# JACOB MA THEW v. ST A TE OF PUNJAB AND ANR

- **Citation:** [2005] Supp. 2 S.C.R. 307
- **Court:** Supreme Court of India
- **Decided:** 2005-08-05
- **Bench:** R.C. Lahoti Cj, G.P. Mathur, P.K. Balasubramany An
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jacob-ma-thew-v-st-a-te-of-punjab-and-anr-20925
- **Pages:** 35

## Headnote

Penal Code 1860,
A
B
Sections 304-A, 88, 92, 93~riminal liability for Medical NegligenceDeath due to medical negligence-Criminal liability of doctor-Held, to
C
prosecute a medical professional for criminal negligence it must be shown
that the accused doctor did something or failed to do something which in the
given/acts and circumstances no medical professional in his ordinary senses
and prudence would have done or failed to .do-Hazard taken by the accused
doctor should be of such a narure that the resultant i'?iury was most likely
D
imn1inent-Onfacts, held, doctor can not be p1oceeded against under S. 304A as it is a case of non-availability of oxygen cylinder-Rationale for special
treatment of doctors discussed in detail and guidelines laid down to protect
interest of doctors, and to save the1n from unwarranted and malicious
proceedings.
Sections 304-A, 88, 92, 93-Mens rea in criminal negligence-Held,
for negligence to amounl to a crinzinal offence, the element o/mens rea must
be shown to exist-Recklessness, i. e. disregard/or the possible consequences,
constitutes the mens rea in criminal negligence.
Section 304-A-Negligence-As a tort and criminal negligence-Nature
of Negligence required-Held, to fasten liability in criminal law, degree of
negligence has to be higher than negligence enough to fasten liability for
damages in civil law-For criminal libility, the negligence has to be gross
or of a very high degree-Expression "rash and negligent act" to be reads
9ualified by "grossly".
304-A-liabi/ity under-When attracted-Held, death must be direct
result of act of accused-Such act must be causa causans-Not enough if
it is cause sine qua non-Criminal Law-Negligence-Causation.
E
F
G
Section 304-A-Res ipsa loquitor-Applicabi/ity in criminal lawH
307
A
B
308
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
Held, this rule cannot be applied for determining per se the liability for
negligence in criminal law and case under section 304-A cannot be decided
solely by applying this rule.
Tort-Professional neg!igence-Scope of-Held, a professional may be
held liable for negligence if he was not possessed of the requisite skill which
he professed to have possessed, or he did not exercise the skill which he
possessed with reasonable competence in the given case-Standard of care
required is of the ordinary competent person exercising ordinary skill in that
profession-Test laid down in Bolam's case held, applicable in India.
C
Professional negligence distinguished from occupational negligence.
D
E
Tort-Negligence-Medical Neglicence-Detailed explanation of when
devation from normal medical practice would amount to evidence of medical
negligence.
Tort-Negligence-Res ipsa loquitor-Application to Medical
· Practioners-Held, has to be applied with extreme care and caution to the
cases of medical negilgence.
Complainant's father was admitted to the hospital. He felt difficulty
in breathing. Duty nurse called some doctor to attend to the patient. No
doctor turned up for 20-25 minutes. Then the appellant and another
doctor came to the patients room. An oxygen cylinder was brought and
connected to the mouth of the patient but the breathing problem increased
further. The oxygen cylinder was found to be empty. There was no other
gas cylinder available. Later, the patient was declared dead. An offence
F
under sections 304-A/34 Penal Code, 1860 was registered and charges
G
. filed against the doctors. Doctor's petition to High Court to quash the -
charges was dismissed. Hence the appeal.
Allowing the appeal, the Court
HELD : 1.1. Negligence in the context of medical profession
necessarily calls for a treatment with a difference. To infer rashness or
negligence on the part ofa professional, in particular a doctor, additional
considerations apply. A case of occupational negligence is different from
one of professional negligence. A simple lack of care, an error of judgment
H
or an accident, is not proof of negligence on the part of a medical
JACOB MATHEW v. STA

## Text

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JACOB MA THEW
V.
ST A TE OF PUNJAB AND ANR.
AUGUST 5, 2005
[R.C. LAHOTI CJ., G.P. MATHUR AND
P.K. BALASUBRAMANY AN, JJ.]
