Holding

The Supreme Court quashed the criminal proceedings, holding that continuation would be an abuse of process and the High Court’s refusal to quash was erroneous.

Summary

The appellant, a pediatric surgeon, performed an orchidectomy on a 1½‑year‑old boy after obtaining a consent form that listed both orchidopexy and orchidectomy, but the father alleged that consent for orchidectomy was never given and that the term was interpolated. An FIR was filed under multiple IPC sections and the case proceeded in the magistrate's court. The father sought a medical board, which concluded that orchidectomy was an appropriate alternative and that the consent form did not show any tampering. The High Court refused to quash the criminal proceedings, holding that the issue of consent required a trial. The Supreme Court held that, given the medical board’s opinion, lack of malice, and no evidence of forged consent, continuing the prosecution would be an abuse of process and therefore quashed the proceedings, setting aside the High Court’s order.

Issues considered

Whether the High Court was correct in refusing to quash the criminal proceedings under s.482 Cr.P.C. where alleged lack of consent for orchidectomy was claimed.
Whether alleged interpolation in the consent form is a question of fact that can be decided by the High Court in a summary proceeding.
Whether continuation of the criminal trial would amount to an abuse of the process of the court.

Legislation cited

Code of Criminal Procedure, 1973s. 482
Indian Penal Code, 1860s. 120-B, s. 201, s. 312, s. 325, s. 336, s. 406, s. 426, s. 465, s. 468, s. 471, s. 501(1), s. 501(2)

Headnote

Issue for Consideration Issue arose whether the High Court was right in not quashing the proceedings against the appellant surgeon who performed Orchidectomy-removal of testicle on the one and a half year boy, without obtaining the consent by the father-de facto complainant, Procedure, 1973 – s.482 – Penal Code, 1860 – Appellant-surgeon performed Orchidopexy-surgical procedure, on a one and a half year boy, for which doctors had obtained consent – Appellant also performed Orchidectomy-removal of testicle on the boy – Allegations by

Subjects

Quashing proceedingsSection 482 CrPCConsentOrchidectomyMedical BoardAbuse of processMedical negligenceConsent form interpolation

Judgment

[2026] 4 S.C.R. 381 : 2026 INSC 319

Dr. S. Balagopal
v.
State of Tamil Nadu & Anr.
(Criminal Appeal No. 1753 of 2026)
06 April 2026
[Pamidighantam Sri Narasimha and Manoj Misra,* JJ.]

Issue for Consideration
Issue arose whether the High Court was right in not quashing
the proceedings against the appellant surgeon who performed
Orchidectomy-removal of testicle on the one and a half year boy,
without obtaining the consent by the father-de facto complainant,
as alleged.

Headnotes†
Code of Criminal Procedure, 1973 – s.482 – Penal Code, 1860 –
Appellant-surgeon performed Orchidopexy-surgical procedure,
on a one and a half year boy, for which doctors had obtained
consent – Appellant also performed Orchidectomy-removal
of testicle on the boy – Allegations by the father-de facto
complainant that no consent was given for Orchidectomy –
FIR registered u/ss.312, 325, 426, 120-B, 406, 465, 468, 471
and s.501 (1) & (2) IPC against the doctor – Charge-sheet
submitted and the Magistrate took cognizance – Petitions filed
u/s.482 Cr.P.C., by the complainant to constitute a Medical
Board of three members so that a fair opinion is obtained –
Pursuant to the directions, the Medical Board constituted
which submitted its report – Petition also filed by the appellant
seeking quashing of the proceedings – High Court rejected
the same – Correctness:
Held: In the opinion of the Medical Board the procedure
adopted was appropriate – Moreover, the operating surgeon
is the best judge of which one of the two procedures is to be
adopted – As regards any interpolation in the consent form to
add the alternative procedure-Orchidectomy, being a question
of fact is to be determined in a trial based on evidence led
therein and, thus, courts must be loath to examine such issues
* Author
382 [2026] 4 S.C.R.

