Full Judgment Text
2026 INSC 319
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No……….. OF 2026
(Arising out of SLP (Crl) No.14803/2023)
DR. S. BALAGOPAL …APPELLANT(S)
VERSUS
STATE OF TAMIL NADU & ANR. …RESPONDENT(S)
J U D G M E N T
MANOJ MISRA, J.
1. Leave granted.
1
2. This appeal arises from a petition filed under Section 482
2
of the Code of Criminal Procedure, 1973 seeking quashing of the
proceedings in C.C. No. 13 of 2008 on the file of Judicial Magistrate
1
CRL. O.P. No. 23349/2016
Digitally signed by 2
KAVITA PAHUJA Cr.P.C.
Date: 2026.04.06
16:55:10 IST
Reason:
Signature Not Verified
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
Page 1 of 21
3
No.1, Poonamallee . By the order impugned dated 25.09.2023, the
4
High Court of Judicature at Madras rejected the prayer to quash
the proceedings and issued a direction to expedite the same.
FACTS
3. The second respondent (R-2) i.e., the de facto complainant
made a complaint, inter alia , alleging that his son, aged one and
one-half years, was admitted in a hospital for a surgical procedure
as one of his testicles had not descended into the scrotal sac.
According to R-2, doctors had obtained his consent for
Orchidopexy (i.e., the surgical procedure that moves an
undescended testicle into the scrotum), but there was no consent
for Orchidectomy (i.e., removal of testicle). R-2 also alleged that
prior to the surgery, the operating surgeon had explained that in
99 percent of such cases there is no need to remove the testicle.
Therefore, specific consent for Orchidectomy was neither sought
nor given. Yet, Orchidectomy was performed and in the consent
form, by interpolation, Orchidectomy was inserted, which
amounted to an offence of forgery.
3
The learned Magistrate
4
The High Court
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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4. Based on the aforesaid allegations, a first information
5
report was registered at P.S. Ambathur on 08.08.2006 (i.e., FIR
No. 1196 of 2006) under Sections 312, 325, 426, 120-B, 406, 465,
6
468, 471 and section 501 (1) & (2) of the Indian Penal Code, 1860 .
5. On the aforesaid FIR, the police, after investigation,
submitted a charge-sheet against the appellant (i.e., the operating
surgeon) on which the learned Magistrate took cognizance and
registered C.C. No. 13 of 2008. Aggrieved therewith, two petitions
under Section 482 of Cr.P.C. were filed before the High Court. One
was by R-2, inter alia , to constitute a Medical Board of three
members so that a fair opinion is obtained. The second was by the
appellant seeking quashing of the proceedings of C.C. No. 13 of
2008. The High Court vide order dated 19.03.2013 disposed of
these two petitions in the following terms:
“ 14. Accordingly, both the criminal original petitions,
namely Crl. O.P. No.18043 of 2008 and Crl. O.P.
No.7614 of 2008 are disposed of with the following
directions:
a) The prayer for quashing of the criminal proceedings
in CC. No.13 of 2008 made by the accused in his
petition in Crl. O.P. No.7614 of 2008 shall stand
rejected.
5
FIR
6
IPC
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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b) Since further investigation has been ordered, all
further proceedings in CC. No.13 of 2008 shall stand
stayed till the completion of the further investigation
and submission of the further report subject to a rider
that the accused shall cooperate with the Investigating
Officer in conducting further investigation.
c) The first part of the prayer made in Crl. O.P.
No.18043 of 2008 filed by the de facto complainant
viz., for a direction to the Investigating Officer to act
impartially is negatived.
d) The second part of the prayer made in Crl. O.P.
No.18043 of 2008 praying for constitution of the
Medical Board is allowed and the Director of Medical
Services, Chennai is directed to constitute a Medical
Board consisting of following persons:
i) A Specialist in Paediatric Surgery in Government
Services;
ii) An expert in Pathology in Government Services;
and
iii) An expert in Oncology in Government Services.
e) The Medical Board should be constituted within one
month from the date of receipt of a copy of this order
and the Medical Board shall submit the report as early
as possible preferably within two months from the date
of constitution of the Medical Board. The report shall
be submitted to the Investigating Officer, marking a
copy to the Registrar Judicial of the Court.
f) The Investigating Officer shall complete the
investigation within two months after the receipt of the
opinion of the Medical Board and submit further Final
report.
g) It shall not be necessary for the accused to make
periodical appearance before the learned Judicial
Magistrate I, Poonamallee till the submission of further
final report.
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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Consequently, the connected miscellaneous petitions
are closed. ”
6. Pursuant to the aforesaid directions, a Medical Board was
constituted which submitted its report dated 29.07.2010. The
same is reproduced below:
“ FACT FINDING INQUIRY REPORT BY THE MEDICAL
BOARD CONSTITUTED IN RESPECT OF CRL. O. P
No. 18043 of 2008, MP No.2, 4 & 5 of 2008 & CRL. O.
P No. 7614 OF 2008 AND MP No.1 of 2008
As per the directions of the Hon'ble High Court of
Madras issued in Crl. O P No. 18043 of 2008
M.P.No.2, 4 & 5 of 2008 and Crl. O.P No 7614 of 2008
& M.P. No 1 of 2008, I, the Director of Medical and
Rural Health Services, Chennai-6 have constituted a
Medical Board comprising the following specialists
from Government Stanley Medical College Hospital,
Chennai-1 to offer their expert medical opinion for the
Left orchidectomy surgery done to one male child
namely, (xxxx) (name masked), aged 2 years, son of
(yyyy) (name masked).
