# Dr. Mohd. Azam Hasin v. State of U.P. & Anr

- **Citation:** (2019) 4 ILRA 114
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-12-19
- **Case number:** Crl. Misc. Application (U/S 482 Cr. P.C.) No. 8541 of 2013
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-mohd-azam-hasin-v-state-of-u-p-anr-44880
- **Pages:** 15

## Headnote

A. Criminal Law - Indian Penal Code,
1860 - Section - 304 A -Criminal Liability
of Doctor - the standard of negligence
required to be proved should be so high
as
can
be
described
as
"gross
negligence" or "recklessness"- It is not
merely lack of necessary care, attention
or skill which would make him liable
criminally- 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. The act certainly shows
the negligence on the part of the doctor,
4 All. Dr. Mohd. Azam Hasin Vs. State of U.P. & Anr.
115
but the same would not qualify to be
called as "criminal negligence" as it may
at the most be treated to be negligence
for which civil liability would lie. It may
also not be ruled out that the accused
doctor was having overconfidence that
he would be able to handle the situation
himself, but it turned out to be otherwise
and it can also be inferred that it may
have resulted into accidental death of
the deceased.

Application u/s 482 Cr.P.C allowed. (E-3)

List of cases cited: -

## Text

_Characters 0–39,915 of 48,997. This is a partial read: ask again with offset=39915 for what follows._

114 INDIAN LAW REPORTS ALLAHABAD SERIES
prayer for quashing the same is hereby
refused.

38. The 482 Cr.P.C. application with
respect to applicant Dr. M.C. Sharma is
accordingly,
dismissed.
The
interim
order, if any, stands vacated.

39. As regards applicant-Smt.
Aparna Saxena is concerned, it is not
disputed by the CBI that she is the wife of
co-accused Prashant Saxena and sleeping
director of M/s. Aanjaneya Business
(India) Pvt. Ltd. and from the statements
of the prosecution witnesses, namely,
Pankaj Kapoor (PW-50) and Hemant Rja
(PW-51) it appears that no doubt the
applicant had signed the MOU and also
issued a cheque of Rs.10 lacs as
advancepayment
in
absence
of
her
husband, but it cannot be said she
conspired with her husband and other coaccused persons for committing the crime
in question putting a loss to the State
Exchequer. There appears to be no
evidence against the applicant Smt.
Aparna Saxena collected during the
course of investigation which may show
that she at any point of time was
conspired with her husband along with
other co-accused persons for being
involved in the present offence.

40. The case law which has been
relied upon by the learned counsel for the
applicant in the case of Shreya Jha
(supra), the case of the applicant Smt.
Aparna Saxena is squarely covered in
view of paragraph nos.11 and 12 of the
said judgement. Hence, in view of the
same,
the
impugned
order
dated
19.12.2018
rejecting
discharge
application and the order dated 23.1.2019
passed by the Court of Special Judge,
CBI, Ghaziabad District Court framing
charge are hereby set aside to the extent
of applicant Smt. Arpana Saxena.

41. The 482 Cr.P.C. application with
respect to applicant Smt. Aparna Saxena
stands allowed.
----------
(2019)12 ILR A115

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
8541 of 2013
connected with
Crl. Misc. Application (U/S 482 Cr. P.C.) 8558
of 2013

Dr. Mohd. Azam Hasin ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Bhanu Bhushan Jauhari, Meenakshi
Chauhan

Counsel for the Opposite Parties:
A.G.A., Sri S.P.S. Chauhan

A. Criminal Law - Indian Penal Code,
1860 - Section - 304 A -Criminal Liability
of Doctor - the standard of negligence
required to be proved should be so high
as
can
be
described
as
"gross
negligence" or "recklessness"- It is not
merely lack of necessary care, attention
or skill which would make him liable
criminally- 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. The act certainly shows
the negligence on the part of the doctor,
4 All. Dr. Mohd. Azam Hasin Vs. State of U.P. & Anr.
115
but the same would not qualify to be
called as "criminal negligence" as it may
at the most be treated to be negligence
for which civil liability would lie. It may
also not be ruled out that the accused
doctor was having overconfidence that
he would be able to handle the situation
himself, but it turned out to be otherwise
and it can also be inferred that it may
have resulted into accidental death of
the deceased.

