B. Jagdish Vs. State of
A.P. & ANR.  INSC 2170 (16 December 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2049 OF 2008
(Arising out of SLP (Crl.) No.1688 of 2007) B. Jagdish & Anr. ...Appellants
Versus State of A.P. & Anr. ...Respondents
S.B. Sinha, J.
second respondent took his seven years' old ailing daughter to the appellant
who is said to be a child specialist for treatment. He was running a hospital
known as `Disney's Medi-Kid Children's Hospital'. He advertised himself as a
specialist in child diseases. The child was a student of third standard. On
22.6.2000, she vomited while in school. She was 2 brought home immediately and
thereafter taken to the appellant's hospital at about 3.p.m.
was admitted in the hospital for undergoing some tests.
Respondent No.2 was
asked to deposit a sum of Rs.4,000/- therefor. The said amount was deposited. A
blood test was conducted which disclosed abnormal increase in white blood cells.
second blood test was also carried on which also showed abnormality in white
blood cells. The child was discharged on 25.6.2000. She was advised to take the
medicine prescribed. Appellant diagnosed the disease which she was suffering
from as Tuberculosis. Vomiting by the girl, however, did not stop. It became
more frequent. On 25.6.2000 she developed high fever. Appellant was consulted
again. He assured the respondents that there was nothing to worry about the
child and her condition was satisfactory. Respondent No.2 was advised to bring
her back on 30.6.2000. Treatment on the same line was directed to be continued.
child, in the meantime, had become weak. There had been considerable increase
in the number of times of vomiting. She was taken to the hospital on 30.6.2000.
Considering her condition, she was again admitted but was discharged in the
night with the advice to continue the 3 medicine advised for Tuberculosis with
anemia. The treatment continued but instead of showing improvement, the child
became almost crippled and was not even able to move. She had been taken to the
hospital on a large number of occasions but respondent No.2 was on each
occasion assured that there was nothing to worry about. Even his request to
refer the child to another specialist for having a second opinion was not
acceded to, contending that it was an acute case of Tuberculosis coupled with
anemia and the patient would have slow recovery.
1.10.2000 early in the morning, the child developed high fever. She had rashes
all over her body. Her face became swollen. She had been vomiting also. The
child was taken to the hospital immediately.
seeing her condition, became panicky. One Dr. Ramanna was called. He
immediately suggested a `Biopsy of Bone Marrow' at a hospital. The child
underwent the said test. The report was delivered on 4.10.2000. Dr. Ramanna
informed the second respondent that the girl had been suffering from Leukemia
which is in advanced stage and her liver was enlarged. He advised the girl to be
admitted either in NIMS or Apollo Hospital pursuant whereto she was taken to
Apollo Hospital. One Dr. Srinivasa Chakravarthy of Apollo Hospital informed the
second respondent 4 that the girl was at advanced stage of Leukemia and chance
of her survival was bleak. She breathed her last on 10.11.2000.
respondent No.2 filed a complaint petition before the A.P. State Consumer
Disputes Redressal Commission on or about 4.12.2000.
also filed a private complaint in terms of Section 200 of the Code of Criminal
Procedure, 1973. The same was referred to P.S. Panjagutta under Section 156(3)
of the Code of Criminal Procedure. A final report was filed on 30.09.2001
stating that the case was a `Mistake of Fact'. A protest petition was filed
thereagainst. A re-investigation was directed as earlier the investigation had
been transferred to Police Station, Saifabad whereas the final report was filed
by Panjagutta Police Station.
final report was filed on 13.3.2004. Another protest petition was filed on the
basis whereof cognizance was taken and processes were issued against the
appellant by the learned Magistrate by an order dated 16.7.2004.
the Consumer Disputes Redressal Commission at Hyderabad found the appellant to
be negligent in his performance of professional services to the deceased child
and awarded damages of Rs.4,00,000/- by an order dated 13.6.2006.
filed an application for quashing of the order issuing summons to him in the
criminal matter before the High Court which by reason of the impugned judgment
has been dismissed.