1. Dr. Mary Lilly, Professor and Head of Department,
Department of Pathology, Government Stanley
Medical College Hospital, Chennai-1
2. Dr. J. Muthukumaran, Paediatric Surgeon,
Government Stanley Medical College Hospital,
Chennai 1
3. Dr. Ravel Naveen, Professor and Head of
Department, Department of Medical Oncology,
Government Stanley Medical College Hospital,
Chennai – l
The left Orchidectomy surgery was done to the child
by one doctor namely Dr. Balagopal at M/s Sri
Ramachandra Medical Centre Hospital, Porur on
24/08/2005. Orchidectomy surgery means removal
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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of testis from the body. Orchidopexy means retaining
the testis and placing in the anatomical position in
the body. The constituted Medical Board was
convened on 01/07/20 13 and opined as follows:
The Professor of Pathology, Government Stanley
Medical College Hospital, Chennai-1 has opined as
The Histopathology Report carrying Hospital
No.0000339902 of (xxxx) (name masked) 2 years a
Male child.
Accession No G.1852/05 under the unit by Dr.
Balagopal S. dated 31/08/2005. Histopathology
Report copy received shows:
1. Microscopy describes the tissue received and
studied as on soft tissue l X 0.5 cm. No special
features/ organ mentioned.
2. Microscopy describes the tissues to be testis and
Epididymis with focal fibrotic areas.
The pathological changes observed is 'Focal fibrosis’.
No other pathological character is described.
The change described as focal fibrosis is consistent
with pathological changes observed in undescended
testis.
The Professor of Medical Oncology, Government
Stanley Medical College Hospital, Chennai-1 has
opined as
2 years old child had a history of left undescended
testis and had undergone left orchidectomy.
Pathology report shows no features of malignancy in
the undescended testis specimen.
According to the operative findings the left testis was
very small, cystic and dysplastic and hence probably
a left orchidectomy was done.
Undescended testis is a risk factor for development of
malignancy.
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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The Professor and Head of Department,
Department of Pediatric Surgery, Government
Stanley Medical College Hospital, Chennai-1 has
opined as
In case of undescended Testis generally the affected
Testis will be smaller than the normal size (or) it may
present as nubbin of tissue as the child grows (or) it
may go in form Torsion and gangrene of the testis as
a complication.
In case of Nubbin of tissue as it does not serve the
purpose (testis shape, sperm production) and more
chance of malignant transformation orchidectomy is
preferred than doing orchidopexy.
In case of torsion testis and gangrene, orchidectomy
is preferred.
As per the case sheet and operation theatre notes, the
left testis seems to be (small, cystic, dysplastic, 0.7cm
size) a nubbin of tissue when compared with the testis
on the other side. In that situation the nubbin of
tissue could have been removed after:
1. Explaining in detail about the problems of retaining
the affected testis.
2. Getting consent from the parents for doing
orchidectomy to the child.
CONCLUSIVE OPINION
Pathology Speciality report reveals that at the time of
histopathological examination there is focal fibrosis
present in the sample. (No evidence of malignant
changes).
Department of Medical Oncology report reveals that
the left testis was very small, cystic and dysplastic
and hence probably a left orchidectomy was done.
Undescended testis is a risk factor for development of
malignancy.
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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Department of Pediatric Surgery report reveals that
In case of Nubbin of tissue as it does not serve the
purpose (testis shape, sperm production) and more
chance of malignant transformation, orchidectomy is
preferred than doing orchidopexy.
a. Explaining in detail about the problems of retaining
the affected testis.
b. Getting consent from the parents for doing
orchidectomy to the child.
Hence it is opined that left orchidectomy surgery done
to the child (xxxx) (name masked), 2 years old, son of
(yyyy) (name masked) is an appropriate surgical
procedure as per medical ethics and it should have
been done with the consent of parents.
Sd/- Director of Medical and Rural Health Services”
7. On receipt of the aforesaid report, the Investigating Officer
wrote a letter to the Director, Directorate of Medical and Rural
Health Services, Chennai seeking an opinion on the consent form
which was obtained before the surgery. In response to the letter of
the Investigating Officer, a letter was issued from the office of the
Director of Medical and Rural Health Services, Chennai to the
Investigating Officer on 24.02.2014, stating as follows:
“ MEDICAL AND RURAL HEALTH SERVICES
DEPARTMENT
From
Dr. A. Chandranathan, M.D.,
Director of Medical and Rural Health Services,
Chennai - 6.
To
Inspector of Police,
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
Page 8 of 21
T-15, SRMC Police Station,
Porur, Chennai - 600 116.
Sir,
Ref. No. 32780/ E7/ 3/ 2014, dated 24.02.2014.
Sub: Criminal case in Cr.No.1196/2006 of T 15
SRMC PS – investigation pending - ascertain
clarification required - in the interest of successful
prosecution of the case -regarding.
Ref:
1. Letter along with the findings of the Tamil Nadu
Directorate of Medical and Rural Health Services
dated 27.07.2013.
2. The case is T15 SRMC PS Cr. No .1196/ 2006.
3. Your letter date is 18.01.2014.
1. The left Orchidectomy surgery done to the child
namely xxxx (name masked), 2 years old boy, Son of
yyyy (name masked) is an appropriate Surgery
Procedure as per medical ethics and it should have
been done with the consent of parents.
For this above point it is clarified that in the case
sheet it is seen that informed consent for surgery in
the printed form is attached. This printed consent is
a general procedure for all the surgeries / treatment
and is being obtained from patients in each and every
hospital. In this context, it is mentioned “I
understand that a diagnosis of Bilateral undescended
testis has been made on me and that surgical
operation Bilateral Orchidopexy / Left Orchidectomy
has been advised by my doctor”.
In any surgery, the surgeon should have explained
"what procedure he is going to do with the patient and
its complication / nature of surgery in person, to ·the
relative. In this case the doctor has adopted general
procedure of obtaining consent in the printed form in
which the 'Orchidectomy' is written, medical terms
which the parents could not understand.
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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In this particular surgery, it is ascertained that
only after opening; the surgeon have come to a
conclusion of removing the unwanted testis and
before removing the testis he has obtained the
consent in the printed form may be without
explaining the nature of surgery in detail to the
parents.
(a) He has obtained the consent of the parents of the
child specifically to conduct the surgery towards
removal of left testis of xxxx (name masked) in printed
form.
(b) Yes per used.
(c) The consent is obtained by Dr. Balagopal
explaining the consequences of retaining the left
testis, which may develop into malignancy or abscess
formation (discharge summary).