Application u/s 482 Cr.P.C allowed. (E-3)

List of cases cited: -

1. Martin F. D'Souza v. Mohd Ishfaq, (2009)3 SCC 1

2. Dr. Suresh Gupta v. Govt. of NCT of Delhi
and Another, AIR 2004 SC 4091

3. A.S.V. Narayanan Rao v. Ratnamala and
Another

4. Kusum Sharma and Others v. Batra Hospital
and Medical Research Centre and Others,
(2010)3 SCC 480

5. R.v. Adomako,1994(3) All E. R.79

6. Jacob Mathew v. State of Punjab and
Another, (2005)6 SCC 1

(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)

Since both these applications relate
to the same crime number, hence, they are
being taken up together.

1. Heard the arguments advanced by
Shri Bhanu Bhushan Jauhari, learned
counsel appearing on behalf of the
applicants and in opposition, Shri S.P.S.
Chauhan, learned counsel, is appearing on
behalf of opposite party no. 2 and Shri
G.P.
Singh,
learned
Additional
Government Advocate, is appearing on
behalf of the State of Uttar Pradesh.
Perused the record.

2. By way of instant applications
under Section 482 of the Code of
Criminal Procedure, 1973 (for short
"Code"), prayer has been made on behalf
of the accused-applicants to quash the
entire proceedings of Criminal Case No.
5426 of 2012 (State v. Dr. Adil and
others), arising out of Case Crime No.
506 of 2012, under Section 304A of the
Indian Penal Code, 1860 (for short
"I.P.C."), Police Station - Civil Lines,
District - Aligarh, pending in the court of
Additional Chief Judcial Magistrate,
Court No. 3, Aligarh as well as the
summoning
order
dated
09.10.2012
passed by Chief Judicial Magistrate,
Aligarh.

3. In order to appreciate the
arguments advanced by the respective
learned counsel, it would be appropriate
to give in a nutshell facts of the case,
which are as follows :

The opposite party no. 2/informant
had lodged an F.I.R. at Police Station -
Civil Lines, District - Aligarh, stating
therein that his brother Syed Parvez Ali,
who was working in the Land and Garden
Department of Aligarh Muslim University
(for short "A.M.U.") on the post of Lower
Division
Clerk
(L.D.C.),
remained
admitted for about 23 days in Special
Ward No. 28 and had a tube installed in
his chest. He was to be discharged on
16.06.2012 as he had become quite fit and
was also in walking condition. His
treatment was being given under the
supervision of Dr. Hanif Beg and few
other junior doctors also used to come to
see him. On 16.06.2012 at about 09.00
A.M., the accused-applicant Dr. Adil
Mahmud Ali @ Dr. Ali Adil Mahmud
(hereinafter referred to as "Dr. Adil")
along with a nurse came there and asked
116 INDIAN LAW REPORTS ALLAHABAD SERIES
his mother and sister to go out of the
room and when it was asked as to why
they should got out, in front of them, the
said doctor started cutting the tube which
was installed in the chest of the patient
with the assistance of a blade and as soon
as the same was cut, blood oozed out
profusely. The said doctor, with a lot of
pressure, pressed the chest of the patient,
as a result of which, blood started coming
out of mouth of his brother and within 20
minutes' time, the whole room including
the bed sheet, etc. got soaked in blood.
The sister of opposite party no. 2, namely,
Ashafiya opposed this act of the doctor, at
which the doctor fled away from there.
Soon thereafter, the persons taking care of
the patient rushed to the emergency in
order to give information and after that,
one or two persons came there running
and tried to stop the blood. Thereafter, the
doctors started a drama for about one hour
to revive the patient and ultimately,
pronounced him dead. Thus, it was prayed
that a case under Section 302 of I.P.C. be
registered against the accused doctor.

4. On the said information, a case
was registered against the accused in
aforesaid case crime number, under the
aforesaid section. After investigating into
the matter, the police submitted chargesheet against the accused-applicants.

