# Dr. Ashok Kumar Rai v. State of U.P. & Anr

- **Citation:** (2025) 7 ILRA 640
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-24
- **Case number:** Crl. Misc. Application U/S 482 No. 28703 of 2008
- **Bench:** Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-ashok-kumar-rai-v-state-of-u-p-anr-53624
- **Pages:** 18

## Headnote

Govt. Advocate, eS.k. Mishra

Issue for Consideration
Issue arose for determination was whether, in
facts
and
circumstances
of
case,
the
continuation
of
criminal
proceedings
and
summoning order dated 15.09.2008 against
applicant, a duly qualified medical practitioner,
u/s 304A, 315, 323, and 506 IPC, constituted an
abuse of process of Court, particularly in view of
Medical Board's report exonerating applicant of
negligence, or whether, on the contrary, the
material on record disclosed prima facie case of
medical negligence warranting applicant's
prosecution.

Head Notes
Penal Code, 1860 - ss. 304A, 315, 323 and
506 - Applicant, proprietor of Savitri
Nursing Home, filed application u/s 482
Cr.P.C. seeking quashing of summoning
order
dated
15.09.2008
and
entire
proceedings in u/s 304A, 315, 323, and
506
IPC,
arising
from
FIR
dated
29.07.2007 lodged by opposite party no. 2
- It was alleged that applicant, while
attending
delivery
of
complainant's
relative, exhibited negligence by delaying
surgery despite obtaining consent at
around 11:00 A.M., resulting in death of
foetus - Post-mortem report attributed
cause of death to prolonged labour, and
complainant further alleged assault by
employees of applicant and his associates
and fabrication of documents by applicant
and his staff - Applicant relied upon
Medical Board's report exonerating him of
negligence, contending that he was duly
qualified and proceedings were an abuse
of process of law - Opposite parties
asserted
contradictions
in
applicant's
statements, existence of two O.T. notes,
non-placement of post-mortem report
before Medical Board, and deliberate delay
in performing surgery due to absence of
anaesthetist.

Held:
Criminal liability arises if a doctor fails to
exercise ordinary care while treating a patient;
mens rea must be examined, and criminal
negligence is established if doctor acts without
such ordinary care - Instant matter is not case
where applicant does not possess requisite
qualification, but matter hinges on whether
applicant had exercised reasonable care in
providing medical service in time, or he had
acted carelessly - Case of pure misadventure
where doctor has admitted patient and after
taking go ahead for operation from patient's
family members, did not perform operation in
time as he was not having requisite doctor (i.e.
anaesthetist ) to perform surgery - As per
statement of anaesthetist he got a call at 3.30
p.m. and this delay (medical negligence) can
only be attributed to applicant - There is
contradiction in times of admission, consent and
operation, with two O.T. notes and post-mortem
report not placed
before Medical Board,
rendering its opinion unreliable; prima facie,
offence is made out against applicant - Although
consent was obtained at 12:00, thereafter
doctor suggested for operation but operation
was not carried out till 4/5 P.M., without
explanation, and post-mortem shows foetus
died
due to prolonged
labour, indicating
malafide
intention
of
applicant
-
Thus,

## Text

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640 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2025) 7 ILRA 640
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.07.2025

BEFORE

THE HON'BLE PRASHANT KUMAR, J.

Crl. Misc. Application U/S 482 No. 28703 of
2008

Dr. Ashok Kumar Rai ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Senior Advocate, Shailendra Kumar Rai

Counsel for the Respondents:
Govt. Advocate, eS.k. Mishra

Issue for Consideration
Issue arose for determination was whether, in
facts
and
circumstances
of
case,
the
continuation
of
criminal
proceedings
and
summoning order dated 15.09.2008 against
applicant, a duly qualified medical practitioner,
u/s 304A, 315, 323, and 506 IPC, constituted an
abuse of process of Court, particularly in view of
Medical Board's report exonerating applicant of
negligence, or whether, on the contrary, the
material on record disclosed prima facie case of
medical negligence warranting applicant's
prosecution.

Head Notes
Penal Code, 1860 - ss. 304A, 315, 323 and
506 - Applicant, proprietor of Savitri
Nursing Home, filed application u/s 482
Cr.P.C. seeking quashing of summoning
order
dated
15.09.2008
and
entire
proceedings in u/s 304A, 315, 323, and
506
IPC,
arising
from
FIR
dated
29.07.2007 lodged by opposite party no. 2
- It was alleged that applicant, while
attending
delivery
of
complainant's
relative, exhibited negligence by delaying
surgery despite obtaining consent at
around 11:00 A.M., resulting in death of
foetus - Post-mortem report attributed
cause of death to prolonged labour, and
complainant further alleged assault by
employees of applicant and his associates
and fabrication of documents by applicant
and his staff - Applicant relied upon
Medical Board's report exonerating him of
negligence, contending that he was duly
qualified and proceedings were an abuse
of process of law - Opposite parties
asserted
contradictions
in
applicant's
statements, existence of two O.T. notes,
non-placement of post-mortem report
before Medical Board, and deliberate delay
in performing surgery due to absence of
anaesthetist.