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in a summary proceeding, like the one u/s.482 – However, no
absolute bar on High Court’s power to consider questions of
fact in exercise of jurisdiction u/s.482, particularly when such
consideration necessary to prevent the abuse of the process of
the court or to secure the ends of justice – No malice attributed
to the doctor and no dispute that the consent form was executed
for undertaking medical procedure – Medical opinion is to the
effect that the procedure adopted by the doctor was one of the
alternatives recognized to meet such medical exigency – No doubt,
Medical Board’s opinion indicates that such procedure should be
carried out after obtaining consent, but nothing to indicate that
the consent form already obtained was not in order or that no
consent was obtained – Perusal of the consent letter indicates
that in the column where the nature of proposed surgery is to be
mentioned, both types of surgery-Orchidopexy and Orchidectomy
are mentioned by putting a slash, which means that the other
surgery, namely, Orchidectomy, was one of the options available –
No material on record that alternative surgery, Orchidectomy,
was entered by a different ink or in a different handwriting, and
having regard to the Medical Board’s opinion that in such medical
situations, Orchidectomy is a normal alternative, continuance of
criminal proceeding against the appellant abuse of the process
of the court and, thus, to secure the ends of justice, the same is
quashed – Impugned judgment and order of the High Court set
aside. [Paras 17-21]

Case Law Cited
Jacob Mathew v. State of Punjab [2005] Supp. 2 SCR 307 : (2005)
6 SCC 1 – held inapplicable.

List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973.

List of Keywords
Quashing the proceedings; Surgeon; Orchidectomy-removal of
testicle; Without obtaining consent by the father; Surgeon performed
Orchidopexy-surgical procedure that moves an undescended
testicle into the scrotum; Doctor obtained consent; Constitute
Medical Board; Fair opinion; Medical Board report.
[2026] 4 S.C.R. 383

Dr. S. Balagopal v. State of Tamil Nadu & Anr.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1753 of 2026
From the Judgment and Order dated 25.09.2023 of the High Court
of Judicature at Madras in CRLOP No. 23349 of 2016.

Appearances for Parties
Advs. for the Appellant(s):
K. Ravi Anantha Padmanabhan, Sr. Adv., T. R. B. Sivakumar,
Deva Vrat Anand.
Advs. for the Respondent(s):
V Krishnamurthy, Sr. A.A.G., D.kumanan, Ms. Deepa S, Sheikh F
Kalia, Veshal Tyagi, Chinmay Anand Panigrahi, Ms. Azka Sheikh
Kalia.
Respondent-in-person.

Judgment / Order of the Supreme Court

Judgment

Manoj Misra, J.

1. Leave granted.
2. This appeal arises from a petition 1 filed under Section 482 of
the Code of Criminal Procedure, 19732 seeking quashing of the
proceedings in C.C. No. 13 of 2008 on the file of Judicial Magistrate
No.1, Poonamallee3. By the order impugned dated 25.09.2023, the
High Court of Judicature at Madras4 rejected the prayer to quash the
proceedings and issued a direction to expedite the same.

FACTS
3. The second respondent (R-2) i.e., the de facto complainant made
a complaint, inter alia, alleging that his son, aged one and one-half