5. The main argument advanced by
learned counsel for the applicants is that
there was no role assigned to the accusedapplicant
Dr.
Mohd.
Azam
Hasin
(hereinafter referred to as "Dr. Hasin")
and yet, he has been charge-sheeted by
the police. As regards the other accusedapplicant Dr. Adil, it was argued that he
had made his best effort to take care of
the patient/deceased, but he could not
succeed in his effort, which resulted into
the death of the deceased. At the most, he
could be subjected to only civil liability
and not criminal liability. With respect to
accused-applicant Dr. Hasin, it was
further argued that he could not be held
accountable for the said death vicariously,
as there is no such concept in criminal
case of imposing liability vicariously. The
police has submitted charge-sheet in
routine manner, without making thorough
investigation
and
therefore,
the
prosecution
of the accused-applicant
should be quashed, the same being
malicious.

6. Attention of the Court was drawn
by learned counsel for the applicants
towards the statement of the eyewitnesses of this case, namely, Ashafiya
and Aisha Begum, sister and wife,
respectively of opposite party no. 2,
which are annexed at page nos. 42 and 43
of the paper book. Both these witnesses,
who
were
taking
care
of
the
patient/deceased in the hospital, had
submitted their affidavits before the
Investigating Officer (hereinafter referred
to as "I.O."), which was believed by the
I.O. and the averments made therein were
made part of the case diary by him. In
those statements by both the witnesses the
prosecution version as given in the F.I.R.
has been corroborated and it was argued
that the statements of the said witnesses
would actually be not treated to have been
recorded under Section 161 of the Code
as they were only the affidavits given in
respect of the present case. Attention was
also drawn towards the report of the
Inquiry
Committee,
which
was
constituted by the Vice-Chancellor (for
short "V.C.") of A.M.U. vide letter dated
18.06.2012, in which the following
observations
were
made
by
the
Committee :
4 All. Dr. Mohd. Azam Hasin Vs. State of U.P. & Anr.
117

Observations of the Inquiry
Committee

1. Such procedures (in this case
ICTD) should have been performed in
minor OT/dressing room available in
general ward instead of a private ward.

2. It is preferable to undertake
such
steps
in
presence
of
senior
colleague, nursing/paramedical staff.

3.
Before
performing
such
procedures, the availability of necessary
life saving drugs or equipments should be
ensured to face any such eventuality.

4. The attending Doctors should
keep in mind all consequences, including
the rarest one and should explain the
same to the patient/his attendant.

7. On the basis of this report, it was
argued that in the said report it was
mentioned that in a case of rare
complication, it would be unfair on the
part of the junior doctor (Dr. Adil) to
expect of him to think of such an
uncommon procedural complication. This
would suggest that the accused-applicant
Dr. Adil was a junior doctor and he could
not be, therefore, held liable for any
intentional negligence, which resulted
into the death of the deceased.

8. Further attention of the Court was
drawn to the order dated 23.11.2012
passed by the Uttar Pradesh Medical
Council to the following effect:

Order

The Ethical Committee observed
that the causes of death as per post
mortem report is Septicemia. Removal of
ICD can not be held as cause of death.
Bleeding can occur in few case from the
site of ICD after removal which is not
under control. Dr. Ali Adil has also done
ATLS. He did his best to save the patient
life under the circumstances.

The Ethical Committee is the
opinion that Dr. Ali Adil can not be held
guilty of medical negligence.

9. Pointing out the above order, it
was
argued
that
even
the
Ethical
Committee had tendered its opinion that
Dr. Adil could not be held guilty of
medical negligence and in view of that
report, the prosecution of the said doctor
needs to be quashed.

10. On the other hand, learned
counsel
for
opposite
party
no.
2
vehemently defended the charge-sheet as
well as the criminal prosecution of the
applicants, citing the same report of the
Inquiry Committee, which have been
quoted above, that it clearly revealed that
there was negligence on the part of the
said doctor (Dr. Adil) because he
conducted the procedure of Inter-coastal
chest drain (for short "I.C.T.D.") without
taking proper care, in a private ward, in
the absence of any nurse/para-medical
staff and without there being any lifesaving drugs with him to face any such
eventuality. He ought to have kept in
mind the consequences in such kind of
cases and should have explained them to
the attendants of the patient. It was,
therefore, through and through, a case of
criminal negligence, which would be
covered for offence under Section 304A
of I.P.C.