Penal Code 1860,
A
B
Sections 304-A, 88, 92, 93~riminal liability for Medical NegligenceDeath due to medical negligence-Criminal liability of doctor-Held, to
C
prosecute a medical professional for criminal negligence it must be shown
that the accused doctor did something or failed to do something which in the
given/acts and circumstances no medical professional in his ordinary senses
and prudence would have done or failed to .do-Hazard taken by the accused
doctor should be of such a narure that the resultant i'?iury was most likely
D
imn1inent-Onfacts, held, doctor can not be p1oceeded against under S. 304A as it is a case of non-availability of oxygen cylinder-Rationale for special
treatment of doctors discussed in detail and guidelines laid down to protect
interest of doctors, and to save the1n from unwarranted and malicious
proceedings.
Sections 304-A, 88, 92, 93-Mens rea in criminal negligence-Held,
for negligence to amounl to a crinzinal offence, the element o/mens rea must
be shown to exist-Recklessness, i. e. disregard/or the possible consequences,
constitutes the mens rea in criminal negligence.
Section 304-A-Negligence-As a tort and criminal negligence-Nature
of Negligence required-Held, to fasten liability in criminal law, degree of
negligence has to be higher than negligence enough to fasten liability for
damages in civil law-For criminal libility, the negligence has to be gross
or of a very high degree-Expression "rash and negligent act" to be reads
9ualified by "grossly".
304-A-liabi/ity under-When attracted-Held, death must be direct
result of act of accused-Such act must be causa causans-Not enough if
it is cause sine qua non-Criminal Law-Negligence-Causation.
E
F
G
Section 304-A-Res ipsa loquitor-Applicabi/ity in criminal lawH
307
A
B
308
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
Held, this rule cannot be applied for determining per se the liability for
negligence in criminal law and case under section 304-A cannot be decided
solely by applying this rule.
Tort-Professional neg!igence-Scope of-Held, a professional may be
held liable for negligence if he was not possessed of the requisite skill which
he professed to have possessed, or he did not exercise the skill which he
possessed with reasonable competence in the given case-Standard of care
required is of the ordinary competent person exercising ordinary skill in that
profession-Test laid down in Bolam's case held, applicable in India.
C
Professional negligence distinguished from occupational negligence.
D
E
Tort-Negligence-Medical Neglicence-Detailed explanation of when
devation from normal medical practice would amount to evidence of medical
negligence.
Tort-Negligence-Res ipsa loquitor-Application to Medical
· Practioners-Held, has to be applied with extreme care and caution to the
cases of medical negilgence.
Complainant's father was admitted to the hospital. He felt difficulty
in breathing. Duty nurse called some doctor to attend to the patient. No
doctor turned up for 20-25 minutes. Then the appellant and another
doctor came to the patients room. An oxygen cylinder was brought and
connected to the mouth of the patient but the breathing problem increased
further. The oxygen cylinder was found to be empty. There was no other
gas cylinder available. Later, the patient was declared dead. An offence
F
under sections 304-A/34 Penal Code, 1860 was registered and charges
G
. filed against the doctors. Doctor's petition to High Court to quash the -
charges was dismissed. Hence the appeal.
Allowing the appeal, the Court
HELD : 1.1. Negligence in the context of medical profession
necessarily calls for a treatment with a difference. To infer rashness or
negligence on the part ofa professional, in particular a doctor, additional
considerations apply. A case of occupational negligence is different from
one of professional negligence. A simple lack of care, an error of judgment
H
or an accident, is not proof of negligence on the part of a medical
JACOB MATHEW v. STATE
309
professional. So long as a doctor follows a practice acceptable to the A
medical profession of that day, he cannot be held liable for negligence
merely because a better alternative course or method of treatment was
also available or simply because a more skilled doctor would not have
chosen to follow or resort to that practice or procedure which the accused
followed. When it comes to the failute of taking precautions what ha• to
bee seen is whether those precautions were taken which the ordinary
experience of men has found to be sufficient; a failure to use special or
extraordinary precautions which might have prevented the particular
happening cannot be the standard for judging the alleged negligence. So
also, the standard of care, while assessing the practice as adopted, is
judged in the light of knowledge available at the time of the incident, and
not at the date of trial. Similarly, when the charge of negligence arises
out of failure to use some particular equipment, the charge would fail if
the equipment was not generally available at that particular time (that
is, the time of the incident) at which it is suggested it should have been
used. [338-B-F]
1.2. A professional may be held liable for negligence on one of the two
findings: either he was not possessed of the requisite skill which he professed
to have possessed, or, he did not exercise, with reasonable competence in
B
c
D
the given case, the skill which he did possess. The standard to be applied for
judging, whether the person charged has been negligent or not, would be
E
that of an ordinary competent person exercising ordinary skill in that
profession. It is not possible for every professional to posses th~ highest
level of expertise or skills in that branch which he practices. A highly skilled
professional may be possessed of better qualities, but that cannot be made
the basis or the yardstick for judging the performance of the professional
proceeded against on indictment of negligence. The test for determining
medical negligence as laid down in Bo/am 'scase [ 1957] 1W.L.R.582, holds
good in its applicability in India. [338-F-H; 339-A]
F
Micheal Hyde and Associates v. J.D. William & Co., (2001] Pt/LR 233;
Bo/am v. Friern Hospital Management Committee, [1957] !WLR 582
G
Eckersley v, Binnie, [1988] 18 Con LR I; Hucks v. Cole, [1968] 118 New
LJ 469; Maynard v. West Midlands Regional Health Authority, (1985] 1 All
ER 635 and Hunter v, Hanley, [1995] SLT 213, relied on.
