uls.304-A
!PC- Cri111inal proceedings quashed- Penal Code, 1860 - s.304-A.

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                                 865
866            SUPREME COURT REPORTS                         (2017] 2 S.C.R.


A           Allowing the appeal, the Court
             HELD: 1. This is .not a case where the appellant should
      face trial especially when 20 years have already ehipsed. The
      only allegation against the appellant was that she left the patient.
      It was nobody's case that she was called again by the Nursing
B     staff on duty. If the condition of the patient had worsened between
      11.00 p.m. and 5.00 a.m., the next morning, the Nursing staff
      could have again called for the appellant, but they did not do so.
      Next morning, the doctor on Emergency Duty attended upon the
      patient but, unfortunately, he died. In the facts and circumstance
c     of this case, it cannot be said that the appellant is guilty of criminal
      negligence. At best it is an error of judgment. No case of
      committing a rash and negligent act contemplated under Section
      304-A IPC is made out against the appellant. Her case is similar
      to that of the Emergency Medical Officer, who has been
      discharged. [Paras 9, 10 and 11] [872-D-H; 873-A)
D
            Jacob Mathew v. State of Punjab & Anr. (2005) 6
            SCC l : [2005] 2 Suppl. SCR 307 - relied on.

                              Case Law Reference ·

E     [2005) 2 Suppl. SCR 307          relied on               Para8

           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      636of20l7.

            From the Judgment and Order dated 18,06.2014 of the High Court
F     of Judicature of Bombay,_ Nagpur Bench at Nagpur in Criminal
      Application (APL) No. 354 of2,012.

            Anil Mardikar, Sr. Adv., Shirish K. Deshpande, Adv. for the
      Appellant.

G          Gagan Sanghi, Rameshwar Prasad Goyal, Amol Nirmal Kumar
      Suryawanshi, Nishant Ramakantrao Katneshwarkar, Advs. for the
      Respondents.

            The Judgment of the Court was delivered by

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       DR. SOU JA,YSHREE UJWAL INGOLE v. STATE OF                             867
                . MAHARASHTRA & ANR.

      DEEPAK GUPTA, J. 1. Leave granted.                                       A
       2. The appellant herein is a doctor and has challenged the Order
dated 18.06.2014 passed by the High Court of Judicature of Bombay,
Nagpur Bench in Criminal Application (APL) No. 354 of2012, whereby
the petition filed by the appellant under Section 482 CrPC for quashing
the criminal proceedings initiated against her under Section 304-A IPC         B
was dismissed.
       3. Briefly stated the facts of the case are that one Shrikrishna
Gawai (hereinafter referred to as the 'deceased') was admitted on
account of injuries suffered in a road accident, in the Irvin Hospital,
Amravati on 29.08.1997 for medical treatment. It is the admitted case          c
of the parties that the deceased was suffering from Haemophilia, a
disease in which there is impairment ofblood clotting. Therefore, special
attention was required to be paid during the treatment of the patient It is
not disputed that one Dr. Manohar Mo hod was on duty as an Emergency
Medical Officer. On 29 .08.1997 the patient was treated both by the
appellant and Dr. Mohod. On 30 & 31.08.1997, the deceased was                  D
attended upon by Dr. Dhirendra Wagh. Thereafter also, the deceased
remained in the Hospital under the treatment of the appellant and Dr.
Mohod.
      4. Dr. Mohod, the Emergency Medical Officer attended upon the
deceased on 05.09.1997 at 9.00 p.m. and found that he was suffering            E
from abdominal pain and, thereafter, a call was sent to the appellant,
who was Surgeon on Call. It is not disputed that the appellant went to
the Hospital on being called. She attended upon the deceased and made
a note that a Physician be called. Thereafter, she left the Hospital. In
the morning on 6"6.09.1997, the condition of the deceased worsened and         F
he died.
       5. The main allegation against the appellant is that after having
called for a Physician, she did not wait in the hospital and did not attend
                                                                                    •
upon the patient, especially when the patient was suffering from
Haemophilia. The Physician, Dr. Avinash Choudhary, who is accused              G
No. 1, did notturn up in the hospital. Even next morning on 06.09.1997,
when Dr. Mohod again attended upon the deceased, the Physician Dr.
Choudhary was not present and, unfortunately, the patient died.
Thereafter, a complaint was lodged in the police station, wherein it was
alleged by the brother of the deceased that the deceased died as a result
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868                SUPREME COURT REPORTS                        [2017] 2 S.C.R.