1 CRL. O.P. No. 23349/2016
2 Cr.P.C.
3 The learned Magistrate
4 The High Court
384 [2026] 4 S.C.R.

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years, was admitted in a hospital for a surgical procedure as one of
his testicles had not descended into the scrotal sac. According to R-2,
doctors had obtained his consent for Orchidopexy (i.e., the surgical
procedure that moves an undescended testicle into the scrotum),
but there was no consent for Orchidectomy (i.e., removal of testicle).
R-2 also alleged that prior to the surgery, the operating surgeon
had explained that in 99 percent of such cases there is no need to
remove the testicle. Therefore, specific consent for Orchidectomy
was neither sought nor given. Yet, Orchidectomy was performed and
in the consent form, by interpolation, Orchidectomy was inserted,
which amounted to an offence of forgery.
4. Based on the aforesaid allegations, a first information report5 was
registered at P.S. Ambathur on 08.08.2006 (i.e., FIR No. 1196 of
2006) under Sections 312, 325, 426, 120-B, 406, 465, 468, 471 and
section 501 (1) & (2) of the Indian Penal Code, 18606.
5. On the aforesaid FIR, the police, after investigation, submitted a
charge-sheet against the appellant (i.e., the operating surgeon) on
which the learned Magistrate took cognizance and registered C.C.
No. 13 of 2008. Aggrieved therewith, two petitions under Section
482 of Cr.P.C. were filed before the High Court. One was by R-2,
inter alia, to constitute a Medical Board of three members so that a
fair opinion is obtained. The second was by the appellant seeking
quashing of the proceedings of C.C. No. 13 of 2008. The High Court
vide order dated 19.03.2013 disposed of these two petitions in the
following terms:
“14. Accordingly, both the criminal original petitions, namely
Crl. O.P. No.18043 of 2008 and Crl. O.P. No.7614 of 2008
are disposed of with the following directions:
a) The prayer for quashing of the criminal proceedings in
CC. No.13 of 2008 made by the accused in his petition in
Crl. O.P. No.7614 of 2008 shall stand rejected.
b) Since further investigation has been ordered, all further
proceedings in CC. No.13 of 2008 shall stand stayed till
the completion of the further investigation and submission

5 FIR
6 IPC
[2026] 4 S.C.R. 385

Dr. S. Balagopal v. State of Tamil Nadu & Anr.

of the further report subject to a rider that the accused
shall cooperate with the Investigating Officer in conducting
further investigation.
c) The first part of the prayer made in Crl. O.P. No.18043
of 2008 filed by the de facto complainant viz., for a
direction to the Investigating Officer to act impartially is
negatived.
d) The second part of the prayer made in Crl. O.P. No.18043
of 2008 praying for constitution of the Medical Board is
allowed and the Director of Medical Services, Chennai
is directed to constitute a Medical Board consisting of
following persons:
i) A Specialist in Paediatric Surgery in Government
Services;
ii) An expert in Pathology in Government Services; and
iii) An expert in Oncology in Government Services.
e) The Medical Board should be constituted within one
month from the date of receipt of a copy of this order
and the Medical Board shall submit the report as early
as possible preferably within two months from the date
of constitution of the Medical Board. The report shall be
submitted to the Investigating Officer, marking a copy to
the Registrar Judicial of the Court.
f) The Investigating Officer shall complete the investigation
within two months after the receipt of the opinion of the
Medical Board and submit further Final report.
g) It shall not be necessary for the accused to make
periodical appearance before the learned Judicial
Magistrate I, Poonamallee till the submission of further
final report.
Consequently, the connected miscellaneous petitions are
closed.”
6. Pursuant to the aforesaid directions, a Medical Board was constituted
which submitted its report dated 29.07.2010. The same is reproduced
below:
386 [2026] 4 S.C.R.

