# DR. P.B. DESAI v. STATE OF MAHARASHTRA & ANR

- **Citation:** [2013] 11 S.C.R. 863
- **Court:** Supreme Court of India
- **Decided:** 2013-09-13
- **Case number:** Criminal Appeal No. 1432 of 2013
- **Bench:** A.K.Patnaik, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-p-b-desai-v-state-of-maharashtra-anr-28707
- **Pages:** 52

## Headnote

A
B
Penal Code, 1860 - s. 338 rlw. s. 109 - Prosecution
under - -Of medical practitioner (surgeon). - Conviction by
courts below - Held: The omission on the part of the accused C
to take care of the patient, in the facts of the case, can come
within the realm of professional misconduct and civil liability
(actionable wrong in tort) but not criminal liability - The
omission on the part of the accused was not the cause for
patient's death - Hence he cannot be held liable u/s. 338 as
D
the ingredients of s. 338 have not been satisfied - Tort -
Actionable wrong - Professional Misconduct - Medical
Negligence.
s. 338 - Offence under - Scope of - Held: An offence u/
s. 338 is capable of being committed by omission - Medical
E
profession is included in it.
Liability - Omission liability - 'Omission to act' whether
amounts to 'act' - Held: Liability for an omission, requires a
legal duty to act arising from either civil or criminal law - A
moral duty to act is not sufficient for invoking omission liability
- Penal Code and in particular s. 338 /PC does explicitly
include the liability due to omissions.
Medical Negligence:
Medical negligence - Liability of the offending doctor -
Negligent act/omission by a doctor gives rise to civil as well
as criminal liability - Distinction is required to be drawn
between the two.
863
F
G
H
864
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
Medical negligence - Civil liability - If the patient suffers
because of negligent act/omission of doctor, the doctor is
liable to pay damages - Torts.
Medical negligence - Criminal liability - Of the offending
8
doctor - Held: Criminal liability is to be answered in terms of
mens rea - The only state of mind which deserves punishment
is that which demonstrates an intention to cause harm or
where there is deliberate willingness to subject others to the
risk of harm.
c
Medical negligence - Ascertainment of - Doctor-patient
relationship - Establishment of - Held: Formation of a doctorpa tient relationship is integral to formation of a legal
relationship and consequent rights and duties, forming the
basis of liability of a medical practitioner- A contract between
D
doctor and patient is always implied, except when written
informed consent is obtained - When contractual relationship
is established, it gives foundation to legal obligation between
the doctor and patient - Once it is found that there is 'duty to
treat' there would be corresponding 'duty to take care' -
E
Whenever the principle of 'duty to take care' is founded on a
contractual relationship it acquires a Legal character.
F
Negligence:
'Negligence' - Connotation of.
'Negligence' and 'Recklessness' - Difference between.
The appellant, a renowned surgeon was prosecuted
u/s. 338 r/w. s. 109 of IPC. The prosecution case was that
G the wife of the complainant was a patient of cancer since
1977. She had also undergone treatment in U.S.A. for the
same, where the hospital declared her beyond surgical
treatment and was sent back to India. Thereafter, she was
on medication under medical supervision of Dr. 'M'. She
was admitted in the hospital with a complaint of 'vaginal
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA
865
bleeding', where the appellant-accused examined her and
A
advised 'Exploratory Laporotomy' (surgery), in order to
ascertain whether patient's uterus could or could not be
removed to stop the bleeding. Dr. 'M' began the surgery.
On seeing the condition after opening the abdomen, Dr.
'M' called the appellant-doctor who was performing other B
surgery. Appellant after seeing the condition of the patient
from a distance, advise Dr. 'M' to close the abdomen as
it was not possible to proceed with the operation.
Thereafter, the condition of the patient deteriorated and
she developed other problems and never recovered and c
after about one year died.
The complainant filed a complaint against the
appellant with Maharashtra Medical Council, who took
disciplinary action against the appellant and found him
guilty of profess

## Text

_Characters 0–39,789 of 97,037. This is a partial read: ask again with offset=39789 for what follows._

[2013] 11 S.C.R. 863
DR. P.B. DESAI
v.
STATE OF MAHARASHTRA & ANR.
(Criminal Appeal No. 1432 of 2013)
SEPTEMBER 13, 2013
[A.K.PATNAIK AND A.K. SIKRI, JJ.]
A
B
Penal Code, 1860 - s. 338 rlw. s. 109 - Prosecution
under - -Of medical practitioner (surgeon). - Conviction by
courts below - Held: The omission on the part of the accused C
to take care of the patient, in the facts of the case, can come
within the realm of professional misconduct and civil liability
(actionable wrong in tort) but not criminal liability - The
omission on the part of the accused was not the cause for
patient's death - Hence he cannot be held liable u/s. 338 as
D
the ingredients of s. 338 have not been satisfied - Tort -
Actionable wrong - Professional Misconduct - Medical
Negligence.
s. 338 - Offence under - Scope of - Held: An offence u/
s. 338 is capable of being committed by omission - Medical
E
profession is included in it.