(d) Prosecution could not be made against the doctor
since he has done the procedure as per medical ethics
and as he has explained the consequences of
retaining the left testis in the body, which may form
abscess or turn malignant.
(e) No
(f) Not Applicable
As per the opinion of the Professor of Pediatric
Surgery Dr. Balagopal has obtained the formal
consent in ·the printed form (for all the surgical
purpose duly filled in) explaining in detail about the
problem of retaining the affected testis. In case of
Nubbin of tissue as it does not serve the purpose
(testis shape, sperm production) and more chance of
malignant transformation.
Hence it is opined that the Left Orchidectomy done to
one xxxx (name masked) son of Mr. yyyy (name
masked) is an appropriate surgical procedure.
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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Dr. Balagopal has obtained the consent in the
common printed form and explained in detail about
the problem of retaining the affected testis to parents,
saying the affected testis may transform to
malignancy in future.
Yours faithfully,
For Director of Medical and Rural Health Services.”
(Emphasis supplied)
8. After obtaining the report dated 24.02.2014, an additional
report was submitted giving details of the opinion of the Medical
Board as reproduced above. The charge sheet submitted reads as
under:
“ CHARGE SHEET
CHARGE SHEET IN T-15 SRMS POLICE
STATION
Crime No. 1196/2006
U/S 336, 201, 465, & 471 IPC.
……….
ACCUSED: Dr. Balagopal, Age 38/2007 S/O K.
Subramani, No. 7 Suriya Bharani Colony,
Saligramam, Chennai – 600093
The accused noted in the margin is working as
Consultant Pediatric Surgeon in SRMC Center at
Porur, within the limits of SRMC PS. The hospital
authority has authorized the accused to perform all
kinds of surgery including orchidopexy and
orchidectomy. The witness (yyyy) (name masked) is
the father of male child (xxxx) (name masked) aged
about 1 1/2 years. The witness (yyyy) (name masked)
had admitted his child (xxxx) (name masked) on
23.08.2005 at SRMC Hospital for Hernia Operation.
The hospital authority had referred the child (xxxx) to
the accused for performing Hernia Operation on the
child of witness (yyyy) (name masked) about the
nature of the operation on which he is going to
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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perform on the child i.e., hernia operation and also
obtained consent letter from the witness (yyyy) (name
masked) by clearly mentioning that the operation of
positioning of testis (bilateral Orchidopexy). The
accused has not mentioned anything about the
removal of left testicle of the child in the consent
letter. Therefore, the witness has also signed in the
document believing that the accused would perform
only bilateral Orchidopexy.
That on 24.08.2005 at about 3.30 P.M. at SRMC
Hospital Operation theatre when the child (xxxx)
(name masked) aged about 1 ½ year was admitted in
the operation theatre for hernia operation, the
accused noted in the margin being the surgeon of
SRMC Hospital had acted in a rash and negligent
manner at the time of performing the operation on the
child and due to rash and negligent act, the accused
had removed the left testicle of the child during the
hernia operation. Therefore, the accused has
committed the offence punishable u/s 336 IPC.
During the course of the same transaction the
accused, the surgeon of the same hospital, knowing
that he had performed the operation in a rash and
negligent manner which is punishable with
imprisonment, intentionally caused the
disappearance of the evidence of his rash negligent
act to escape from the legal punishment, altered the
medical documents and consent letter for performing
surgery. Thereby the accused has committed the
offence punishable u/s 201 IPC.
During the course of the same transaction, the
accused noted the margin has created a forged
document by inserting a letter “left orchidectomy” in
the consent letter of the complainant to make other to
believe that this witness (yyyy) (name masked) had
given consent for the removal of left testicle of his
child, and also used the above said forged document
as genuine to escape (sic) the legal punishment for the
offence of negligent act. Thereby the accused has
further committed the offences punishable u/s 465,
471 IPC
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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Hence the charge.
Sd/-
Inspector of Police
T-15 S.R.M.C. P.S.
Porur, Chennai - 116 ”
9. Aggrieved by the charge-sheet and the consequential
proceedings, which continued even after the additional reports of
medical experts, the appellant filed Crl. O.P. No. 23349 of 2016 for
quashing the entire proceeding pending as C.C. No. 13 of 2008 on
the file of the learned Magistrate.
10. By the impugned order, the High Court dismissed the
petition. Hence, this appeal.
11. We have heard learned counsel for the appellant as well as
the counsel appearing for the State. We also heard R-2 in person
on one date.
SUBMISSIONS ON BEHALF OF THE APPELLANT
12. The learned counsel for the appellant submitted that the
medical report submitted by the Medical Board as well as the Final
Report submitted by the Investigating Officer does not castigate the
appellant for any kind of negligence. Moreover, it is now clear that
Orchidectomy was the appropriate procedure. The only point of
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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dispute is whether the de facto complainant i.e., father of the child
was informed about the surgical procedure to be undertaken and
whether there was a proper consent for that surgical procedure. In
this regard, what is important is that there was a consent letter
signed by R-2 for the surgery. The consent form was in a printed
format and the column regarding the nature of surgery advised
indicated “Bilateral Orchidopexy/Orchidectomy.” The allegation is
that Orchidectomy was added by interpolation in the consent form
to save the doctor from the allegation of conducting surgery without
consent. It is contended that this very consent letter was sent to
the Director for his opinion and the Director had opined that there
was nothing suspicious about the consent. Besides, there is no
forensic report regarding interpolation of ‘Orchidectomy’ made in
the consent letter either by a different ink or in a different
handwriting. It is also submitted that a bare perusal of the consent
letter/form would indicate that it is in order. In these
circumstances, it was argued, the High Court had erred in not
quashing the criminal proceeding, particularly when there was a
medical report in support of appellant’s case.
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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SUBMISSIONS ON BEHALF OF THE STATE
13. Learned counsel appearing for the State submitted that
though there may be no negligence on the part of the doctor in
performing Orchidectomy, the doctor ought to have obtained a
prior consent for the said surgical procedure. Once the de facto
complainant alleges that he had not consented to Orchidectomy, it
is a matter of trial whether such consent was there or not. In such
circumstances, whether there was a valid consent or not, and
whether the consent letter has been manipulated or not, can best
be determined in a trial. Hence, the order of the High Court calls
for no interference.
