Dr. Rajesh Kumar @ Rajesh Kumar vs State Of Bihar and Anr

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.19013 of 2016
Arising Out of PS. Case No.-314 Year-2015 Thana- BRAHMPURA District- Muzaffarpur
======================================================
Dr. Rajesh Kumar @ Rajesh Kumar, Son of Chakradhar Prasad Singh,
Resident of Indraprasth Nursing Home, Juran Chapara, P.S.- Brahmpura,
District- Muzaffarpur.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Rima Devi, Wife of Sikindar Mahto, Resident of Village- Dostapur, P.S.-
Sahebganj, District- Muzaffarpur.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Deepak Kumar, Advocate
For the State : Mr. R.B.Roy Raman, APP
For the O.P. No.2 : Mr. Yashraj Bardhan, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
Date : 29-06-2026
1. Heard learned counsel for the petitioner as well
as learned counsel for the O.P. No.2 and learned APP for the
State.
2. The present application has been filed under
Section 482 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘Cr.P.C.’) for quashing the order dated
29.02.2016 passed by learned Chief Judicial Magistrate,
Muzaffarpur (hereinafter referred to as ‘Trial Court’) in
connection with Brahampura P.S. Case No.314 of 2015, wherein
the learned Trial Court took cognizance of the offence under
Section 337, 338 and 506 of the Indian Penal Code, 1860
against the petitioner herein.
3. Briefly stated, the prosecution case is that on the

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basis of the fardbeyan of the informant (O.P. No.2), Reema
Devi, Brahampura P.S. Case No.314 of 2015 came to be
instituted alleging, inter alia , that the informant (O.P. No.2) was
admitted in the Nursing Home of the present petitioner in July,
2014 for delivery of a child and underwent a surgical procedure.
It is alleged that after the operation she developed serious
complications and, upon subsequent treatment by different
doctors, it was discovered in an ultrasound that a surgical towel
had allegedly been left inside her abdomen during the operation
conducted by the present petitioner, which was taken out by a
subsequent operation performed by Dr. Ashraf Hussain at
Motihari and since then her condition improved. On the basis of
the said allegation, the informant (O.P. No.2) claimed to have
suffered prolonged illness, incurred substantial medical
expenses and further alleged that her child had died due to the
consequences arising from the negligent treatment. After
investigation, the police submitted chargesheet dated 29.01.2016
bearing C.S. No.7 of 2016 against the petitioner under Sections
337, 338 and 506 of the Indian Penal Code.
4. Upon perusal of the materials available on
record, the learned Trial Court, finding a prima facie case to be
made out, took cognizance of the offences punishable under

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Sections 337, 338 and 506 of the Indian Penal Code vide the
impugned order dated 29.02.2016 in connection with
Brahampura P.S. Case No.314 of 2015 (Trial No.1807 of 2016).
Aggrieved by the aforesaid impugned order of cognizance, the
petitioner herein has preferred the present application invoking
the inherent jurisdiction of this Court seeking quashing of the
impugned order as well as the entire criminal proceeding arising
therefrom.
5. Learned counsel for the petitioner submitted that
the impugned order of cognizance is wholly unsustainable in
law as the same has been passed in a mechanical manner
without proper appreciation of the materials available on record.
It is submitted that the allegations levelled in the F.I.R. pertain
to alleged medical negligence and, therefore, before initiation of
criminal prosecution against a medical professional, an
independent opinion of a competent medical expert or a duly
constituted Medical Board was mandatory in view of the
principles laid down by the Hon’ble Supreme Court in catena of
cases. It is submitted that despite the Investigating Officer
having sought opinion from the Civil Surgeon, chargesheet was
submitted and cognizance was taken even before receipt of the
expert opinion, thereby vitiating the entire proceeding.

