IPC Sections 88 and 92 protect doctors against any professional liability for acts done in good faith

IPC Sections 88 and 92 protect doctors against any professional liability for acts done in good faith

The Indian Penal Code (IPC) has provisions for defenses for doctors under sections 88 and 92, which protect doctors from allegations of negligence, for instance, when treatment given in an emergency or a cardiopulmonary resuscitation (CPR) done is not successful.

Section 88 IPC provides for exemption for acts not intended to cause death, done by consent in good faith for person’s benefit: “Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm”.

The illustration accompanying this section explains it further: “A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death and intending in good faith, Z’s benefit performs that operation on Z, with Z’s consent. A has committed no offence”.

Section 92 provides for acts done in good faith for benefit of a person without con­sent but with provisos: “Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provided—

·         (First) That this exception shall not extend to the intentional causing of death, or the attempting to cause death;

·         (Secondly) That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmi¬ty;

·         (Thirdly) That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;

·         (Fourthly) That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend”.

Illustration ‘c’ of this section is important for doctors. “A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence”.

In Kusum Sharma & Ors vs Batra Hospital &Med Research on 10 February, 2010, the Hon’ble Supreme Court also observed as follows:

“The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals… It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners… The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”.

Both Sections 88 and 92 protect the doctor against any professional liability or allegations of medical negligence, in situations when acts done for the benefit of the patient, with or without his consent, do not have the desired outcome. These sections provide that any act done in good faith is not negligence. Doctors should be aware of these sections as a defense against cases of negligence filed against them.

Indian Penal Code & Criminal prosecution of medical doctors

Indian Penal Code & Criminal prosecution of medical doctors According to the provisions of Indian Penal Code 1860 (IPC) any act of commission or omission is not a crime unless it is accompanied by a “guilty mind” or mens rea. If it can be established without reasonable doubt that death was the result of malicious intention/gross negligence or with the knowledge that the act could cause harm and patient was not informed about the same, only then can a doctor can be charged with criminal negligence. No doctor treats a patient with an intention to harm or without taking an informed consent. Doctors must be aware of the Indian Penal Codes, under which they can be charged for negligence. They should know whether the act undertaken by them amounts to rash or gross negligent action under the provisions of the law of the country. This is very relevant today, where doctors are increasingly being subject to criminal prosecution. Is the act done in good faith with proper consent? IPC 88: Act not intended to cause death, done by consent in good faith for person’s benefit Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. Illustration A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death and intending in good faith, Z’s benefit performs that operation on Z, with Z’s consent. A has committed no offence. Has the consent taken by frightening the patient or without scientific data? IPC 90: Consent known to be given under fear or misconception A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age. Is there any violation of a special act? IPC 91: Exclusion of acts which are offences independently of harm caused: The exceptions in sections 87, 88 and 89 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given. Illustration Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act. Was the act done without consent? IPC 92. Act done in good faith for benefit of a person without con¬sent: Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provisos—Provided— (First) — That this exception shall not extend to the intentional causing of death, or the attempting to cause death; (Secondly) —That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmi¬ty; (Thirdly) -— That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt; (Fourthly) —That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend. Illustrations (c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence. How was the patient communicated? IPC 93: Communication made in good faith: No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person. Illustration A, a surgeon, in good faith, communicates to a patient his opin¬ion that he cannot live.The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death. Was it a culpable homicide? Was there any intention or knowledge? IPC299: Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 3.—The causing of the death of child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. What is the punishment for culpable homicide? IPC 304: Punishment for culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. IMA View: This penal code is not applicable to doctors unless there was intention to harm in the treatment provided or there was knowledge that the treatment can harm but the patient was not informed about the likely harm. Was it a case of gross negligence? IPC 304A: Causing death by negligence: 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.] Who certified the gross negligence? 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 (MCI). 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 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. [Jacob Mathew vs State of Punjab & Anr on 5 August, 2005: Author: R Lahoti: Bench: Cji R.C. Lahoti, G.P. Mathur, P. K. Balasubramanyan: Case No.: Appeal (crl.) 144-145 of 2004] Dr KK Aggarwal National President IMA & HCFI