Liability - Omission liability - 'Omission to act' whether
amounts to 'act' - Held: Liability for an omission, requires a
legal duty to act arising from either civil or criminal law - A
moral duty to act is not sufficient for invoking omission liability
- Penal Code and in particular s. 338 /PC does explicitly
include the liability due to omissions.
Medical Negligence:
Medical negligence - Liability of the offending doctor -
Negligent act/omission by a doctor gives rise to civil as well
as criminal liability - Distinction is required to be drawn
between the two.
863
F
G
H
864
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
Medical negligence - Civil liability - If the patient suffers
because of negligent act/omission of doctor, the doctor is
liable to pay damages - Torts.
Medical negligence - Criminal liability - Of the offending
8
doctor - Held: Criminal liability is to be answered in terms of
mens rea - The only state of mind which deserves punishment
is that which demonstrates an intention to cause harm or
where there is deliberate willingness to subject others to the
risk of harm.
c
Medical negligence - Ascertainment of - Doctor-patient
relationship - Establishment of - Held: Formation of a doctorpa tient relationship is integral to formation of a legal
relationship and consequent rights and duties, forming the
basis of liability of a medical practitioner- A contract between
D
doctor and patient is always implied, except when written
informed consent is obtained - When contractual relationship
is established, it gives foundation to legal obligation between
the doctor and patient - Once it is found that there is 'duty to
treat' there would be corresponding 'duty to take care' -
E
Whenever the principle of 'duty to take care' is founded on a
contractual relationship it acquires a Legal character.
F
Negligence:
'Negligence' - Connotation of.
'Negligence' and 'Recklessness' - Difference between.
The appellant, a renowned surgeon was prosecuted
u/s. 338 r/w. s. 109 of IPC. The prosecution case was that
G the wife of the complainant was a patient of cancer since
1977. She had also undergone treatment in U.S.A. for the
same, where the hospital declared her beyond surgical
treatment and was sent back to India. Thereafter, she was
on medication under medical supervision of Dr. 'M'. She
was admitted in the hospital with a complaint of 'vaginal
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA
865
bleeding', where the appellant-accused examined her and
A
advised 'Exploratory Laporotomy' (surgery), in order to
ascertain whether patient's uterus could or could not be
removed to stop the bleeding. Dr. 'M' began the surgery.
On seeing the condition after opening the abdomen, Dr.
'M' called the appellant-doctor who was performing other B
surgery. Appellant after seeing the condition of the patient
from a distance, advise Dr. 'M' to close the abdomen as
it was not possible to proceed with the operation.
Thereafter, the condition of the patient deteriorated and
she developed other problems and never recovered and c
after about one year died.
The complainant filed a complaint against the
appellant with Maharashtra Medical Council, who took
disciplinary action against the appellant and found him
guilty of professional misconduct and issued warning u/ D
s. 22(1) of Maharashtra Medical Council Act, 1965.
The complainant also lodged a criminal case against
'the appellant u/s. 338 r/w. s. 109 IPC. The trial court
convicted him and sentenced him to simple E
imprisonment till the rising of the Court and fine of Rs.
50,000/- by way of compensation with default clause. High
Court confirmed the order of trial cou.rt. Hence the
present appeal.
Allowing the appeal, the Court
F
HELD: 1.1. The defence put by the appellant was that
the complainant's wife was not his patient, b.ut the same
has rightly been rejected by the Courts below in view of
plethora of evidence, establishing otherwise. Thus, it can
G
be concluded that she was the patient of the appellant
and it was his responsibility to take care of his patient.
Usually before the operation, consent form is required to
be signed by the patient for agreeing to the risks
involved. The documentary medical records of surgical
H
866
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A operation pointed to the appellant as the operating
surgeon, the oral and documentary proof both impliedly
and explicitly leads to the creation of contractual
agreement between the patient and the appellant. [Paras
B
24 and 25] [889-B, C-D]
Lambert v. California (355 U.S. 225 (1957) - referred to.
1.2. When a physician agrees to attend a patient,
there is an unwritten contract between the two. The
patient entrusts himself to the doctor and that doctor
C agrees to do his best, at all times, for the patient. Such
doctor-patient contract is almost always an implied
contract, except when written informed consent is
obtained. While a doctor cannot be forced to treat any
person, he/she has certain responsibilities for those
D whom he/she accepts as patients. [Para 39] [894-H; 895A-B]
1.3. The formation of a doctor-patient relationship is
integral to the formation of a legal relationship and
consequent rights and duties, forming the basis of
E liability of a medical practitioner. Due to the very nature
of the medical profession, the degree of responsibility on
the practitioner is higher than that of any other service
provider. The concept of a doctor -patient relationship
forms the foundation of legal obligations between the
F doctor and the patient. In the present case, as already
held above, doctor-patient relationship stood established,
contractually, between the patient and the appellant.