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6. Learned counsel for the petitioner submitted that
the O.P. No.2 was admitted to Indraprastha Nursing Home on
07.07.2014 and her Lower Segment Cesarean Section (LSCS)
was done on the same day, thereafter she was kept under
medical observation and further she was discharged on
15.07.2014 in good condition. It is further submitted that on
24.07.2014, the O.P. No.2, after having complaint of excessive
gas and non passing of flatus and stool at home, went through
ultrasound and X-Ray of her abdomen on the advice of Dr.
(Prof.) Rajiv Bhushan Sinha (Ex-H.O.D. Surgery, S.K.M.C.H.)
and radiologist Dr. Vinayak Gautam where she was diagnosed
with ‘intestinal obstruction and primary peritonitis’, and there
was no evidence of presence of any foreign body inside her
abdominal cavity. It is submitted that on 24.07.2014, the
attendant of O.P. No.2 consulted the petitioner with the reports
and prescription of Dr. (Prof.) Rajiv Bhushan Sinha and
requested for her operation. He next submitted that on
26.07.2014, O.P. No.2 was operated and her adhenolysis and
drainage of collection was done and no foreign object was found
inside her abdomen during the operation. Learned counsel
submitted that on request of the attendant of the O.P. No.2 due
to unavailability of blood and financial constraints, O.P. No.2

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was referred to S.K.M.C.H. on 02.08.2014, where she was
admitted from 02.08.2014 to 26.09.2014. An ultrasound on
04.08.2014 found everything normal with no foreign body. On
08.08.2014 she suffered ‘brust abdomen’ and during its surgical
repair and subsequent observation up to 18.08.2014, the
government surgical unit explicitly noted nothing or seen inside
the abdomen. On 04.11.2014, Ultrasound conducted at Anupam
Ultrasound Centre by Dr. Bhartendu Kumar which showed a 12
ml abscess collection, confirming no foreign body.
7. It is submitted that the story that a surgical towel
was removed on 24.02.2015 by Dr. Ashraf Hussain is an
afterthought with ulterior motive. The operation of O.P. No.2
was conducted by the petitioner on 26.07.2014 and the
fardbeyan was recorded on 10.12.2015 i.e. after more than one
year. It is impossible for a large surgical towel or tetra to remain
undetected across three separate open-cavity surgical procedure
and three target ultrasound scans performed by independent
government specialist and radiologist between July and
November, 2014.
8. Learned counsel further submitted that the
materials brought on record during investigation do not disclose
commission of any offence under Sections 337, 338 or 506 of

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the Indian Penal Code. It is submitted that several ultrasound
examinations conducted after the O.P. No.2 was referred from
the petitioner’s Nursing Home did not reveal the presence of
any foreign body inside her abdomen. It is further submitted that
the Medical Board constituted by the Civil Surgeon,
Muzaffarpur also found no proof regarding recovery of any
surgical towel from the abdomen of the informant. It is further
submitted that the complications suffered by the O.P. No.2 were
known post-operative complications and cannot, by themselves,
constitute criminal negligence.
9. It is lastly submitted by the learned counsel for
petitioner that there is absolutely no allegation constituting the
offence of criminal intimidation so as to attract Section 506 of
the Indian Penal Code. He submitted that the criminal
proceeding, therefore, is to be manifestly attended with mala
fide intention and continuation thereof would amount to abuse
of the process of the Court. On the aforesaid grounds, learned
counsel submitted for quashing of the impugned order of
cognizance as well as the entire criminal proceeding arising
therefrom against the petitioner.
10. Learned counsel for the O.P. No.2 opposed the
present application and submitted that the allegations made in

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the F.I.R., the materials collected during investigation and the
chargesheet submitted by the police disclose a prima facie case
against the petitioner. It is submitted that the O.P. No.2 had to
undergo prolonged treatment after the surgery conducted by the
petitioner and, according to the prosecution case, a surgical
towel was ultimately detected and removed from her abdomen,
resulting in improvement in her condition. It is further submitted
that the question whether the petitioner has committed medical
negligence or not to be determined by the learned Trial Court
upon considering the evidence adduced by the parties thereto in
their entirety. Learned counsel, therefore, submitted that the
impugned order does not suffer from any legal infirmity
warranting interference by this Court.
11. Learned APP for the State submitted that the
learned Trial Court has taken cognizance upon consideration of
the police report and materials collected during investigation. It
is submitted that at the stage of cognizance, meticulous
appreciation of evidence is not required and, in view thereof,
appropriate order may be passed by this Court in the interest of
justice.
12. I have considered the rival submissions
advanced on behalf of the parties and perused the materials