Suresh Gupta (Dr.) v. Govt. ofNCTof Delhi, [2004] 6 SCC 422; John
Oni Akerele v. R., AIR (1943) PC 72; Kurban Hussein Mohammedali
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310
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
A
Rangwalla v. State of Maharashtra, [1965) 2 SCR 622; Kishan Chand v.
B
c
State of Haryana, (1970) 3 SCC 904; Juggankhan v. State of MP., [1965)
I SCR 14 and Emperor v. Omkar Rampratap, (1902) 4 Born LR 679, relied
on.
Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, (1969) 1
SCR 206; Indian Medical Association v. VP. Shantha, [1995) 6 SCC 651;
Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332; Achutrao Haribhau
Khodwa v. State of Maharashtra, (1996) 2 SCC 634; Spring Meadows
Hospital v. Harjot Ahluwalia, [1998) 4 SCC 39; Whitehouse v. Jorden,
(1981) 1 ALL ER 267 and State of Haryana v. Santra, (2005) 5 SCC 182,
referred to.
2.1. The jurisprudential concept of negligence differs in civil and
criminal law. What may be negligence in civil law may not necessarily
be negligence in criminal law. Generally speaking, it is the amount of
damages incurred which is determinative of the extent of •iability in tort;
D
but in criminal law it is not the amount of damages but the am.ount and
degree of negligence that is determinative of liability. For negligence to
amount to an offence, the element of mens rea must be shown to exist. It
is recklessness that constitutes mens rea in criminal law as far as negligence
is concerned. The moral culpability of recklessness is not located in a
E
desire to cause harm. It resides in the proximity of the reckless state of
mind to the state of mind present .when there is an intention to cause
harm. There is, in other words, a disregard for the possible consequences.
For an act to amount to criminal negligence, the degree of negligence
should be much higher i.e. gross or of a very high degree. Negligence
which is neither gross nor of a higher degree may provide a ground for
F
action in civil law but cannot form the basis for prosecution.
[318-C, E, H; 319-A; 320-C; 339-A-B)
G
H
2.2. The word 'gross' has not been used in Section 304A of IPC, yet
it is settled that in criminal law negligence or recklessness, to be so held,
must be of such a high degree as to be 'gross'. The expression 'rash or
negligent act' as occurring in Section 304A of the IPC has to be read as
qualified by the word 'grossly'. To impose criminal liability under Section
304-A IPC, it is necessary that the death should have been the direct
result of a rash and negligent act of the accused, and that act must be the
proximate and efficient cause without the intervention of another's
negligence. [332-C-D; 339-C-D)
JACOB MATHEW v. STATE
311
2.3. To prosecute a medical professional for negligence under criminal
A
law it must be shown that the accused did something or failed to do
something which in the given facts and circumstances no medical
professional in his ordinary senses and prudence would have done or
failed to do. The hazard taken by the accused doctor should be of such
a nature that the injury which resulted was most likely imminent.
B
[339-D-E]
R. v. Lawrence, [1981] 1 All ER 974; R. v. Caldwell, [1981] 1 All ER
961;
Andrews v. Director of Public Prosecutions, (1937) AC 576; Syad
C
Akbarnr v. State of Karnataka, [1980] 1 SCC 30; Reg v. lndu Beg, [1881]
3All 776 Riddell v. Raid, [1942] 2 All ER 161; Bhalc~andra Waman Pathe
v. State of Maharashtra, (1968) Mah LJ 423 (SC), relied on.
Roscoe's Law of Evidence (15th Edn.), pp. 848-49; "Speeches and
Poems with the Report and Notes on the Indian Penal Code" by Lord D
Macaulay (Houghton Mijjlin and Company, published in 187 4), pp. 419, 421
& 422; Alan Merry and Alexander McCall Smith Errors, Medicine and the
Law (Cambridge University Press, 2001), pp. 241-248, relied on.