11. As regards the other accusedapplicant Dr. Hasin, it was vehemently
argued by learned counsel that it was Dr.
Hasin under whose supervision, the
patient/deceased was being treated and it
was he who had sent the junior doctor
(Dr. Adil) to remove the said tube from
118 INDIAN LAW REPORTS ALLAHABAD SERIES
the chest of the patient/deceased and
therefore, it cannot be denied that even he
was rightly charge-sheeted for criminal
negligence.

12. In the affidavit filed in support
of this application, it was mentioned by
the applicants that the patient/deceased
Syed Parvez Ali was admitted on
24.05.2012 in J.N. Medical Hospital in a
case of road accident with blood trauma
chest with right pneumothorax with
fracture of multiple ribs on the right side
and right clavicle. At the time of
admission, he was in respiratory distress
and was diagnosed clinically as a patient
of right side pneumothorax and I.C.T.D.
He was placed under the supervision of
senior resident on duty. The patient's
condition
had
stabilized
and
was
conservatively managed on the advice of
Professor M.H. Beg. The first-year junior
resident in the Department of General
Surgery Dr. Adil Mahmood Ali Jr.-I
(accused-applicant) was taking care of the
patient and the other accused (doctor) Dr.
Hasin was also a member of the said
team, which was taking care of the said
patient. The patient had radiologically
improved on 15.06.2012. On 16.06.2012,
he was examined by him (Dr. Hasin) and
Prof. M.H. Beg and it was declared that
clinically and radiologically, he had
improved and his I.C.T.D. should be
removed. Dr. Adil had to perform the said
job and accordingly, he removed the same
on 16.06.2012. He cut the suture attached
to the skin with a sterile surgical blade
and pulled out the tube. Thereafter, some
complication developed and Dr. Adil did
his best, but the life of the patient could
not be saved and he was declared dead by
the R.O.C. Anesthesia at 10.30 A.M. on
16.06.2012. After the death of the patient,
a first information report was lodged by
his brother Zakir Ali, opposite party no. 2
against Dr. Adil Mahmud Ali @ Dr. Ali
Adil Mahmud alone. There was no
allegation against the accused-applicant
Dr. Hasin.

13. After investigation, the police
submitted charge-sheet in the said case
under Section 304A of I.P.C. against both
the applicants and cognizance has been
taken
by
learned
Chief
Judicial
Magistrate, Aligarh. The patient had died
due to removal of chest tube, as per first
information report dated 16.06.2012,
while the cause of death has been
mentioned to be septicemic shock in the
post-mortem report, as such, there is
major material contradiction between the
first information report and post-mortem
report, which is annexed as Annexure 5.
The patient died during treatment in
A.M.U., as such, the V.C. of A.M.U. vide
Office Memorandum dated 17.06.2012,
ordered an inquiry into the whole matter
of the demise of Syed Parvez Ali, who
was admitted in Ward No. 28 of the J.N.
Medical College Hospital. During inquiry,
opposite party no. 2, the mother and the
sister of patient/deceased were also
present with him on 16.06.2012 and were
examined by the Inquiry Committee. In
the Inquiry Committee report, it has been
mentioned that such death occurs in very
rare cases and it should not be expected
from a junior doctor to think of such an
uncommon procedural complication. No
adverse finding has been given against the
accused-applicant Dr. Hasin. The I.O. had
requested the S.P. City, Aligarh to request
the C.M.O., Aligarh to submit a report
regarding the aforesaid incident and
accordingly, the S.S.P., Aligarh had sent a
letter to C.M.O., Aligarh on 19.07.2012
for constituting a panel of doctors for
submitting its report on the technical
4 All. Dr. Mohd. Azam Hasin Vs. State of U.P. & Anr.
119
aspect of the matter. In reply to the said
letter, the C.M.O. sent a letter dated
21.07.2012,
saying
that
specialized
doctors were not available and that the
matter
had
been
inquired
by
the
committee
of
experts,
which
was
constituted by the V.C. of A.M.U. and the
said reply was accordingly sent to the I.O.
from the office of S.S.P., Aligarh on
02.08.2012, copy of which is Annexure 7.