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available on record. Before adverting to the merits of the case, it
would be apposite to notice the scope of interference under
Section 482 of the Cr.P.C. It is well settled that the inherent
jurisdiction of the High Court is to be exercised sparingly,
carefully and with great caution to prevent abuse of the process
of any Court or otherwise to secure the ends of justice. While
exercising such jurisdiction, the Court is not expected to
conduct a meticulous examination of the evidence or adjudicate
disputed questions of fact. However, where the allegations made
in the F.I.R., even if taken at their face value and accepted in
their entirety, do not disclose the commission of any offence, or
where continuation of the criminal proceeding would amount to
abuse of the process of law, the High Court would be justified in
exercising its inherent powers to quash the proceeding.
13. At the outset, it would be apposite to note that
the law relating to criminal prosecution of medical professionals
stands on a distinct footing. The jurisprudence evolved by the
Hon’ble Supreme Court recognizes that the medical profession
inherently involves the exercise of professional judgment in
situations where different courses of treatment may legitimately
be adopted. A medical practitioner cannot be held criminally
liable merely because the treatment administered did not yield

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the desired result or because a complication arose during or after
a surgical procedure. It can be inferred that criminal liability
arises only where the act complained of is shown to be so
grossly negligent or reckless that it transcends the realm of a
mere error of judgment and assumes the character of a crime. It
is for this reason that the Courts have consistently insisted upon
independent medical opinion before permitting criminal
prosecution of a doctor for alleged professional negligence.
14. Keeping the aforesaid principles in mind, this
Court proceeds to examine whether the materials collected
during investigation disclose the ingredients of the offences
alleged against the petitioner and whether continuation of the
prosecution would amount to an abuse of the process of the
Court.
15. Upon perusal of the materials collected during
investigation and the documents brought on record by the
petitioner, it is explicit that the gravamen of the accusation
against the petitioner is that while conducting the operation of
the O.P. No.2 (informant) in July, 2014, the petitioner
negligently left a surgical towel inside her abdomen, resulting in
prolonged illness and subsequent medical complications. It is to
be noted that the petitioner herein is a surgeon/doctor whose

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credentials as a surgeon/doctor are not in issue. It is, however,
evident from the records that after the O.P. No.2 was discharged
from the Nursing Home of the petitioner and referred to
S.K.M.C.H., Muzaffarpur, she underwent treatment at different
medical institutions and was subjected to several diagnostic
examinations. Significantly, the ultrasound examinations
conducted on 04.08.2014 at S.K.M.C.H., on 04.11.2014 at
Anupam Ultrasound and Colour Doppler Centre and on
02.02.2015 pursuant to medical advice of subsequent treating
doctors do not appear to disclose the presence of any foreign
body inside the abdomen of the O.P. No.2. Rather, the reports
refer to fluid collection, abscess formation and other post-
operative complications.
16. It further transpires from the materials on
record that the O.P. No.2 was admitted at S.K.M.C.H. after
being referred by the petitioner and remained under treatment
there for a considerable period. The records indicate that she
suffered from “burst abdomen”, a recognised post-operative
complication, and underwent further surgical intervention at
S.K.M.C.H. The prosecution has not brought on record any
contemporaneous medical record from S.K.M.C.H. or any other
specialised medical institution indicating the detection or