MCI Code of Ethics Regulation 7.5: Conviction by Court of Law

MCI Code of Ethics Regulation 7.5: Conviction by Court of Law SC convicts docs for giving 'med asylum' to accused ex-MLA Amit Anand Choudhary | TNN | Dec 22, 2016, 05.17 AM IST NEW DELHI: The Supreme Court has convicted two senior doctors of a private hospital in Gurgaon for contempt of court for providing "medical asylum" to a former Haryana MLA who was allowed to be admitted in the hospital for 527 days without any ailment in order to frustrate the court's order to send him behind bars in a murder case. A bench of Chief Justice TS Thakur and Justices R Banumathi and UU Lalit held that the doctors — Dr Munish Prabhakar and Dr K S Sachdev — and former MLA Balbir had tried to obstruct administration of justice as there was no medical reason to justify his admission in the hospital for such a prolonged period. It directed them to be personally present in the court when it will decide the quantum of punishment for contempt of court. Such incidents harm the image of the medical profession in the society. Giving false certificates, medical asylum, filing false Mediclaim forms all spoil the image of the profession. Both doctors are convicted. Regulation 7.5 “Conviction by Court of Law: Conviction by a Court of Law for offences involving moral turpitude / Criminal acts”. Such conviction amounts to professional misconduct.

MCI Code of Ethics Regulation 7.5: Conviction by Court of Law

MCI Code of Ethics Regulation 7.5: Conviction by Court of Law 

Dr K K Aggarwal, National President IMA

SC convicts docs for giving 'med asylum' to accused ex-MLA Amit Anand Choudhary | TNN | Dec 22, 2016, 05.17 AM IST NEW DELHI: The Supreme Court has convicted two senior doctors of a private hospital in Gurgaon for contempt of court for providing "medical asylum" to a former Haryana MLA who was allowed to be admitted in the hospital for 527 days without any ailment in order to frustrate the court's order to send him behind bars in a murder case. A bench of Chief Justice TS Thakur and Justices R Banumathi and UU Lalit held that the doctors — Dr Munish Prabhakar and Dr K S Sachdev — and former MLA Balbir had tried to obstruct administration of justice as there was no medical reason to justify his admission in the hospital for such a prolonged period. It directed them to be personally present in the court when it will decide the quantum of punishment for contempt of court.

Such incidents harm the image of the medical profession in the society. Giving false certificates, medical asylum, filing false Mediclaim forms all spoil the image of the profession. Both doctors are convicted. 

Regulation 7.5 “Conviction by Court of Law: Conviction by a Court of Law for offences involving moral turpitude / Criminal acts”. Such conviction amounts to professional misconduct.

