Top
Top Stories

Medical Negligence - Trial Court Should Examine Medical Expert Before Framing Charges : SC [Read Order]

Akshita Saxena
2 Nov 2019 5:55 AM GMT
Medical Negligence - Trial Court Should Examine Medical Expert Before Framing Charges : SC [Read Order]
Your free access to Live Law has expired
To read the article, get a premium account.
    Your Subscription Supports Independent Journalism
Subscription starts from
599+GST
(For 6 Months)
Premium account gives you:
  • Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.
  • Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.
Already a subscriber?

The Supreme Court has reiterated that examination of a report of an independent medical expert is crucial before proceeding against a doctor accused of medical negligence.

Earlier, the Apex Court had in Jacob Mathew v. State of Punjab & Anr., (2005) 6 SCC 1, laid down guidelines governing the prosecution of doctors for the offence of criminal negligence, punishable under Section 304A of IPC. It had held therein,

  1. A private complaint may not be entertained unless the complainant produces prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge negligence.
  2. The investigating officer should, before proceeding against the doctor accused of negligence, obtain an independent and competent medical opinion, preferably from a doctor in government service qualified in that branch of medical practice.
  3. A doctor accused of negligence should not be arrested in a routine manner unless, his arrest is necessary for furthering the investigation or unless there is a flight risk.

"The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment," the bench lead by then CJI R.C. Lahoti had reasoned.

In the present case, the Appellants Aruna along with another had impugned the order passed by the Nagpur bench of the Bombay High Court, whereby the order of the Sessions Court, discharging them from the charges of Section 304A read with Section 34 IPC was quashed. It was their case that the impugned order had been passed without taking into account the above directions issued by the Supreme Court.

Considerably, the Trial Court had framed charges after examining the witnesses. However, revision of the said order was allowed by the Sessions Court which went on to discharge the Appellants. This order of discharge was subsequently questioned before the high court, which set aside the order of discharge and restored the order of the Magistrate.

Noting that the courts below had not proceeded in conformity with the above said Supreme Court ruling and had not obtained any expert opinion, the bench of Justices Arun Mishra, Vineet Saran and S. Ravindra Bhat said,

"As admittedly, no medical expert has been examined in this case, we set aside the impugned orders passed by the courts below and remand the case to the trial court to examine the witnesses and to take the view of the medical expert on behalf of the complainant and only thereafter, to form an opinion whether any charge is made out in the case or not."

Click here to download order

Read Order




Next Story