Held:
Criminal liability arises if a doctor fails to
exercise ordinary care while treating a patient;
mens rea must be examined, and criminal
negligence is established if doctor acts without
such ordinary care - Instant matter is not case
where applicant does not possess requisite
qualification, but matter hinges on whether
applicant had exercised reasonable care in
providing medical service in time, or he had
acted carelessly - Case of pure misadventure
where doctor has admitted patient and after
taking go ahead for operation from patient's
family members, did not perform operation in
time as he was not having requisite doctor (i.e.
anaesthetist ) to perform surgery - As per
statement of anaesthetist he got a call at 3.30
p.m. and this delay (medical negligence) can
only be attributed to applicant - There is
contradiction in times of admission, consent and
operation, with two O.T. notes and post-mortem
report not placed
before Medical Board,
rendering its opinion unreliable; prima facie,
offence is made out against applicant - Although
consent was obtained at 12:00, thereafter
doctor suggested for operation but operation
was not carried out till 4/5 P.M., without
explanation, and post-mortem shows foetus
died
due to prolonged
labour, indicating
malafide
intention
of
applicant
-
Thus,
cognizance order issued after perusing material
collected during investigation, application is
devoid of merits and accordingly, dismissed.
[Paras 33, 34, 37, 38, 41, 47 ] (E-13)

Case Law Cited
7 All. Dr. Ashok Kumar Rai Vs. State of U.P. & Anr.
641
Jacob
Mathew
v.
State
of
Punjab
and
another,(2005) 6 SCC 1; Dr. Suresh Gupta v.
Govt. of N.C.T. of Delhi & Another, (2004) 6
SCC 422; Dr. A.K. Gupta and others v. State of
U.P. and others, 2018 AHC 173248, (2018) 0
Supreme (All) 2304; State of Haryana and
others v. Bhajan Lal and others, 1992 Supp
(1) SCC 335 - relied on

V. Kishan Rao v. Nikhil Super Speciality Hospital
in Civil Appeal no.2641 of 2010 arising out of
SLP (C) No. 15084/2009; Bolam v. Friern
Hospital Management Committee, (1957) I
WLR
582
:
(1957)
2
All
ER
118;
Bhalchandra alias Bapu and another v. State of
Maharashtra, AIR 1968 SC 1319; Poonam
Verma v. Ashwing Patel and others, (1996) 4
SCC 332; Jacob Mathew v. State of Punjab and
another, (2005) 6 SCC 1; Kusum Sharma and
others v. Batra Hospital & Medical Research
Centre and others, (2010) SCR (2) 685; M/s
Neeharika Infrastructure Pvt. Ltd. v. State of
Maharashtra, AIR 2021 SC 1918; R.P. Kapur v.
State of Punjab, A.I.R. 1960 S.C. 866; State
of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192;
Zandu Pharmaceutical Works Ltd. v. Mohd.
Saraful Haq and another, (Para10) 2005 SCC
(Cr.) 283 - referred to

List of Acts
Penal Code, 1860.

List of Keywords
Medical
negligence;
Gross
negligence;
Summoning
order;
Criminal
liability;
Civil
liability; Private nursing homes; Advance stage
of pregnancy; Surgery; Attended the patient
and suggested for caesarean; Death of foetus;
Chief Medical Officer; Infrastructure deficiency;
Statement of informant side has not been
adduced; Failure to act in time; Enticing
patients; Malafide intention; Employees of
applicant;
No
discharge
slip
given;
Bar
Association; Deleted from computer; Extortion
money;
Medical
qualification/competence;
Protection for medical professionals; Lack of due
care and diligence; Mens rea; Delay in
conducting surgery; Prolonged labour; Consent
for
surgery;
O.T.
notes;
Manufactured
documents;
Post
mortem
report;
Medical
Board's report; Lack of anaesthetist; Consumer
complaint; Consumer Court; Trial to proceed
independently; Bolam's test.
Case Arising From
ORIGINAL JURISDICTION: Application U/s 482
No. - 28703 of 2008

From the Judgment and Order dated 15.09.2008
of A.C.J.M., Court No.19, Deoria in Case No.17
of 2008

Appearances for Parties

Advs. for the Applicant:
I.K. Chaturvedi (Senior Advocate), Shailendra
Kumar Rai

Adv. for the Opposite Party:
Govt. Advocate, S.K.Mishra
(Delivered by Hon'ble Prashant Kumar, J.)

1. Heard Sri I.K. Chaturvedi, learned
Senior Advocate assisted by Sri Shailendra
Kumar Rai, learned counsel for the
applicant, Sri S.D. Pandey, learned A.G.A.
for the State and Sri S.K. Mishra, learned
counsel for O.P. no.2.