SUBMISSIONS ON BEHALF OF THE DE-FACTO COMPLAINANT
14. The de-facto complainant (R-2), who appeared in person,
submitted that during surgery the doctor had asked him on phone
whether he should perform Orchidectomy or not. Further, the
doctor informed that if Orchidectomy is not performed, possibility
of malignancy in future cannot be ruled out. According to R-2, this
question of the doctor was answered in the negative and R-2 had
specifically stated that he would later consider whether removal of
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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testis is to be undertaken. Despite that, the doctor proceeded with
the surgery and removed the testicle without R-2’s consent and, to
save himself, later, the consent form was manipulated to show that
the consent was taken for Orchidectomy. In these circumstances,
he prayed that prima facie commission of offence is made out and
therefore, appeal be dismissed.
DISCUSSION
15. We have accorded due consideration to the rival submissions
and have also perused the materials available on record.
16. Before we proceed to address the rival contentions, we must
bear in mind that appellant-accused is a surgeon/doctor whose
credentials as a surgeon /doctor are not in issue. The criminal law
has invariably placed medical professionals on a pedestal different
from ordinary mortals. The IPC enacted as far back as in the year
1860 sets out a few vocal examples. Section 88 in the Chapter on
General Exceptions provides exemption for acts not intended to
cause death, done by consent in good faith for person’s benefit.
Section 92 provides for exemption for acts done in good faith for
the benefit of a person without his consent though the acts cause
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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harm to the person and that person has not consented to suffer
such harm. Based on above, and upon a review of various decisions
7
and reports, in Jacob Mathew v. State of Punjab this Court
observed:
“48 (7). To prosecute a medical professional for
negligence under criminal law it must be shown that
the accused did something or failed to do something
which in the given facts and circumstances no
medical professional in his ordinary senses and
prudence would have done or failed to do. The hazard
taken by the accused doctor should be of such a
nature that the injury which resulted was most likely
imminent.”
Having observed so, this Court proceeded to hold:
“52. … 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 the
8
Bolam test to the facts collected in the investigation.
..”
7
(2005) 6 SCC 1
8
Bolam v. Frien Hospital Management Committee, (1957) 1 WLR 582: (1957) 2 All ER 118 (QBD)
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether
there has been negligence or not is not test of the man on the top of a Clapham omnibus, because he has not got
this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that
special skill. A man need not possess the highest expert skill … It is well established law that it is sufficient if
he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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17. In the instant case, the dispute is not regarding negligence
on part of the appellant, therefore the law laid down in Jacob
Mathew (supra) may not stricto sensu apply. However, the
importance of Medical Review Board’s report cannot be
undermined. It highlights the importance of Orchidectomy in cases
related to undescended testicle. Though it is alleged by the de facto
complainant that he had not consented for Orchidectomy, it is clear
from the materials on record that prior to the surgery consent form
was obtained from the father of the child. Thus, the issue is
whether the consent was limited to surgical procedure of
Orchidopexy. According to the appellant, the consent form had
limited space in the column where the nature of surgery had to be
mentioned therefore, Orchidectomy was written by putting a slash
just below Orchidopexy in the consent form. What is important is
that the consent form was sent by the Investigating Officer to the
Director of the Medical and Rural Health Services for his opinion.
The Director had not found any fault in the consent form. Rather,
the Medical Board opines that Orchidectomy is an alternative
procedure which may be undertaken to obviate chances of
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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malignancy in future. Thus, in the opinion of the Medical Board
the procedure adopted was appropriate. Moreover, the operating
surgeon is the best judge of which one of the two procedures is to
be adopted. Therefore, the only issue which requires consideration
is whether there was any interpolation in the consent form to add
the alternative procedure (i.e., Orchidectomy).
18. Ordinarily, an issue of tampering/ interpolation in a
document being a question of fact is to be determined in a trial
based on evidence led therein and, therefore, courts must be loath
to examine such issues in a summary proceeding, like the one
under Section 482 Cr.P.C. However, there can be no absolute bar
on High Court’s power to consider questions of fact in exercise of
jurisdiction under Section 482 Cr.P.C., particularly when such
consideration is necessary to prevent the abuse of the process of
the court or to secure the ends of justice.
19. In the instant case, no malice is attributed to the doctor and
there is no dispute that the consent form was executed for
undertaking a medical procedure. Further, the medical opinion is
to the effect that the procedure adopted by the doctor was one of
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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the alternatives recognized to meet such a medical exigency. No
doubt, Medical Board’s opinion indicates that such procedure
should be carried out after obtaining consent, but there is nothing
to indicate that the consent form already obtained was not in order
or that no consent was obtained. Besides, the consent letter has
been brought on record as Annexure P-2. A perusal thereof would
indicate that in the column where the nature of proposed surgery
is to be mentioned, both types of surgery i.e., Orchidopexy and
Orchiectomy are mentioned by putting a slash (/), which means
that the other surgery, namely, Orchidectomy, was one of the
options available.
20. Taking a conspectus of all the facts and circumstances as
also that there is no material on record that alternative surgery,
namely, Orchidectomy, was entered by a different ink or in a
different handwriting, and having regard to the Medical Board’s
opinion that in such medical situations Orchidectomy is a normal
alternative, we are of the view that continuance of criminal
proceeding against the appellant would be nothing but abuse of the
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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process of the court and, therefore to secure the ends of justice,
the same is liable to be quashed.
21. Accordingly, the appeal is allowed. The impugned judgment
and order of the High Court is set aside. The proceedings of C.C.
No. 13 of 2008 on the file of the learned Magistrate are hereby
quashed. There is no order as to costs.
…............................................. J.
(Pamidigantam Sri Narasimha)
................................................ J.