[Para 39] [895-H; 896-A-C]
G
1.4. Once, it is found that there is 'duty to treat' there
would be a corresponding 'duty to take care' upon the
doctor qua/his patient. In certain context, the duty
acquires ethical character and in certain other situations,
a legal character. Whenever the principle of 'duty to take
H care' is founded on a contractual relationship, it acquires
DR. P.B. DESAI v. STATE OF MAHARASHTRA
867
a legal character. Contextually speaking, legal 'duty to
A
treat' may arise in a contractual relationship or
governmental hospital or hospital located in a public
sector undertaking. Ethical 'duty to treat' on the part of
doctors is clearly covered by Code of Medical Ethics,
1972. Clause 10 of this Code deals with 'Obligation to the
B
Sick' and Clause 13 cast obligation on the part of the
doctors with the captioned "Patient must not be
neglected". Whenever there is a breach of the aforesaid
Code, the aggrieved patient or the party can file a petition
before relevant Disciplinary Committee constituted by the c
concerned State Medical Council. [Para 40] [896-D-G]
1.5. When reasonable care, expected of the medical
professional,. is not rendered and the action on the part
of the medical practitioner comes within the mischief of
negligence, it can be safely concluded that the said
D
doctor -did not perform his duty properly which was
expected of him under the law and breached his duty to
take care of the patient. [Para 41] [896-H; 897-A]
2.1. There may be various circumstances where 'act'
would include 'omission to act' as well. This is recognized
even in ss. 32, 33 and 36 IPC. An omission is sometimes
called a negative !!Ct, but this, seems dangerous practice,
for it too easily permits an omission to be substituted for
E
an act without requiring the special requirement for ' F
omission liability such as legal duty and the physical
capacity to perform the act. Criminal liability for an
omission is also well accepted where the actor has a legal
duty and the capacity to act. It is said that this rather
fundamental exception to the act requirement is permitted
G
because an actor's failure to perform a legal duty of which
he is capable, satisfies the purp.oses of the act requirement
or at least satisfies them as well as an act does.
Specifically these two special requirements for omission
liability help to exclude from liability cases of -fantasizing
H
868
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A and irresolute intentions, important purposes of the act
requirement. [Paras 29 and 30] [890-E; 891-C-E]
2.2. However, a failure to act, by itself does nothing
to screen out mere fantasies. It is the actor's failure to act
8 in the light of his capacity to do so that suggests the
actor's willingness to go beyond mere fantasizing and to
have the harm or evil of the offence occur. Even then,
however, the screening effect seems weak; "letting
something happen" simply does not carry the same
C implication of resolute intention that is shown in "causing
something to happen" by affirmative action. While an
actor's failure to perform a legal duty provides some
evidentiary support for the existence of an intention to
have the harm or evil occur, the force of the implication
0
is similarly weak. Inaction often carries no implication of
intention unless it is shown that the actor knows of his
or her duty to act and the opportunity to do so. [Para 31]
[891-F-H; 892-A]
2.3. Liability for an omission requires a legal duty to
E act; a moral duty to act is not sufficient. The duty may
arise either from the .offence definition itself or from some
other provision of criminal or civil law. A duty arises from
the former when an offence is defined in terms of
omission. This is the -situation where the legislature has
F made it an offence. A legal duty to act may also be
created by a provision of either criminal or civil, separate
from the offence charged. [Para 32] [892-B-C]
2.4. Since there is no moral difference between (i) a
positive act and (ii) an omission, when a duty is
G established, it is to be borne in m.ind that cases of
omissions, the liability should be exceptional and needs
to be· adequately justified in each instance. Secondly,
when it is imposed, this should be done by clear statutory
language. Verbs primarily denoting (and forbidding)
H active conduct should not be construed to include
DR. P.B. DESAI v. STATE OF MAHARASHTRA
869
omissions except when the statute contains a genuine
A
implication to this effect. Thirdly, maximum penalties
applied to active wrongdoing should not automatically be
transferred to corresponding omissions; penalties for
omissions should be re-thought in each case. Indeed, IPC
does include explicitly the liability due to omissions. And
B
even Indian courts have affirmed so. Section 338 of l.P.C
does recognize unambiguously that the particular
offence can be committed by omission. More so, the
medical profession is included in it. [Para 33) [892-D-F;
893-C]
C
Latifkhan (1895) 20 Born 394 - referred to.
Kusum Sharma and others v. Batra Hospital and Medical
Research Centre and Others (2010) 3 SCC 480: 2010 (2)
SCR 685 - relied on.
D
3.1. If the patient has suffered because of negligent
act/ omission of the doctor, it undoubtedly gives right to
the patient to sue the doctor for damages. This would be
a civil liability of the doctor under the law tort and/ or E
contract. Such a negligent act, normally a tort, may also
give rise to criminal liability as well, though
jurisprudentially the distinction has to be drawn between
negligence under Civil Law and negligence under
Criminal Law. [Paras 42 and 43) [899-B, H; 900-A]
Jacob Mathews v. State of Punjab and Another 2005 (6)
SCC 1: 2005 (2) . Suppl. SCR 307 - relied on.