2. The present application under
Section 482 Cr.P.C has been filed by the
applicant
with
a
prayer
to
quash
summoning order dated 15.09.2008 passed
by A.C.J.M., Court No.19, Deoria under
Section 304A, 315, 323 and 506 IPC as
well as the entire proceedings of Case
No.17 of 2008 pending in the court of
Additional Chief Judicial Magistrate, Court
no.19, Deoria.

FACTS OF THE CASE

3. In the instant matter, an FIR was
lodged on 29.07.2007 by O.P. no.2 wherein
it is alleged that wife of younger brother of
the informant/O.P. no.2 was admitted in
Savitri Nursing Home, Deoria, which is
owned/runned by the applicant, who
happens to be a doctor. It has been alleged
that the patient was admitted to the hospital
on 28.07.2007 at 10.30 A.M. for delivery.
642 INDIAN LAW REPORTS ALLAHABAD SERIES
At around 11 O'Clock on 29.07.2007 the
applicant called O.P. No.2 and checked up
the patient and told her relatives that it is
necessary for the patient to undergo surgery
and asked for their consent. The same was
immediately given, however, the surgery
was not carried out in time. In the
meanwhile, condition of the patient kept
deteriorating and it is only at about 5.30
P.M. the patient was taken into the
operation theatre. After operation, the
informant was informed that the foetus has
died. When objection was raised by the
family members of the patient, and then
they were beaten up by the employees of
the doctor (applicant) and his associates.
The doctor has also taken ₹8700/- for the
surgery and asked the informant to deposit
another ₹10,000/-. Even no discharge slip
was given to the patient. After registration
of the FIR, post mortem examination was
conducted on the dead body of the child.

4. After registration of FIR, police
wrote a letter to the concerned Chief
Medical Officer calling for his opinion in
the matter. The C.M.O. called upon the
applicant to give his version. The applicant
herein had immediately given statement on
14.11.2007 to the C.M.O. which reads as
follows:-

"आज वदिांक 14.11.2007 को मुख्य
वचवकत्सावधकारी, देवररया के समक्ष मेरा कथि विम्ि हैः-

1- यह वक मरीज ऊर्ा पाण्डेय पत्िी बृजेि पाण्डेय
ग्राम सरौरा हमारे यहां 30.03.2007 से हमारे Ante-natal
careमें थी इिका LMP 10-10-06 था। इसके मुतावबक
इिके प्रसव की वतवथ 17.07.2007 थी। इिका वसजेररयि
आपरेिि लगभग 6 वर्ष पूवष हमारे यहााँ ही हुआ था।

2- प्रसव की वतवथ (RFF) 17.07.2007 की
जािबूझकर अवहेलिा करते हुए 11 वदि ववलम्ब 28.07.2007
को िांय 3 बजे भती हुए। इिकी अल्रासाउण्ड जांच से पता चला
वक पािी कम हो गया है और इिको आपरेिि की सलाह दी गयी।
लेवकि वे िामषल वडलेवरी के वलये आग्रह करते रहे।

3- 28.07.2007 को िायं 6 बजे एवं रावत् 10
बजे पुिः मरीज को देखा गया और इन्द्हें वफर आपरेिि की सलाह दी
गयी लेवकि अवभभावक िामषल वडलेवरी के वलये प्रयास करिे पे जोर
देते रहे।

4- 29.07.2007 को सुबह 6 बजे मरीज को
देखा गया और पाया गया की बच्चे की धडकि ज्यादा है और उन्द्हें
तुरन्द्त आपरेिि की सलाह दी गयी, बावजूद इसके अवभभावक
आपरेिि के वलए मिा कर वदये।

5- 29.07.2007 को पुिः 12 बजे मरीज को
देखा गया तो बच्चे की धडकि िहीं वमल रही थी तब इिको यह
बताया गया वक यवद तुरन्द्त आपरेिि िहीं कराया गया तो मरीज की
जाि को खतरा है, वफर भी अवभभावक आपरेिि के वलये तैयार
िहीं हुये।

6- 29.07.2007 दोपहर 2 बजे जब मरीज को
पसीिा आिे लगा और टांके में ददष होिे लगा तथा मरीज की वस्थवत
गम्भीर होिे लगी तब इिके अवभभावक आपरेिि के वलये तैयार
हुये।

7- मरीज की पूरी तैयारी करिे के बाद
29.07.2007 को िायं 4 बजे आपरेिि हुआ और मृत बच्चा
पैदा हुआ।

8- मरीज के अवभभावकों द्वारा बार बार सलाह देिे
के बावजूद आपरेिि की अिुमवत िहीं देिे के कारण बच्चे की मृत्यु
हुई। बच्चे की मृत्यु के वलये उसके अवभभावक स्वयं वजम्मेदार है।

9- यह वक मरीज 05.08.2007 तक इस
अस्पताल में भती रही, उस समय मरीज वबल्कुल सामान्द्य थी और
मरीज के अवभभावक उस वदि जबरदस्ती छुट्टी कारकर मरीज को
वजला मवहला अस्पताल देवररया ले गये वहां भी मरीज वबल्कुल
स्वस्थ पाया गया।

