In a recent case decided by the Supreme Court on 10 September 2015, it has been held that where a surgical operation was performed on a patient by Government doctors in a Government hospital and the consent to operate was taken beforehand, and the patient died in spite of the operation, it will be necessary to obtain sanction under Section 197 of Criminal Procedure Code (Cr.P.C.) for prosecution of the Government doctors for the offence registered against them due to such death. A bench of Justices Dipak Misra and Prafulla C. Pant held in the case of Dr. (Smt.) Manorama Tiwari and others v. Surendra Nath Rai [Criminal Appeal No. 1193 of 2015] held that in such circumstances, the Government doctors were discharging their public duties, as they were performing surgery on the patient in the government hospital and therefore, criminal prosecution against them is not maintainable without the sanction from the state government.
Brief facts of the case are that Miss Tapsi Rai, aged 14 years, daughter of respondent Surendra Nath Rai, underwent surgery on 5.8.1997 in Maharani Government Hospital, Jagdalpur, Bastar. The operation necessitated due to pain developed by the patient in the abdomen, was performed by the appellants, namely, Dr. (Smt.) Manorama Tiwari, Dr. B.R. Kawdo and Dr. Pradeep Pandey. Before conducting the said surgery, consent to operate was taken from the respondent, i.e., the father of the patient. However, even after surgery, the condition of the patient did not improve, and she died on the same day.
An FIR was lodged by the father of the patient after lapse of more than five months relating to offence punishable under Section 304A of Indian Penal Code (IPC) at Police Station, Jagdalpur against Dr. Manorama Tiwari and Dr. Pradeep Pandey. Two different enquiries conducted into the said surgical operation showed contradictory results, one showing that the surgeons were negligent, while the other showing that there was no negligence on the part of the surgeons.
After investigation, the police did not file charge sheet. However, the father of the deceased patient filed a criminal complaint before the CJM court making allegations of commission of murder against the said 3 doctors. The said medical officers moved an application alleging that prosecution against them was not maintainable without sanction as required under Section 197 Cr.P.C. However, this application was rejected by the Magistrate, against which they filed criminal revision, but no relief was granted by the High Court. Accordingly, the said doctors filed SLP before the Supreme Court.
It was argued by the said doctors that they were discharging their public duties and had committed no negligence on their part. It was further argued that assuming but not admitting there was negligence in discharging the public duties, in view of the provisions of Section 197 Cr.P.C., the prosecution against them was not maintainable without sanction from the Government.
The Supreme Court referred to its three-Judge Bench decision in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, in which following guidelines for prosecution of medical professionals have been laid down:
“50. As we have noticed hereinabove 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 the 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 a rash or negligent act within the domain of criminal law under Section 304-A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards.
51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. 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. 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 the Bolam test [Bolam v. Frein Hospital Management Committee, (1957) 1 WLR 582: (1957) 2 All ER 118 (QBD)] 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 investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.”
The Supreme Court also referred to its decision in the case of Matajog Dubey v. H.C. Bhari, AIR 1956 SC 44, in the matters of prosecution of public servants, in which a Constitution Bench held as under:
“15. ……..Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. It was argued that Section 197, Criminal Procedure Code vested an absolutely arbitrary power in the Government to grant or withhold sanction at their sweet will and pleasure, and the legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion. There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction. …………”.
In view of the above settled position of law, the Supreme Court held that in the present case, the High Court had erred in law in dismissing the criminal revision filed by the said doctors and affirming the order of the Magistrate rejecting their application as to maintainability of the criminal complaint without sanction from the State Government. The Supreme Court further held that it was a clear case where the said Government doctors were discharging their public duties, as they were performing surgery on the patient in the Government hospital. Accordingly, it was held that their criminal prosecution by the patient’s father was not maintainable without the sanction from the State Government under the provisions of Section 197 of Cr.P.C. Therefore, the criminal proceedings against them were set aside.