(Manoj Misra)
New Delhi;
April 06, 2026
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No……….. OF 2026
(Arising out of SLP (Crl) No.14803/2023)
DR. S. BALAGOPAL …APPELLANT(S)
VERSUS
STATE OF TAMIL NADU & ANR. …RESPONDENT(S)
J U D G M E N T
MANOJ MISRA, J.
1. Leave granted.
1
2. This appeal arises from a petition filed under Section 482
2
of the Code of Criminal Procedure, 1973 seeking quashing of the
proceedings in C.C. No. 13 of 2008 on the file of Judicial Magistrate
1
CRL. O.P. No. 23349/2016
Digitally signed by 2
KAVITA PAHUJA Cr.P.C.
Date: 2026.04.06
16:55:10 IST
Reason:
Signature Not Verified
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
Page 1 of 21
3
No.1, Poonamallee . By the order impugned dated 25.09.2023, the
4
High Court of Judicature at Madras rejected the prayer to quash
the proceedings and issued a direction to expedite the same.
FACTS
3. The second respondent (R-2) i.e., the de facto complainant
made a complaint, inter alia , alleging that his son, aged one and
one-half years, was admitted in a hospital for a surgical procedure
as one of his testicles had not descended into the scrotal sac.
According to R-2, doctors had obtained his consent for
Orchidopexy (i.e., the surgical procedure that moves an
undescended testicle into the scrotum), but there was no consent
for Orchidectomy (i.e., removal of testicle). R-2 also alleged that
prior to the surgery, the operating surgeon had explained that in
99 percent of such cases there is no need to remove the testicle.
Therefore, specific consent for Orchidectomy was neither sought
nor given. Yet, Orchidectomy was performed and in the consent
form, by interpolation, Orchidectomy was inserted, which
amounted to an offence of forgery.
3
The learned Magistrate
4
The High Court
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
Page 2 of 21
4. Based on the aforesaid allegations, a first information
5
report was registered at P.S. Ambathur on 08.08.2006 (i.e., FIR
No. 1196 of 2006) under Sections 312, 325, 426, 120-B, 406, 465,
6
468, 471 and section 501 (1) & (2) of the Indian Penal Code, 1860 .
5. On the aforesaid FIR, the police, after investigation,
submitted a charge-sheet against the appellant (i.e., the operating
surgeon) on which the learned Magistrate took cognizance and
registered C.C. No. 13 of 2008. Aggrieved therewith, two petitions
under Section 482 of Cr.P.C. were filed before the High Court. One
was by R-2, inter alia , to constitute a Medical Board of three
members so that a fair opinion is obtained. The second was by the
appellant seeking quashing of the proceedings of C.C. No. 13 of
2008. The High Court vide order dated 19.03.2013 disposed of
these two petitions in the following terms:
“ 14. Accordingly, both the criminal original petitions,
namely Crl. O.P. No.18043 of 2008 and Crl. O.P.
No.7614 of 2008 are disposed of with the following
directions:
a) The prayer for quashing of the criminal proceedings
in CC. No.13 of 2008 made by the accused in his
petition in Crl. O.P. No.7614 of 2008 shall stand
rejected.
5
FIR
6
IPC
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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b) Since further investigation has been ordered, all
further proceedings in CC. No.13 of 2008 shall stand
stayed till the completion of the further investigation
and submission of the further report subject to a rider
that the accused shall cooperate with the Investigating
Officer in conducting further investigation.
c) The first part of the prayer made in Crl. O.P.
No.18043 of 2008 filed by the de facto complainant
viz., for a direction to the Investigating Officer to act
impartially is negatived.
d) The second part of the prayer made in Crl. O.P.
No.18043 of 2008 praying for constitution of the
Medical Board is allowed and the Director of Medical
Services, Chennai is directed to constitute a Medical
Board consisting of following persons:
i) A Specialist in Paediatric Surgery in Government
Services;
ii) An expert in Pathology in Government Services;
and
iii) An expert in Oncology in Government Services.
e) The Medical Board should be constituted within one
month from the date of receipt of a copy of this order
and the Medical Board shall submit the report as early
as possible preferably within two months from the date
of constitution of the Medical Board. The report shall
be submitted to the Investigating Officer, marking a
copy to the Registrar Judicial of the Court.
f) The Investigating Officer shall complete the
investigation within two months after the receipt of the
opinion of the Medical Board and submit further Final
report.
g) It shall not be necessary for the accused to make
periodical appearance before the learned Judicial
Magistrate I, Poonamallee till the submission of further
final report.
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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Consequently, the connected miscellaneous petitions
are closed. ”
6. Pursuant to the aforesaid directions, a Medical Board was
constituted which submitted its report dated 29.07.2010. The
same is reproduced below:
“ FACT FINDING INQUIRY REPORT BY THE MEDICAL
BOARD CONSTITUTED IN RESPECT OF CRL. O. P
No. 18043 of 2008, MP No.2, 4 & 5 of 2008 & CRL. O.
P No. 7614 OF 2008 AND MP No.1 of 2008
As per the directions of the Hon'ble High Court of
Madras issued in Crl. O P No. 18043 of 2008
M.P.No.2, 4 & 5 of 2008 and Crl. O.P No 7614 of 2008
& M.P. No 1 of 2008, I, the Director of Medical and
Rural Health Services, Chennai-6 have constituted a
Medical Board comprising the following specialists
from Government Stanley Medical College Hospital,
Chennai-1 to offer their expert medical opinion for the
Left orchidectomy surgery done to one male child
namely, (xxxx) (name masked), aged 2 years, son of
(yyyy) (name masked).
1. Dr. Mary Lilly, Professor and Head of Department,
Department of Pathology, Government Stanley
Medical College Hospital, Chennai-1
2. Dr. J. Muthukumaran, Paediatric Surgeon,
Government Stanley Medical College Hospital,
Chennai 1
3. Dr. Ravel Naveen, Professor and Head of
Department, Department of Medical Oncology,
Government Stanley Medical College Hospital,
Chennai – l
The left Orchidectomy surgery was done to the child
by one doctor namely Dr. Balagopal at M/s Sri
Ramachandra Medical Centre Hospital, Porur on
24/08/2005. Orchidectomy surgery means removal
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
Page 5 of 21
of testis from the body. Orchidopexy means retaining
the testis and placing in the anatomical position in
the body. The constituted Medical Board was
convened on 01/07/20 13 and opined as follows:
The Professor of Pathology, Government Stanley
Medical College Hospital, Chennai-1 has opined as
The Histopathology Report carrying Hospital
No.0000339902 of (xxxx) (name masked) 2 years a
Male child.
