JUDGMENT

D. M. DHARMADHIKARI, J. — Leave to appeal is granted.

2. The appellant who is a Doctor (Plastic Surgeon) is in the dock as an accused on the charge under Section 304A of the Indian Penal Code [for short the ‘IPC’] for causing death of his patient on 18.4.1994. The patient was operated by him for remov¬ing his nasal deformity. It may be mentioned at the outset, that the Anesthetist who was assisting the surgeon in the operation was also made co-accused but it is reported that he died pending the trial. The proceedings, therefore, stand abated against him.

3. The appellant urged before the Magistrate that the medical evidence produced by the prosecution, does not make out any case against him to proceed with the trial. The learned magistrate in deciding to proceed with the trial recorded follow¬ing reasons in the impugned order dated 28.11.1998 passed by him :

“Post mortem report is very categorical and very clear and it has been clearly mentioned therein that death was due to the complication arising out of the operation. That operation was conducted by both the accused persons. It is also clear from the material on record that deceased was young man of 38 years having no cardiac problem at all and because of the negligence of the doctors while conducting minor operation for removing nasal de¬formity, gave incision at wrong part due to that blood seeped into the respiratory passage and because of that patient immedi¬ately collapsed and died and it was also attempted to show by the accused persons that he was alive at that time and was taken to Ganga Ram Hospital for further medical attention....

It is clear from the record that patient had actually died at the clinic of the accused and therefore, I am of the opinion that there are sufficient grounds on record to make out a prima facie case against both the accused for commission of offence under Section 304A IPC. Let notice be served accordingly.” (Emphasis supplied)

4. As the Magistrate decided to proceed with the trial, the doctor approached the High Court by petition under Section 482 of the Code of Criminal Procedure. The High Court refused to quash the criminal proceedings and upheld the order of the Magis¬trate, although it records that the Metropolitan Magistrate was obviously wrong, in the absence of any medical opinion, in coming to a conclusion that the surgeon had given a cut at wrong place of the body of the patient at the time of operation leading to blood seeping into the respiratory passage and blocking it re¬sulting in his death. The High Court, however, declined to quash the proceedings against the doctor for the alleged criminal liability. In the impugned order dated 1.4.2003, it recorded its reasons thus :-

“In the present case two doctors who conducted the post-mortem examination have taken an emphatic stand which they have reiterated even after the Special Medical Board opinion, that death in this case was due to 'asphyxia resulting from blockage of respiratory passage by aspirated blood consequent upon surgically incised margin of nasal septum.’ This indicates that adequate care was not taken to prevent seepage of blood down the respira¬tory passage which resulted in asphyxia. The opinion of the Spe¬cial Medical Board is not free from ambiguity for the reasons already given. Such ambiguity can be explained by the concerned doctors when they are examined during the trial.”

5. Learned senior counsel Shri Ashok Desai appearing for the doctor, has taken us through the contents of the medical opinions produced by the prosecution with the complaint and some medical books and decided cases to submit that accepting the entire case of the prosecution, as has been laid before the trial magistrate, to be true, no case for convicting the doctor for criminal negligence under Section 304A IPC has been made out. He submits that in the larger interest of medical profession, the criminal proceedings instituted against his client deserve to be quas