5. After receiving the statement of the
applicant, the C.M.O. constituted Medical
Board to look into the issue. The Medical
Board looked into the case and gave
following report on 17.11.2007 :-

"जााँच आख्या

डा० ए०के० राय गायिायकोलावजस्ट, विदेिक
साववत्ी िवसिंग होम देवररया के ववरूि श्रीमती उर्ा पाण्डेय के
उपचार में लापरवाही बरतिे से संबंवधत श्री बृजेि कुमार पाण्डेय
एडवोकेट को विकायत की जांच वदिााँक 14-11-2007 को
7 All. Dr. Ashok Kumar Rai Vs. State of U.P. & Anr.
643
3.00 बजे अपरान्द्ह में डा० सुश्रुर्ा श्रीवास्ताव मुख्य वचवकत्सा
अधीक्षक, वजला मवहला वचवकत्सालय देवररया एवं मेरे द्वारा संयुक्त
रूप से जााँच हेतु साववत्ी िवसिंग होम देवररया जाकर जााँच वकया
गया। डा० ए०के० राय द्वारा श्रीमती उर्ा पाण्डेय पवत्ि श्री बृजेि
पाण्डेय ग्राम सरौरा जिपद देवररया की वडलीवरी से संबंवधत
अवभलेखों का अवलोकि वकया गया तथा उिका बयाि वलया गया
डा० ए०के० राय द्वारा वदये गये बयाि की पुवष्ट श्रीमती उर्ा पाण्डेय
को वदये वदये गये उपचार से संबंवधत अवभलेखों से की जाती है। डा०
ए०के० राय द्वारा श्रीमती उर्ा पाण्डेय के उपचार में कोई लापरवाही
िहीं की गयी है उिके द्वारा मरीज के वहत में उपचार वदया गया है।
चूंवक डा० ए०के० राय की अहषता डी०जी०ओ० है अतः उक्त
वचवकत्सा उपचार हेतु अवधकृत भी है।"

6. Immediately thereafter the C.M.O.
sent a letter to the I.G. Police Gorakhpur
stating that the applicant is not at fault by
giving following report :-

"आपके पत् वदिााँक 7-11-2007 के संदभष में
डा० ए०के० राय विदेिक साववत्ी िवसिंग होम देवररया के ववरूि श्री
बृजेि पाण्डेय विवासी ग्राम सरौरा जिपद देवररया की पवत्ि श्रीमती
उर्ा पाण्डेय के उपचार में वकये गये लापरवाही से संबंवधत मेरे एवं
मुख्य वचवकत्सा अधीक्षक, वजला मवहला वचवकत्सालय देवररया द्वारा
जााँच वकया गया। जााँच आख्या एवं डा० ए०के० राय के बयाि की
छायाप्रवत संलग्ि कर भेजते हुये कहिा है वक इसमें डा० ए०के० राय
का कोई दोर् िहीं है। वियमािुसार उपचार वदया गया है।"

7. However, at this point of time there
was no mention of the post mortem report
which was carried out of the foetus and
same was not placed before the Medical
Board.

8. On the basis of the report of the
Medical Board, final report was submitted
by the I.O. on 30.11.2007. Aggrieved by
this final report, the complainant filed
protest petition on 15.03.2008 in which it is
specifically stated that the consent for
surgery was given at 11 O'Clock on
29.07.2007. However, surgery was not
carried out. It was only at 5.30 P.M. the
patient was taken to O.T. Thereafter,
husband of patient made to sign on some
papers, and soon, thereafter staff of the
applicant announced that the foetus as
dead. The death was due to the negligence
of the doctor and when the same was
challenged, the informant and his family
members were beaten up by the staff of the
applicant. An FIR was lodged on the same
day i.e. 29.07.2007 at 22.45 P.M., however,
the patient was not discharged. It is when
the informant brought it to the notice of Bar
Association, Deoria and when they met the
Superintendent of Police, then the patient
was discharged. The informant was not
given discharge summary and only when
the pressure was applied, in front of police
officers, some fabricated documents were
given and no detail case summary was
given as the same was deleted from the
computer. It was also mentioned in the
protest petition as to how the I.O. was
changed. It has been specifically stated that
death of foetus was because of delay in
carrying out the operation. There was
cross-case
also
lodged
against
the
informant and in the FIR applicant himself
admitted that around 12 O' Clock the
consent for operation was given. In the
statement given by Dr. Chandra Shekhar
Azad, he has specifically stated that the
applicant had called him at 3.30 P.M. and
asked him to come immediately so that the
operation may be carried out. This shows
that the applicant had not taken steps for
conducting operation from 12 O'Clock to
3.30 P.M. though consent was given at
around 12 O'clock and the operation was
carried out at 5.30 P.M. Its a clear case of
medical negligence. It is alleged that the
Medical Board had not carried out
investigation properly and statement of
informant side has not been adduced.