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“FACT FINDING INQUIRY REPORT BY THE MEDICAL
BOARD CONSTITUTED IN RESPECT OF CRL. O. P No.
18043 of 2008, MP No.2, 4 & 5 of 2008 & CRL. O. P No.
7614 OF 2008 AND MP No.1 of 2008
As per the directions of the Hon’ble High Court of Madras
issued in Crl. O P No. 18043 of 2008 M.P.No.2, 4 & 5
of 2008 and Crl. O.P No 7614 of 2008 & M.P. No 1 of
2008, I, the Director of Medical and Rural Health Services,
Chennai-6 have constituted a Medical Board comprising
the following specialists from Government Stanley Medical
College Hospital, Chennai-1 to offer their expert medical
opinion for the Left orchidectomy surgery done to one
male child namely, (xxxx) (name masked), aged 2 years,
son of (yyyy) (name masked).
1. Dr. Mary Lilly, Professor and Head of Department,
Department of Pathology, Government Stanley Medical
College Hospital, Chennai-1
2. Dr. J. Muthukumaran, Paediatric Surgeon, Government
Stanley Medical College Hospital, Chennai 1
3. Dr. Ravel Naveen, Professor and Head of Department,
Department of Medical Oncology, Government Stanley
Medical College Hospital, Chennai – l
The left Orchidectomy surgery was done to the child by
one doctor namely Dr. Balagopal at M/s Sri Ramachandra
Medical Centre Hospital, Porur on 24/08/2005. Orchidectomy
surgery means removal of testis from the body. Orchidopexy
means retaining the testis and placing in the anatomical
position in the body. The constituted Medical Board was
convened on 01/07/20 13 and opined as follows:
The Professor of Pathology, Government Stanley
Medical College Hospital, Chennai-1 has opined as
The Histopathology Report carrying Hospital No.0000339902
of (xxxx) (name masked) 2 years a Male child.
Accession No G.1852/05 under the unit by Dr. Balagopal
S. dated 31/08/2005. Histopathology Report copy received
shows:
[2026] 4 S.C.R. 387

Dr. S. Balagopal v. State of Tamil Nadu & Anr.

1. Microscopy describes the tissue received and studied
as on soft tissue l X 0.5 cm. No special features/ organ
mentioned.
2. Microscopy describes the tissues to be testis and
Epididymis with focal fibrotic areas.
The pathological changes observed is ‘Focal fibrosis’.
No other pathological character is described.
The change described as focal fibrosis is consistent with
pathological changes observed in undescended testis.
The Professor of Medical Oncology, Government
Stanley Medical College Hospital, Chennai-1 has
opined as
2 years old child had a history of left undescended testis
and had undergone left orchidectomy. Pathology report
shows no features of malignancy in the undescended
testis specimen.
According to the operative findings the left testis was very
small, cystic and dysplastic and hence probably a left
orchidectomy was done.
Undescended testis is a risk factor for development of
malignancy.
The Professor and Head of Department, Department
of Pediatric Surgery, Government Stanley Medical
College Hospital, Chennai-1 has opined as
In case of undescended Testis generally the affected Testis
will be smaller than the normal size (or) it may present
as nubbin of tissue as the child grows (or) it may go in
form Torsion and gangrene of the testis as a complication.
In case of Nubbin of tissue as it does not serve the purpose
(testis shape, sperm production) and more chance of
malignant transformation orchidectomy is preferred than
doing orchidopexy.
In case of torsion testis and gangrene, orchidectomy is
preferred.
388 [2026] 4 S.C.R.

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As per the case sheet and operation theatre notes, the
left testis seems to be (small, cystic, dysplastic, 0.7cm
size) a nubbin of tissue when compared with the testis on
the other side. In that situation the nubbin of tissue could
have been removed after:
1. Explaining in detail about the problems of retaining the
affected testis.
2. Getting consent from the parents for doing orchidectomy
to the child.
CONCLUSIVE OPINION
Pathology Speciality report reveals that at the time of
histopathological examination there is focal fibrosis present
in the sample. (No evidence of malignant changes).
Department of Medical Oncology report reveals that the
left testis was very small, cystic and dysplastic and hence
probably a left orchidectomy was done.
Undescended testis is a risk factor for development of
malignancy.
Department of Pediatric Surgery report reveals that
In case of Nubbin of tissue as it does not serve the purpose
(testis shape, sperm production) and more chance of
malignant transformation, orchidectomy is preferred than
doing orchidopexy.
a. Explaining in detail about the problems of retaining
the affected testis.
b. Getting consent from the parents for doing
orchidectomy to the child.
Hence it is opined that left orchidectomy surgery done to
the child (xxxx) (name masked), 2 years old, son of (yyyy)
(name masked) is an appropriate surgical procedure as
per medical ethics and it should have been done with the
consent of parents.
Sd/- Director of Medical and Rural Health Services”
7. On receipt of the aforesaid report, the Investigating Officer wrote
a letter to the Director, Directorate of Medical and Rural Health
[2026] 4 S.C.R. 389

Dr. S. Balagopal v. State of Tamil Nadu & Anr.

