Srinagar, Apr 17: The J&K High Court on Tuesday proposed to lay down certain guidelines to govern the prosecution of doctors for offences of criminal rashness and criminal negligence while attending their patients.
Justice M K Hanjura while hearing a case of an alleged medical negligence observed “statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India as well as the State government in consultation with the Medical Council of India.”
He said so long as it is not done “we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.”
The court exonerated a doctor couple after 12 years for an alleged offence of medical negligence saying that no case of recklessness or gross negligence has been found out against the doctors to compel them to face the trial.
The case related to one Dr Muqarab Hussain (aesthetician) and his wife (assistant surgeon) at Sub District Hospital (SDH) Surankote, Jammu.
The doctors were charged under section 304-A RPC (causing death by negligence) of a pregnant woman on 27th of August, 2005 in the SDH.
The patient Shamim Akhter, wife of Mohammad Rafi, of Chandi Madh, was admitted by her husband in hospital but died on the hospital bed along with her newly born baby.
According to the attendants, the lady died due to the negligence of the attending doctors.
The police initiated inquest proceedings against the doctors and a report was submitted by it before the court of magistrate at Surankote which directed for re-investigation into the matter in the light of Supreme Court guidelines.
The police then filed a charge-sheet before the court in 2013 on the same set of facts and circumstances, as detailed by it earlier.
The magistrate in 2014 charged the doctors for the commission of an offence under Section 304-A RPC.
Aggrieved by the magistrate’s order, the petitioners filed a petition in the High Court that no professional investigation was conducted into the case and it had been build against them on the statements of non-professional witness relatives of the deceased.
The High Court found that police did not make a request to the competent authority in the Health and Medical Education department to constitute a board of doctors that would examine the contours of the case to find out whether there was any negligence by the doctors as would render them liable to a criminal action.
The court said that in a case of prosecution of a medical professional for negligence under criminal law, it has to be shown authoritatively that the acts of omission and commission attributed to a person were such that no medical professional in his ordinary senses and prudence would have done or failed to do.
The act of the accused doctor should be of such a nature that the injury which resulted was most likely imminent. The law laid down on the subject is beaming and clear, it said.
The court held that it found that no case of recklessness or gross negligence can be found out against the doctors to compel them to face the trial for offence under section 304A of the IPC.
“As a result of the discussion aforesaid on the factual and legal aspect, we allow the doctors appeal and by setting aside the other court orders against them in the instant case and thereby quash the criminal proceedings pending against them,” the court ordered.
The court noticed that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken.
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, it said.
The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment, it observed.