3.2. Thus, in the civil context, the moral implications
F
of negligent conduct, a clear view of the state of mind of G
the negligent doctor might not require strictly. This is for
the reason that the law of tort is ultimately not concerned
with the moral culpability of the defendant, even if the
language of fault is used in determining the standard of
care. From the point of view of civil law, it may be
H
870
SUPREME COURT REPORTS
(2013] 11 S.C.R.
A
appropriate to impose liability irrespective of moral
blameworthiness. This is because in civil law two
questions are at issue: Was the defendant negligent? If
so, should the defendant bear the loss in this particular
set of circumstances? In most cases where negligence
B
has been established, the answer to the second question
will be in the affirmativP-, unless the doctrine of
remoteness or lack of foresee ability militates against a
finding of liability, or where there is some policy reason
precluding compensation. The question in the civil
C context is, therefore, not about moral blame, even though
there will be many cases where the civilly liable defendant
is also morally culpable. [Para 44] [903-B-E]
3.3. So far as the sphere of criminal liability is
concerned, as mens rea is not abandoned, the subjective
D state of mind of the accused lingers a critical
consideration. In the context of criminal law, the basic
question is quite different. Here the question is: Does the
accused deserve to be punished for the outcome caused
by his negligence? This is a very different question from
E
the civil context and must be answered in terms of mens
rea. Only if a person has acted in a morally culpable
fashion can this question be answered positively, at least
as far as non strict liability offences are concerned. [Para
45] [903-F-H; 904-A]
F
3.4. The only state of mind which is deserving of
punishment is that which demonstrates an intention to
cause harm to others, or where there is a deliberate
willingness to subject others to the risk of .harm.
G Negligent conduct does not entail an intention to cause
harm, but only involves a deliberate act subjecting
another to the risk of harm where the actor is aware -of
the existence of the risk and, nonetheless, proceeds in
the face of the risk. This, however, is the classic definition
of recklessness, which is conceptually different from
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA
871
negligence and which is widely accepted as being a basis
A
for criminal liability. [Para 46) [904-B-C]
B
3.5. The solution to the issue of punishing what is
described loosely, and possibly inaccurately, as
negligence is to make a clear distinction between
negligence and recklessness and to reserve criminal
punishment for the latter. If the conduct in question
involves elements of recklessness, then it is punishable
and should not be described as merely negligent. If,
however, there is nothing to suggest that the actor was
aware of the risk deliberately taken, then he is morally C
blameless and should face, at the most, a civil action for
damages. [Para 47] ~904-D-E]
4.1. A perusal of s. 338 IPC would clearly
demonstrate that before a person is held guilty of the
D
offence, following ingredients need to be ~stablished: a)
Causing grievous hurt to a person. b) Grievous hurt
should be the result of an act. c) Such act ought to have
been rash and negligent. d) The intensity of commission
of such an act ought to endanger human life or the
E
personal safety of oth_ers. [Para 23) [887-E-G]
4.2. In the present case, the concern revolves around
the acts of omission and commission which amounted
to an 'act' so rashly or negligently as to have had
endangered the life of the patient constituting an offence
punishable u/s. 338 IPC. Since there was no overt act on
F
the part of the appellant, as the surgical procedure was
performed by another doctor, charge of abetment under
Section 109 of l.P.C. was also leveled. The other doctor
was also made accused in the said complaint. However,
G
at a later stage, he was dropped from the proceedings at
the instance of the complainant. [Para 51] [905-D-E]
4.3. The appellant was leveled a specific charge
which was framed against him. The prosecution was
H
872
SUPREME COURT REPORTS
[2013) 11 S.C.R.
A required to prove that particular charge and not to go
beyond that and attribute "rash and negligent" acts
which are not the part of the charge. Culpability is
specifically related to the act of performing surgical
procedure. It is, thus, this act alone, and nothing more,
B for which the appellant and the other doctors were
charged and the appellant is supposed to meet this
charge alone. [Para 52] [905-F-H]
4.4. Just because the advise of the appellant that
C 'Exploratory Laparotomy' be conducted on the patient,
was given in the teeth of the advise of the doctors in the
U.S.A, it would not automatically follow that the view
expressed by the appellant was blemished. The two
experts in medical field may differ on decision to
0
undertake the surgical operation. The critical condition of
the patient at that time has to be kept in mind. She was
sent home by the American doctors as inoperable. She
was advised to take certain medicines. These medicines
were being administered by Dr. 'M'. However, further
complications arose in the meantime as vagina started
E bleeding which was not coming to a halt. Obviously, it
was terminal stage for the patient. It is in this situation,
opinion of the appellant was sought. The dilemma of a
doctor in such a scenario can be clearly visualized viz.,
whether to leave the ·patient as it is or to take a chance,
F
may be a very slim chance, to save or at least to try to
prolong the life of the patient. It was not an easy choice.
Overcoming this difficult situation, the appellant took the
bold decision viz. that surgical operation was worth
taking a risk, as even otherwise, the condition of the
G patient was deplorable. The appellant has even given his
justification and rationale for adopting this course of
action. [Paras 53 and 54) [906-A, C-G]
4.5. During trial, a doctor (DW.2) has endorsed the
H
DR. P.B. DESAI v. STATE OF MAHARASHTRA
873
opinion of the appellant and has gone to the extent of A
saying· that it was the best possible option for the
treatment of the patient. Moreover, Dr. 'M' has also
accepted/ agreed that the advise tendered by the
appellant on the basis of CT Scan Report, and, that the
call to operate was "unanimous". In this scenario, it B
cannot be said that advise of the appellant for taking the
surgical procedure was an act of wanton negligence.
