Case Note & Summary
The petitioner, a practicing ophthalmologist, challenged the judgment of the Additional Sessions Judge, Pune, which upheld the Magistrate's order issuing process against her under Section 338 IPC. The complainant, a 68-year-old housewife, underwent cataract surgery at the petitioner's hospital in April 2016. After surgery, the toric lens could not be implanted, and the patient suffered retinal injury. The complainant alleged that the petitioner performed the surgery negligently, causing grievous hurt. The Magistrate took cognizance and issued process. The Sessions Court dismissed the revision. The High Court examined whether the complaint disclosed ingredients of Section 338 IPC, which requires grievous hurt caused by a rash or negligent act endangering life or personal safety. The Court noted that no expert opinion was obtained to establish medical negligence. Relying on precedents, the Court held that criminal liability in medical cases requires gross negligence, not mere error of judgment. The Court found that the allegations at best indicated a complication, not criminal intent. The Court quashed the proceedings, holding that continuation would be an abuse of process.
Headnote
A) Criminal Law - Medical Negligence - Quashing of FIR - Section 338 IPC - Essential Ingredients - Complaint alleged cataract surgery led to retinal injury - Court held that without expert evidence establishing gross negligence, criminal proceedings cannot be sustained - Held that mere failure of surgery or complication does not constitute criminal negligence (Paras 10-15).
B) Criminal Procedure Code - Inherent Powers - Section 482 CrPC - Quashing of Proceedings - Court exercised inherent jurisdiction to quash FIR where allegations did not make out prima facie case - Held that continuation of proceedings would be abuse of process of law (Paras 16-18).
Issue of Consideration
Whether criminal proceedings for medical negligence under Section 338 IPC can be sustained without expert opinion establishing gross negligence and whether the complaint discloses essential ingredients of the offence.
Final Decision
The High Court allowed the writ petition, quashed the judgment and order dated 23.01.2019 passed by the Additional Sessions Judge, Pune, and set aside the order dated 16.02.2018 passed by the Judicial Magistrate First Class, Pune, thereby quashing the criminal proceedings in R.C.C. No. 430 of 2018.
Law Points
- Criminal medical negligence requires gross negligence
- expert evidence
- and clear mens rea
- Section 338 IPC ingredients not satisfied
- quashing of FIR under inherent powers when complaint lacks prima facie case
Case Details
Writ Petition No. 2007 of 2019
Mr. A.P. Mundargi (Senior Counsel) i/b Mr. A.P. Kulkarni a/w Mr. Manoj Badgujar for Petitioner, Mrs. M.R. Tidke APP for Respondent No.1-State, Ms. Saloni M. Gule for Respondent No.2
Mrs. Shrutika Junagade Kankaria
State of Maharashtra, Sou. Anusaya Guruba Kshirsagar
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Nature of Litigation
Criminal writ petition challenging the order of Additional Sessions Judge upholding issuance of process under Section 338 IPC for alleged medical negligence during cataract surgery.
Remedy Sought
Petitioner (doctor) sought quashing of criminal proceedings in R.C.C. No. 430 of 2018 pending before Judicial Magistrate First Class, Pune.
Filing Reason
Petitioner alleged that the complaint did not disclose ingredients of Section 338 IPC and that no expert opinion was obtained to establish medical negligence.
Previous Decisions
Judicial Magistrate First Class, Pune issued process on 16.02.2018; Additional Sessions Judge, Pune dismissed Criminal Revision No. 151 of 2018 on 23.01.2019.
Issues
Whether the complaint under Section 338 IPC discloses essential ingredients of the offence of grievous hurt by rash or negligent act?
Whether criminal proceedings for medical negligence can be sustained without expert evidence establishing gross negligence?
Submissions/Arguments
Petitioner argued that the complaint lacks expert opinion and does not make out a case of criminal negligence; mere complication does not attract Section 338 IPC.
Respondent argued that the doctor's act of performing surgery without proper care caused grievous hurt and that the process was rightly issued.
Ratio Decidendi
Criminal liability in medical negligence cases requires gross negligence amounting to recklessness or deliberate act; mere error of judgment or complication does not constitute an offence under Section 338 IPC. Without expert evidence establishing negligence, proceedings cannot be sustained and are liable to be quashed under Section 482 CrPC.
Judgment Excerpts
This petition takes an exception to the judgment and order dated 23.01.2019 passed by the learned Additional Sessions Judge, Pune, in Criminal Revision No. 151 of 2018, arising out of order dated 16.02.2018 passed by the learned Judicial Magistrate First Class, Court No.3, Pune in R.C.C. No. 430 of 2018.
Rule. Rule made returnable forthwith with the consent of the parties and heard finally.
Procedural History
Complainant filed complaint leading to R.C.C. No. 430 of 2018 before Judicial Magistrate First Class, Pune. Magistrate issued process on 16.02.2018. Petitioner filed Criminal Revision No. 151 of 2018 before Additional Sessions Judge, Pune, which was dismissed on 23.01.2019. Petitioner then filed present Writ Petition No. 2007 of 2019 before Bombay High Court, which was allowed on 20.08.2019.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 338
- Code of Criminal Procedure, 1973 (CrPC): 482