Services, Chennai seeking an opinion on the consent form which
was obtained before the surgery. In response to the letter of the
Investigating Officer, a letter was issued from the office of the Director
of Medical and Rural Health Services, Chennai to the Investigating
Officer on 24.02.2014, stating as follows:
“ M E D I C A L A N D R U R A L H E A LT H S E RV I C E S
DEPARTMENT
From
Dr. A. Chandranathan, M.D.,
Director of Medical and Rural Health Services,
Chennai - 6.
To
Inspector of Police,
T-15, SRMC Police Station,
Porur, Chennai - 600 116.
Sir,
Ref. No. 32780/ E7/ 3/ 2014, dated 24.02.2014.
Sub: Criminal case in Cr.No.1196/2006 of T 15 SRMC
PS – investigation pending - ascertain clarification
required - in the interest of successful prosecution of the
case -regarding.
Ref:
1. Letter along with the findings of the Tamil Nadu
Directorate of Medical and Rural Health Services
dated 27.07.2013.
2. The case is T15 SRMC PS Cr. No .1196/ 2006.
3. Your letter date is 18.01.2014.

********
1. The left Orchidectomy surgery done to the child
namely xxxx (name masked), 2 years old boy, Son
of yyyy (name masked) is an appropriate Surgery
Procedure as per medical ethics and it should have
been done with the consent of parents.
390 [2026] 4 S.C.R.

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For this above point it is clarified that in the case sheet it is
seen that informed consent for surgery in the printed form
is attached. This printed consent is a general procedure
for all the surgeries / treatment and is being obtained
from patients in each and every hospital. In this context,
it is mentioned “I understand that a diagnosis of Bilateral
undescended testis has been made on me and that surgical
operation Bilateral Orchidopexy / Left Orchidectomy has
been advised by my doctor”.
In any surgery, the surgeon should have explained “what
procedure he is going to do with the patient and its
complication / nature of surgery in person, to ·the relative.
In this case the doctor has adopted general procedure
of obtaining consent in the printed form in which the
‘Orchidectomy’ is written, medical terms which the parents
could not understand.
In this particular surgery, it is ascertained that only after
opening; the surgeon have come to a conclusion of
removing the unwanted testis and before removing the
testis he has obtained the consent in the printed form
may be without explaining the nature of surgery in detail
to the parents.
(a) He has obtained the consent of the parents of the child
specifically to conduct the surgery towards removal of left
testis of xxxx (name masked) in printed form.
(b) Yes per used.
(c) The consent is obtained by Dr. Balagopal explaining
the consequences of retaining the left testis, which may
develop into malignancy or abscess formation (discharge
summary).
(d) Prosecution could not be made against the doctor
since he has done the procedure as per medical ethics
and as he has explained the consequences of retaining
the left testis in the body, which may form abscess or
turn malignant.
(e) No
[2026] 4 S.C.R. 391

Dr. S. Balagopal v. State of Tamil Nadu & Anr.

(f) Not Applicable
As per the opinion of the Professor of Pediatric Surgery
Dr. Balagopal has obtained the formal consent in ·the
printed form (for all the surgical purpose duly filled in)
explaining in detail about the problem of retaining the
affected testis. In case of Nubbin of tissue as it does not
serve the purpose (testis shape, sperm production) and
more chance of malignant transformation.
Hence it is opined that the Left Orchidectomy done to one
xxxx (name masked) son of Mr. yyyy (name masked) is
an appropriate surgical procedure.
Dr. Balagopal has obtained the consent in the common
printed form and explained in detail about the problem of
retaining the affected testis to parents, saying the affected
testis may transform to malignancy in future.
Yours faithfully,
For Director of Medical and Rural Health Services.”
(Emphasis supplied)