[Para 55] [907-E-F]
·
4.6. No doubt, in the present case the appellant not
only possesses requisite skills but is also an expert in this
C
line. However, having advised the operation, he failed to
take care of the patient. Thereafter, at various stages, he
was held to be negligent by the Maharashtra Medical
Council and thus found to be guilty of committing
professional misconduct. Thus, it was the appellant's D
"duty" to act contractually, professionally as well as
morally and such an omission can be treated as an "act".
Within the realm of civil liability, the appellant has
breached the well essence of "duty" to the patient. [Paras
60 and 61] [911-A-C]
E
4.7. Opening of the abdomen and performing the
surgery cannot be treated as causing grievous hurt. It
could have been only if the doctors would have faltered
and acted in rash and gross negligent manner in
performing that procedure. It is not so. At the same time,
F
his act of omission, afterwards, in not doing the surgery
himself and remaining absent from the scene and
neglecting the patient, even thereafter, when she was
suffering the consequences of fistula, is an act of
negligence and is definitely blame worthy (though that is G
not the part of criminal charge). However, the omission
is not of a kind which has given rise to criminal liability
under the given circumstances. [Para 62] [911-F-H]
4.8. However, the appellant's omission in not H
874
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A rendering complete and undivided legally owed duty to
patient and not performing the procedure himself, has not
made any difference. It was not the cause of the patient's
death which was undoubtedly because of the acute
chronic cancer condition. In such a scenario, it is enough
B to keep off the clutches of criminal law. The negligent
conduct in the nature of omission of the appellant is not
so gross as to entail criminal liability on the appellant u/
s. 338 IPC. The crimes as mentioned in s. 338 IPC require
proof that the appellant caused the patient's condition to
c the acute stage. [Paras 66 and 67] [913-C-E]
R. v. Adomako (1994) 3 WLR 288 - referred to.
4.9. The conduct of the appellant constituted not only
professional misconduct for which adequate penalty has
D been meted out to him by the Medical Council, the
negligence on his part also amounts to actionable wrong
in tort, it does not transcend into the criminal liability, and
in no case makes him liable for offence under Section 338
IPC, as the ingredients of that provision have not been
E satisfied. [Para 69] [914-C-D]
F
G
H
Faguna Kant Nath v. The State of Assam (1959) 2 Suppl.
SCR 1; Madan Raj Bhandari v. State of Rajasthan (1969) 2
SCC 385: 1970 (1) SCR 688 ·referred to.
Case Law Reference:
(1959) 2 Suppl. SCR 1
referred to Para 17
1970 (1) SCR 688
referred to Para 17
355 U.S. 225 (1957)
referred to Para 26
2010 (2) SCR685
referred to · Para 55
2005 (2) Suppl. SCR 307
relied on
Para 43, 59
(1994) 3 WLR 288
referred to Para 68
DR. P.B. DESAI v. STATE OF MAHARASHTRA
875
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
A
No. 1432 of 2013.
From the Judgment & Order dated 15.10.2012 of the High
Court of Bombay in CRLRP No. 166 of 2012.
Harish Salve, K.V. Vishwanatha, R.N. Karanjawala,
B
Sandeep Kapur, Shivek Trehan, Shridhar Y. Chitale, Mehul
Gupta, Gayatri Goswami, Manik Karanjawala (for Karanjawala
& Co.) for the Appellant.
B.H~ Marlapalle, Colin Gonsalves, Asha Gopalan Nair, C
Abhishek Kr. Pandey, Jubli Momalia, Jyoti Mendiratta for the
Respondents.
The Judgment of the Court was delivered by
A.K. SIKRI, J. 1. Leave granted.
D
2. The appellant herein, a renowned surgeon, stands
convicted of the offence punishable under Section 338 r/w
Section 109 of the Indian Penal Code, 1860 (hereinafter to be
referred as the 'l.P.C'). This conviction was delivered by the
E
Additional Chief Metropolitan Magistrate, 47th Court,
Esplanade, Mumbai, vide judgment and order dated
05.07 .2011. The -appellant was sentenced to suffer simple
imprisonment (SI) till the rising of the Court and to pay Rs.
50,000/- as and by way of compensation, in default to suffer
F
simple imprisonment for 3 months. This conviction and sentence
had been upheld by the Id. Additional Sessions Judge vide
judgment dated 22.03.2012 and is also confirmed by the High
Court of Judicature at Bombay by way of impugned judgment
dated 15.10.2012. Still not satisfied, the appellant has G
challenged the judgment of the High Court, by way of present
appeal.
