The main legal point established in the judgment is that criminal liability cannot be fastened upon a medical practitioner in the absence of expert opinion to establish intentional negligence. The court emphasized the need for adherence to the principles laid down by the Medical Council of India and highlighted the distinction between civil and criminal liability in cases of medical negligence.

JUDGMENT :

SHARAD KUMAR SHARMA, J.

1. This C-482 Application itself encompasses a very peculiar fact and circumstance, which relates to a criminal action being taken against the applicant, who is providing services in the nature, which is crucial for public at large, which could be logically termed as to be the essential service.

2. In the case at hand, the present applicant is a medical professional and a Gynaecologist. Allegation against her in the FIR No. 104 of 2018, as it was got registered at Police Station Almora, was that on a delivery of a child, as it was conducted by her on the wife of the complainant, it was alleged in the FIR, that the manner in which the treatment or the delivery process was provided by the present applicant, there has been negligence on her part because as per the allegation, it was alleged that when the delivery had taken place, the child upon his delivery was not crying, though the child was clinically keeping well, but in order to provide warmth to the child to sustain him, certain medical devices were applied by the doctor, the present applicant, to keep the child warm in order enable him to survive.

3. The allegation in the FIR was that the device, which was provided as used by the doctor to keep the child warm has resulted into making burn marks on the back of the child, which he contends, that when he has questioned the doctor about the mode of treatment provided by her, she said that it is a “birth mark” and not a burn marks, which could be said to have been caused by the device supplied by the doctor, which was not believed by the complainant and an FIR was registered by him against the applicant.

4. The FIR, which was thus registered, being FIR No. 104 of 2018 on 16th October, 2018, the allegation levelled against the present applicant was for the commission of the offence under Sections 337, 338, 504 and 285 of the IPC.

5. The matter was investigated upon and a Chargesheet No. 22 of 2019 dated 23rd April, 2019, was submitted by the Investigating Officer, on which, the cognizance has been taken by the Court of Chief Judicial Magistrate, Almora, and ultimately resulting into framing of the charge by an order dated 9th January, 2020, in Criminal Case No. 955 of 2019, State vs. Dr. Poonam Garkoti and Another.

6. The basic issue, which requires consideration by this Court in the instant case would be, that in a given set of circumstance, where a professional provides medical services in accordance to his or her hippocratic oath, it would be presumed, that no medical professional would ever spoil his or her case intentionally, by not providing a complete and adequate medical assistance to the patient and the allegation levelled in the FIR, that it was the burn mark caused because of the clinical devices supplied by the doctor, and hence, it was a case of a medical negligence, which has been established against the present applicant.

7. This Court is of the view, that the only aspect, which is required to be gone into in the instant case, apart from technical issues, which have been raised by the learned counsel for the respondent, as to what would be the nature of offence, whether it would be a summon trial or a warrant trial, this Court is of the view that in C-482 Application, where this Court exercises an inherent jurisdiction, Court has had to have a rational approach while considering such type of incident, where a medical professional is attributed with an allegation of negligence. It is always the intention which plays a pivotal role, to determine a civil or criminal liability of a medical professional.

8. This particular aspect came up for consideration before the Hon’ble Apex Court in a judgment as reported in Jacob Mathew vs. State of Punjab and Another, (2005) 6 SCC 1 wherein, factually, it was a case, where it was contended by the complainant, that owing to the medical negligence, a death has chanced of the patient resulting into a commission of the offence under Sections 304-A of the IP