Case Note & Summary
The petitioners, Manipal Hospital and Dr. Shankar Kumar, filed a criminal petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) seeking to set aside an order dated 18.08.2020 passed by the LXXIII Additional City Civil and Sessions Court (CCH-74) at Mayo Hall Unit, Bengaluru in Crl.R.P.No.25021/2019. The respondent, Binayak Bhattacharjee, had filed a private complaint (P.C.R.No.55291/2018) before the Trial Court alleging medical negligence against the petitioners. The learned Magistrate, after taking cognizance and recording sworn statements, dismissed the complaint on the ground that no expert opinion had been obtained as required under Section 155(2) of the Indian Medical Council Act, 1956. Aggrieved, the respondent filed a revision petition before the Sessions Court, which set aside the Magistrate's order and restored the complaint, directing the Magistrate to take cognizance against the petitioners. The petitioners challenged this revisional order before the High Court. The High Court examined the factual matrix and the legal requirement under Section 155(2) of the Indian Medical Council Act, 1956, which mandates that before taking cognizance of an offence of medical negligence, the court must obtain the opinion of a competent medical body. The Court noted that the respondent had not obtained any such expert opinion, and the Magistrate had rightly dismissed the complaint. The Revisional Court, however, failed to consider this mandatory requirement and erroneously restored the complaint. The High Court held that the complaint was not maintainable without the expert opinion and that the Revisional Court's order was perverse and liable to be set aside. Consequently, the High Court allowed the petition, quashed the impugned order of the Revisional Court, and upheld the Magistrate's order dismissing the complaint.
Headnote
A) Criminal Procedure Code - Quashing of Complaint - Section 482 CrPC - Maintainability - Complaint alleging medical negligence against doctor and hospital was dismissed by Magistrate for want of expert opinion under Section 155(2) of Indian Medical Council Act, 1956 - Revisional Court restored complaint without considering mandatory requirement of expert opinion - Held that complaint is not maintainable without expert opinion and Revisional Court's order is liable to be set aside (Paras 2-10). B) Medical Negligence - Expert Opinion - Section 155(2) Indian Medical Council Act, 1956 - Requirement of obtaining opinion of a competent medical body before taking cognizance of offence of medical negligence - Held that the provision is mandatory and failure to obtain such opinion renders the complaint not maintainable (Paras 5-8).
Issue of Consideration
Whether a complaint alleging medical negligence against a doctor and hospital is maintainable without obtaining an expert opinion as required under Section 155(2) of the Indian Medical Council Act, 1956, and whether the Revisional Court erred in restoring the complaint without considering this requirement.
Final Decision
The High Court allowed the petition, set aside the impugned order dated 18.08.2020 passed by the LXXIII Additional City Civil and Sessions Court (CCH-74) at Mayo Hall Unit, Bengaluru in Crl.R.P.No.25021/2019, and upheld the order of the Magistrate dismissing the complaint.
Law Points
- Section 155(2) of Indian Medical Council Act
- 1956 requires expert opinion before cognizance for medical negligence
- Section 482 CrPC for quashing
- maintainability of complaint without expert opinion