3. To give a glimpse of the episode at the outset, we may
mention that one Smt. Leela Singhi (hereinafter to be referred
H
876
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
as the 'patient'}, wife of Shri Padamchandra Singhi, the
complainant, was suffering from Cancer for which she was
under medical treatment since the year 1977. As her condition
did not improve and rather deteriorated over a period of time,
in 1987 she was taken to America and was treated in Sloan
B
Kettering Memorial Hospital in New York. However, it did not
yield any positive results. The doctors in that hospital declared
her beyond surgical treatment and she was sent back to India
on 29.11.1987. In India, she had been under the medical
supervision of Dr. A.K. Mukherjee, for a long time, who started
C -administering the medication prescribed by the doctors in
U.S.A. Within few days, the patient started suffering from vaginal
bleeding because of which Dr. A.K. Mukherjee advised her for
hospitalization. She was admitted to Bombay Hospital on
9.12.1987. After a few days of hospitalization, she was
D examined by the appellant who advised 'Exploratory
Laparotomy (surgery)', in order to ascertain whether the
patient's uterus can or cannot be removed in order to stop the
vaginal bleeding.
E
4. Nod of a patient for Exploratory Laparotomy was duly
taken who signed the consent form. Dr. Mukherjee, assisted
by two other doctors, began the Exploratory Laparotomy
procedure on 22.12.1987. On opening the abdomen, Dr.
Mukherjee found plastering of intestines as well as profuse
F
oozing of ascetic fluids. He immediately called the appellant
who was performing other surgical procedure in another
operation theatre. The appellant after seeing the condition of
the patient from a distance, found that it was not possible to
proceed with the operation. He advised Dr. A.K. Mukherjee to
G close the abdomen. Dr. Mukherjee, thus, closed the abdomen.
The condition of the patient, thereafter, deteriorated due to the
formation of fistula. The patient remained in the hospital for
treatment ofthe fistula. After remaining in the hospital for about
3 months she was discharged and taken home by the
H
DR. P.B!:DESAI v. STATE OF, MAHARASHTRA
877
[A.K.SIKRI, J.]
complainant. But she never recovered and ultimately passed
A
away on 26.2.1 ~89 at Jaipur. ·
·
·
·~
., 5. The compfainant filed a complaint with the Maharashtra
Medical Council against the appellant and also lodged criminal
complaint against the appellant with the Director General of B
Police, Maharashtra. Main allegation against the appellant was·
that he did not take personal care and attention by preferring
the operation himself. On the contrary he did not ever bother
to even remain present there when Dr. A.K. Mukherjee started
surgical procedure and opened the abdomen, Moreover, when c
Dr. Mukherjee, on opening of the abdomen, found that Cancer
was at a very advanced stage and it would not be possible to
proceed beeause there was fluid.and intestines were plastered
and he called the appellant for advice, even then the appellant
did not examine the patient minutely. Instead, after seeing her D
from the entrance of the operating room, he advised Dr.
·Mukherjee to close the abdomen. So much so, even after the
formatiol"! of the fistula and the· pathetic 'condition of the patient,
the appellant never bothered to examine or looked after her. It
was alleged that the very advise of thil'appellant for -surgical
E
operation, even when doctors at U.S.A. had opined to the
.
.
~··
-
contrary,, was inappropriate. It was, thus alleged that the
aforesaid acts of omission and commission amounted to
professional misconduct as well as offence punishable under
Section 338 of the l.P.C. Since, there was no overt act on the
F
part of the appellant, as the surgical procedure was performed
by Dr. A.K. Mukherjee, charge of abetment under .section 109
of l.P.C. was also leveled against the appellant. Dr. A.K.
Mukherjee'.was also made accused in the said complaint.
However, at'a later stage, Dr. A.K. Mukherjee was dropped G
from the proceedings at the instance Of the COmplainant. 1 •
I
6. It is on the aforesaid allegations, purportedly proved
through oral and documentary evidence, that the conviction of
the appellant is returned by the courts below .. -
·
. . :
,
. •
. . ,
t-'.
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SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
7. On the complaint of the complainant, Maharashtra
Medical Council initiated disciplinary action against the
appellant and found him guilty of professional mis-conduct under
Para 15 of the Warning Notice of the Maharashtra Medical
Council's Code of Ethics and Para 3 of the disciplinary action
B of the Medical Council of ~ndia's Code of Ethics. It resulted in
issuance of warning under Section 22(1) of the Maharashtra
Medical -Council Act, 1965 vide orders dated 11.2.1991
passed by the Maharashtra Medical Council. The appellant did
not challenge the findings of the disciplinary committee of the
C Maharashtra Medical Council and accepted the order of
warning.
8. As we are, in this appeal, concerned with the validity of
the conviction of the appellant under Section 338, IPC, we
0
would like to reproduce that provision at this stage:
E
"338. Causing grievous hurt by act endangering life or
personal safety of others: Whoever causes grievous hurt
to any person by doing any act so rashly or negligently as
to endanger human life, or the personal safety of others,
shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine which
may extend to one thousand rupees, or with both."