Even nurses can be booked under 304A

Even nurses can be booked under 304A In The High Court at Calcutta: (Criminal Revisional Jurisdiction): C.R.R No. 1027 of 2013: Dr. Sudhir Kumar Thakur -Vs. The State of West Bengal & Ors. The Hon’ble Mr. Justice Siddhartha Chattopadhyay Heard On: 01.03.2016, 02.03.2016, 14.03.2016, 16.03.2016, 29.03.2016, 02.05.2016. C.A.V. On : 02.05.2016. Judgment Delivered On : 20.07.2016: Siddhartha Chattopadhyay, J. 1. Challenging the legal pregnability of the Order dated 30.07.2012 passed by the Judicial Magistrate, 2nd Court Sealdah, South 24 Parganas, the petitioner-complainant has filed this revisional application under Section 401/482 of the Cr.P.C. read with Article 227 of the Constitution of India. 2. Grievance as ventilated by the applicant in this application is such that his brother S.N.Thakur died in Apollo Gleneagles Hospital due to medical negligence. In the interest of effective adjudication factual aspects needs to be revisited. The case of the de facto complainant in a capsulated form is such that his brother S.N. Thakur since deceased was admitted in Apollo Gleneagles Hospital on 07.04.2012 at 11:15 p.m. with complaints of multiple black patches on skin and bleeding from mouth. The victim patient was immediately taken to the emergency ward, where the doctor in-charge-of emergency department being assisted by a supervising nurse made an initial observation which revealed that the patient was suffering from ecchymotic patches and bleeding from oral cavity. That deceased was accompanied by one Dr. Abhijit Sarkar, who is the doctor of Employer Company. At the time of his admission in Apollo Gleneagles Hospital, the deceased was having a blood report which speaks:- 1. Platelet count – 17000/cmm 2. Neutrophil – 6% 3. Blast cell – 34% 4. RBC Morphology – Normocytic & Hypochromic 3. Condition of deceased patient was highly alarming and the doctor on duty had made a diagnosis that he was suffering from Chronic Myeloid Leukaemia and for immediate management they have administered injection Raciper and Zofar as the patient complained of nausea and vomiting. 4. The consultant Dr. Soumya Bhattacharya over telephone advised the doctor on duty to admit the patient and also advised a series of tests. No immediate treatment was given to the patient nor any such advice was given except certain clinical tests. He specifically averred that such type of patient ought to have given platelets infusion as per accepted medical procedure in a case where there as subcutaneous bleeding and low platelet count can lead to intra cranial bleeding. The progress report maintained by Dr. Nabanita Ghosh speaks the patient complained of pain in the right side of the brain to which he was given only paracetamol. Neither the consultant doctor was informed nor CT scan and admission to ICU was advised. On the next morning when the patient was found unconscious, consultant Dr. Soumya Bhattacharya was informed and he advised for infusion of four units of platelets and also for shifting the patient to ICU. Accordingly the patient was shifted to ICU after significant delay of 1 hour 45 minutes and platelet infusion was given at 12.20 p.m. Although the patient was admitted at 11:15 p.m. of previous day, but the consultant doctor for the first time examined the patient at 10:00 a.m. i.e. almost after lapse of 11 hours. It is specifically complained of that if instant platelet infusion and CT scan were made, there were chance of his survival. Dr. Sanjoy Bhowmik, Dr. Harsh Jain, Dr. Suresh Rama Subba visited the patient at 10:30 a.m. and made observation of decerebrate rigidity which indicates cerebral haemorrhage. CT scan report also speaks that. At 5:30 p.m. when the de facto complainant visited the patient at that time the patient was already having brain dead. Biological death of the patient was declared on 09.04.2012 at 3:40 p.m. It is also alleged that there is some tampering in the progress report of the patient and it was tampered by the hospital authority. 5. After lodging the F.I.R. police took up the investigation and submitted charge-sheet. Case diary reveals that Investigating Officer has taken statement of available witnesses and sent some documents to questioned document examination bureau, who opined that the said report was tampered and a medical board was constituted on the basis of a complaint and the said medical report speaks that there was some sort of negligence on the part of the hospital authority. These are the sum and substance of the prosecution case. 6. At the time of hearing learned Counsel appearing on behalf of the petitioners contended that there is serious medical negligence on the part of the doctors as well as the hospital authority and for their such rashness and negligent act caused untimely departure of his kith. He has referred to the certain points as appeared in the case diary and the history sheet along with bed head ticket. According to him, the impugned order by which the learned Court below stopped the proceeding is unheard of and bad in law. 7. Learned Counsel appearing on behalf of the accused respondent has submitted that there is no iota of evidence by which the present accused petitioner can be brought to book and the impugned order passed by the learned Court below does not suffer from any infirmity and it does not require any interference. 8. After hearing rival submission of the parties and on perusal of the case diary, it appears to me that there is no significant incriminating material appearing against the present opposite party No. 2 namely Dr. Sanjoy Bhowmik, Dr. Suresh Rama Subba, Dr. Harsh Jain. But the case diary speaks that Rossy M. Joseph who was nurse in charge of that ICU is not above board. When she was in ICU, she was supposed to look after the deceased patient but in spite of that the patient had fallen from the bed to the floor. So therefore, prima facie allegation regarding her negligent act can well be deciphered. 