14. The I.O. has recorded the
statement of Ashfiya and Aisha Begum
under Section 161 of the Code, but none
of them has stated anything against the
accused Dr. Hasin. The I.O. has submitted
charge-sheet without considering the
report of the Committee constituted by the
V.C. of A.M.U. as well as the statement
of the eye-witnesses and has included his
name in the charge-sheet. The learned
C.J.M. has passed summoning order and
has failed to consider the law laid down
by Hon'ble Apex Court in Martin F.
D'Souza v. Mohd Ishfaq1 which says that
no court, either consumer forum or
criminal court, shall issue any process
against a doctor before referring the
matter to a competent doctor or a
committee of doctors specialized in the
field, relating to which the medical
negligence is attributed. In this case, the
C.M.O. has not constituted any committee
of experts and the Inquiry Committee
constituted by the order of V.C. of
A.M.U. has not said anywhere that the
accused Dr. Hasin could be held liable for
criminal negligence, therefore, the entire
proceedings against the accused needs to
be quashed.

15. Further, it is mentioned that for
fixing criminal liability on a doctor or a
surgeon, the standard of negligence
required to be proved should be so high as
can be described as "gross negligence" or
"recklessness". Merely, lack of necessary
care, attention or skill or mere inadequacy
of some degree or want of adequate care
and caution would not suffice to hold him
criminally liable. Reliance is also placed
upon the judgment of Hon'ble Apex Court
in Dr. Suresh Gupta v. Govt. of NCT of
Delhi and Another2 in view of which, the
present proceedings need to be quashed.

16. In rebuttal, from the side of
opposite party no. 2, through filing a
counter affidavit, it is stated that the
patient/deceased was regularly being
given treatment under the supervision of
Prof. M.H. Beg and he had clinically and
radiologically
improved.
The
senior
doctors had advised the patient to be
discharged after removal of I.C.T.D.
under their supervision, but it is clear
from the Inquiry Report dated 17.06.2012
that the accused doctor (Dr. Adil)
removed the I.C.T.D. of the patient
without consulting the other supervisors,
in private ward itself and did not take the
patient to even minor operation theatre
(for short "O.T.") for the same nor did he
adopt any procedure for removal of the
same and without adequate usage of any
emergency equipments/life-saving drugs.
The said act was committed by Dr. Adil
taking a big risk, without consulting the
superiors. The mother and the sister of the
deceased were also present at the time of
this
occurrence
and
had
seen
the
occurrence with their own eyes and made
their best effort to stop Dr. Adil from
removing the I.C.T.D. without any
assistance and also made a hue and cry for
assistance, but all in vain. Dr. Adil did not
stop until the patient died. Although the
accused Dr. Hasin was not present at that
time because of which he was not named
in the F.I.R., but during investigation, he
120 INDIAN LAW REPORTS ALLAHABAD SERIES
was also found to be involved rightly by
the I.O. Further, it is mentioned that the
S.S.P.,
Aligarh
vide
letter
dated
19.07.2012,
had
requested
C.M.O.,
Aligarh to constitute a panel of doctors
for submitting its report on the technical
aspect of the matter, but because the
accused-applicants were in collusion with
C.M.O., Aligarh, the said request was
refused and hence, no technical aspect of
the matter is found on record. Dr. Adil did
not adopt the adequate procedure for
removal
of
the
I.C.T.D.
of
the
patient/deceased, which clearly suggests
that there was gross negligence on his
part, which resulted into the death of the
patient/deceased.

17.