3. Res ipsa loquitur is only a rule of evidence and operates in the
domain of civil law specially in cases of torts and helps in determining
E
the onus of proof in actions relating to negligence. It cannot be pressed
in sen•ice for determining per se the liability for negligence wi'~in the
domain of criminal law. Res ipsa loquitur has, ifat all, a limited application
in trial on a charge of criminal negligence. [339-E-F]
Syad Akbar v. State of Karnataka, [1980] I SCC 30, relied on
Krishnan v. State of Kera/a, [1996] 10 SCC 508, explained,
4. To protect the interest of doctors and to save them from
unwarranted and malicious proceedings, 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 or India. So long as it is not done,
the following guidelines will be in force which should govern the prosecution
of doctors for offences of which criminal rashness or criminal negligence
F
G
is an ingredient. A private complaint may not be entertained unless the
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312
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
A
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
B
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 Bo/am 's test to the
facts collected in the investigation. A doctor accused of rashness or
negligence, may not be arrested in a routine manner, unless his arrest is
c
D
E
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.
(340-F-H; 341-A-B)
5. In the present case all the averments made in the complai•u, even
if held to be proved, do not make out a case of criminal rashness or
negligence on the part of the accused-appellant. It is not the case of the
complainant that the accused-appellant was not a doctor qualified to
treat the patient whom he agreed to treat. It is a case of non-availability
of oxygen cylinders either because of the hospital having failed to keep
available a gas cylinder or because ofthe gas cylinder being found empty.
Then, probably the hospital may or may not be liable in civil law but the
accused-appellant cannot be proceeded against under Section 304-A IPC
on the parameters of the Bo/am test. (341-C-E)
CRIMINAL APPELLATE WRISDICTION
Criminal Appeal No~
F
144-145 of 2004.
G
H
From the Judgment and Order dated 18.12.2002 and 24.1.2003 of the
Punjab and Haryana High Court in Cr!. Misc. No. 21940-M of 1999 and Crl.
Misc. No. 1984 of 2003.
G.E. Vahanvati, Rakesh Dwivedi, Ashok H. Desai, Vivek K. Tankha,
Rupinder Singh Suri, Mrs. Gurvinder Suri, Jagjit Singh Chhabra, Atul Nanda,
Addi. Advocate General for State of Punjab, Bimal Roy Jad, P.N. Puri,
Maninder Singh, Kirtiman Singh, Saurabh Mishra, Angad Mirdha, Mrs.
Pratibha M. Singh, Devadatt Kamat, Ms. Rameeja Hakem, Chinmoy Pradip
Sharma, Hrishikesh Barua, Ms. Suruchi Suri, Ravinder Narain, Ms. Sushma
JACOB MATHEW v. STATE [LAHOTI, CJ.]
313
Shanna, Ms. Meghalee Barthakur, Ms.Kanika Gamber, Rajan Narain,
A '
Harekhrishna Upadhyaya, Prashant Kumar, Siddharth Singh Chauhan, Harsh
Pathak, A.A. Maitrya, Praveen Khattar, Mrs. Sudha Gupta, Avik Datt and V.
K. Monga for the appearing parties.
The Judgment of the Court was delivered by
R.C. LAHOTI, CJ. : Ashok Kumar Sharma, the respondent no. 2
herein filed a First lnfonnation Report with police station, Division No. 3,
Ludhiana, whereupon an offence under Section 304A read with Section 34
of the Indian Penal Code (for short "the !PC") was registered. The gist of
the infonnation is that on 15.2.1995, the infonnant's father, late Jiwan Lal
Sharma was admitted as a patient in a private ward of CMC Hospital,
Ludhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in
breathing. The complainant's elder brother, Vijay Shanna who was present
B
c
in the room contacted the duty nurse, who in her turn called some doctor to
attend to the patient. No doctor turned up for about 20 to 25 minutes. Then, D
Dr. Jacob Mathew, the appellant before us and Dr.Allen Joseph came to the
room of the patient. An oxygen cylinder was brought and connected to the
mouth of the patient but the breathing problem increased further. The patient
tried to get up but the medical staff asked him to renrain in the bed. The
oxygen cylinder was found to be empty. There was no other gas cylinder
E
available in the room. Vijay Shanna went to the adjoining room and brought
a gas cylinder therefrom. However, there was no arrangement to make the
gas cylinder functional and in-between, 5 to 7 minutes were wasted. By this
time, another doctor came who declared that the patient was dead. The latter
part of the FIR states (as per the translation in English as filed by the
F ·
complainant):
" ................ the death of my father was occurred due to the
carelessness of doctors and nurses and non availability of oxygen
cylinder and the empty cylinder was fixed on the mouth of my father
and his breathing was totally stopped hence my father died. I sent
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the dead body of my father to my village for last cremation and for
infonnation I have come to you. Suitable action be done Sd/- ----
As per statement of intimater the death of Jiwan Lal Shanna has
occurred due to carelessness of doctors and nurses concerned and
to fit empty gas cylinder."