A     of negligence of the three doctors. The complaint was investigated as
      Crime No. 317 of 1997 which was initially filed against Dr. Avinash
      Choudhary only but, later on, the names of the appellant Dr. Jayshree
      Ujwal Ingole and Dr. Manohar Mohod were also included.
             6. A separate Departmental Enquiry was also carried out and, in
B     that enquiry, all the three doctors were held negligent in perfonning their
      duties. Dr. Mohod was debarred from an annual increment as penalty;
      the appellant Dr. Jayshree Ingole was permanently prohibited from
      entering Irvin Hospital, Amravati, and Dr. Avinash Choudhary was
      transferred. It would be pertinent to mention that Dr. Mohod was
      discharged in the criminal case on the ground that no case ofnegligence
c     was made out against him.
             7. The appellant herein filed a petition for quashing the charge
      against her, but this petition was rejected by the learned Single Judge of
      the High Court of Bombay at Nagpur mainly on the ground that the
      question whether inaction of the appellant in leaving the deceased at
D     about 11.00 p.m. and not waiting for the Physician to turn up, amounted
      to a rash and negligent act on her behalf, would be decided during trial.
             8. We have heard learned counsel for the parties. Learned counsel
      for the appellant has placed reliance on the judgment of this Court in
      Jacob Matliew v. State ofPunjab & Anr. 1, wherein this Court held that
E     the court should be circumspect before instituting criminal proceedings
      against a medical professional. This Court has held that negligence
      comprises of (i) a legal duty to exercise due care on the part of the party
      complained of; (ii) breach of the said duty; and (iii) consequential damage.
      It was held that in cases where negligence is alleged against professionals
F     like doctors the court should be careful before instituting criminal
      proceedings. It is not possible for any doctor to assure or guarantee that
      the result oftreatment would invariably be positive. The only assurance
      which a professional can give is that he is professionally competent, has
      requisite skill and has undertaken the task entrusted to him with reasonable
      care. It would be pertinent to quote the following relevant observations
G     made in Jacob Matliew's case (supra):
               26. No sensible professional would intentionally commit an act or
               omission which would result in loss or injury to the patient as the
               professional reputation of the person is at.stake. A single failure

H     1
          (200.S) 6 sec 1
 DR. SOU JAYSHREE UJWAL INGOLE v. STATE OF                               869
  MAHARASHTRA & ANR. [DEEPAK GUPTA, J.]