Accession No G.1852/05 under the unit by Dr.
Balagopal S. dated 31/08/2005. Histopathology
Report copy received shows:
1. Microscopy describes the tissue received and
studied as on soft tissue l X 0.5 cm. No special
features/ organ mentioned.
2. Microscopy describes the tissues to be testis and
Epididymis with focal fibrotic areas.
The pathological changes observed is 'Focal fibrosis’.
No other pathological character is described.
The change described as focal fibrosis is consistent
with pathological changes observed in undescended
testis.
The Professor of Medical Oncology, Government
Stanley Medical College Hospital, Chennai-1 has
opined as
2 years old child had a history of left undescended
testis and had undergone left orchidectomy.
Pathology report shows no features of malignancy in
the undescended testis specimen.
According to the operative findings the left testis was
very small, cystic and dysplastic and hence probably
a left orchidectomy was done.
Undescended testis is a risk factor for development of
malignancy.
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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The Professor and Head of Department,
Department of Pediatric Surgery, Government
Stanley Medical College Hospital, Chennai-1 has
opined as
In case of undescended Testis generally the affected
Testis will be smaller than the normal size (or) it may
present as nubbin of tissue as the child grows (or) it
may go in form Torsion and gangrene of the testis as
a complication.
In case of Nubbin of tissue as it does not serve the
purpose (testis shape, sperm production) and more
chance of malignant transformation orchidectomy is
preferred than doing orchidopexy.
In case of torsion testis and gangrene, orchidectomy
is preferred.
As per the case sheet and operation theatre notes, the
left testis seems to be (small, cystic, dysplastic, 0.7cm
size) a nubbin of tissue when compared with the testis
on the other side. In that situation the nubbin of
tissue could have been removed after:
1. Explaining in detail about the problems of retaining
the affected testis.
2. Getting consent from the parents for doing
orchidectomy to the child.
CONCLUSIVE OPINION
Pathology Speciality report reveals that at the time of
histopathological examination there is focal fibrosis
present in the sample. (No evidence of malignant
changes).
Department of Medical Oncology report reveals that
the left testis was very small, cystic and dysplastic
and hence probably a left orchidectomy was done.
Undescended testis is a risk factor for development of
malignancy.
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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Department of Pediatric Surgery report reveals that
In case of Nubbin of tissue as it does not serve the
purpose (testis shape, sperm production) and more
chance of malignant transformation, orchidectomy is
preferred than doing orchidopexy.
a. Explaining in detail about the problems of retaining
the affected testis.
b. Getting consent from the parents for doing
orchidectomy to the child.
Hence it is opined that left orchidectomy surgery done
to the child (xxxx) (name masked), 2 years old, son of
(yyyy) (name masked) is an appropriate surgical
procedure as per medical ethics and it should have
been done with the consent of parents.
Sd/- Director of Medical and Rural Health Services”
7. On receipt of the aforesaid report, the Investigating Officer
wrote a letter to the Director, Directorate of Medical and Rural
Health Services, Chennai seeking an opinion on the consent form
which was obtained before the surgery. In response to the letter of
the Investigating Officer, a letter was issued from the office of the
Director of Medical and Rural Health Services, Chennai to the
Investigating Officer on 24.02.2014, stating as follows:
“ MEDICAL AND RURAL HEALTH SERVICES
DEPARTMENT
From
Dr. A. Chandranathan, M.D.,
Director of Medical and Rural Health Services,
Chennai - 6.
To
Inspector of Police,
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
Page 8 of 21
T-15, SRMC Police Station,
Porur, Chennai - 600 116.
Sir,
Ref. No. 32780/ E7/ 3/ 2014, dated 24.02.2014.
Sub: Criminal case in Cr.No.1196/2006 of T 15
SRMC PS – investigation pending - ascertain
clarification required - in the interest of successful
prosecution of the case -regarding.
Ref:
1. Letter along with the findings of the Tamil Nadu
Directorate of Medical and Rural Health Services
dated 27.07.2013.
2. The case is T15 SRMC PS Cr. No .1196/ 2006.
3. Your letter date is 18.01.2014.
1. The left Orchidectomy surgery done to the child
namely xxxx (name masked), 2 years old boy, Son of
yyyy (name masked) is an appropriate Surgery
Procedure as per medical ethics and it should have
been done with the consent of parents.
For this above point it is clarified that in the case
sheet it is seen that informed consent for surgery in
the printed form is attached. This printed consent is
a general procedure for all the surgeries / treatment
and is being obtained from patients in each and every
hospital. In this context, it is mentioned “I
understand that a diagnosis of Bilateral undescended
testis has been made on me and that surgical
operation Bilateral Orchidopexy / Left Orchidectomy
has been advised by my doctor”.
In any surgery, the surgeon should have explained
"what procedure he is going to do with the patient and
its complication / nature of surgery in person, to ·the
relative. In this case the doctor has adopted general
procedure of obtaining consent in the printed form in
which the 'Orchidectomy' is written, medical terms
which the parents could not understand.
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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In this particular surgery, it is ascertained that
only after opening; the surgeon have come to a
conclusion of removing the unwanted testis and
before removing the testis he has obtained the
consent in the printed form may be without
explaining the nature of surgery in detail to the
parents.
(a) He has obtained the consent of the parents of the
child specifically to conduct the surgery towards
removal of left testis of xxxx (name masked) in printed
form.
(b) Yes per used.
(c) The consent is obtained by Dr. Balagopal
explaining the consequences of retaining the left
testis, which may develop into malignancy or abscess
formation (discharge summary).