9. Questions that falls for determination is as to whether
F
the alleged role of the appellant amounts to "doing any acf' and
whether it was so rash or negligent as to endanger the life of
the patient.-
10. Mr. Harish Salve, learned Se.nior Counsel appearing
G for the appellant, at the outset, invited the attention of this Court
to the exact charge framed by the Trial Court which reads as
under:-
"Does the prosecution prove that on 22.12.1987 at about
9.00 a.m., at Bombay Hospital, Mumbai, the Accused No.
H
1, Accused No. 2 - Dr. A. K. Mukherjee, caused grievous
DR. P.B. DESAI v. STATE OF MAHARASHTRA
879
[AK.SIKRI, J.]
hurt to the wife of complainant namely, Leela Singhi by
A
doing an pperation of abdomen taking out uterus, so rash
or negligently as to endanger human life or the personal
safety of wife of the complainant namely, Leela Sing hi and
thereby committed an offence punishable under Section
338 read with Section 109 of the 1.P.C?"
B
11. His submission was that the specific allegations in the
charge framed against the appellant as well as Accused No. 2
- Dr.. AK. Mukherjee were that:-
(a)
The charge is for a specific act committed at 9.00 C
a.m. on 22.12.1987.
(b)
It is a charge against the Appellant (Accused No.
1) and Dr. A.K. Mukherjee (Acquitted Accused No.
2).
D
(c)
The charge is against the two accused under
Section 338 r/w Section 109 of I.PC.
12. Proceeding therefrom, Mr. Harish Salve, argued that
the primary offender, as per the charge under Section 338 of E
the 1.P.C, was Dr. AK. Mukherjee, the doctor who actually
performed the procedure and the appellant was charged as an
abettor, using Section 109 of the l.P.C. However, Dr. AK. _
Mukherjee was dropped from the prosecution at the instance
of the complainant himself, on the ground that there was no
F
evidence against him. On the contrary, the complainant in his
testimony (P.W.1) gave glowing compliments to Dr. AK.
Mukherjee, praising his skllls both as a doctor and a surgeon.
In such circumstances, argued Mr. Harish Salve the question
of abetment did not survive and, therefore, the case warranted
G
closure even against the appellant as well, after dropping Dr.
Mukherjee from the prosecution.
13. Without prejudice to the aforesaid submissions, further
arguments of Mr. Harish Salve were that, in any case, the
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880
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A ingredients of Section 338 of l.P.C had not been established.
B
It was merely a case of "negligence" projected by the
prosecution. It could not be held, ipso facto, that the essential
ingredients of the offence contained under Section 338 of l.P.C ..
were fulfilled.
14. Mr. Harish Salve endeavored to demonstrate that the
decision of the appellant to advise the operation, in question,
namely "Exploratory Laparotomy'' could not even be treated as
unreasonable or an act of negligent advice. Once it was
c accepted that the appellant was a renowned Oncologist with
great experience, his opinion to conduct the aforesaid
procedure/ surgery, after examining the patient, was an expert
opinion and merely because he differed from the doctors in
U.S.A. on this account, negligence could not be attributed to
0
him because of the same, much less criminal negligence.
15. That apart, merely on the basis of negligence, it could
not be held that ingredients of Section 338 of l.P.C. stood
proved as it could not amount to an "act" of causing "grievous
hurt", that too "rationally and negligently" thereby endangering
E the life of the patient. He submitted that, in the first instance, a
medical professional who is called upon to treat a patient
cannot possibly be charged for causing hurt, where the patient
has come to the hospital for receiving treatment inter alia by
virtue of Section 81, 87 and 88 of the l.P.C. and where consent
F for such treatment has been freely given.-
Secondly, in the context of a doctor - patient relationship,
even assuming, without accepting that there could be a
situation in which a doctor can be held to have committed an
G offence of causing hurt (either for want of consent or acting with
wanton negligence in performing a procedure), it is
inconceivable that a doctor can be charged of causing a hurt •
by not doing something. An omission by a surgeon to perform
a surgery, in certain extreme circumstances, may constitute
H acting in a manner that no medical professional would, and
..,.
DR. P.B. DESAI v. STATE OF MAHARASHTRA
881
[A.K.SIKRI, J.]
thereby be a case of criminal negligence. It cannot possibly be
A
an omission by which hurt, by way of a positive act, is inflicted.
16. Mr. Harish Salve argued that once rendering an
opinion to perform such surgical procedure cannot be treated
as criminal offence, in so far as actual procedure is concerned,
that was not performed by the appellant. Without accepting, that
it was the appellant who was to do the surgery himself, he
submitted that the Courts below fell in legal error by attributing
B
the so called omission to perform the said surgery by the
appellant as an "act" within the meaning of Section 338 ofthe c
l.P.C. He pointed out that the charge as framed did not even
remotely mention about the purported "illegal omission". He
thus, argued that the Respondents could not base their case
on plea of "omission" as an "acf'. Even otherwise, in the instant
case, the so called omission could not be treated as an "act"
D
of causing grievous hurt in as much as, such an omission has
to be in relation to the operation that caused the hurt. Dilating
this aspect, the learned senior counsel projected the theory that
illegal omissions could result in causing hurt cannot have any
application to a doctor who has not performed a surgery -
E
where the primary allegation is that the performance of the
surgery constituted the infliction of hurt. Whatever may be the
legal consequences of reneging on an assurance to perform
a surgery, if the surgery is performed by a duly qualified
professional, the surgeon who did not perform the surgery could
not possibly be guilty of causing hurt. A fortiori, where the
surgeon who did perform the surgery is duly qualified, and is
blame free, there is no question of charging, under Section 338
of 1.P.C., some other surgeon who may have been engaged to
perform the surgery, but did not do so.