9. In the protest case, after perusing
the case diary and evidence on record, the
concerned Magistrate came to a conclusion
644 INDIAN LAW REPORTS ALLAHABAD SERIES
that prima facie case is made out against
the applicant as prima facie it appears to be
a case of medical negligence because of
which, foetus has died. Accordingly, final
report was rejected and allowing the protest
petition, summons were issued against the
applicant. The summoning order as well as
the entire proceedings of the aforesaid case
has been assailed by the applicant means of
the instant application.

ARGUMENT ON BEHALF OF
THE APPLICANT

10. Learned Senior Counsel for the
applicant
submitted
that
firstly,
the
applicant was having the requisite medical
qualification for the treatment of the
patient. He has the degree of M.B.B.S. and
D.G.O. (Diploma in Gynaecology and
Obstetrics). He submitted that it is not a
case where the applicant was not duly
qualified and it was not a case where there
was any negligence on the part of the
applicant. Secondly, as per report submitted
by the Medical Board, no such medical
negligence has been proved against the
applicant in providing treatment to the
alleged victim. To buttress his argument, he
has placed reliance on the judgment of
Hon'ble Supreme Court in the matter of
Jacob Mathew vs. State of Punjab and
another1. He further placed reliance on the
judgment passed in the matter of Dr.
Suresh Gupta vs. Govt. of N.C.T. of
Delhi & Another2 wherein the Court has
held has follows:-

"21. Thus, when a patient agrees
to go for medical treatment or surgical
operation, every careless act of the medical
man cannot be termed as criminal. It can
be termed criminal only when the medical
man exhibits a gross lack of competence or
inaction and wanton indifference to his
patient's safety and which is found to have
arisen from gross ignorance or gross
negligence. Where a patient's death results
merely from error of judgment or an
accident, no criminal liability should be
attached to it. Mere inadvertence or some
degree of want of adequate care and
caution might create civil liability but
would not suffice to hold him criminally
liable.

22. This 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 reasonably extend to
criminal liability and expose them to risk of
landing themselves in prison for alleged
criminal negligence.

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 guilty 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
safety than giving all best treatment to their
patients. This would lead to shaking the
mutual confidence between the doctor and
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."

11. He further placed reliance on the
judgment passed by this Court in the matter
of Dr. A.K. Gupta and others vs. State of
U.P. and others3, 2018 AHC 173248
wherein it has been held in para 28 to 31 as
follows:-
7 All. Dr. Ashok Kumar Rai Vs. State of U.P. & Anr.
645

"28. The Court surely could not
have proceeded with the complaint in case
no evidence were led before the Magistrate,
looking to the law laid down in Suresh
Gupta (supra). The issue of proceeding
with a complaint bereft of medical opinion
as
to
professional
negligence,
and,
documents relating to treatment, was
considered by their Lordships in Jacob
Mathew (supra). It was held:

"50.
As
we
have
noticed
hereinabove that the cases of doctors
(surgeons and physicians) being subjected
to criminal prosecution are on an increase.
Sometimes such prosecutions are filed by
private complainants and sometimes by
police on an FIR being lodged and
cognizance taken. The investigating officer
and the private complainant cannot always
be supposed to have knowledge of medical
science so as to determine whether the act
of
the
accused
medical
professional
amounts to rash or negligent act within the
domain of criminal law under Section 304A of IPC. The criminal process once
initiated subjects the medical professional
to serious embarrassment and sometimes
harassment. He has to seek bail to escape
arrest, which may or may not be granted to
him. At the end he may be exonerated by
acquittal or discharge but the loss which he
has suffered in his reputation cannot be
compensated by any standards.

51. We may not be understood as
holding
that
doctors
can
never
be
prosecuted for an offence of which rashness
or negligence is an essential ingredient. All
that we are doing is to emphasize the need
for care and caution in the interest of
society; for, the service which the medical
profession renders to human beings is
probably the noblest of all, and hence there
is a need for protecting doctors from
frivolous or unjust prosecutions. Many a
complainant prefers recourse to criminal
process as a tool for pressurizing the
medical
professional
for
extracting
uncalled for or unjust compensation. Such
malicious proceedings have to be guarded
against.

52. Statutory Rules or Executive
Instructions
incorporating
certain
guidelines need to be framed and issued by
the Government of India and/or the State
Governments in consultation with the
Medical Council of India. So long as it is
not done, we propose to lay down certain
guidelines for the future which should
govern the prosecution of doctors for
offences of which criminal rashness or
criminal negligence is an ingredient. A
private complaint may not be entertained
unless the complainant has produced prima
facie evidence before the Court in the form
of a credible opinion given by another
competent doctor to support the charge of
rashness or negligence on the part of the
accused doctor. The investigating officer
should, before proceeding against the
doctor accused of rash or negligent act or
omission, obtain an independent and
competent medical opinion preferably from
a doctor in government service qualified in
that branch of medical practice who can
normally be expected to give an impartial
and unbiased opinion applying Bolam's test
to the facts collected in the investigation. A
doctor accused of rashness or negligence,
may not be arrested in a routine manner
(simply because a charge has been levelled
against him). Unless his arrest is necessary
for furthering the investigation or for
collecting
evidence
or
unless
the
investigation officer feels satisfied that the
doctor proceeded against would not make
himself available to face the prosecution
unless
arrested,
the
arrest
may
be
withheld."

