A.S.V. NARAYANAN RAOversusRATNAMALA & ANOTHER

                    [2013] 10 S.C.R. 117


                 A.S.V. NARAYANAN RAO                              A
                               v.
                 RATNAMALA & ANOTHER
            (Criminal Appeal No. 1433 of 2013)
                   SEPTEMBER 13, 2013
                                                                   8
     [H.L. GOKHALE AND J. CHELAMESWAR, JJ.]

     Code of Criminal Procedure, 1973 - s . .482 - Criminal
proceedings u/s. 304A /PC for medical negligence -
Quashing of - Denied by courts below - Held: The                   C
proceedings are liable to be quashed - Though doctors are
not immune from criminal proceedings for their professional
negligence, but in the interest of the society they are required
to be protected from frivolous and unjust prosecution - In the
facts of the case, case u/s. 304A not made out against the         D
accused doctor - Penal Code, 1860 - s. 304A.

    Criminal proceedings were initiated against the
appellant (a medical practitioner) uls. 304A IPC at the
behest of respondent No.1, who was the wife of                     E
appellant's patient who lost his life during treatment.
Though the police· after its investigation of the case,
submitted its report stating that it was a case of no
evidence, but the Magistrate took cognizance of the
offence. The appellant approached the High Court
seeking quashing of the proceedings, but the High Court            F
declined to quash the proceedings. Hence the present
appeal.

    Allowing the appeal, the Court
                                                                   G
    HELD: 1. Though doctors are not immune from legal
proceedings in the event of their negligence in
discharging their professional duties, in the interest of the

                              117                                  H
    118     SUPREME COURT REPORTS             [2013] 10 S.C.R.


A society, it is necessary to protect doctors from frivolous
  and unjust prosecution. [Para 11) [122-A-B]

         2. From the final report submitted by the police in the
    instant case, it can be gathered that the records
8   pertaining to the treatment given to the deceased were
    forwarded to the State Medical Council and also the
    Medical Council of India which opined that the "doctors
    seem to have made an attempt to do their best as per
    records". However, the High Court thought it fit to
C   continue the prosecution of the appellant for two reasons
    (1) that the appellant chose to conduct the angioplasty
    without having a surgical standby unit and such failure
    resulted in delay of 5 hours in conducting by-pass after
    the angioplasty failed; and (2) that the appellant did not
    consult a Cardio Anesthesian before conducting an
D   angioplasty. According to the High Court, both the
    above-mentioned 'lapses' on the part of the appellant
    "clearly show the negligence" of the appellant. The High
    Court reached such conclusion on the basis of evidence
    of a doctor, given before the State Consumer Redressal
E   Commission in the consumer dispute initiated by the
    respondent-wife of the deceased against the appellant
    and others. But the High Court failed to take into account
    another part of the same statemenYwhereby the doctor
    stated that the time gap between (he angioplasty failure
F   and the surgery was not the factor for the death of the
    patient and that the time gap may or may not be a factor
    for the enhancement of the risk. This is most crucial in
    the context of criminal prosecution of the appellant.
    Therefore, the prosecution of the appellant is uncalled for.
G   [Paras 12 to 16] [123-A-E; 124-8-D]
       Jacob Mathew vs. State of Punjab and Anr. (2005) 6
    sec 1: 2005 (2) Suppl. SCR 307 - relied on.

H
      A.S.V. NARAYANAN RAO v. RATNAMALA                     119


                     Case Law Reference:                           A
    2005 (2) Suppl. SCR 307         relied on        Para 16
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1433 of 2013.
    From the Judgment & Order dated 28.10.2010 of the High         B
Court of Andhra Pradesh at Hyderabad in Criminal Petition No.
6506 of 2007.
    P.S. Narasimha, M. Srinivas R. Rao, Sudha Gupta for the
Appellant.
                                                                   c
    Mahabir Singh, Nikhil Jain, C.S.N. Mohan Rao, G.N.
Reddy, Debojit, M. Bala Shivudu, D. Mahesh Babu for the
Respondents.
    The Judgment of the Court was delivered by
                                                                   D
    CHELAMESWAR, J. 1. Leave granted.
    2. This appeal arises out of an order dated 28th October
2010 in Criminal Petition No.6506 of 2007 of the High Court
of Andhra Pradesh.
     3. The aforementioned criminal petition was filed praying     E
that the proceedings initiated against the appellant herein in
C.C. No.600 of 2006 on the file of the XIV Additional Chief
Metropolitan Magistrate, Hyderabad for the offence punishable
under section 304A IPC be quashed. The said petition along
with another similar petition by one of the co-accused was         F
heard and disposed of by a common order (order in appeal).
    4. While the petition filed by the appellant herein was
dismissed by the High Court, the other petition of the co-
accused was allowed.
                                                                   G
    5. The appellant is a cardiologist. The husband of the first
respondent (one Divakar) approached the appellant herein,
complaining of a pain in the chest on 22.04.2002. Divakar was
admitted in the hospital where the appellant was working and
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    120        SUPREME COURT REPORTS                       [2013] 10 S.C.R.