may cost him dear in his career. Even in civil jurisdiction, the rule     A
ofres ipsa loquitur is not of universal application and has to be
applied with extreme care and caution to the cases of professional
negligence and in particular that of the doctors. Else it would be
counter-productive. Simply because a patient has not favourably
responded to a treatment given by a physician or a surgery has
                                                                          B
failed, the doctor cannot be held liable per se by applying the
doctrine of res ipsa loquitur.
           xxx              xxx               xxx
  28. A medical practitioner faced with an emergency ordinarily
 tries his best to redeem the patient out of his suffering. He does      c
  not gain anything by acting with negligence or by omitting to do an
  act, Obviously, therefore, it will be forthe complainant to clearly
  make out a. case of negligence before a medical practitioner is
  charged with or proceeded against criminally. A surgeon with
· shaky hands under fear oflegal action cannot perform a successful
  operation and a quivering physician cannot administer the end-          D
  dose of medicine to his patient.
 29. If the hands be trembling with the dangling fear of facing a
 criminal prosecution in the event of failure for whatever reason
 - whether attributable to himself or not, neither can a surgeon
 successfully wield his life-saving scalpel to perform an essential       E
 surgery, nor can a physician successfully administer the life-saving
 dose of medicine. Discretion being the better part of valour, a
 medical professional woulfl feel better advised to leave a terminal
 patient to his own fate in the case of emergency where the chance
 of success may be 10% (or so), rather than taking the risk of            F
 making a last ditch effort towards saving the subject and facing a
 criminal prosecution if his effort fails. Such timidity forced upon a
 doctor would be a disservice to society.
 30. The purpose of holding a professional liable for his act or
 omission, if negligent, is to make life safer and to eliminate the
                                                                          G
 possibility ofrecurrence of negligence in future. The human body
 and medical science, both are too complex to be easily understood.
 To hold in favour of existence ofnegligence, associated with the
 action or inaction of a medical professional, requires an in-depth

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870             SUPREME COURT REPORTS                           (2017] 2 S.C.R.


A           understanding of the working of a professional as also the nature
            of the job and of errors committed by chance, which do not
            necessarily involve the element of culpability.
              After discussing the entire law on the subject, this Court concluded
      as follows:
B
                  "48. We sum up our conclusions as under:
                  (1) Negligence is the breach ofa duty caused by omission
            to do something which a reasonable man guided by those
            considerations which ordinarily regulate the conduct of human .
            affairs would do, or doing something which a prudent and
c           reasonable man would not do. The definition of neg! igence as
            given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.
            Singh), referred to hereinabove, holds good. Negligence becomes
            actionable on account of injury resulting from the act or omission
            amounting to negligence attributable to the person sued. The
D           essential components of negligence are three: "duty", "breach"
            and "resulting damage".
                    (2) Negligence in the context of the medical profession
             necessarily calls for a treatment with a difference. To infer
             rashness ornegligence on the part ofa professional, in particular
E            a doctor, additional considerations apply. A case of occupational
             negligence is different from one of professional negligence. A
             simple lack of care, an error of judgment or an accident, is not
             proofofnegligence on the part ofa medical professional. So long
             as a doctor follows a practice acceptable to the medical profession
             of that day, he cannot be held liable for negligence merely because
F            a better alternative course or method of treatment was also
             available or simply because a more skilled doctor would not have
             chosen to follow or resort to that practice or procedure which the
             accused followed. When it comes to the failure of taking
             precautions, what has to be seen is whether those precautions
G            were taken which the ordinary experience of men has found to
             be sufficient; a failure to use special or extraordinary precautions
             which might have prevented the particular happening cannot be
             the standard for judging the alleged negligence. So also, the
             standard of care, while assessing the practice as adopted, is judged

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DR. SOU JAYSHREE UJWAL INGOLE v. STATE OF                                 871
 MAHARASHTRA & ANR. [DEEPAK GUPTA, J.]