After
having
heard
the
arguments advanced by learned counsel
for both the parties as well as having
perused the record of the case, I find that
it is undisputed that the patient/deceased
was got admitted in the said hospital -
J.N.
Medical
College
Hospital
on
24.05.2012 in a serious condition as he
had met with road accident, but after
having been treated for about 20 odd
days, he had improved a lot and was
about to be discharged after removal of
I.C.T.D. The said removal of I.C.T.D. was
conducted in this case by Dr. Adil
(accused-applicant), who is stated to have
removed the same without taking the
patient to the O.T. and without taking
proper care, which resulted into profuse
bleeding of the patient and ultimately,
into his death. The two eye-witnesses,
namely, the sister and the mother of the
deceased have deposed that the accusedapplicant Dr. Adil had cut the tube
installed in the chest of the deceased in a
very
rough
manner,
despite
their
opposition and in front of them, when the
patient started bleeding profusely, the
doctor fled away from there and by the
time these witnesses rushed to the
emergency to call someone to take care of
the patient, he died. It also emerges from
the record that an Inquiry Report has
come
on
record,
which
has
been
submitted by the committee constituted
by the V.C. of the said institution
(A.M.U.),
which
has
given
abovementioned opinion, which clearly shows
that Dr. Adil should have performed the
said act/operation in the O.T./dressing
room instead of private ward and that the
same should have been done in the
presence of a senior colleague/nurse/paramedical staff and at that time, he ought to
have made adequate usage of life-saving
drugs or equipments, which could be
needed to meet any such eventuality and
the risks involved ought to have been
intimated to the attendants of the patient
in advance, but all this was not done in
this case, which clearly suggests the
careless approach/negligence on the part
of the said doctor, who went about this
job in a very lackadaisical manner, which
has resulted into the death of the
deceased.

18. From the side of the accusedapplicants, reliance has been placed upon
the judgment of Hon'ble Apex Court in
Dr. Suresh Gupta's case (supra). In the
said judgment, facts of the case were that
a doctor (plastic surgeon) was facing
charge under Section 304A of I.P.C. for
causing
death
of
his
patient
on
18.04.1994, who was operated by him for
removal of his nasal deformity. The
anaesthetist who was assisting the said
surgeon in the operation was also made
co-accused, but he was reported to have
died pending trial. The appellant urged
before the Magistrate that the medical
evidence produced by the prosecution did
4 All. Dr. Mohd. Azam Hasin Vs. State of U.P. & Anr.
121
not make out any case against him to
proceed with the trial, but the learned
Magistrate decided to proceed against
him, giving the following reasons in the
impugned order dated 28.11.1998 :

"Post-mortem report is very
categorical and very clear and it has been
clearly mentioned therein that death was
due to the complication arising out of the
operation. That operation was conducted
by both the accused persons. It is also
clear from the material on record that the
deceased was a young man of 38 years
having no cardiac problem at all and
because of the negligence of the doctors
while conducting minor operation for
removing nasal deformity, gave incision
at wrong part due to that blood seeped
into the respiratory passage and because
of that patient immediately collapsed and
died and it was also attempted to show by
the accused persons that he was alive at
that time and was taken to Ganga Ram
Hospital for further medical attention.

19. It was clear from record that the
patient had already died in the clinic of
the accused and therefore, there was
sufficient ground on record to make out
prima facie a case against both the
accused under Section 304A of I.P.C. The
matter came up before the High Court in
proceedings under Section 482 of the
Code, which too refused to quash the
criminal proceedings, although it recorded
that the Metropolitan Magistrate was
obviously wrong, in the absence of any
medical
opinion,
in
coming
to
a
conclusion that the surgeon had given a
cut at wrong place of the body of the
patient at the time of operation leading to
blood seeping into the respiratory passage
and blocking it, resulting into his death.
The High Court while refusing to quash
the impugned order dated 01.04.2003
recorded its reasons as under :

In the present case two doctors
who
conducted
the
post-mortem
examination have taken an emphatic
stand which they have reiterated even
after the Special Medical Board opinion,
that death in this case was due
to''asphyxia resulting from blockage of
respiratory passage by aspirated blood
consequent
upon
surgically
incised
margin of nasal septum'. This indicates
that adequate care was not taken to
prevent seepage of blood down the
respiratory passage which resulted in
asphyxia. The opinion of the Special
Medical Board is not free from ambiguity
for the reasons already given. Such
ambiguity can be explained by the doctors
concerned when they are examined during
the trial.