8. After obtaining the report dated 24.02.2014, an additional report
was submitted giving details of the opinion of the Medical Board
as reproduced above. The charge sheet submitted reads as
under:
“CHARGE SHEET
CHARGE SHEET IN T-15 SRMS POLICE STATION
Crime No. 1196/2006
U/S 336, 201, 465, & 471 IPC.
……….
ACCUSED: Dr. Balagopal, Age 38/2007 S/O K. Subramani,
No. 7 Suriya Bharani Colony, Saligramam, Chennai – 600093
The accused noted in the margin is working as Consultant
Pediatric Surgeon in SRMC Center at Porur, within the
limits of SRMC PS. The hospital authority has authorized
the accused to perform all kinds of surgery including
392 [2026] 4 S.C.R.

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orchidopexy and orchidectomy. The witness (yyyy) (name
masked) is the father of male child (xxxx) (name masked)
aged about 1 1/2 years. The witness (yyyy) (name
masked) had admitted his child (xxxx) (name masked)
on 23.08.2005 at SRMC Hospital for Hernia Operation.
The hospital authority had referred the child (xxxx) to
the accused for performing Hernia Operation on the
child of witness (yyyy) (name masked) about the nature
of the operation on which he is going to perform on the
child i.e., hernia operation and also obtained consent
letter from the witness (yyyy) (name masked) by clearly
mentioning that the operation of positioning of testis
(bilateral Orchidopexy). The accused has not mentioned
anything about the removal of left testicle of the child in
the consent letter. Therefore, the witness has also signed
in the document believing that the accused would perform
only bilateral Orchidopexy.
That on 24.08.2005 at about 3.30 P.M. at SRMC Hospital
Operation theatre when the child (xxxx) (name masked)
aged about 1 ½ year was admitted in the operation
theatre for hernia operation, the accused noted in the
margin being the surgeon of SRMC Hospital had acted
in a rash and negligent manner at the time of performing
the operation on the child and due to rash and negligent
act, the accused had removed the left testicle of the child
during the hernia operation. Therefore, the accused has
committed the offence punishable u/s 336 IPC.
During the course of the same transaction the accused,
the surgeon of the same hospital, knowing that he had
performed the operation in a rash and negligent manner
which is punishable with imprisonment, intentionally
caused the disappearance of the evidence of his rash
negligent act to escape from the legal punishment, altered
the medical documents and consent letter for performing
surgery. Thereby the accused has committed the offence
punishable u/s 201 IPC.
During the course of the same transaction, the accused
noted the margin has created a forged document by
[2026] 4 S.C.R. 393

Dr. S. Balagopal v. State of Tamil Nadu & Anr.

inserting a letter “left orchidectomy” in the consent letter of
the complainant to make other to believe that this witness
(yyyy) (name masked) had given consent for the removal
of left testicle of his child, and also used the above said
forged document as genuine to escape (sic) the legal
punishment for the offence of negligent act. Thereby the
accused has further committed the offences punishable
u/s 465, 471 IPC
Hence the charge.
Sd/-
Inspector of Police
T-15 S.R.M.C. P.S.
Porur, Chennai - 116”

9. Aggrieved by the charge-sheet and the consequential proceedings,
which continued even after the additional reports of medical experts,
the appellant filed Crl. O.P. No. 23349 of 2016 for quashing the
entire proceeding pending as C.C. No. 13 of 2008 on the file of the
learned Magistrate.
10. By the impugned order, the High Court dismissed the petition. Hence,
this appeal.
11. We have heard learned counsel for the appellant as well as the
counsel appearing for the State. We also heard R-2 in person on
one date.

