3 Sep 2022 8:30 AM GMT
The Jammu and Kashmir and Ladakh High Court on Friday ruled that before prosecuting medical professionals for the offence of criminal negligence, a Criminal Court should obtain opinion of the medical expert and if from such opinion, a prima facie case of criminal negligence is made out against a medical professional, only then the machinery of criminal law should be set...
The Jammu and Kashmir and Ladakh High Court on Friday ruled that before prosecuting medical professionals for the offence of criminal negligence, a Criminal Court should obtain opinion of the medical expert and if from such opinion, a prima facie case of criminal negligence is made out against a medical professional, only then the machinery of criminal law should be set into motion.
The bench of Justice Sanjay Dhar was hearing a plea through the medium of which the petitioner had challenged an order passed by Chief Judicial Magistrate, Pulwama, whereby, a direction had been issued to SHO, P/S, Pulwama, to register an FIR and investigate the case. Challenge had also been thrown to an FIR lodged for the offence under Section 304-A RPC that has been registered with P/S Pulwama pursuant to the aforesaid direction of the Chief Judicial Magistrate.
Perusal of the record revealed that respondent No.1 had filed a complaint before Chief Judicial Magistrate, Pulwama, alleging therein that his maternal aunt, was under the treatment of the petitioner and during her treatment, the petitioner prescribed a drug and according to the complainant, the death of the deceased patient was caused due to the administration of prescribed drug which, according to the complainant, was a wrong treatment prescribed by the petitioner.
Advocate Arif Sikander Mir on behalf on the petitioners contended that it was not open to the Magistrate to direct registration of the FIR on the basis of the said complaint without obtaining an opinion of the Medical Board. Advocate Arif Sikander further contended that the petitioner is a Government employee who is removable from service by the Government, as such, without obtaining a sanction for prosecution in terms of Section 197 of the CrPC, the direction for registration of the FIR against him could not have been made.
Adjudicating upon the matter Justice Dhar observed that keeping in view the catena of Supreme court judgements on the subject, it is necessary that has whenever a complaint is received against a doctor or a hospital by a Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made, the Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital.
Explaining the need to adopt such measures the bench observed that this is extremely necessary to avoid harassment to doctors who may not be ultimately found to be negligent .
Buttressing the said position of law the bench found it worthwhile to record the observations of Supreme Court in Jacob Mathew vs. State of Punjab, (2005) wherein SC observed,
"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 an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation".
Expounding further on the stated position of law on the matter at hand Justice Dhar observed,
"Courts are not experts in the medical science and, as such, they cannot substitute their own views over that of the specialists Medical science is an inexact science and outcome of treatment of a patient cannot be predicted with certainty. Sometime even after best efforts of the doctor, his treatment of a patient may ultimately result in failure but simply because his treatment has not yielded desired result, he cannot be held liable for criminal negligence. All these factors have to be taken into account while dealing with a case of medical negligence. Therefore, without opinion of a medical expert, the Criminal Courts have to desist from setting the criminal law into motion against a medical professional"
The bench clarified that even though the Supreme Court in Lalita Kumari vs. State of UP, (2014) held that Section 154 of the CrPC postulates the mandatory registration of FIRs on receipt of information relating to all cognizable offences, but in the same breath it carved out instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. The Supreme Court went on to observe that one such instance is in the case of allegations relating to medical negligence on the part of doctors as it will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint, Justice Dhar emphasised.
For the foregoing reasons the bench allowed the petition and the impugned order as also the impugned FIR were quashed.
Case Title: Farooq Ahmad Bhat Vs Syed Basharat Saleem
Citation: 2022 LiveLaw (JKL) 127
Counsel For Petitioner: Adv Arif Sikander Mir
Counsel For Respondents: Mr Shabir Ahmad Dar
Click Here To Read/Download Judgment