29. The requirement of a credible
opinion, given by another Doctor, to
646 INDIAN LAW REPORTS ALLAHABAD SERIES
support a charge of rashness or negligence
on the part of an accused Doctor, is a
louder echo of their Lordships' decision in
Suresh Gupta (supra), where it says that
criminal prosecution of doctors, without
adequate medical opinion pointing to their
guilt, would be counter-productive. Thus, in
order to maintain a complaint for an
offence punishable under Section 304-A
IPC against a doctor with regard to his
professional acts, the requirement of the
law is that it should be supported by
adequate medical evidence, prima facie
demonstrative of a case of criminal
negligence. A private complaint, or even an
FIR, based on a non-medico layman's
vantage,
howsoever
categorical
or
systematic, would not entitle the Magistrate
to proceed with the complaint against a
doctor for criminal negligence, relating to
his professional acts.

30. In a later decision, the
Hon'ble Supreme Court in Kusum Sharma
and
others
(supra),
summarized
the
principles to be applied in case of medical
negligence, that are expressed in the words
of their Lordships, thus:

"89. On scrutiny of the leading
cases of medical negligence both in our
country and other countries specially
United Kingdom, some basic principles
emerge in dealing with the cases of medical
negligence. While deciding whether the
medical professional is guilty of medical
negligence following well known principles
must be kept in view:-

I. Negligence is the breach of a
duty exercised by omission to do something
which a reasonable man, guided by those
considerations which ordinarily regulate
the conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do.

II. Negligence is an 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.

III. The medical professional is
expected to bring a reasonable degree of
skill and knowledge and must exercise a
reasonable degree of care. Neither the very
highest nor a very low degree of care and
competence judged in the light of the
particular circumstances of each case is
what the law requires.

IV. A medical practitioner would
be liable only where his conduct fell below
that of the standards of a reasonably
competent practitioner in his field.

V. In the realm of diagnosis and
treatment there 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.

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 the patient
rather than a procedure involving lesser
risk but higher 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.

VII.
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 action chosen by him
was acceptable to the medical profession.

VIII. It would not be conducive to
the efficiency of the medical profession if
no Doctor could administer medicine
without a halter round his neck.
7 All. Dr. Ashok Kumar Rai Vs. State of U.P. & Anr.
647

IX. It is our bounden duty and
obligation of the civil society to ensure that
the
medical
professionals
are
not
unnecessary harassed or humiliated so that
they can perform their professional duties
without fear and apprehension.

X. The medical practitioners at
times also have to be saved from such a
class of complainants who use criminal
process as a tool for pressurizing the
medical
professionals/hospitals
particularly private hospitals or clinics for
extracting uncalled for compensation. Such
malicious proceedings deserve to be
discarded
against
the
medical
practitioners.

XI. The medical professionals are
entitled to get protection so long as they
perform their duties with reasonable skill
and competence and in the interest of the
patients. The interest and welfare of the
patients have to be paramount for the
medical professionals.

90. In our considered view, the
aforementioned principles must be kept in
view while deciding the cases of medical
negligence. We should not be understood to
have held that doctors can never be
prosecuted for medical negligence. As long
as the doctors have performed their duties
and exercised an ordinary degree of
professional skill and competence, they
cannot
be
held
guilty
of
medical
negligence. It is imperative that the doctors
must be able to perform their professional
duties with free mind."

31. It must be noticed here, that
Kusum Sharma (supra) was a case that
arose
from
proceedings
under
the
Consumer
Protection
Act,
but
their
Lordships considered the position of law
regarding medical negligence, in its widest
possible terms, whether involved in a
criminal prosecution, a civil action or a
consumer
complaint.
Their
Lordships
enunciation of the law shows, like the
decision, in Jacob Mathew (supra) to be
founded on principles propounded in the
face of this new world challenge of a
changing order. It is also based on a
searching
review
of
authority
from
different jurisdictions across the world,
where courts have been confronted with
similar claims against doctors and hospital
establishments, by dissatisfied patients,
sometimes blackmailers. There is no
manner of doubt that the decision of their
Lordships under reference, though rendered
in the context of a consumer dispute,
adumbrates principles, that provide ground
rules to judge, irrespective of the nature of
jurisdiction or proceedings, claims and
complaints regarding medical negligence.
They also served as an infallible guide for
courts, called upon to decide, whether a
criminal
prosecution
initiated,
on
a
complaint, or a police report, is worth
permitting to proceed to trial, or requires as
is proverbially called, to be nipped in the
bud."

12. Relying on the aforesaid ratio
learned counsel for the applicant submitted
that the prosecution of the applicant is not
justified because admittedly, the medical
board has given a report in which it was
held that it is not a case of medical
negligence. He further submitted that the
FIR has only been lodged to extort money
from the applicant.