A   kept in the Intensive Care \.)nit (ICU). Thereafter, the appellant
    informed the first respondent that Divakar had suffered a mild
    heart attack. On 23.04.2002, an angiogram was conducted
    which showed three blocks in the vessels carrying blood to the
    heart. On 25.04.2002 at 9.30 a.m., the appellant unsuccessfully
B   attempted to perform an angioplasty on Divakar. Around 1.30
    in the afternoon, the appellant informed the first respondent that
    the angioplasty failed as the blocks were calcified. Same day
    at around 3.30 p.m., by-pass surgery was conducted on Divakar
    in the same hospital. Subsequently, various complications
c   developed and eventually Divakar died on 09.05.2002.
        6. On 14.05.2002, the first respondent lodged a complaint
    against the appellant and others under section 304A IPC which
    came to be registered as FIR No.416 of 2002.
       7. The police on investigation submitted a final report on
D 02.02.2005 treating the case to be one of lack of evidence. The
  respondent filed objections before the Metropolitan Magistrate
  to the final report and prayed the Magistrate to take cognizance
  of the offence. The learned Magistrate by his order dated
  11.12.2006 came to the prima facie conclusion that there exists
E material to try the accused for the offence punishable under
  section 304A IPC. Challenging the said order the appellant
  approached the High Court by way of Criminal Petition No.6506
  of 2007.
F         8. By judgment under appeal, the High Court opined that
    the material on record "clearly shows negligence on the part of
    A 1"1 and declined to quash the proceedings.

    1.   The sworn statement of Dr. P.V.N. Rao also discloses that A1 without
         consulting the. Anestheist and without a surgical stand conducted
G        Angioplasty, which should be done by the Surgeon, as the surgeon was
         out of station which fact he came to know through the Anesthetist. The
         operation was delayed by 5 hours due to want of surgeon who has to come
         from New Delhi, which clearly shows the negligence on the part of A1.
         Further as the patient was a chronic smoker he should be prepared before
         undertaking Angioplasty and the Cardiac Anesthesian should be consulted
         for fitness of the patient before conducting the same.
       A.S.V. NARAYANAN RAO v. RATNAMALA                                121
               [J. CHELAMESWAR, J.]
       9. Mr. P.S. Narasimha, learned senior counsel appearing                  A
 for the appellant submitted that the High Court clearly erred in
 dismissing the petition of the appellant herein. Learned senior
 counsel argued that the law laid down by this Court in Jacob
 Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1 has
 completely been ignored by both the learned Magistrate and                     B
·the High Court in deciding to proceed with the case against
 the appellant herein. On the other hand, learned counsel for the
 first respondent submitted that the conduct of the appellant in
 undertaking the angioplasty without having a standby surgical
 unit is clearly in violation of the established practice of the                c
 medical profession and therefore a clear case of negligence
 warranting punishment of the appellant.

     10. This Court in the case of Jacob Mathew (supra)
considered exhaustively the various aspects of negligence on
the part of a doctor and laid down inter alia;                                  D

     "48 ..... (5) 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. For negligence to amount to an offence, the element                   E
     of mens rea must be shown to exist. 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 action in civil law but cannot                    F
     form the basis for prosecution.

     (6) The word "gross" has not been used in Section 304-
     A /PC, 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 G
     negligent act'' as occurring in Section 304-A /PC has to

    The entire record adduced does not indicate as to whether A1 assessd
    the condition of the patient on consulation of the cardio Anasthesian and
    obtained the fitness certificate for going Angioplasty on the patient.      H
    122       SUPREME COURT REPORTS               [2013] 10 S.C.R.