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recovery of a surgical towel from the abdomen of the O.P. No.2.
Though the F.I.R. contains an allegation that a towel was
subsequently removed by another doctor, the materials collected
during investigation do not appear to contain any operative note,
recovery memo, pathological report or other medical document
substantiating such allegation.
17. Notably, during the course of investigation the
Investigating Officer himself sought an expert opinion from the
Civil Surgeon-cum-Chief Medical Officer, Muzaffarpur
regarding the allegations levelled against the petitioner. Pursuant
thereto, a Medical Board comprising experts was constituted.
The report of the Medical Board records that there was no proof
regarding recovery of any surgical towel from the abdomen of
the O.P. No.2. Despite the Investigating Officer having sought
expert evaluation on the issue of alleged medical negligence, the
chargesheet dated 29.01.2016 bearing C.S. No.7 of 2016 was
submitted before receipt of the opinion of the Medical Board
and cognizance was also taken before such report could be
considered by the Court. In a case resting primarily upon
allegations of professional negligence by a medical practitioner,
the expert opinion assumes considerable relevance for
determining whether there existed a prima facie basis to

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attribute criminal liability.
18. The Hon’ble Supreme Court while conidering
the criminal liability of medical professionals in Jacob Mathew
v. State of Punjab , reported in (2005) 6 SCC 1 , has held that for
fastening criminal liability against a doctor, the negligence must
be gross of a very high degree. The Hon’ble Apex Court has
observed as under:
“18. In the law of negligence, professionals
such as lawyers, doctors, architects and
others are included in the category of
persons professing some special skill or
skilled persons generally. Any task which is
required to be performed with a special skill
would generally be admitted or undertaken
to be performed only if the person possesses
the requisite skill for performing that task.
Any reasonable man entering into a
profession which requires a particular level
of learning to be called a professional of that
branch, impliedly assures the person dealing
with him that the skill which he professes to
possess shall be exercised with reasonable
degree of care and caution. He does not
assure his client of the result. A lawyer does
not tell his client that the client shall win the
case in all circumstances. A physician would
not assure the patient of full recovery in
every case. A surgeon cannot and does not
guarantee that the result of surgery would
invariably be beneficial, much less to the
extent of 100% for the person operated on.
The only assurance which such a
professional can give or can be understood
to have given by implication is that he is
possessed of the requisite skill in that branch
of profession which he is practising and
while undertaking the performance of the

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task entrusted to him he would be exercising
his skill with reasonable competence. This is
all what the person approaching the
professional can expect. Judged by this
standard, a professional may be held liable
for negligence on one of two findings: either
he was not possessed of the requisite skill
which he professed to have possessed, or, he
did not exercise, with reasonable
competence in the given case, the skill which
he did possess. The standard to be applied
for judging, whether the person charged has
been negligent or not, would be that of an
ordinary competent person exercising
ordinary skill in that profession. It is not
necessary for every professional to possess
the highest level of expertise in that branch
which he practises. In Michael Hyde and
Associates v. J.D. Williams & Co. Ltd. [2001
PNLR 233 (CA)] Sedley, L.J. said that where
a profession embraces a range of views as to
what is an acceptable standard of conduct,
the competence of the defendant is to be
judged by the lowest standard that would be
regarded as acceptable. (Charlesworth &
Percy, ibid., para 8.03.) ”
19. The Hon’ble Apex Court has further held in the
Jacob Mathew (supra) as herein under:
“48. We sum up our conclusions as under:
xxxx xxxx xxxx
(2) Negligence in the context of the medical
profession necessarily calls for a treatment
with a difference. To infer rashness or
negligence on the part of a professional, in
particular a doctor, additional
considerations apply. A case of occupational
negligence is different from one of
professional negligence. A simple lack of
care, an error of judgment or an accident, is
not proof of negligence on the part of a
medical professional. So long as a doctor