SUBMISSIONS ON BEHALF OF THE APPELLANT
12. The learned counsel for the appellant submitted that the medical
report submitted by the Medical Board as well as the Final Report
submitted by the Investigating Officer does not castigate the
appellant for any kind of negligence. Moreover, it is now clear that
Orchidectomy was the appropriate procedure. The only point of
dispute is whether the de facto complainant i.e., father of the child
was informed about the surgical procedure to be undertaken and
whether there was a proper consent for that surgical procedure.
In this regard, what is important is that there was a consent letter
signed by R-2 for the surgery. The consent form was in a printed
format and the column regarding the nature of surgery advised
indicated “Bilateral Orchidopexy/Orchidectomy.” The allegation is
394 [2026] 4 S.C.R.

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that Orchidectomy was added by interpolation in the consent form
to save the doctor from the allegation of conducting surgery without
consent. It is contended that this very consent letter was sent to
the Director for his opinion and the Director had opined that there
was nothing suspicious about the consent. Besides, there is no
forensic report regarding interpolation of ‘Orchidectomy’ made in the
consent letter either by a different ink or in a different handwriting.
It is also submitted that a bare perusal of the consent letter/form
would indicate that it is in order. In these circumstances, it was
argued, the High Court had erred in not quashing the criminal
proceeding, particularly when there was a medical report in support
of appellant’s case.

SUBMISSIONS ON BEHALF OF THE STATE
13. Learned counsel appearing for the State submitted that though
there may be no negligence on the part of the doctor in performing
Orchidectomy, the doctor ought to have obtained a prior consent
for the said surgical procedure. Once the de facto complainant
alleges that he had not consented to Orchidectomy, it is a
matter of trial whether such consent was there or not. In such
circumstances, whether there was a valid consent or not, and
whether the consent letter has been manipulated or not, can best be
determined in a trial. Hence, the order of the High Court calls for no
interference.

SUBMISSIONS ON BEHALF OF THE DE-FACTO COMPLAINANT
14. The de-facto complainant (R-2), who appeared in person, submitted
that during surgery the doctor had asked him on phone whether he
should perform Orchidectomy or not. Further, the doctor informed
that if Orchidectomy is not performed, possibility of malignancy
in future cannot be ruled out. According to R-2, this question of
the doctor was answered in the negative and R-2 had specifically
stated that he would later consider whether removal of testis is to
be undertaken. Despite that, the doctor proceeded with the surgery
and removed the testicle without R-2’s consent and, to save himself,
later, the consent form was manipulated to show that the consent
was taken for Orchidectomy. In these circumstances, he prayed
that prima facie commission of offence is made out and therefore,
appeal be dismissed.
[2026] 4 S.C.R. 395

Dr. S. Balagopal v. State of Tamil Nadu & Anr.

DISCUSSION
15. We have accorded due consideration to the rival submissions and
have also perused the materials available on record.
16. Before we proceed to address the rival contentions, we must bear in
mind that appellant-accused is a surgeon/doctor whose credentials
as a surgeon /doctor are not in issue. The criminal law has invariably
placed medical professionals on a pedestal different from ordinary
mortals. The IPC enacted as far back as in the year 1860 sets out a
few vocal examples. Section 88 in the Chapter on General Exceptions
provides exemption for acts not intended to cause death, done by
consent in good faith for person’s benefit. Section 92 provides for
exemption for acts done in good faith for the benefit of a person
without his consent though the acts cause harm to the person
and that person has not consented to suffer such harm. Based on
above, and upon a review of various decisions and reports, in Jacob
Mathew v. State of Punjab7 this Court observed:
“48 (7). To prosecute a medical professional for negligence
under criminal 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.”
Having observed so, this Court proceeded to hold:
“52. … A private complaint may not be entertained unless
the complainant has produced prima facie evidence before
the court in the form of a credible opinion given by another
competent doctor to support the charge of rashness
or negligence on the part of the accused doctor. The
investigating officer should, before proceeding against the
doctor accused of rash or negligent act or omission, obtain
an independent and competent medical opinion preferably
from a doctor in government service, qualified in that branch
of medical practice who can normally be expected to give

7 (2005) 6 SCC 1
396 [2026] 4 S.C.R.