Mohan Rao, learned counsel appearing on behalf of the appellant, would submit
that the learned Magistrate as also the High Court have committed a serious
error in passing the impugned judgments insofar as they failed to take into
consideration the observations made by this Court in Jacob Mathew v. State of
Punjab & Anr. [(2005) 6 SCC 1].
negligence being not an ordinary type of negligence, it was urged, the courts
below should have evaluated the evidence by shifting through the materials
brought on record by the parties for the purpose of ascertaining as to whether
there is prima facie material available for pointing out reckless negligence on
the part of the doctor causing death of the patient, as in this case there were
conflicting opinions of the experts; one opining that there was no negligence
on the part of the appellant and the other opining that there was gross and
reckless negligence on his part and, thus, the court should have held that the
appellant cannot be said to be guilty of gross and reckless negligence so as to
attract the provisions of Section 304A of the Indian Penal Code.
learned counsel would contend that the doctors examined by the complainant
being not experts on the subject, the same should not have been taken into
consideration by the learned Magistrate at the time of taking cognizance of the
A.D.N. Rao, learned counsel appearing on behalf of the respondent, on the other
hand, would contend (1) The power of the High Court under Section 482 of the
Code of Criminal Procedure being limited and charges having been directed to be
framed, this Court should not exercise its extra- ordinary jurisdiction under
Article 136 of the Constitution of India.
(2) The revisional
court as also the High Court has rightly refused to exercise their jurisdiction
as it has come in evidence that the doctors examined on behalf of the appellant
admitted that they had based their opinion on different materials and, thus, no
reliance can be placed thereupon.
(3) Appellant having
not made out a case of misuse of the process of law, the High Court was right
in its view particularly when the 7 appellant wrongly advertised himself as a
child specialist although he did not hold the requisite qualifications there for.
question as to the extent of negligence on the part of the members of the
medical profession would attract criminal liability came up before this Court
on more than one occasion. In Suresh Gupta (Dr.) v. Govt. of NCT of Delhi
[(2004) 6 SCC 422], a case involving negligence in performance of rhinoplasty;
the cause of death whereof was said to be non- introduction of cuffed
endotracheal tube of proper size as to prevent aspiration of blood from wound
in respiratory passage, was held to be an act of negligence. It was opined :
approach of the courts in the matter of fixing criminal liability on the
doctors, in the course of medical treatment given by them to their patients, is
necessary so that the hazards of medical men in medical profession being
exposed to civil liability, may not unreasonably extend to criminal liability
and expose them to the risk of landing themselves in prison for alleged
23. For every mishap
or death during medical treatment, the medical man cannot be proceeded against
for punishment. Criminal prosecutions of doctors without adequate medical
opinion pointing to their guilt would be doing great disservice to the
community at large because if the courts were to impose criminal liability on
hospitals and doctors for everything that goes wrong, the doctors would be more
worried about their own 8 safety than giving all best treatment to their
patients. This would lead to shaking the mutual confidence between the doctor
and the patient.
Every mishap or
misfortune in the hospital or clinic of a doctor is not a gross act of
negligence to try him for an offence of culpable negligence."
distinction was drawn therein between a civil liability and a criminal
Court while acknowledging the limited jurisdiction the High Court exercises
under Section 482 of the Code of Criminal Procedure, proceeded to consider the
question of criminal liability on the basis of the medical documents produced
by the prosecution itself. The fact admitted, according to this Court, did not
attract the provisions of Section 80 and 88 of the Indian Penal Code.
of the said decision was questioned in Jacob Mathew (supra) by a Division Bench
of this Court. The matter was referred to a larger Bench. A Three Judge Bench,
inter alia, opined that the averments made in the complaint therein even if
held to be proved did not make out a case of criminal offence on the part of
the accused-appellant, stating :
"It is not a
case of the complainant that the accused-appellant was not a doctor qualified
to treat the patient whom he agreed to treat."
that case, an Oxygen cylinder was not available and on that premise, it was
held that the hospital having failed to keep available a gas cylinder and/or
the gas cylinder having been found empty, the hospital may be liable to civil
law but the doctor cannot be proceeded against under Section 304A of the Indian
Penal Code. In Jacob Mathew's judgment also the expression `gas cylinder'
appears twice in Para 53. But it is obvious from the facts of the case that it
was `oxygen cylinder' (and not gas cylinder) that was not available.