ARGUMENT ON BEHALF OF
OPPOSITE PARTIES

13. Per contra, Sri S.K. Mishra,
learned counsel for O.P. no.2 submits that
the applicant in his evidence stated that the
patient was admitted in his Nursing Home
at 10.30 AM on 28.07.2007 whereas before
648 INDIAN LAW REPORTS ALLAHABAD SERIES
the Medical Board, the applicant has stated
that the patient was admitted at 3.30 P.M.
on 28.07.2007. He submits that there is
contradiction in two statements of the
applicant. He further submits that the
applicant himself has lodged a cross FIR
against O.P. no.2 on 30.07.2007 in which
time of admission of the patient has been
mentioned to be 7.00 P.M and alleged that
the surgery was carried out on 29.07.2007,
which is a completely different stand from
what has been stated before the Medical
Board. He submits that the applicant is
trying to fill up the lacunas of the case by
stating different times of admission. He
further submits that at the time of
admission it was mentioned by the
applicant that the patient was in perfect
condition and still asked her family
members for carrying out the surgery. He
further submits that the post mortem report
of the foetus shows that cause of death was
due to "Prolonged labour".

14. Sri Mishra further submits that
documents produced before the Medical
Board were manufactured documents and
on the basis thereof, the Medical Board had
come up to a conclusion of no negligence
on the part of the applicant. He further
submits that in fact the O.T. Note, which
was prepared by the applicant just before
the operation, was also not placed before
the Medical Board. Further, he submits that
there is another O.T. Note which has been
filed along with the supplementary counter
affidavit, and there is no rational for having
two O.T. notes specially in the fact when
there is difference between the two notes.
He further submits that the post mortem of
the dead child was carried out and in the
post mortem report, the cause of death was
"due to prolonged labour". There is nothing
on record to show that this post mortem
report was placed before the Medical Board
or the Medical Board had any chance to
deal with it. In absence of aforesaid
important
documentary
evidence,
the
Medical Board could not have come to the
conclusion that it is not a case of medical
negligence on behalf of the applicant.

15. He submitted that the consent for
surgery was given around 11 O'clock on
29.07.2007 and since the applicant did not
have any anaesthetist in his nursing home,
so the necessary surgery could not be
carried out. He submitted that as per
statement of the anaesthetist, it was around
3.30 P.M. the applicant called him and
asked him to come as the applicant had to
carry out surgery. He next submitted that
thereafter the operation was carried out at
5.30 P.M. Further after the call made to the
anaesthetist at 3.30 P.M. it took almost 2
hours for carrying out the operation, it is
again further case of medical negligence.
He contended that apparently there is clear
cut delay from 11 O'clock to 3.30 P.M.,
which amounts to medical negligence and
has not been explained by the applicant. He
further added that the post mortem record
clearly shows that death was due to
prolonged labour and had the operation
been carried out in time, the child would
have been alive. He further submits that the
allegation against O.P. no.2 is that, the
family members of the patient were
pressing for normal delivery and that was
the reason for delaying the operation. This
averment of the applicant is totally
incorrect and has not been substantiated by
any evidence. He submits that the first
child of the patient was caesarean then how
it is possible or why would the family
members would press for a normal
delivery. Such averment is just a ploy of the
applicant to hide his mistake. At last, he
submitted that it is clear case of medical
negligence.
7 All. Dr. Ashok Kumar Rai Vs. State of U.P. & Anr.
649

16. Per contra, Sri S.D. Pandey,
learned A.G.A. submits that foetus died
only because of the delay in carrying out
the surgery in time by the applicant. He
submits that there are two O.T. notes and it
seems that one of the O.T. note has been
manufactured/prepared just for the help of
the applicant, which casts serious doubt
upon his conduct. He submits that the court
below after perusing the case diary and
other evidences in detail has rightly come
to a conclusion that, prima facie, case of
negligence is made out against the
applicant and this is the reason why the
final report was rejected and summons
were rightly issued. At last he submitted
that there is no illegality in the summoning
order, hence, the instant application should
be rejected. He further submitted that in the
instant case there are lot of material
contradictions in the evidences, which can
only be adjudicated upon after adducing the
evidence. He further submitted that it is not
a case where no prima facie case is made
out, hence, this Court should not use
inherent power conferred under section 482
Cr.P.C. He further submitted that this is not
a case which falls under the guidelines laid
down by Hon'ble Supreme Court in the
matter of State of Haryana and others Vs.
Bhajan Lal and others4.

REJOINDER ON BEHALF OF
THE APPLICANT

17. In rejoinder, Sri Chaturvedi,
learned Senior Counsel submits that as per
report of the Medical Board there was
nothing on the record to show that there
was any medical negligence on the part of
the applicant. Hence, the issue of medical
negligence is hyper technical issue. He next
submitted that the Medical Board has
clearly found that it is not a case of medical
negligence, hence the summons issued
against the applicant is illegal and liable to
be set aside, as the same has been issued by
overreaching the report of the Medical
Board.