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314
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
A
On the abovesaid report, an offence under Section 304A/34 IPC was
B
c
registered and investigated. Challan was filed against the two doctors.
The Judicial Magistrate First Class, Ludhiana framed charges under
Section 304A, IPC against the two accused persons, both doctors. Both of
them filed a revision in the Court of Sessions Judge submitting that there was
no ground for framing charges against them. The revision was dismissed. The
appellant filed a petition in the High Court under Section 482 of the Code
of Criminal Procedure praying for quashing of the FIR and all the subsequent
proceedings.
It was submitted before the High Court that there was no specific
allegation of any act of omission or commission against the accused persons
in the entire plethora of documents comprising the challan papers filed by
the police against them. The learned single Judge who heard the petition
formed an opinion that the plea raised by the appellant was available to be
urged in defence at the trial and, therefore, a case for quashing the charge
D
was not made out. Vide order dated 18.12.2002, the High Court dismissed
the petition. An application for recalling the abovesaid order was moved
which too was dismissed on 24.1.2003. Feeling aggrieved by these two
orders, the appellant has filed these appeals by special leave.
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F
G
H
According to the appellant, the deceased Jiwan Lal was suffering from
cancer in an advanced stage and as per the information available, he was,
in fact, not being admitted by any hospital in the country because his being
a case of cancer at terminal stage. He was only required to be kept at home
and given proper nursing, food, care and solace coupled with prayers. But
as is apparent from the records, his sons are very influential persons
occupying important positions in Government. They requested the hospital
authorities that come what may, even on compassionate grounds their father
may be admitted in the hospital for regulated medical treatment and proper
management of diet. It was abundantly made clear to the informant and his
other relations who had accompanied the deceased that the disease was of
such a nature and had attained such gravity, that peace and solace could only
be got at home. But the complainant could prevail over the doctors and
hospital management and got the deceased admitted as an in-patient.
Nevertheless, the patient was treated with utmost care and caution and given
all the required medical assistance by the doctors and para-medical staff.
Every conceivable effort was made by all the attending staff comprising of
doctors and nurses and other para-medicals to give appropriate medical
-
JACOB MA THEW v. STA TE [LAHOTI, CJ.]
315
treatment and the whole staff danced attendance on the patient but what was
A
ordained to happen, did happen. The complainant and his relations, who were
misguided or were under mistaken belief as to the facts, lodged police report
against the accused persons wholly unwarranted and uncalled for.
The matter came up for hearing before a Bench of two learned judges
B
of this Court. Reliance was placed by the appelll>llt on a recent two-judge
Bench decision of this Court in Dr. Suresh Gupta v. Govt. of NCT of Delhi
and Anr., (2004] 6 SCC 422. The Bench hearing this appeal doubted the
correctness of the view taken in Dr. Suresh Gupta's case and vide order dated
9.9.2004 expressed the opinion that the matter called for consideration by a
Bench of three Judges. This is how the case has come up for hearing before
this Bench.
In Dr. Suresh Gupta's case, the patient, a young man with no history
c
of any heart ailment, was subjected to an operation performed by Dr. Suresh
Gupta for nasal deformity. The operation was neither complicated nor D
serious. The patient died. On investigation, the cause of death was found to
be "not introducing a cuffed endotracheal tube of proper size as to prevent
aspiration of blood from the wound in the respiratory passage". The Bench
formed an opinion that this act attributed to the doctor, even if accepted to
be true, could be described as an act of negligence as there was lack of due
care and precaution. But, the Court categorically held "for this act of
negligence he may be liable in tort, 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".
E
The referring Bench in its order dated 9.9.2004 has assigned two
F
reasons fortheir disagreement with the view taken in Dr. Suresh Gupta's case
which are as under:-
(I) Negligence or recklessness being 'gross' is not a requirement of Section
304A of !PC and if the view taken in Dr. Suresh Gupta's case is to be
G
followed then the word 'gross' shall have to be read into Section 304A
!PC for fixing criminal liability on a doctor. Such an approach cannot
be countenanced.
(2)
Different standards cannot be applied to doctors and others. In all cases
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316
SUPREME COURT REPORTS (2005] SUPP. 2 S.C.R.