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follows a practice acceptable to the medical
profession of that day, he cannot be held
liable for negligence merely because a better
alternative course or method of treatment
was also available or simply because a more
skilled doctor would not have chosen to
follow or resort to that practice or procedure
which the accused followed. When it comes
to the failure of taking precautions, what has
to be seen is whether those precautions were
taken which the ordinary experience of men
has found to be sufficient; a failure to use
special or extraordinary precautions which
might have prevented the particular
happening cannot be the standard for
judging the alleged negligence. So also, the
standard of care, while assessing the
practice as adopted, is judged in the light of
knowledge available at the time of the
incident, and not at the date of trial.
Similarly, when the charge of negligence
arises out of failure to use some particular
equipment, the charge would fail if the
equipment was not generally available at
that particular time (that is, the time of the
incident) at which it is suggested it should
have been used.
(3) A professional may be held liable for
negligence on one of the two findings: either
he was not possessed of the requisite skill
which he professed to have possessed, or, he
did not exercise, with reasonable
competence in the given case, the skill which
he did possess. The standard to be applied
for judging, whether the person charged has
been negligent or not, would be that of an
ordinary competent person exercising
ordinary skill in that profession. It is not
possible for every professional to possess the
highest level of expertise or skills in that
branch which he practices. A highly skilled
professional may be possessed of better
qualities, but that cannot be made the basis
or the yardstick for judging the performance

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of the professional proceeded against on
indictment of negligence.
xxxx xxxx xxxx
(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. ”
20. It is well settled that every medical
complication or unsuccessful treatment does not ipso facto
amount to criminal negligence. To attract criminal liability, the
degree of negligence must be gross or of such a high degree as
to indicate recklessness or a disregard for the life and safety of
the patient. In the present case, apart from the allegation made
by the O.P. No.2, the materials available on record do not
disclose any expert opinion supporting the allegation that the
petitioner had left a foreign object inside the body of the patient
or that the complications suffered by the O.P. No.2 were the
direct consequence of any grossly negligent act attributable to
the petitioner. The materials, therefore, require to be examined
in the light of the principles governing criminal prosecution of
medical professionals as laid down by the Hon’ble Supreme
Court.

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21. The Hon’ble Supreme Court in Kusum
Sharmaand Ors. v. Batra Hospital and Medical Research
Centre and Ors. , reported in (2010) 3 SCC 480 has laid down
some tests with respect to medical negligence, which can be
read as under:
“89. On scrutiny of the leading cases of
medical negligence both in our country and
other countries specially the United
Kingdom, some basic principles emerge in
dealing with the cases of medical
negligence. While deciding whether the
medical professional is guilty of medical
negligence following well-known principles
must be kept in view:
I. Negligence is the breach of a duty
exercised by omission to do something which
a reasonable man, guided by those
considerations which ordinarily regulate the
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do.
II. Negligence is an essential ingredient of
the offence. The negligence to be established
by the prosecution must be culpable or gross
and not the negligence merely based upon an
error of judgment.
III. The medical professional is expected to
bring a reasonable degree of skill and
knowledge and must exercise a reasonable
degree of care. Neither the very highest nor
a very low degree of care and competence
judged in the light of the particular
circumstances of each case is what the law
requires.
IV. A medical practitioner would be liable
only where his conduct fell below that of the
standards of a reasonably competent
practitioner in his field.
V. In the realm of diagnosis and treatment

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there is scope for genuine difference of
opinion and one professional doctor is
clearly not negligent merely because his
conclusion differs from that of other
professional doctor.
VI. The medical professional is often called
upon to adopt a procedure which involves
higher element of risk, but which he honestly
believes as providing greater chances of
success for the patient rather than a
procedure involving lesser risk but higher
chances of failure. Just because a
professional looking to the gravity of illness
has taken higher element of risk to redeem
the patient out of his/her suffering which did
not yield the desired result may not amount
to negligence.
VII. Negligence cannot be attributed to a
doctor so long as he performs his duties with
reasonable skill and competence. Merely
because the doctor chooses one course of
action in preference to the other one
available, he would not be liable if the
course of action chosen by him was
acceptable to the medical profession.
VIII. It would not be conducive to the
efficiency of the medical profession if no
doctor could administer medicine without a
halter round his neck.
IX. It is our bounden duty and obligation of
the civil society to ensure that the medical
professionals are not unnecessarily harassed
or humiliated so that they can perform their
professional duties without fear and
apprehension.
X. The medical practitioners at times also
have to be saved from such a class of
complainants who use criminal process as a
tool for pressurising 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.

