Medical Professionals Cannot Be Prosecuted Without Expert Opinion: Calcutta High Court Quashes Summons in Criminal Negligence Case

“Magistrate Cannot Act as Post Office While Issuing Process Against Doctors Under Section 304A IPC”: In a significant judgment protecting the rights of medical professionals from arbitrary criminal prosecution, the Calcutta High Court quashed the summoning order passed by the Judicial Magistrate, Barrackpore, under Section 304A IPC and directed a fresh medical inquiry through a Medical Board of Government Experts.

Justice Dr. Ajoy Kumar Mukherjee held that “the Magistrate is not supposed to act as a post office in taking cognizance of each and every complaint”, especially in matters involving criminal medical negligence, and reiterated the requirement of mandatory inquiry under Section 202 CrPC when the accused resides outside the jurisdiction.

“The Power to Issue Summoning Order Is a Matter of Grave Importance”: Court Rebukes Mechanical Issuance of Process in Medical Negligence Cases

The case concerned the death of Indrajit Sarkar, who died allegedly due to medical negligence at ILS Hospital on 12 July 2014, after sustaining a fall and being admitted with spinal injuries. The complainant, Ranjit Sarkar, father of the deceased, alleged that despite complaints of abdominal pain, no proper diagnostic or medical care was provided for over nine hours, leading to massive internal bleeding, pulmonary embolism, and death. He accused the doctors of rash and negligent conduct for administering blood thinners like CLEXANE and failing to conduct timely CT Scans.

The magistrate had taken cognizance on 4 March 2017 and issued summons to the doctors and hospital under Section 304A IPC.

However, the High Court found the magistrate’s summoning order cryptic and devoid of reasoning, stating:

“It can hardly be said that the order issuing process was justified... The Magistrate is not supposed to act as a post office… the application of mind is best demonstrated by disclosure of mind on satisfaction.”

“Jacob Mathew Guidelines Must Be Followed”: High Court Reiterates Supreme Court Standard for Criminal Prosecution of Doctors

Referring to the landmark Supreme Court ruling in Jacob Mathew v. State of Punjab (2005) 6 SCC 1, the High Court held:

“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…”

The Court noted that although a forensic report by Dr. Ajay Gupta was submitted by the complainant, it was not verified whether Dr. Gupta was a government doctor or qualified in the concerned branch, as required under the Jacob Mathew standard.

Furthermore, the Court cited that mens rea (guilty mind) is essential for criminal negligence:

“For an act to amount to criminal negligence, the degree of negligence should be much higher i.e., gross or of a very high degree.”

“Magistrate Failed to Conduct Mandatory Section 202 Inquiry”: Court Emphasizes Territorial Jurisdiction and Safeguards for Outstation Accused

The accused doctors were residing outside the territorial jurisdiction of the magistrate, and hence, an inquiry under Section 202 CrPC was mandatory before issuing process. The High Court cited Abhijit Pawar v. Hemant Nimbalkar (2017) 3 SCC 528 to state:

“The use of the expression ‘shall’ in Section 202 makes the inquiry or investigation mandatory before issuing summons to accused residing beyond jurisdiction.”

The Court held that the magistrate had “not even put any question to the complainant” nor conducted any medical verification before mechanically issuing summons, thereby violating both procedural and legal safeguards.

“Summons Without Medical Board’s Opinion Is Legally Unsustainable”: Court Sets Aside All Orders and Remits Case for Fresh Evaluation

In a decisive conclusion, the High Court set aside the summoning order dated 04.03.2017 and all subsequent proceedings, and directed the Magistrate as follows:

“Form a Medical Board of experts in the concerned faculties comprising at least three medical officers... one must be qualified in Orthopaedic Science and employed in government service... The Board shall apply the Bolam Test and guidelines from Jacob Mathew’s case.”

The complainant was directed to submit all supporting medical records within 8 weeks, after which the Magistrate will reconsider the case based on the Medical Board’s findings, the complaint, and the initial deposition.

“Medical Negligence Requires More Than Error of Judgment”: High Court Protects Professionals from Harassment

Justice Dr. Ajoy Kumar Mukherjee, invoking multiple Supreme Court precedents, emphasized:

“A simple lack of care, an error of judgment or an accident, is not proof of negligence... A doctor cannot be held criminally liable merely because a better alternative was available.”

Thus, while the Court acknowledged the emotional suffering of the complainant, it held that criminal law cannot be invoked casually against doctors without following the structured legal process.

• Summons and all related proceedings quashed

• Matter remitted to the Magistrate with direction to constitute Medical Board

• Complainant to submit medical records within 8 weeks

• Fresh decision to be taken based on expert opinion

Date of Decision: 17 September 2025