A
it has to be seen whether the impugned act was rash or negligent. By
carrying out a separate treatment for doctors by introducing degree of -
rashness or negligence, violence would be done to the plain and
unambiguous language of section 304A. If by adducing evidence it is
proved that there was no rashness or negligence involved, the trial court
B
dealing with the matter shall d'ecide appropriately. But a doctor cannot
be placed at a different pedestal for finding out whether rashness or
negligence was involved.
We have heard the learned counsel for the appellant, the respondentState and the respondent complainant. As the question of medical negligence
C
arose for consideration, we thought it fit to issue notice to Medical Council
of India to assist the Court at the time of hearing which it has done. In
addition, a registered society 'People for Better Treatment', Kolkata; Delhi
Medical Council, Delhi Medical Association and Indian Medical Association
sought for intervention at the hearing as the issue arising for decision is of
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vital significance for the medical profession. They too have been heard.
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Mainly, the submissions made by the learned counsel for the parties and the
intervenors have centred around two issues : (i) Is there a difference in civil
and criminal law on the concept of negligence?; and (ii) whether a different
standard is applicable for recording a finding ofnegligence when a professional,
in particular, a doctor is to be held guilty of negligence?
With the awareness in the society and the people in general gathering
consciousness about their rights, actions for damages in tort are on the
increase. Not only civil suits are filed, the availability of a forum for
grievance redressal under the Consumer Protection Act, 1986 having
F
jurisdiction to hear complaints against professionals for 'deficiency in
service', which expression is very widely defined in the Act, has given rise
to a large number of complaints against professionals, in particular against
doctors, being filed by the persons feeling aggrieved. Criminal complaints
are being filed against doctors alleging commission of offences punishable
G
under Section 304A or Sections 336/337/338 of the IPC alleging rashness
or negligence on the part of the doctors resulting in loss of life or in jury (of
varying degree) to the patient. The present one is such a case. The order of
reference has enabled us to examine the concept of 'negligence', in particular
'professional negligence', and as to when and how it does give rise to an
action under the criminal law. We propose to deal with the issues in the
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interests of settling the law.
•
JACOB MATHEW v. STA TE [LAHOTJ, CJ.]
317
Negligence as a tort
A
The jurisprudential concept of negligence defies any precise definition.
Eminent jurists and leading judgments have assigned various meanings to
negligence. The concept as has been acceptable to Indian jurisprudential
thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (TwentyB
fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442)
-
"Negligence is the breach of a duty caused by the 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. Actionable
negligence consists in the neglect of the use of ordinary care or skill towards
a person to whom the defendant owes the duty of observing ordinary care
and skill, by which neglect the plaintiff has suffered injury to his person or
property ............. The definition involves three constituents ofnegligence: (l)
A legal duty to exercise due care on the part of the party complained of
towards the party complaining the farmer's conduct within the scope of the
duty; (2) breach of the said duty; and (3) consequential damage. Cause of
action for negligence arises only when damage occurs; for, damage is a
necessary ingredient of this tort."
According to Charlesworth & Percy on Negligence (Tenth Edition,
2001), in current forensic speech, negligence has three meanings. They are:
(i) a state of mind, in which it is opposed to intention; (ii) careless conduct;
and (iii) the breach of duty to take care that is imposed by either common
or statute law. All three meanings are applicable in different circumstances
but any one of them does not necessarily exclude the other meanings. (Para
1.0 l) The essential components of negligence, as recognized, are three:
"duty", "breach" and "resulting damage", that is to say:-
l.
the existence of a duty to take care, which is owed by the
defendant to the complainant;
2.
the failure to attain that standard of care, prescribed by the law,
thereby committing a breach of such duty; and
3.
damage, which is both causally connected with such breach
and recognized by the law, has been suffered by the complainant.
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If the claimant satisfies the court on the evidence that these three ingredients
are made out, the defendant should be held liable in negligence. (Para 1.24)
Negligence -
as a tort and as a crime
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The term 'negligence' is used for the purpose of fastening the defendant
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with liability under the Civil Law and, at times, under the Criminal Law. It
is contended on behalf of the respondents that in both the jurisdictions,
negligence is negligence, and jurisprudentially no distinction can be drawn
between negligence under civil law and negligence under criminal law. The
submission so made cannot be countenanced inasmuch as it is based upon
a total departure from the established terrain of thought running ever since
the beginning of the emergence of the concept ofnegligence upto the modem
times. Generally speaking, it is the amount of damages incurred which is
detem1inative of the extent of liability in tort; but in criminal law it is not
the amount of damages but the amount and degree of negligence that is
determinative of liability. To fasten liability in Criminal Law, the degree of
negligence has to be higher than that of negligence enough to fasten liability
for damages in Civil Law. The essential ingredient of mens rea cannot be
excluded from consideration when the charge in a criminal court consists of
criminal negligence. In R. v. Lawrence, (1981) l All ER 974 HL, Lord
Dip lock spoke in a Bench of five and the other Law Lords agreed with him.