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an impartial and unbiased opinion applying the Bolam8 test
to the facts collected in the investigation. ..”
17. In the instant case, the dispute is not regarding negligence on part
of the appellant, therefore the law laid down in Jacob Mathew
(supra) may not stricto sensu apply. However, the importance of
Medical Review Board’s report cannot be undermined. It highlights
the importance of Orchidectomy in cases related to undescended
testicle. Though it is alleged by the de facto complainant that he had
not consented for Orchidectomy, it is clear from the materials on
record that prior to the surgery consent form was obtained from the
father of the child. Thus, the issue is whether the consent was limited
to surgical procedure of Orchidopexy. According to the appellant, the
consent form had limited space in the column where the nature of
surgery had to be mentioned therefore, Orchidectomy was written
by putting a slash just below Orchidopexy in the consent form. What
is important is that the consent form was sent by the Investigating
Officer to the Director of the Medical and Rural Health Services for
his opinion. The Director had not found any fault in the consent
form. Rather, the Medical Board opines that Orchidectomy is an
alternative procedure which may be undertaken to obviate chances
of malignancy in future. Thus, in the opinion of the Medical Board
the procedure adopted was appropriate. Moreover, the operating
surgeon is the best judge of which one of the two procedures is to
be adopted. Therefore, the only issue which requires consideration
is whether there was any interpolation in the consent form to add
the alternative procedure (i.e., Orchidectomy).
18. Ordinarily, an issue of tampering/ interpolation in a document being a
question of fact is to be determined in a trial based on evidence led
therein and, therefore, courts must be loath to examine such issues
in a summary proceeding, like the one under Section 482 Cr.P.C.
However, there can be no absolute bar on High Court’s power to
consider questions of fact in exercise of jurisdiction under Section 482

8 Bolam v. Frien Hospital Management Committee, (1957) 1 WLR 582: (1957) 2 All ER 118 (QBD)
“Where you get a situation which involves the use of some special skill or competence, then the
test as to whether there has been negligence or not is not test of the 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 if he exercises the ordinary skill of an
ordinary competent man exercising that particular art.”
[2026] 4 S.C.R. 397

Dr. S. Balagopal v. State of Tamil Nadu & Anr.

Cr.P.C., particularly when such consideration is necessary to prevent
the abuse of the process of the court or to secure the ends of justice.
19. In the instant case, no malice is attributed to the doctor and there
is no dispute that the consent form was executed for undertaking a
medical procedure. Further, the medical opinion is to the effect that
the procedure adopted by the doctor was one of the alternatives
recognized to meet such a medical exigency. No doubt, Medical
Board’s opinion indicates that such procedure should be carried
out after obtaining consent, but there is nothing to indicate that the
consent form already obtained was not in order or that no consent
was obtained. Besides, the consent letter has been brought on record
as Annexure P-2. A perusal thereof would indicate that in the column
where the nature of proposed surgery is to be mentioned, both
types of surgery i.e., Orchidopexy and Orchiectomy are mentioned
by putting a slash (/), which means that the other surgery, namely,
Orchidectomy, was one of the options available.
20. Taking a conspectus of all the facts and circumstances as also
that there is no material on record that alternative surgery, namely,
Orchidectomy, was entered by a different ink or in a different
handwriting, and having regard to the Medical Board’s opinion that
in such medical situations Orchidectomy is a normal alternative, we
are of the view that continuance of criminal proceeding against the
appellant would be nothing but abuse of the process of the court
and, therefore to secure the ends of justice, the same is liable to
be quashed.
21. Accordingly, the appeal is allowed. The impugned judgment and
order of the High Court is set aside. The proceedings of C.C. No.
13 of 2008 on the file of the learned Magistrate are hereby quashed.
There is no order as to costs.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Nidhi Jain