A         be read as qualified by the word "grossly"."

       11. This Court further opined that though doctors are not
  immune from legal proceedings in the event of their negligence
  in discharging their professional duties, in the interest of the
8 society, it is necessary to protect doctors from frivolous and
  unjust prosecution. It was further pointed out the need to frame
  either statutory rules or administrative instructions incorporating
  guidelines for prosecuting doctors on charges of criminal
  negligence. This Court therefore, ordered that until such
C guidelines are laid down, the following procedure is required
  to be followed:-

          "52. . .. we propose to lay down certain guidelines for the
          future which should govern the prosecution of doctors for
          offences of which criminal rashness or criminal
D         negligence is an ingredient. A private complaint may not
          be entertained unless the complainant has produced
          prima facie evidence before the court in the form of a
          credible opinion given by another competent doctor to
          support the charge of rashness or negligence on the part
E         of the accused doctor. The investigating officer should,
          before proceeding against the doctor accused of rash or
          negligent act or omission, obtain an independent and
          competent medical opinion preferably from a doctor in
          government service, qualified in that branch of medical
F         practice who can normally be expected to give an
          impartial and unbiased opinion applying the Bo/am test
          to the facts collected in the investigation. A doctor
          accused of rashness or negligence, may not be arrested
          in a routine manner (simply because a charge has been
          levelled against him). Unless his arrest is necessary for
G
          furthering the investigation or for collecting evidence or
          unless the investigating officer feels satisfied that the
          doctor proceeded against would not make himself
          available to face the prosecution unless arrested, the
          arrest may be withheld."
H
      A.S.V. NARAYANAN RAO v. RATNAMALA                     123
               [J. CHELAMESWAR, J.]
    12. From the final report submitted by the police in the       A
instant case, it can be gatherc)d that the records pertaining to
the treatment given to the deceased were forwarded to the
Andhra Pradesh Medical Council and also the Medical Council
of India which opined that the "doctors seem to have made an
attempt to do their best as per records".                          B

     13. However, the High Court tflought it fit to continue the
prosecution of ~he appellant for two reasons (1) that the ·
appellant chose to conduct the angioplasty without having a
surgical standby unit and such failure resulted in delay of 5 hours C
in conducting by-pass after the angioplasty failed; and (2) that
the appellant did not consult a Cardio Anesthesian before
conducting an angioplasty. According to the High Court, both
the above-mentioned 'lapses' on the part of the appellant
"clearly show the negligence" of the appellant.
                                                                   D-
     14. The basis for such conclusion though not apparent from
the judgment, we are told by the l1earned counsel for the first
respondent, .is to be found in the evidence of Dr. Surajit Dan
given before the A.P. State Consumer Redressal Commission
in C.D. No. 38 of 2004. It may also be mentioned here that apart   E
from initiating criminal proceedings against the appellant and
others, the first respondent also raist~d a consumer dispute
against the appellant and others. It is in the said proceedings,
the above-mentioned Dr. Dan's evidence was recorded
wherein. Dr. Dan in his cross-examination stated as follows:-      F

     " ... Whenever Cardiologist performs an angioplasty, he
     requests for the surgical team to b1e ready as standby. I
     was not put on standby in the instant case .... "

     He further stated;                                            G

     • ... 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
                                                                   H
    124      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A         a planned coronary surgery, the risk is less than in an
          emergency surgery .... "

          However, the same doctor also stated;

          " .... The time gap between 'tbe angioplasty failure and the
B         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."

         15. Unfortunately, the last of the above extracted
c   statements of Dr. Surajit Dan is not taken into account by the
    High Court which statement according to us is most crucial in
    the context of criminal prosecution of the appellant.

         16. The High Court unfortunately overlooked this factor.
    We, therefore, are of the opinion that the prosecution of the
D   appellant is uncalled for as pointed out by this Court in Jacob
    Mathew case (supra) that the negligence, if any, on the part of
    the appellant cannot be said to be "gross". We, therefore, set
    aside the judgment under appeal and also the proceedings of
    the trial court dated 11.12.2006.
E
         17. The appeal is allowed, however, there shall be no order
    as to costs.

    K.K.T.                                          Appeal allowed.