He reiterated his opinion in R. v. Caldwell, (1981) l All ER 961 HL and dealt
with the concept of recklessness as constituting mens rea in criminal law. His
Lordship warned against adopting the simplistic approach of treating all
problems of criminal liability as soluble by classifying the test of liability as
being "subjective" or "objective", and said "Recklessness on the part of the
doer of an act does presuppose that there is something in the circumstances
that would have drawn the attention of an ordinary prudent individual to the
possibility that his act was capable of causing the kind of serious harmful
consequences that the section which creates the offence was intended to
prevent, and that the risk of those harmful consequences occurring was not
so slight that an ordinary prudent individual would feel justified in treating
them as negligible. It is only when this is so that the doer of the act is acting
'recklessly' if, before doing the act, he either fails to give any thought to the
possibility of there being any such risk or, having recognized that there was
such risk, he nevertheless goes on to do it."
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The moral culpability of recklessness is not located in a desire to cause
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harm. It resides in the proximity of the reckless state of mind to the state of A
mind present when there is an intention to cause hann. There is, in other
words, a disregard for the possible consequences. The consequences entailed
in the risk may not be wanted, and indeed the actor may hope that they do
not occur, but this hope nevertheless fails to inhibit the taking of the risk.
Certain types of violation, called optimizing violations, may be motivated by
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thrill-seeking. These are clearly reckless.
In order to hold the existence of criminal rashness or criminal negligence
it shall have to be found out that the rashness was of such a degree as to
amount to taking a hazard knowing that the hazard was of such a degree that
injury was most likely imminent. The element of criminality is introduced
by the accused having run the risk of doing such an act with recklessness
and indifference to the consequences. Lord Atkin in his speech in Andrews
v. Director of Public Prosecutions, [1937] A.C. 576, stated, "Simple lack of
care - such as will constitute civil liability is not enough; for purposes of the
criminal law there are degrees of negligence; and a very high degree of
negligence is required to be proved before the felony is established." Thus,
a clear distinction exists between "simple lack of care" incurring civil liability
and "very high degree of negligence" which is required in criminal cases.
In Riddell v. Reid, (1943] A.C. 1 (at 31), Lord Porter said in his speechc
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"A higher degree of negligence has always been demanded in order k>
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establish a criminal offence than is sufficient to create civil liability."
(Charlesworth & Percy, ibid, Para 1.13)
The fore-quoted statement of law in Andrews has been noted with
approval by this Court in Syad Akbar v. State of Karnataka, [1980] 1 SCC
30. The Supreme Court has dealt with and pointed out with reasons the
distinction between negligence in civil law and in criminal law. Their
Lordships have opined that there is a marked difference as to the effect of
evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings,
a mere preponderance of probability is sufficient, and the defendant is not
necessarily entitled to the benefit of every reasonable doubt; but in criminal
proceedings, the persuasion of guilt must amount to such a moral certainty
as convinces the mind of the Court, as a reasonable man, beyond all
reasonable doubt. Where 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.
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Law laid down by Straight, J. in the case Reg v. !du Beg, [1881] 3 All.
776, has been held good in cases and noticed in Bhalchandra Waman Pathe
v. State of Maharashtra, (1968) Mh.L.J. 423 -
a three-Judge Bench decision
of this Court. It has been held that while negligence is an omission to do
something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do; criminal
negligence is the gross and culpable neglect or failure to exercise that
reasonable and proper care and precaution to guard against injury either to
the public generally or to an individual in particular, which having regard
to all the circumstances out of which the charge has arisen, it was the
imperative duty of the accused person to have adopted.
In our opinion, the factor of grossness or degree does assume significance
while drawing distinction in negligence actionable in tort and negligence
punishable as a crime. To be latter, the negligence has to be gross or of a
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.¥ery high degree.
