Courtesy: Harsh Vardhan
Rash and negligent acts by medical personnel which lead to the death of a person constitute a cognizable criminal offence, and as such, a First Information Report may be registered against an allegation of medical negligence. Earlier, Section 304A of the Indian Penal Code, 1860, dealt with death caused due to negligence. It states,
“Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
However, there was no distinction drawn between medical negligence and any other negligent act. With the enactment of Bharatiya Nyaya Sanhita 2023, a distinction has been drawn between medical negligence and other negligent acts. Section 106(1) of BNS states as under:
“Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.
Explanation: For the purposes of this sub-section, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.”
The new provision mandates a fine, along with imprisonment up to two years, hence removing it from the optional category as was the case under the earlier criminal laws. The offence under Section 106(1) of the BNS, specifically by a registered medical practitioner, is cognizable albeit bailable.
When does professional negligence by a medical practitioner constitute a criminal offence?
The Hon’ble Supreme Court has dealt with professional negligence by medical practitioners in the case of Dr. Suresh Gupta vs. Government of NCT of Delhi and another, 2004 Cri LJ 3870, wherein the Hon’ble Apex Court set forth a rider for invoking criminal action in case of allegation of medical negligence; the relevant portion is as follows:
21. Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as ‘criminal’. It can be termed ‘criminal’ only when the medical men exhibits a gross lack of competence or inaction and wanton indifference to his patient’s safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient’s death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.
In the landmark case of Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, the Hon’ble Apex Court laid down certain guidelines which provided for criminal prosecution in medical negligence. The Court laid down certain conclusions, and clarified step by step, filtering down from negligence to criminal liability. The relevant portion is as follows:
The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
The Hon’ble Apex Court further held that the rash and negligent act alleged against the medical practitioner must be such that it may be termed “gross”. Relevant portion is as follows:
The word ‘gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ‘grossly’.
To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
The rationale behind this is to protect doctors and medical practitioners from frivolous complaints and medical practitioners can work without fear.
Guidelines for criminal prosecution in case of Medical Negligence
The Hon’ble Apex Court has laid down the following guidelines to curb the menace of criminal prosecution of medical professionals. These guidelines are as follows:
- 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 Bolam’s test to the facts collected in the investigation.
- A doctor accused of rashness or negligence may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
In the case of Martin F. D’Souza vs. Mohd. Ishfaq, (2009) 3 SCC 1, the Hon’ble Apex Court reiterated the conclusions and guidelines laid down in the previous judgments, and held as follows:
“106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or 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. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew’s case (supra), otherwise the policemen will themselves have to face legal action.”
What is the Bolam Test?
The test for determining medical negligence laid down in the Bolam case is held to be applicable in India. As per the guidelines stated above, Bolam’s Test must be applied in criminal cases in India. McNair J. in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586 has laid down the test in the following words:
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill . . . A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
Challenge to the First Information Report or Complaint Proceedings before the Hon’ble Allahabad High Court
As an accused person, one can challenge the First Information Report in such matters by invoking the writ jurisdiction under Article 226 of the Constitution of India. If the police report has been submitted and the magistrate has taken cognizance thereon and summoned the accused to face trial, then in such a case, an application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita 2023 may be filed before the Allahabad High Court challenging the entire proceeding. If a complaint is filed, and on the said complaint, summons is issued, then the entire complaint case proceedings may be challenged by means of an application under Section 528 of the BNSS. The Allahabad High Court has consistently upheld the principles and guidelines laid down in the Jacob Mathew case, and in case of any violation, the proceedings have been quashed or stayed, as the case may be.
What are the grounds that one may take to challenge the criminal proceeding before the Hon’ble Allahabad High Court?
In the case of Dr. A.K. Gupta & Ors. v. State of U.P. 2018:AHC:173248, the court quashed the criminal proceeding against the medical professional and upheld that prosecution can only continue where allegations disclose gross negligence. However, the Allahabad High Court has also clarified in various cases that the protection available to doctors is not absolute and cannot be extended to the cases which have evidence for negligence prima facie. For instance, in the case of Dr. Ashok Kumar Rai v. State of U.P 2025: AHC:121211, the court declined to quash the criminal proceedings arising from the death of a fetus due to substantial delay. The ratio laid down by the Court is that the case must be covered by the guidelines and conclusions laid down by the Hon’ble Apex Court. Furthermore, the sight of the larger principle should not be lost, i.e. criminal prosecution of doctors in cases where negligence is not gross, or where only a case of lack of care is alleged, is antithetical to society.