F
G
17. Mr. Harish Salve also sought to distract the charge of
abetment under Section 109 of the l.P.C. by attempting to
highlight that as per the charge framed by the Trial Court, the
"act" was attributed to Dr. AK. Mukherjee and the primary
charge against the appellant was only that of abetment. With
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882
SUPREME COURT REPORTS
[2013) 11 S.C.R.
A
the dropping of Dr. AK. Mukherjee from the prosecution, the
charge of abetment no more survived, more so when no overt
act is attributed to the appellant and there is no medical or other
aspect examined to show grievous hurt resulted because of the
surgery. The appellant placed reliance upon the decisions of
B this Court in Faguna Kant Nath v. The State of Assam (1959)
2 Suppl. SCR 1 ; Madan Raj Bhandari v. State of Rajasthan
(1969) 2 sec 385.
18. Mr. B.H. Marlapalle, learned Senior Counsel
c appearing for the State invited the attention of this Court to the
reasons recorded by the Maharashtra Medical Council in its
order$ dated 11.2.1991 holding the appellant guilty of
misconduct. He pointed out that under the Maharashtra Medical
Council Act, 1965, the proceedings against the appellant were
D in the nature of judicial proceedings under Sections 22 of the
said Act and since these findings of the Medical Council had
attained finality, there was no basis in the submission of the
appellant that he had not acted negligently. He also referred to
the findings recorded by the trial court and the High Court and
E
submitted as under:
F
G
H
(a)
The patient Smt. Leela Singhi was admitted at the
Bombay Hospital as the patient of the present
accused in Room No. 1005 (MRC I Class).
(b)
She had given consent for being operated by the
present accused.
(c)
It was the accused mainly who took the decision to
operate the patient for exploratory surgery despite
a written opinion from the doctors of USA that she
was inoperable.
(d)
As per the evidence of DW.2, Dr. Gajanand
Hegade, Dr. A.K. Mukherjee. was the Assistant
Surgeon under the present accused and it was not
permissible for him to perform any procedure
DR. P.B. DESAI v. STATE OF MAHARASHTRA
[A.K.SIKRI, J.]
independently.
883
(e)
The accused had accepted tWo different surgeries
in two different operation theatres (OT 1 and OT 2)
A
at the same time on 20.12.1987 at the Bombay
Hospital and Mrs. Leela Singhi was taken in OT 2. s
He instructed Dr. A.K. Mukherjee to open the
abdomen of Mrs. Leela Singhi and went to OT1 to
attend another surgery. After Dr. A.K. Mukherjee, as
per the instructions of the present accused, Dr. P .8.
Desai took a cut he immediately noticed that the c
process was unmanageable for him and the said \
process was started in the absence of Dr. Desai.
Dr. Mukherjee, therefore, in deperation sent for Dr.
Desai to come to OT 2 and attend to Mrs. Singhi
for further procedure. Dr. Desai did not turn up and,
D
therefore, after waiting for some time -and leaving
the patient, Dr. Mukherjee went to OT1 to request
Dr. Desai to come and attend to Mrs. Singhi. Dr.
Desai came to OT 2 and by standing at a distance
of 6 feet, instructed Dr. Mukherjee to stitch the E
abdomen as the case was inoperable. He did not
touch the patient, leave alone stitching the abdomen
by himself. The patient remained in the Hospital for
over three months and for about initial one month
she required dressing every one hour because of
the bleeding from the stitches. This pain and
F
suffering of the patient could have been avoided/
reduced if Dr. Desai himself had stitched the
abdomen. After the wound was stitched and till the
patient was discharged on 5.4.1998, Dr. Desai did
not, even once, attend to Mrs. Singhi and the patient G
missed the healing touch of the surgeon who was
authorized to operate her.
(f)
After the patient's husband (PW.1) started writing
complaints, Dr. Desai flatly denied that Mrs. Singhi
H
A
B
c
884
SUPREME COURT REPORTS
[2013] 11 S.C.R.
was his patient. And Dr. Desai continued the denial
even till the end of the trial despite the fact that the
Maharashtra Medical Council had held him guilty
after a full fledged enquiry under Section 22 of the
Maharashtra Medical Council Act, 1965 and
warned him, so also three witnesses from the
hospital i.e. PW.2, PW.3 and PW.5 were examined
by the prosecution to prove that Mrs. Leela Singhi
was the patient of Dr. Desai. This entire behavior
of Dr. Desai during the operation stage and post
operation and -post complaint/ during trial was not
commensurate with his professional eminence.
19. Submissions of Mr. B.H.