Anurag Kumar Mishra vs State Of Madhya Pradesh

This petition under Section 482 of Cr.P.C, has been filed for a specific direction to the respondent on the ground that a team was constituted by the

order of Collector Rewa, dated 19.02.11, under the chairmanship of Dr. A.P. Mishra, Medical Officer Community Helth Center, The team found that

Prabhakar Singh alias Raju is practicing medicines without proper degree and training, but subsequently no action was initiated against him. Therefore,

prayer has been made to issue direction to arrest the defaulting medical practitioner Prabhakar Singh @ Raju of Chakghat and to take appropriate

action against him.

A copy of order dated 19.09.2011 and copy of ""Punchnama"" dated 27.09.2011 have been annexed in support of the aforesaid contention. Learned

counsel for the petitioner also argued that offences registered under Sections 419, 420 of I.P.C read with 15(2) of Indian Medical Council Act, at

Police Station, Chakghat on 27.09.2011.

Suffice is to say that, if any offence is made out against any one proceeding should be initiated in accordance with law. In this regard it is worth

observing that the Government of Madhya Pradesh in notification dated 11.11.2011 issued by the Director of Health Services,Â

Bhopal,Government of M.P. has stated that Investigating Officer while initiating action against a Medical Officer should follow the procedure laid

down in the case of Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1 in paragraphs 50, 51 & 52, which read as under:-

The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to

determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section

304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to

seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he

has suffered in his reputation cannot be compensated by any standards. Many a complainant prefers recourse to criminal process

as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded

against. which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from

frivolous or unjust prosecutions.

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. 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 thepart 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, (1957) 2 All ER 118, at P.121 D-F [ set out in para 19 hearein], 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.

In the case of Martin F. D'Souiza Vs. Mohd. Ishfaq (2009) 3 SCC 1 the Apex Court in Paragraph No.117 observed as under:-

We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or

National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or

Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical

negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be thenÂ

issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further

warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra),

otherwise the policemen will themselves have to face legal action.

Accordingly, this petition is disposed of with the direction that grievance of the petitioner should be considered, following the above case laws.

Keeping in view the guidelines issued by the Government of M.P. in notification dated 11.11.2011, as also guidelines laid down in the case of Jacob

Mathew (supra) and Martins F.D'Souza (supra) and if any offence is made out, action be taken in accordance with law.