9. In fact, there is no evidence collected by the Investigating Officer that Dr. Suresh Rama Subba and Dr. Harsh Jain had given any effective medical treatment to the victim patient. Dr. Sanjoy Bhowmik had given a direction for his surgery. Medical board was constituted by the Government of West Bengal to ascertain the actual cause of death of Sambhu Nath Thakur and the said board opined “the patient presented with history of bleeding manifestation with blood report suggestive of Acute Leukaemia and this type of case always runs the risk of intra cranial of any other fatal haemorrhage at any time. He should be given platelet support as early as possible to save the life of the patient. There was delay in 1st visit of the consultant after admission and also delay in part of investigation specially CT scan brain and blood transfusion also. There might be certain kind of deficiencies in services given on the part of the hospital along with the attending physician and the staff should take more precaution while treating such kind of patient but unfortunately some degree of negligence (which were mentioned in discussion) was there during the time of treatment.” From the said report it reveals that there was certain kind of deficiencies in services given on the part of the hospital along with the attending physician and the staff and they should take more precaution while treating such kind of patient. The medical board concluded that there is some degree of negligence during the time of treatment. 10. The said medical board did not label any accusation against the Dr. Sanjoy Bhowmik, Dr. Harsh Jain and Dr. Suresh Rama Subba. Platelet transfusion was not done promptly which was very much required for imparting better treatment. Certain tests were prescribed but those were not done in time. The specialist doctor namely Dr. Harsh Jain and Dr. Suresh Rama Subba had advised for surgery too. But before the said surgery takes place the victim patient breathed his last. But role of Soumya Bhattacharya speaks prima facie that there was some sort of negligent act on his part which resulted in the death of the victim. From the case diary it appears particularly from the statement of Dr. Joy Basu, that Dr. Nabanita Ghosh has tampered the history sheet of the patient. It appears from the case diary that Dr. Suresh Rama Subba had attended the patient. On a close scrutiny of the case diary it appears to me that Dr. Suresh Rama Subba and Dr. Harsh Jain, after seeing the condition of the patient, advised for surgery and this surgical operation was supposed to be done by Dr. Sanjoy Bhowmik. But before the said surgery takes place the victim expired. Therefore, there is no lapse on the part of Dr. Harsh Jain, Dr. Suresh Rama Subba and Dr. Sanjoy Bhowmik. Case diary also reveals that Rossy M. Joseph nurse of that hospital had been attending the patient in the night shift. In spite of that the patient fell down from the bed to the floor, which goes to suggest that there is negligence on the part of the attending nurse i.e. Rossy M. Joseph. 11. Learned Counsel appearing on behalf of the petitioner has referred to a decision reported in AIR 1985 SCC 1285 (Bhagaban Singh –Vs.- Commissioner of Police) and submitted that before hearing the application under Section 258 of Cr.P.C., he should have been informed. This judgment relates to provision of under Section 173 (2) of Cr.P.C. Hon’ble Apex Court held that the Investigating Officer is under an obligation under Section 2 (ii) of Section 173 to communicate the action taken by him to the informant and the report forwarded by him to the Magistrate under the said section. Obviously the reason is that the informant, who sets machinery of investigation into motion by filing the F.I.R. must know the result of the investigation initiated on the basis of his F.I.R. In this instant case, charge-sheet has been submitted and so the same analogy cannot be applied in this particular case. Yes, state has appeared on behalf of the prosecution before the learned Trial Court but the de facto complainant was unaware of the fact of filing application under Section 258 of Cr.P.C. In 173 (2) of Cr.P.C. it is mandatory to inform the defacto complainant. But there is no such mandate under Section 258 of Cr.P.C. that the complainant has to be informed. Therefore, the de facto complainant cannot claim the benefit of 173 (2) of Cr.P.C. when the petition was heard under Section 258 of Cr.P.C. as of right. He has also cited another unreported decision in connection with Aruna Ramchandra Shanbaug –Vs.- Union of India & Ors., which was in connection with ‘euthanasia’. In that judgment Hon’ble Apex Court held that a decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient. That judgment is squarely applicable in this case because the patient came with a serious condition and clinical tests were not done within the shortest possible time and when he was having ‘brain dead’, there was no option left with by the doctor concerned to withdraw the life support. So it cannot be said that the act of the doctors were not bona fide. Learned Counsel appearing on behalf of the petitioner also relied on the decision reported in (2009) 9 SCC 221 (Malay Kumar Ganguly –Vs.- Dr. Sukumar Mukherjee & Ors.) In the said judgment Hon’ble Apex Court dismissed the criminal appeal but allowed the civil appeal. In this case we have to consider the criminal negligence act and nothing more. Civil wrong, if any done by the doctors, that may be decided by the consumer forum court, if such application has been filed before that authority. In the said judgment Hon’ble Apex Court held that the doctor concerned not having requisite expertise and did not follow medical treatments protocols laid down by expert. Here the picture is completely different. Nobody raised his eyebrows regarding the qualification and expertise of the doctors concerned. The de facto complainant’s main case is that the deceased was not attended by doctor at the crucial point of time. It is true that consultant doctor Mr. Bhattacharya, without seeing the patient, over telephone had directed for certain pathological tests. But the said pathological tests were not done instantly and next morning the said consultant doctor came to see the patient and till then no laboratory test was done. Dr. Harsh Jain, Dr. Suresh Rama Subba were the visiting physicians and they have contacted with Dr. Sanjoy Bhowmik for the surgical operation of the victim patient. But before the surgical operation is done, the patient expired. Due to non-availability of the clinical test reports doctors cannot be blamed. It prima facie appears that the hospital authority did not respond to the grave situation, which they were supposed to do. 12. Learned Counsel appearing on behalf of the state has referred to a decision reported in 2003 Cr.L.J. 3327 (Neela Lohitha Dasan Nadar –Vs.