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XI. 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. ”
22. The Hon’ble Supreme Court has furnished
guidelines with respect to initiation of criminal prosecution
against a medical practitioner in Jacob Mathew (supra) which
was reiterated in A.S.V. Narayanan Rao v. Ratnamala and
Anr. , reported in (2013) 10 SCC 741 , as under:
“10. This Court further opined that though
doctors are not immune from legal
proceedings in the event of their negligence
in discharging their professional duties, in
the interest of the society, it is necessary to
protect doctors from frivolous and unjust
prosecution. It was further pointed out the
need to frame either statutory rules or
administrative instructions incorporating
guidelines for prosecuting doctors on
charges of criminal negligence. This Court
therefore, ordered that until such guidelines
are laid down, the following procedure is
required to be followed: (Jacob Mathew case
[(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] ,
SCC p. 35, para 52)
“52. … 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

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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 Bolam [Bolam v.
Friern Hospital Management Committee,
(1957) 1 WLR 582 : (1957) 2 All ER 118
(QB)] 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 investigating officer feels satisfied
that the doctor proceeded against would not
make himself available to face the
prosecution unless arrested, the arrest may
be withheld. ”
23. At this juncture, it would be beneficial to refer
to the observations made by the Hon’ble Supreme Court in
Vinod Jain v. Santokba Durlabhji Memorial Hospital and
Anr. , reported in (2019) 12 SCC 229 , wherein the Hon’ble Apex
Court elaborately discussed the principles governing medical
negligence and reiterated the distinction between a mere error of
judgment, an unsuccessful treatment and negligence amounting
to actionable or criminal misconduct. The relevant observations
are reproduced hereinbelow:
“8. “Negligence” has been defined in

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Halsbury's Laws of England, 4th Edn., Vol.
30, Para 34 and extracted in Kusum Sharma
v. Batra Hospital & Medical Research
Centre [Kusum Sharma v. Batra Hospital &
Medical Research Centre, (2010) 3 SCC 480
: (2010) 1 SCC (Civ) 747 : (2010) 2 SCC
(Cri) 1127] as under: (at SCC p. 494, para
45)
“45. … ‘Negligence and duties owed to
patient.—A person who holds himself out as
ready to give medical advice or treatment
impliedly undertakes that he is possessed of
skill and knowledge for the purpose. Such a
person, whether he is a registered medical
practitioner or not, who is consulted by a
patient owes him certain duties, namely a
duty of care in deciding whether to
undertake the case; a duty of care in
deciding what treatment to give; and a duty
of care in his administration of that
treatment. … A breach of any of these duties
will support an action for negligence by the
patient.’”
9. A fundamental aspect, which has to be
kept in mind is that a doctor cannot be said
to be negligent if he is acting in accordance
with a practice accepted as proper by a
reasonable body of medical men skilled in
that particular art, merely because there is a
body of such opinion that takes a contrary
view (Bolam v. Friern Hospital Management
Committee [Bolam v. Friern Hospital
Management Committee, (1957) 1 WLR
582 : (1957) 2 All ER 118 (QB)] ). In the
same opinion, it was emphasised that the test
of negligence cannot be the test of the man
on the top of a Clapham omnibus. In cases
of medical negligence, where a special skill
or competence is attributed to a doctor, a
doctor need not possess the highest expert
skill, at the risk of being found negligent,
and it would suffice if he exercises the
ordinary skill of an ordinary competent man
exercising that particular art. A situation,