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Negligence by professionals
In the law of negligence, professionals such as lawyers, doctors,
architects and others are included in the category of persons professing some
special skill or skilled persons generally. Any task which is required to be
performed with a special skill would generally be admitted or undertaken to
be performed only if the person possesses the requisite skill for performing
that task. Any reasonable man entering into a profession which requires a
particular level of learning to be called a professional of that branch,
impliedly assures the person dealing with him that the skill which he
professes to possess shall be exercised and exercised with reasonable degree
of care and caution. He does not assure his client of the result. A lawyer does
not tell his client that the client shall win the case in all circumstances. A
physician would not assure the patient of full recovery in every case. A
surgeon cannot and does not guarantee that the result of surgery would
invariably be beneficial, much less to the extent of I 00% for the person
operated on. The only assurance which such a professional can give or can
be understood to have given by implication is that he is possessed of the
requisite skill in that branch of profession which he is practising and while
undertaking the performance of the task entrusted to him he would be
exercising his skill with reasonable competence. This is all what the person
JACOB MATHEW v. STATE (LAHOTJ, CJ.]
321
approaching the professional can expect. Judged by this standard, a professional
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may be held liable for negligence on one of two findings: either he was not
possessed of the requisite skill which he professed to have possessed, or, he
did not exercise, with reasonable competence in the given case, the skill
which he did possess. The standard to be applied for judging, whether the
person charged has been negligent or not, would be that of an ordinary B
competent person exercising ordinary skill in that profession. It is not
necessary for every professional to possess the highest level of expe~ise in
that branch which he practices. In Michael Hyde and Associates v. J.D.
Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where
a profession embraces a range of views as to what is an acceptable standard
of conduct, the competence of the defendant is to be judged by the lowest
standard that would be regarded as acceptable. (Charlesworth & Percy,. ibid,
Para 8.03)
Oft' quoted passage defining negligence by professionals, generally and
not necessarily confined to doctors, is to be found in the opinion of McNair
J. in Bo/am v. Friern Hospital Management Committee, [1957] l W.L.R. 582,
586 in the following words:
"Where you get a situation which involv.es the use of some
special skill or competence, then the test as to whether there has been
negligence or not is not the test of )he man on the top of a Clapham
omnibus, because he has not got this special skill. The test is the
standard of the ordinary skilled man exercising and professing to
have that special skill ... A man need not possess the highest expert
skill; it is well established law that it is sufficient ifhe exercises the
ordinary skill of an ordinary competent man exercising that particular
art." (Charlesworth & Percy, ibid, Para 8.02)
The water of Bo/am test has ever since flown and passed under several
bridges, having been cited and dealt with in several judicial pronouncements,
one after the other and has continued to be well received by every shore it
has touched as neat, clean and well-condensed one. After a review of various
authorities Bingham L.J. in his speech in Eckersley v. Binnie, [1988] 18 Con.
L.R. l, 79 summarised the Bo/am test in the following words:-
"From these general statements it follows that a professional
man should command the corpus of knowledge which forms part
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of the professional equipment of the ordinary member of his
profession. He should not lag behind other ordinary assiduous and
intelligent members of his profession in knowledge of new advances,
discoveries and developments in his field. He should have such an
awareness as an ordinarily competent practitioner would have of the
deficiencies in his knowledge and the limitations on his skill. He
should be alert to the hazards and risks in any professional task he
undertakes to the extent that other ordinarily competent members ·of
the profession would be alert. He must bring to any professional task
he undertakes no less expertise, skill and care than other ordinarily
competent members of his profession would bring, but need bring
no more. The standard is that of the reasonable average. The law
does not require of a professional man that he be a paragon
combining the qualities of polymath and prophet." (Charlesworth &
Percy, ibid, Para 8.04)
. The degree of skill and care required by a medical practitioner is so
stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):-
"The practitioner must bring to his task 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 Fircumstances of
each case, is what the law requires, and a perso'n is not liable in
negligence because someone else of greater skill and knowledge
would have prescribed different treatment or operated in a different
way; nor is he guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible body adverse
opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of
negligence. To establish liability on that basis it must be shown (1)
that there is a usual and normal practice; (2) that the defendant has
not adopted it; and (3) that the course in fact adopted is one no
professional man of ordinary skill would have taken had he been
acting with ordinary care."
Abovesaid three tests have also been stated as determinative of negligence
in professional practice by Charlesworth & Percy in their celebrated work
JACOB MATHEW v. STATE (LAHOTI, CJ.]
323
on Negligence (ibid, para 8.110)
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In the opinion of Lord Denning, as expressed in Hucks v. Cole, [1968]
Il8 New LJ 469, a medical practitioner was not to be held liable simply
because things went wrong from mischance or misadventure or through an
error of judgment in choosing one reasonable course of treatment in
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preference of another. A medical practitioner would be liable only where his
conduct fell below that of the standards of a reasonably competent practitioner
in his field.
The decision of House of Lords in Maynardv.