- State of Kerala). Spirit of the said judgment speaks that it should not be forgotten that the normal rule is that both parties do get the opportunity to adduce evidence and the Court gives its verdict on the guilt or innocence of the accused based on the evidence in the case. The Court may invoke under Section 258 of Cr.P.C. in a case where the allegations against the accused even accepting them as true, do not constitute offence or on being satisfied that there exists serious defects in the prosecution case which go to the root the matter, thereby rendering further proceedings rather impossible or futile. The power to stop proceedings at any stage has to be sparingly used that too in an extremely exceptional cases. That judgment of the Hon’ble Apex Court has been accepted in many other cases i.e. guideline which has to be adhered to by all the Courts in the country. 13. Learned Public Prosecutor has also referred to a decision reported in AIR 2004 SCC 4674 (Adalat Prasad –Vs.- Rooplal Jindal). Here the case of Jacob Mathew was considered. So, I am of the view, that the decision of Jacob Mathew is also to be considered along with this judgment so far as Section 258 of Cr.P.C. is concerned. Reason for passing the judgment in regard to Jacob Mathew’s was as such: - (1) Jurisdiction of the Magistrate to issue process arises only if the complaint contents allegation involving the accused in the commission of a crime. (2) It is open to the summoned accused to approach the Court issuing summon and convince the Court that there is no such allegation in the complaint which requires his summoning. (3) No specific provision of law is required. (4) Since it is an interim order it can be varied. Finding of that case was examined by Hon’ble Apex Court in Adalat Prasad –Vs.- Rooplal Jindal case. Views expressed that once under Section 204 of Cr.P.C. is applied then the Court cannot come back to under Section 203 of Cr.P.C. and his only remedy is under Section 482 of Cr.P.C. Mainly Hon’ble Apex Court dealt with the provisions under Section 200, 202, 203 and 204 of Cr.P.C., Hon’ble Apex Court mainly focused on Chapters XV, XVI of the Code. But scope of Section 258 of Cr.P.C. was not examined by the Hon’ble Apex Court because that was not placed before their Lordships for consideration i.e. in any summons case instituted otherwise than upon complaint i.e. police case but summons triable. Therefore, in this instant case ratio of Adalat Prasad’s case is not relevant. On the other hand Neela Lohitha’s case under Section 258 of Cr.P.C. was specifically considered and it was a police case instituted on the basis of F.I.R. The decision reported in Subramanium Sethuraman –Vs.- State of Maharashtra & Anr. reported in 2004 AIR Supreme Court 4711, is not applicable here because it was also in respect of a complaint case but the principles of Jacob Mathew’s case can be dealt with here in respect of other matters i.e. when Section 304A of Indian Penal Code can be invoked against a doctor. In that case Hon’ble Apex Court held to prosecute a medical professional for negligence under a criminal law it must be shown that the accused doctor did something or failed to do something which in the given facts and circumstances of this case no medical professional in his ordinary sense and prudence would have done or failed to do so. The hazard taken by the accused doctor should be of such a nature that injury which resulted was most likely eminent. 14. Doctor who administers a medicine known to or used in a particular branch of medical professional impliedly declares that he has knowledge of that branch of science and if he does not in fact possess that knowledge, he is prima facie acting with rashness and negligence. 15. After going through all the decisions referred to by the rival parties, I am of the view that it is perhaps needless to say that indiscriminate prosecution of medical professional of medical negligence is counter- productive to the object and scheme. If during a surgical operation hands of a surgeon begins to tremoring due to apprehension of medical negligence and that ‘Sword of Damocles’ is on his neck, he cannot render his best to carry on life saving scalpel to perform an essential surgery. In case of administering treatment with medicine, if two views are accepted by medical science, and if he applies one of them instead of using other drug and due to his such choice if the patient dies, should the doctor be penalized? In my humble view, Section 304A of Indian Penal Code although does not bear the word ‘Gross’, but while dealing with such case Court must consider it, as ‘Gross’. It must be the causa causans otherwise doctor concerned would always be under the dangling fair of facing a prosecution and to refuse to treat the patient by referring the patient to some other hospital/nursing home, clinic, which eventually would lead to disservice to the society. Court should not encourage this approach. 16. Therefore, in my humble consideration there is no merit in this application under Section 401, 482 of the Cr. P. C. read with Article 227 of the Constitution of India so far as opposite party No. 2 Dr Sanjoy Bhowmik, opposite party No. 3 Dr Suresh Rama Subba, opposite party No. 4 Dr Harsh Jain are concerned. But there is apparent gross negligence on the part of the attending nurse Rossy M. Joseph and she cannot be discharged at this stage. Accordingly, this revisional application is allowed in part in respect of Rossy M. Joseph who was attending nurse of the victim. So far as proceeding against Dr. Sanjoy Bhowmik, Dr. Suresh Rama Subba and Dr. Harsh Jain are concerned, that be stopped. 17. Let a copy of this judgment and LCR be sent to the learned Court below for information and taking necessary action and to proceed with the case in accordance with law. 18. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities. (Siddhartha Chattopadhyay, J.)/ A.F.R/N.A.F.R. www.livelaw.in