FINDINGS

18. Heard learned counsel for the
parties and perused the record.

19. Evidently, an FIR was lodged on
29.07.2007 by brother-in-law of the patient
(O.P. no.2) wherein patient, who was in
advance stage of pregnancy, was admitted
in the nursing home owned/runned by the
applicant on 28.07.2007 at 10.30 A.M. The
applicant, who is a doctor having M.B.B.S.
and D.G.O. degree, attended the patient and
suggested for caesarean. For that, consent
by the brother of informant/husband of the
patient was obtained but since there was no
anaesthetist present, the operation could not
be carried out. It is only about later in the
afternoon when the anaesthetist came and
operation was carried out on 29.07.2007 at
5.30 P.M.. The foetus was found dead.
After registration of the FIR, the I.O. has
referred the matter to the C.M.O. for his
opinion, who had constituted a Medical
Board. However, it is evident that no
opportunity was given to the informant/O.P.
no.2 or the patient by the Medical Board
and it is only the applicant, who had
appeared before the Medical Board and
given his statement wherein he has stated
that he (applicant/doctor) has checked the
patient at about 6.00 P.M. and again at
10.00 P.M. on 28.07.2007 and suggested
for operation. The patient was again
checked at 6.00 A.M. on the next morning
and it was found that the heartbeat of the
foetus was high and suggested for surgery.
He further stated that at about 12 O'clock
the patient was re-examined and it was
found that heartbeat of the foetus was
650 INDIAN LAW REPORTS ALLAHABAD SERIES
missing and suggest for immediate surgery.
He also told the patient that in case
operation is not carried out that would
become fatal. Then the attendant of the
patient agreed for the surgery. According to
him, surgery was carried out at 4.00 P.M.
on 29.07.2007. The reason for the death, as
stated by the applicant, is because the
family members of the patient did not agree
for surgery at the right time.

20. The aforesaid statement of the
doctor is contrary to the FIR wherein the
timings are quite different and do not match
with the other evidences.

21. The allegation of the informant is
that the doctor had taken consent for
operation at about 12 O' clock but surgery
could not be carried out as the nursing
home did not have the anaesthetist . It is
only after the arrival of the anaesthetist that
the patient was operated.

22. A bare perusal of the post mortem
report of the foetus, which has been
annexed along with the supplementary
counter affidavit, shows that cause of death
was "Prolonged Labour". However, there is
nothing on record to show that the post
mortem report was placed before the
Medical Board and even the report of the
Medical Board does not talk anything about
the post mortem report.

23. Further, counsel for O.P. no.2
brought it to the notice of the Court that
there are two O.T. Notes. However, the
second O.T. note seems to be manufactured
and created to fill in lacunas, for the help of
the applicant. There was no reason for any
doctor to prepare two O.T. notes.

24. It has been argued that the patient
and her family members have already
moved
for
compensation
before
the
Consumer Court in the year 2009 and same
is still pending, hence, there is no reasons
for pursuing the criminal case against the
applicant. In fact, Hon'ble Supreme Court
in the matter of V. Kishan Rao vs. Nikhil
Super Speciality Hospital in Civil Appeal
no.2641 of 2010 arising out of SLP (C)
No. 15084/2009 has held as follows:-

"It is clear from the statement of
objects and reasons of the Act that it is to
provide a forum for speedy and simple
redressal of consumer disputes. Such
avowed legislative purpose cannot be
either defeated or diluted by superimposing
a requirement of having expert evidence in
all cases of medical negligence regardless
of factual requirement of the case. It will be
substantially curtailed and in many cases
the remedy will become illusory to the
common man."

Surprisingly, the consumer complaint
lodged by the victim's family has still not
been deliberated upon and has been lying
for the last 16 years in the Consumer Court.
Since, the said proceeding is not under
challenge in this application, I refrain from
making any comments on the same.

25. As far as medical negligence is
concerned, the first notable judgment in the
field of medical negligence is in the matter
of
Bolam
Vs.
Friern
Hospital
Management Committee, (1957) I WLR
582 : (1957) 2 All ER 118 wherein Lord
Justice McNair observed as under :-

"(i) a doctor is not negligent, if
he is acting in accordance with a practice
accepted as proper by 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.
7 All. Dr. Ashok Kumar Rai Vs. State of U.P. & Anr.
651

The direction that, where there
are two different 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 Secondum (1951) 952,
953, para 44. Moreover, it seems that by
American law a failure to warn the patient
of dangers of treatment is not, of itself,
negligence ibid. 971, para 48.

Lord
Justice
McNair
also
observed : Before I turn that I must explain
what in law we mean by "negligence". In
the ordinary case, which does not involve
any special skill, negligence in law means
this : some failure to so some act which a
reasonable man in the circumstances would
do, or doing some act which a reasonable
man in the circumstances would not do;
and if that failure or 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.