arriving at the said finding, reliance was placed on Bolam v. Friern Hospital
Management Committee [1957 (2) All.ER 118], wherein the plaintiff, a voluntary
patient in the defendant's mental hospital sustained fractures in course of
electroconvulsive therapy. There were differences of opinion in the profession
about the mode of treatment; one favouring the use of relaxant drugs or manual
control as a general practice and the other opining that as the use of those
drugs was attended by mortality risks, use thereof should have been confined to
cases where there were particular reasons for their use.
are in this case not faced with such a situation, at least at this stage.
person should not profess himself to be a child specialist unless he has the
requisite expertise. In Bolam (supra) the Court was concerned with a situation
involving use of some special skills or competence. The test which was applied
is the standard of special skill.
a person has a special skill to treat a child, ordinarily he could not have
treated her, not because he was wholly incompetent therefor but because it
required a specialized skill keeping in view the nature of the disease the
child was suffering from.
may not be a valid argument at least at this stage that the child would have
otherwise died having been suffering from Leukemia. The question which has been
raised is that if on the face of the first blood report medical opinion other than
the diagnosis of cancer was possible, whether it will fall within the ambit of
medical negligence, is a matter which in our opinion requires deeper
the said purpose, the opinion of the experts will have to be thoroughly
examined. Their opinion must be tested. We are given to 11 understand that
there are two views; which view ultimately would prevail is a matter of
civil liability of the appellant having been determined, we are of the opinion
that at this stage it may not be relevant to consider the charges of criminal
negligence on the part of the appellant herein on the touchstone of standard of
proof required for proving a case of criminal negligence as the same would fall
for consideration at the hands of the Trial court at an appropriate stage.
question is as to whether the High Court should have interfered with the order
summoning the appellant at this stage? It is now a well settled principle of
law that at the stage of quashing of an order taking cognizance, an accused
cannot be permitted to use the material which would be available to him only as
his defence. In his defence, the court would be left to consider and weigh
materials brought on record by the parties for the purpose of marshalling and
appreciating the evidence. The jurisdiction of the Courts, at this stage, is
limited as whether a case of reckless/gross negligence has been made out or not
will depend upon the facts of each case.
Rao has brought to our notice the evidence of one of the doctors, who had
deposed in favour of the appellant to show that he was not supplied with all
the documents. This contention of Mr. Rao has been seriously disputed by Mr.
Mohan Rao contending that all the medical opinions were obtained by the
investigating agency. This may be so or may not be, but it is accepted at the
Bar that the doctors who had rendered their opinion in favour of the
complainant stated that no member of the medical profession could treat the
child for `Tuberculosis' and it was a clear case where the diagnoses at the
outset should have been one of `Leukemia'.
need not take this discussion any further as it may prejudice the case of
either of the parties at the trial.
may, however, refer to a decision of this Court in State of Orissa v. Debendra
Nath Padhi [(2005) 1 SCC 568] wherein this Court upon considering a large
number of decisions opined :
"It is evident
from the above that this Court was considering the rare and exceptional cases
where the High Court may consider unimpeachable evidence while exercising
jurisdiction for quashing under Section 482 of the Code. In the present case,
however, the question involved is not about the exercise of jurisdiction under
Section 482 of the Code where along with the petition the accused may file unimpeachable
evidence of sterling quality and on that basis seek quashing, 13 but is about
the right claimed by the accused to produce material at the stage of framing of
It was furthermore
"23. As a result
of the aforesaid discussion, in our view, clearly the law is that at the time
of framing charge or taking cognizance the accused has no right to produce any
material. Satish Mehra case (2000) 6 SCC 338 holding that the trial court has
powers to consider even materials which the accused may produce at the stage of
Section 227 of the Code has not been correctly decided.
in view the facts and circumstances of this case, we are of the opinion that it
cannot be said that the materials brought on record by the complainant, even if
given face value and taken to be correct in their entirety do not disclose an
offence. We say so because there are two sets of opinions; one in favour of the
complainant and another in favour of the appellants. Which opinion would
ultimately prevail is essentially a question to be determined by the learned
Trial Judge upon considering the evidence adduced by the parties hereto in
the reasons aforementioned, we do not find any merit in this case.
It is dismissed
accordingly with costs. Counsel's fee assessed at Rs.25,000/-.