(d) Prosecution could not be made against the doctor
since he has done the procedure as per medical ethics
and as he has explained the consequences of
retaining the left testis in the body, which may form
abscess or turn malignant.
(e) No
(f) Not Applicable
As per the opinion of the Professor of Pediatric
Surgery Dr. Balagopal has obtained the formal
consent in ·the printed form (for all the surgical
purpose duly filled in) explaining in detail about the
problem of retaining the affected testis. In case of
Nubbin of tissue as it does not serve the purpose
(testis shape, sperm production) and more chance of
malignant transformation.
Hence it is opined that the Left Orchidectomy done to
one xxxx (name masked) son of Mr. yyyy (name
masked) is an appropriate surgical procedure.
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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Dr. Balagopal has obtained the consent in the
common printed form and explained in detail about
the problem of retaining the affected testis to parents,
saying the affected testis may transform to
malignancy in future.
Yours faithfully,
For Director of Medical and Rural Health Services.”
(Emphasis supplied)
8. After obtaining the report dated 24.02.2014, an additional
report was submitted giving details of the opinion of the Medical
Board as reproduced above. The charge sheet submitted reads as
under:
“ CHARGE SHEET
CHARGE SHEET IN T-15 SRMS POLICE
STATION
Crime No. 1196/2006
U/S 336, 201, 465, & 471 IPC.
……….
ACCUSED: Dr. Balagopal, Age 38/2007 S/O K.
Subramani, No. 7 Suriya Bharani Colony,
Saligramam, Chennai – 600093
The accused noted in the margin is working as
Consultant Pediatric Surgeon in SRMC Center at
Porur, within the limits of SRMC PS. The hospital
authority has authorized the accused to perform all
kinds of surgery including orchidopexy and
orchidectomy. The witness (yyyy) (name masked) is
the father of male child (xxxx) (name masked) aged
about 1 1/2 years. The witness (yyyy) (name masked)
had admitted his child (xxxx) (name masked) on
23.08.2005 at SRMC Hospital for Hernia Operation.
The hospital authority had referred the child (xxxx) to
the accused for performing Hernia Operation on the
child of witness (yyyy) (name masked) about the
nature of the operation on which he is going to
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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perform on the child i.e., hernia operation and also
obtained consent letter from the witness (yyyy) (name
masked) by clearly mentioning that the operation of
positioning of testis (bilateral Orchidopexy). The
accused has not mentioned anything about the
removal of left testicle of the child in the consent
letter. Therefore, the witness has also signed in the
document believing that the accused would perform
only bilateral Orchidopexy.
That on 24.08.2005 at about 3.30 P.M. at SRMC
Hospital Operation theatre when the child (xxxx)
(name masked) aged about 1 ½ year was admitted in
the operation theatre for hernia operation, the
accused noted in the margin being the surgeon of
SRMC Hospital had acted in a rash and negligent
manner at the time of performing the operation on the
child and due to rash and negligent act, the accused
had removed the left testicle of the child during the
hernia operation. Therefore, the accused has
committed the offence punishable u/s 336 IPC.
During the course of the same transaction the
accused, the surgeon of the same hospital, knowing
that he had performed the operation in a rash and
negligent manner which is punishable with
imprisonment, intentionally caused the
disappearance of the evidence of his rash negligent
act to escape from the legal punishment, altered the
medical documents and consent letter for performing
surgery. Thereby the accused has committed the
offence punishable u/s 201 IPC.
During the course of the same transaction, the
accused noted the margin has created a forged
document by inserting a letter “left orchidectomy” in
the consent letter of the complainant to make other to
believe that this witness (yyyy) (name masked) had
given consent for the removal of left testicle of his
child, and also used the above said forged document
as genuine to escape (sic) the legal punishment for the
offence of negligent act. Thereby the accused has
further committed the offences punishable u/s 465,
471 IPC
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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Hence the charge.
Sd/-
Inspector of Police
T-15 S.R.M.C. P.S.
Porur, Chennai - 116 ”
9. Aggrieved by the charge-sheet and the consequential
proceedings, which continued even after the additional reports of
medical experts, the appellant filed Crl. O.P. No. 23349 of 2016 for
quashing the entire proceeding pending as C.C. No. 13 of 2008 on
the file of the learned Magistrate.
10. By the impugned order, the High Court dismissed the
petition. Hence, this appeal.
11. We have heard learned counsel for the appellant as well as
the counsel appearing for the State. We also heard R-2 in person
on one date.
SUBMISSIONS ON BEHALF OF THE APPELLANT
12. The learned counsel for the appellant submitted that the
medical report submitted by the Medical Board as well as the Final
Report submitted by the Investigating Officer does not castigate the
appellant for any kind of negligence. Moreover, it is now clear that
Orchidectomy was the appropriate procedure. The only point of
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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dispute is whether the de facto complainant i.e., father of the child
was informed about the surgical procedure to be undertaken and
whether there was a proper consent for that surgical procedure. In
this regard, what is important is that there was a consent letter
signed by R-2 for the surgery. The consent form was in a printed
format and the column regarding the nature of surgery advised
indicated “Bilateral Orchidopexy/Orchidectomy.” The allegation is
that Orchidectomy was added by interpolation in the consent form
to save the doctor from the allegation of conducting surgery without
consent. It is contended that this very consent letter was sent to
the Director for his opinion and the Director had opined that there
was nothing suspicious about the consent. Besides, there is no
forensic report regarding interpolation of ‘Orchidectomy’ made in
the consent letter either by a different ink or in a different
handwriting. It is also submitted that a bare perusal of the consent
letter/form would indicate that it is in order. In these
circumstances, it was argued, the High Court had erred in not
quashing the criminal proceeding, particularly when there was a
medical report in support of appellant’s case.
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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SUBMISSIONS ON BEHALF OF THE STATE
13. Learned counsel appearing for the State submitted that
though there may be no negligence on the part of the doctor in
performing Orchidectomy, the doctor ought to have obtained a
prior consent for the said surgical procedure. Once the de facto
complainant alleges that he had not consented to Orchidectomy, it
is a matter of trial whether such consent was there or not. In such
circumstances, whether there was a valid consent or not, and
whether the consent letter has been manipulated or not, can best
be determined in a trial. Hence, the order of the High Court calls
for no interference.
