A medical practitioner cannot be prosecuted for criminal negligence without a preliminary independent expert medical opinion to establish a prima facie case, consistent with guidelines provided by the Supreme Court to prevent frivolous or unjust criminal harassment of healthcare professionals.

Order

1. The instant misc. petition has been filed by the petitioner with the following prayer:-

"It is therefore, humbly prayed that your Lordships may graciously be pleased to accept and allow this writ petition and:

i. Direct the respondent no.4 to cancel the medical Registration certificate of accused.

ii. Direct the respondent no 1 to 4 to take action proper against the accused persons respondent no. 5 to 7.

iii. Direct the respondent no.3 to investigate the matter fair and impartially and file the proper investigated report in one week.

iv. Kindly order to investigate the matter by Central Bureau of investigation.

v. Cost of the Writ Petition may also be awarded in favor of the Petitioners.”

2. By way of filing the instant misc. petition, multiple prayers have been made by the petitioner including cancellation of medical registration certificate of the accused who is a medical practitioner and for taking proper action against him. A further prayer has been made for issuing directions to the Investigating Agency for conducting fair and impartial investigation in the case registered in the General Diary (Rojnamacha) No. 63/2023 Police Station Kotwali, District Dausa for the unnatural death of the petitioner’s wife-Lali Devi.

3. It has been alleged by the petitioner that his wife-Lali Devi was admitted to Khandelwal Nursing Home on 21.02.2023 for taking treatment of her eye pain. Whereupon, certain treatment was provided to her at the said hospital and she was discharged on the same day. However, her condition worsened and she was admitted to Khandelwal Nursing Home again on the next day i.e. 22.02.2023 where she was ultimately passed away. It has been alleged in the General Diary report, as well as in this petition, that on account of medical negligence of the treating Doctor, the patient i.e. petitioner’s wife had passed away. Hence, a prayer has been made for taking appropriate action against the treating Doctor, who is a registered medical practitioner.

4. The question which emerges before this Court for consideration is as to whether a registered medical practitioner can be prosecuted straightaway only on the basis of a report received at the Police Station from the family members of the victim/deceased or any inquiry is required to be conducted prior to proceeding against the Doctor, against whom the allegations of medical negligence and rashness etc. have been levelled?

5. The Hon'ble Supreme Court has dealt with an identical situation, which has arisen for consideration of this Court, in the year 2005, while deciding with the case of Jacob Mathew Vs. State of Punjab and Anr. reported in (2005) 6 SCC 1, wherein similar situation was presented before the Hon’ble Apex Court as to whether any criminal action can be taken against a registered medical practitioner straightaway on the basis of a complaint made by the victim or his family member.

6. Considering the overall circumstances, the issue was summed up in para 48, as under:-

“48. We sum up our conclusions as under:-

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to