20. Allowing the appeal and
quashing the criminal proceedings against
the accused, the Honb'le Apex Court held
as follows :

The legal position is almost
firmly established that where a patient
dies due to the negligent medical
treatment of the doctor, the doctor can be
made liable in civil law for paying
compensation and damages in tort and at
the same time, if the degree of negligence
is so gross and his act was so reckless as
to endanger the life of the patient, he
would also be made criminally liable for
offence under Section 304-A IPC.

 (Para 12)

For fixing criminal liability on a
doctor or surgeon, the standard of
negligence required to be proved should
be so high as can be described as "gross
122 INDIAN LAW REPORTS ALLAHABAD SERIES
negligence" or "recklessness". It is not
merely lack of necessary care, attention
and skill. The decision of the House of
Lords in R.v. Adomako [(1994) 3 All ER
79 (HL)] relied upon on behalf of the
doctor elucidates the said legal position
and contains the following observations:

"Thus a doctor cannot be held
criminally responsible for patient's death
unless his negligence or incompetence
showed such disregard for life and safety
of his patient as to amount to a crime
against the State."

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.

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
unreasonably extend to criminal liability
and expose them to the risk of landing
themselves in prison for alleged criminal
negligence.

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 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.

(Paras 20 to 23, 25 and 26)

No doubt, in the present case,
the patient was a young man with no
history of any heart ailment. The
operation to be performed for nasal
deformity was not so complicated or
serious. He was not accompanied even by
his own wife during the operation. From
the medical opinions produced by the
prosecution, the cause of death is stated
to
be
"not
introducing
a
cuffed
endotracheal tube of proper size as to
prevent aspiration of blood from the
wound in the respiratory passage". This
act attributed to the doctor, even if
accepted to be true, can be described as
negligent act as there was lack of due
care and precaution. For this act of
negligence he may be liable in tort but his
carelessness or want of due attention and
skill cannot be described to be so reckless
or grossly negligent as to make him
criminally liable.

 (Para 24)

After examining all the medical
papers accompanying the complaint, we
find that no case of recklessness or gross
negligence has been made out against the
4 All. Dr. Mohd. Azam Hasin Vs. State of U.P. & Anr.
123
doctor to compel him to face trial for
offence under Section 304-A IPC. As a
result of the discussion aforesaid on the
factual and legal aspect, we allow this
appeal and by setting aside the impugned
orders of the Magistrate and of the High
Court, quash the criminal proceedings
pending against the present doctor who is
the accused and appellant before us.
(Para 28)

21. Reliance has also been placed
upon the judgment of Hon'ble Apex Court
in the case of A.S.V. Narayanan Rao v.
Ratnamala and Another3. In the said
case, the appellant cardiologist conducted
an angiogram on the deceased and finding
three blocks in the coronary arteries,
conducted an angioplasty around 1.30
p.m. The appellant thereafter informed the
respondent (wife of deceased patient) that
the angioplasty failed and the blocks of
her husband had calcified. The same day
around 3.30 p.m., a bypass surgery was
conducted in the same hospital. Various
complications arose and eventually the
said patient died. The Magistrate took
cognizance by prima facie concluding that
there was material to try the appellant for
offences under Section 304A of I.P.C. and
the matter came up before the High Court.
It too declined to quash the proceedings,
giving the following reasons :

 (1) that the appellant chose to
conduct the angioplasty without having a
surgical standby unit and such failure
resulted in delay of 5 hrs in conducting
bypass after the angioplasty failed; and

(2) that the appellant did not
consult a cardio anaesthesian before
conducting an angioplasty.

and
held
that
both
the
abovementioned lapses on the part of the
appellant clearly show the negligence of
the appellant.

22. Hon'ble Apex Court, allowing
the appeal, held as follows :

13.
The
basis
for
such
conclusion though not apparent from the
judgment, we are told by the learned
counsel for the first respondent, is to be
found in the evidence of Dr Surajit Dan
given before the A.P. State Consumer
Disputes Redressal Commission in CD
No. 38 of 2004. It may also be mentioned
here that apart from initiating criminal
proceedings against the appellant and
others, the first respondent also raised a
consumer dispute against the appellant
and others. It is in the said proceedings,
the abovementioned Dr Dan's evidence
was recorded wherein Dr Dan in his
cross-examination stated as follows:

"...
Whenever
cardiologist
performs an angioplasty, he requests for
the surgical team to be ready as standby.
It was not put on standby in the instant
case...."