SUBMISSIONS ON BEHALF OF THE DE-FACTO COMPLAINANT
14. The de-facto complainant (R-2), who appeared in person,
submitted that during surgery the doctor had asked him on phone
whether he should perform Orchidectomy or not. Further, the
doctor informed that if Orchidectomy is not performed, possibility
of malignancy in future cannot be ruled out. According to R-2, this
question of the doctor was answered in the negative and R-2 had
specifically stated that he would later consider whether removal of
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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testis is to be undertaken. Despite that, the doctor proceeded with
the surgery and removed the testicle without R-2’s consent and, to
save himself, later, the consent form was manipulated to show that
the consent was taken for Orchidectomy. In these circumstances,
he prayed that prima facie commission of offence is made out and
therefore, appeal be dismissed.
DISCUSSION
15. We have accorded due consideration to the rival submissions
and have also perused the materials available on record.
16. Before we proceed to address the rival contentions, we must
bear in mind that appellant-accused is a surgeon/doctor whose
credentials as a surgeon /doctor are not in issue. The criminal law
has invariably placed medical professionals on a pedestal different
from ordinary mortals. The IPC enacted as far back as in the year
1860 sets out a few vocal examples. Section 88 in the Chapter on
General Exceptions provides exemption for acts not intended to
cause death, done by consent in good faith for person’s benefit.
Section 92 provides for exemption for acts done in good faith for
the benefit of a person without his consent though the acts cause
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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harm to the person and that person has not consented to suffer
such harm. Based on above, and upon a review of various decisions
7
and reports, in Jacob Mathew v. State of Punjab this Court
observed:
“48 (7). To prosecute a medical professional for
negligence under criminal law it must be shown that
the accused did something or failed to do something
which in the given facts and circumstances no
medical professional in his ordinary senses and
prudence would have done or failed to do. The hazard
taken by the accused doctor should be of such a
nature that the injury which resulted was most likely
imminent.”
Having observed so, this Court proceeded to hold:
“52. … 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 the
8
Bolam test to the facts collected in the investigation.
..”
7
(2005) 6 SCC 1
8
Bolam v. Frien Hospital Management Committee, (1957) 1 WLR 582: (1957) 2 All ER 118 (QBD)
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether
there has been negligence or not is not test of the man on the top of a Clapham omnibus, because he has not got
this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that
special skill. A man need not possess the highest expert skill … It is well established law that it is sufficient if
he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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17. In the instant case, the dispute is not regarding negligence
on part of the appellant, therefore the law laid down in Jacob
Mathew (supra) may not stricto sensu apply. However, the
importance of Medical Review Board’s report cannot be
undermined. It highlights the importance of Orchidectomy in cases
related to undescended testicle. Though it is alleged by the de facto
complainant that he had not consented for Orchidectomy, it is clear
from the materials on record that prior to the surgery consent form
was obtained from the father of the child. Thus, the issue is
whether the consent was limited to surgical procedure of
Orchidopexy. According to the appellant, the consent form had
limited space in the column where the nature of surgery had to be
mentioned therefore, Orchidectomy was written by putting a slash
just below Orchidopexy in the consent form. What is important is
that the consent form was sent by the Investigating Officer to the
Director of the Medical and Rural Health Services for his opinion.
The Director had not found any fault in the consent form. Rather,
the Medical Board opines that Orchidectomy is an alternative
procedure which may be undertaken to obviate chances of
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
Page 18 of 21
malignancy in future. Thus, in the opinion of the Medical Board
the procedure adopted was appropriate. Moreover, the operating
surgeon is the best judge of which one of the two procedures is to
be adopted. Therefore, the only issue which requires consideration
is whether there was any interpolation in the consent form to add
the alternative procedure (i.e., Orchidectomy).
18. Ordinarily, an issue of tampering/ interpolation in a
document being a question of fact is to be determined in a trial
based on evidence led therein and, therefore, courts must be loath
to examine such issues in a summary proceeding, like the one
under Section 482 Cr.P.C. However, there can be no absolute bar
on High Court’s power to consider questions of fact in exercise of
jurisdiction under Section 482 Cr.P.C., particularly when such
consideration is necessary to prevent the abuse of the process of
the court or to secure the ends of justice.
19. In the instant case, no malice is attributed to the doctor and
there is no dispute that the consent form was executed for
undertaking a medical procedure. Further, the medical opinion is
to the effect that the procedure adopted by the doctor was one of
Criminal Appeal arising out of SLP (Crl.) No. 14803/2023
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the alternatives recognized to meet such a medical exigency. No
doubt, Medical Board’s opinion indicates that such procedure
should be carried out after obtaining consent, but there is nothing
to indicate that the consent form already obtained was not in order
or that no consent was obtained. Besides, the consent letter has
been brought on record as Annexure P-2. A perusal thereof would
indicate that in the column where the nature of proposed surgery
is to be mentioned, both types of surgery i.e., Orchidopexy and
Orchiectomy are mentioned by putting a slash (/), which means
that the other surgery, namely, Orchidectomy, was one of the
options available.
20. Taking a conspectus of all the facts and circumstances as
also that there is no material on record that alternative surgery,
namely, Orchidectomy, was entered by a different ink or in a
different handwriting, and having regard to the Medical Board’s
opinion that in such medical situations Orchidectomy is a normal
alternative, we are of the view that continuance of criminal
proceeding against the appellant would be nothing but abuse of the
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process of the court and, therefore to secure the ends of justice,
the same is liable to be quashed.
21. Accordingly, the appeal is allowed. The impugned judgment
and order of the High Court is set aside. The proceedings of C.C.
No. 13 of 2008 on the file of the learned Magistrate are hereby
quashed. There is no order as to costs.
…............................................. J.
(Pamidigantam Sri Narasimha)
................................................ J.
(Manoj Misra)
New Delhi;
April 06, 2026
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