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thus, cannot be countenanced, which would
be a disservice to the community at large, by
making doctors think more of their own
safety than of the good of their patients. ”
24. Moreover, the Hon’ble Apex Court in M.A.
Biviji v. Sunita and Ors. , reported in (2024) 2 SCC 242 has
observed as under:
“39. To hold a medical practitioner liable
for negligence, a higher threshold limit must
be met. This is to ensure that these doctors
are focused on deciding the best course of
treatment as per their assessment rather
than being concerned about possible
persecution or harassment that they may be
subjected to in high-risk medical situations.
Therefore, to safeguard these medical
practitioners and to ensure that they are able
to freely discharge their medical duty, a
higher proof of burden must be fulfilled by
the complainant. The complainant should be
able to prove a breach of duty and the
subsequent injury being attributable to the
aforesaid breach as well, in order to hold a
doctor liable for medical negligence. On the
other hand, doctors need to establish that
they had followed reasonable standards of
medical practice. ”
25. In the present case, the allegations levelled
against the petitioner pertains exclusively to the discharge of his
professional duties as a surgeon. The materials available on
record reveal that although the Investigating Officer had sought
expert opinion from the Civil Surgeon-cum-Chief Medical
Officer, Muzaffarpur regarding the allegations of medical

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negligence, the charge-sheet was submitted on 29.01.2016 and
cognizance was taken on 29.02.2016 without awaiting the
opinion of the Medical Board. Subsequently, the Medical Board
constituted by the Civil Surgeon reported that there was no
proof regarding recovery of any surgical towel from the
abdomen of the O.P. No.2. Thus, the very material which was
obtained for expert evaluation of the allegation does not support
the prosecution case.
26. Examining the facts of the present case in the
backdrop of the aforesaid principles, this Court finds that the
allegation against the petitioner is essentially founded upon the
assertion that a surgical towel had been left inside the abdomen
of the O.P. No.2 (informant) during an operation conducted in
July, 2014. However, the materials available on record reveal
that after the O.P. No.2 was referred from the petitioner’s
Nursing Home, she underwent treatment at different medical
institutions and was subjected to multiple diagnostic
examinations over a considerable period of time. Significantly,
the records do not disclose any contemporaneous medical
document unequivocally establishing the presence or recovery
of a surgical towel from her abdomen. Rather, the materials
indicate that the O.P. No.2 suffered various post-operative

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complications for which she received treatment at different
centres. In such circumstances, before attributing criminal
liability to the petitioner, the existence of cogent medical
evidence demonstrating gross negligence assumes paramount
importance.
27. This Court further finds that neither the
chargesheet nor the materials accompanying it disclose any
independent medical opinion indicating that the petitioner had
acted in a manner amounting to gross negligence so as to attract
criminal liability under Sections 337 or 338 of the Indian Penal
Code. Equally, a bare perusal of the F.I.R. does not reveal any
specific allegation constituting the essential ingredients of criminal
intimidation punishable under Section 506 of the Indian Penal
Code. In the absence of material demonstrating gross medical
negligence and in view of the expert opinion subsequently
obtained during investigation, continuation of the criminal
proceeding against the petitioner would not advance the cause of
justice and would amount to permitting the criminal process to be
used in a matter essentially unsupported by the requisite medical
evidence.
28. This Court is of the considered view that the case
falls within the well-recognized categories enumerated by the
Hon’ble Supreme Court in State of Haryana and Ors. v. Bhajan

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Lal and Ors. , reported in 1992 Supp (1) SCC 335 , wherein the
inherent jurisdiction of the High Court may be exercised to
prevent abuse of the process of the Court and to secure the ends of
justice. The impugned order of cognizance, having been passed
without the benefit of the expert opinion and the materials on
record not disclosing the essential ingredients of the offences
alleged, cannot be allowed to stand.
29. Accordingly, the impugned order dated
29.02.2016 passed by the learned Chief Judicial Magistrate,
Muzaffarpur in connection with Brahampura P.S. Case No.314 of
2015 (Trial No.1807 of 2016) as well as the entire criminal
proceeding arising therefrom, so far as the petitioner is concerned,
are hereby quashed.
30. The present Criminal Miscellaneous Application
is, accordingly, allowed.
31. Let a copy of this judgment be transmitted to the
concerned Court forthwith for needful and compliance.
(Sunil Dutta Mishra, J)
Harish/-
AFR/NAFR AFR
16.06.2026
CAV DATE
Uploading Date 30.06.2026
30.06.2026
Transmission Date