He further stated:

"... The failure of angioplasty
put the heart in a compromised position
of poor coronary perfusion that increases
the risk of the emergency surgery after
that. In a planned coronary surgery, the
risk is less than in an emergency
surgery...."

However, the same doctor also
stated:

"... The time gap between the
angioplasty failure and the surgery is not
the factor for the death of the patient. The
time gap may or may not be a factor for
the enhancement of the risk."

14. Unfortunately, the last of the
above-extracted statements of Dr Surajit
Dan is not taken into account by the High
124 INDIAN LAW REPORTS ALLAHABAD SERIES
Court which statement according to us is
most crucial in the context of criminal
prosecution of the appellant.

15.
The
High
Court
unfortunately overlooked this factor. We,
therefore, are of the opinion that the
prosecution of the appellant is uncalled
for as pointed out by this Court in Jacob
Mathew case [(2005) 6 SCC 1 : 2005
SCC (Cri) 1369] that the negligence, if
any, on the part of the appellant cannot
be said to be "gross". We, therefore, set
aside the judgment [Criminal Petition No.
6506 of 2007, order dated 28-10-2010
(AP) sub nom Surjit Dan v. State of A.P.,
Criminal Petition No. 6368 of 2007]
under appeal and also the proceedings of
the trial court dated 11-12-2006.

23. This Court would like to rely
upon the law laid down by Hon'ble Apex
Court in the case of Kusum Sharma and
Others v. Batra Hospital and Medical
Research Centre and Others4. In this
case, Hon'ble Apex Court has summarized
the principles to be applied in a case of
criminal negligence, which are as follows
:

89. On scrutiny of the leading
cases of medical negligence both in our
country and other countries specially the
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 wellknown 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
4 All. Dr. Mohd. Azam Hasin Vs. State of U.P. & Anr.
125
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.

IX. It is our bounden duty and
obligation of the civil society to ensure
that the medical professionals are not
unnecessarily 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
pressurising
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.

24. In view of the above position of
law, this Court will have to analyze facts
of the present case.

The patient/deceased in the
present case had been admitted in the
hospital of the accused-applicant, after the
former met with an accident and remained
hospitalized for about 23 days in a special
ward. He was on the verge of getting
discharged as he had been cured, as has
been mentioned in the first information
report. Further, it is mentioned in the
F.I.R. that on 16.06.2012, Dr. Adil came
with a nurse to disconnect the tube which
was installed in the chest, blood oozed out
profusely and thereafter, the doctor fled
away from the said ward and when the
informant gave information about this
occurrence in the emergency, one or two
people came and tried to stop the blood.
Thereafter, the doctors feigned to revive
the patient/deceased for about one hour
and thereafter, declared him dead. As per
post-mortem, cause of death is reported to
be due to septicemic shock. The following
ante-mortem injuries were recorded :

1.
Right
side
chest
tube
incertion mark 1.5 x 1.5 cm on right side
chest 7.00 cm. lateral to Rt nipple.

2. Cut open mark for yv canula
on Rt. side on medial aspect 0.5 cm x 0.2
cm

25. In the report of the Inquiry
Committee which was constituted by the
V.C., dated 18.06.2012, the following
observations were made :

Observations of the Inquiry
Committee

1. Such procedures (in this case
ICTD) should have been performed in
minor OT/dressing room available in
general ward instead of a private ward.

2. It is preferable to undertake
such
steps
in
presence
of
senior
colleague, nursing/paramedical staff.
126 INDIAN LAW REPORTS ALLAHABAD SERIES

3.
Before
performing
such
procedures, the availability of necessary
life saving drugs or equipments should be
ensured to face any such eventuality.

4. The attending Doctors should
keep in mind all consequences, including
the rarest one and should explain the
same to the patient/his attendant.

Fixing the responsibility on
the erring official(s) and role of Prof.
M.H. Beg

1.