Patna High Court quashes criminal proceedings against doctor observing that Men's Rea is a must for negligence to amount to an offence.

The Patna High Court has allowed quashing of criminal proceedings against a doctor and setting aside the cognizance order, holding that continuation of criminal proceedings was only a misuse of process of law. 
 
The facts leading to the present petition are that wife of complainant/opposite party no.2, was admitted to the ‘Tripathi Nursing Home, Chapra’ run by petitioner for her vaginal hysterectomy under the BPL scheme and she was operated without performing required clinical examinations/tests, as a result of which later on she developed post operational complications. It was further alleged that at the request of the petitioner, opposite party no.2 signed the discharge ticket so that the doctor may get the payment from the Government agency but the victim remained admitted in the petitioner’s nursing home. It is further alleged that when her condition did not improve, she was taken to Patna where another surgery was operated upon her in the Atlantis Hospital. However, the victim died on 12.3.2012.
 
The husband of the victim, opposite party No. 2 hereinabove filed a criminal complaint with the Judicial Magistrate by which cognizance of the offence punishable under sections 304A and 504 of the Indian Penal Code was taken against the Petitioner.
 
The Counsel for the petitioner submitted that the criminal proceedings had been instituted by the husband of the victim with ulterior motive to blackmail and harass the petitioner. The Counsel for the petitioner denied the allegations and submitted that the victim had been operated upon after thorough investigation and on following the standard operating procedure by the qualified doctors. The victim was discharged from the nursing home after full recovery from her problems and the victim's husband also signed a discharge slip and made remarks ‘excellent’. However, the victim’s husband never consulted the petitioner for alleged postoperative complications, rather last time, she was operated upon by another team of doctors in a different hospital at Patna.
 
The counsel appearing for the State as well as the victim’s husband oppose the prayer of the petitioner for quashing the cognizance order. They submitted that the allegations made in the FIR clearly constituted offence of rash negligence against the petitioner punishable under the aforesaid sections of the Penal Code.
 
The High Court observed thus:
 
“There is a difference between ‘Negligence’ and ‘Criminal Negligence’ and it is only criminal negligence which can be tried by a criminal court. For ‘Negligence’ to amount to offence, an element of mens rea must exist. So long a doctor follows practice acceptable to the medical profession of that day, he cannot be held liable for negligence. Having considered rival submissions of the parties and going through the decisions, I find that continuation of criminal proceedings would only be a misuse of the process of law. Consequently, this quashing petition is allowed and a cognizance order dated 24.9.2012 is set aside.”

Dr. Nita Tripathi vs. State Of Bihar