DR. SURESH GUPTA versus GOVT. OF N.C.T. OF DELHI AND ANR.

Citation: [2004] SUPP. 3 S.C.R. 323 · Decided: 04-08-2004 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Leave Granted & Allowed
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Judgment (excerpt)

DR. SURESH GUPTA 
A 
V. 
GOVT. OF N.C.T. OF DELHI AND ANR. 
AUGUST 4; 2004 
[Y.K. SABHARWAL AND D.M. DHARMADHIKARI, JJ.] 
B 
Code of Criminal Procedure, 19 7 3 : 
Section 482-lnherent power of High Court-Criminal proceedings-
Quashing of-Tests to be applied-Held : The test is that taking the C 
allegations and the complaint as they are, without adding or subtracting 
anything, if no offence is made out, the High Court will be justified in 
quashing the proceedings-On facts,, proceedings under S. 304-A !PC 
quashed. 
Penal Code, 1860 : 
D 
Section 304-A-Medical negligence-Causing death_:Liability of 
doctors-Held : Where a patient dies due to the negligent medical 
treatment of the doctor, the doctor can be made liable in civil law for 
paying compensation and damages in tort and at the same time, if the E 
degree of negligence is so gross and his act was reckless so as to endanger 
the life of the patient, he would also be made criminally liable Law of Torts. 
Section 304-A-Medical negligence-Causing death by-Standard of 
negligence-Patient died during the course of surgical operation-Caus" 
of death was due to non-introduction of a cuffed endotracheal tube of F 
proper size as to prevent aspiration of blood from the wound in the 
respiratory passage-Effect of-Held-The act attributed to the doctor, 
even if accepted to be true, can be described as negligent act as there was 
lack of due care and precaution-This act of negligence may attract 
liability in tort-But such carelessness or want of due attention and skill G 
cannot be described to be so reckless or grossly negligent as to attract 
criminal liability. 
Words & Phrases : 
"Recklessness" and "gross negligence"-Meaning of 
323 
H 
324 
SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R. 
A 
According to the prosecution, the appellant-doctor operated upon 
his patient for removing his nasal deformity. The patient died during 
the course of the surgical operation. The cause of death as per medical 
opinion was due to non-introduction of a cuffed endotracheal tube of 
proper size to prevent aspiration of blood from the wound in the 
B respiratory passage. The appellant was, therefore, charge-sheeted 
under Section 304-A of the Penal Code, 1860. The appellant filed a 
petition before the High· Court under Section 482 of the Code of 
Criminal Procedure, 1973 for quashing of the criminal proceedings, 
which was dismissed. Hence the appeal. 
c 
Allowing the appeal, the Court 
HELD : 1. It is settled position in law that the inherent power of 
the High Court under Section 482 of the Code of Criminal Procedure, 
1973 for quashing criminal proceedings can be invoked only in cases 
D where on the face of the complaint or the papers accompanying the 
same no offence is made out for proceeding with the trial, In other 
words, the test is that taking the allegations and the complaint, as they 
are, without adding or subtracting anything, if no offence is made out, 
the High Court will be justified in quashing the proceedings. [328-F-H) 
E 
F 
Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR (1983) 
SC 67 and Drugs Inspector v. B.K. Krishnaiah, AIR (1981) SC 1164, 
relied on. 
2.1. The legal position is almost firmly established that where a 
patient dies due to the negligent medical treatment of the doctor, the 
doctor can be made liable in civil law for paying compensation and 
damages in tort and at the same time, if the degree of negligence is so 
gross and his act was reckless as to endanger the life of the patient, 
he would also be made criminally liable for an offence under Section 
G 304-A of the Penal Code, 1860. (311-A-B] 
2.2. For fixing criminal liability on a doctor or a surgeon, the 
standard of negligence required to be proved should be so high as can 
be described as "gross negligence" or "recklessness". It is not merely 
H lack of necessary care, attention and skill. [332-G] 
•. 
SURESH GUPTA v. GOVT. OF N.C.T. OF DELHI 
325 
R. v. Adomako, (1994) 3 All ER 79, referred to. 
A 
3.1. Thus, when a patient agrees to go for medical treatment or 
surgical operation, every careless act of the medical man cannot be 
termed as 'criminal'. It can be termed 'criminal' only when the 
medical man exhibits a gross lack of competence or inaction and B 
wanton indifference to his patient's safety and which is found to have 
arisen from gross ignorance or gross negligence. Where a patient's 
death results merely from error of judgment or an accident, no 
criminal liability
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