in the light ofknowledge available at the time of the incident, and        A
not at the date of trial. Similarly, when the charge of negligence
arises out of failure to use some particular equip.men!, the charge
would fail if the equipment was not generally available at that
particular time (that is, the time of the incident) at which it is
suggested it should have been used.
                                                                           B
     (3) A professional may be held liable for negligence on one
of the two findings: either he was not possessed of the requisite
skill which he professed to have possessed, or, he did not exercise,
with reasonable competence in the given case, the skill which he
did possess. The standard to be applied for judging, whether the
person charged has been negligent or not, would be that of an
                                                                           c
ordinary competent person exercising ordinary skill in that
profession. It is not possible for every professional to possess the
highest level of expertise or skills in that branch which he practices.
A highly skilled professional may be possessed of better qualities,
but that cannot be made the basis or the yardstick for judging the         D
performance of the professional proceeded against on indictment
of negligence.
    (./)The test for determining medical negligence as laid down
in Bo/am vs. Friern Hospital Management Committee (1957) I
WLR 582 at p. 586 holds good in its applicability in India.                E
    (5) The jurisprudential concept of negligence differs in civil
and criminal law. What may be negligence in civil law may not
necessarily be negligence in criminal law. For negligence to amount
to an offence, the element of mens rea must be shown to exist.
For an act to amount to criminal negligence, the degree of                 F
negligence should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a higher degree
may provide a ground for action in civi I law but cannot form the
basis for prosecution.
     (6) The word "gross" has not been used in Section 3'04-A
                                                                           G
!PC, yet it is settled that in criminal law negligence or recklessness,
to be so held, must be of such a high degree as to be "gross". The
expression."rash or negligent act" as occurring in Section 304-A
!PC has to be read as qualified by the word "grossly".

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872             SUPREME COURT REPORTS                            [201 7]2 S .C.R.


A                (7) To prosecute a medical professional for negligence under
            criminal law it must be shown that the accused did something or
            failed to do something which in the given facts and circumstances
            no medical professional in his ordinary senses and prudence would
            have done or failed to do. The hazard taken by the accused doctor
            should be of such a nature that the injury which resulted was
b
            most likely imminent. ·
                 (8) Res ipsa loquitur is only a rule of evidence and operates
            in the domain of civil law, specially in cases of torts and helps in
            determining the onus of proof in actiqns relating to negligence. It
            cannot be pressed in service for determining per se the liability
c           for negligence within the domain of criminal law. Res ipsa loquitur
            has, if at all, a limited application in trial on a charge of criminal
            negligence."
             9. Applying the law laid down in Jacob Mathews case (supra),
      we are of the view that this is not a case where the appellant should
D     face trial especially when 20 years have already elapsed. The on Jy
      allegation against the appellant is that she left the patient. We must
      remember that the appellant was a Surgeon on Call. She came to the
      hospital when she was called and examined the patient. As per her
      judgment, she could find no evidence ofbleeding or injury and, therefore,
E     she had noted that a Physician be called . .Thereafter, she left the hospital
      at about 11.00 p.m. True it is that she did not wait for the Physician to
      come, but it can be assumed that she would have expected that the
      Physician would come soon. This may be an error in judgment but is
      definitely not a rash and negligent act contemplated under Section 304-
      A IPC. It is nobody's case that she was called again by the Nursing
 F    staff on duty. If the condition of the patient had worsened between
       11.00 p.m. and 5.00 a.m., the next morning, the Nursing staff could have
      again called forthe appellant, but they did not do so. Next morning, the
      doctor on Emergency Duty, Dr. Mohod attended upon the patient but,
       unfortunately, he died.
G             I 0. In the facts and circumstance of this case, it cannot be said
      that the appellant is guilty of criminal negligence. At best it is an error of
      judgment.
            11. In view of the above discussion, we are of the view that no
      case of committing a rash and negligent act contemplated under Section
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         DR. SOU JAYSHREE UJWAL INGOLE v. STATE OF                               873
          MAHARASHTRA & ANR. [DEEPAK GUPTA, J.]

' 304-A IPC is made out against the appellant. Her case is similar to that       A
  of Dr. Mohod who has been discharged. We, accordingly, allow the
  appeal, set aside the judgment dated 18.06.2014, passed by the learned
  Single Judge of the High Court of Bombay, Nagpur Bench in Criminal
  Application (APL) No.354 of2012 and quash the criminal proceedings
  initiated against the appellant vide order dated 28.02.2001, passed by the
                                                                                  B
  Judicial Magistrate, First Class, Court No.6, Amravati in Regular Criminal
  Case No. 310 of 1999 in FIR Crime No.317 of 1997. Pending
  application( s), ifany, stand(s) disposed of.


 Devika Gujral                                                 Appeal allowed.