IMA View - Medical student who flung dog off rooftop arrested and later released on bail

IMA View - Medical student who flung dog off rooftop arrested and later released on bail IMA views 1. Such incidences and such people brings bad name to the profession 2. MCI or SMC can and should suspend them under MCI ethics regulation 8.5 pending investigations 3. If convicted their license should be suspended or deleted. 4. IMA condemns all such such acts of cruelty A day after the disturbing video of a dog being flung from the terrace of a four storey apartment triggered outrage, Chennai city police picked up the two suspects, both medical students, from their native towns on Tuesday night. On Wednesday morning, both of them were released on bail after judicial magistrate Judge Santhosam asked them to pay Rs 10,000 surety. According to college sources, both the students have been suspended. The accused students, Gowtham Sudharshan from Tirunelveli who threw the poor animal, and his friend Ashish Paul from Nagercoil who filmed the video, were tracked by the special teams. According to the sections of the Indian Penal Code under which the duo have been charged – Section 428 and 429 – carry a maximum prison sentence of two and five years respectively. Even if they are convicted in this case, it will not bar them from practising after completing their MBBS. Harming an innocent puppy is an indicator of psychopathy in its early stages, which is not to be taken lightly. Section 428 in The Indian Penal Code 428. Mischief by killing or maiming animal of the value of ten rupees.—Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 429 in The Indian Penal Code 429. Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees.—Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. MCI Ethics regulations: 7.5: Professional misconduct: 7.5 Conviction by Court of Law: Conviction by a Court of Law for offences involving moral turpitude / Criminal acts. 8.5 During the pendency of the complaint the appropriate Council may restrain the physician from performing the procedure or practice which is under scrutiny.