2013 (9) TMI 1189 - SC - Indian Laws

Summary

Issues Involved:
1. Whether the appellant's actions amounted to "doing any act" u/s 338 IPC.
2. Whether the appellant's omission to act could be treated as an "act" under IPC.
3. Whether the appellant's negligence was of such a degree to attract criminal liability u/s 338 IPC.
4. Whether the charge of abetment u/s 109 IPC was justified.

Summary of Judgment:

Issue 1: Whether the appellant's actions amounted to "doing any act" u/s 338 IPC.
The appellant, a renowned surgeon, was convicted u/s 338 r/w 109 IPC for causing grievous hurt by rash and negligent acts. The main allegation was that the appellant advised an inappropriate surgical operation and did not personally attend to the patient during the procedure, which was performed by Dr. A.K. Mukherjee, leading to the patient's deteriorated condition. The courts below upheld this conviction.

Issue 2: Whether the appellant's omission to act could be treated as an "act" under IPC.
The court examined whether "omission to act" could be included within the meaning of "act" u/s 338 IPC. It was concluded that "act" includes "omission" as per Sections 32, 33, and 36 IPC. The appellant's failure to personally conduct the surgery and subsequent neglect was considered an omission that could be treated as an "act" under the given circumstances.

Issue 3: Whether the appellant's negligence was of such a degree to attract criminal liability u/s 338 IPC.
The court analyzed the degree of negligence required for criminal liability. It was emphasized that criminal negligence requires a higher degree of negligence than civil liability. The appellant's decision to advise the surgery, despite differing opinions from U.S. doctors, was not deemed wanton negligence. However, his failure to perform the surgery himself and subsequent neglect was recognized as negligence in the civil domain but not sufficient to attract criminal liability u/s 338 IPC.

Issue 4: Whether the charge of abetment u/s 109 IPC was justified.
The charge of abetment u/s 109 IPC was based on the premise that Dr. Mukherjee caused grievous hurt under the appellant's instructions. However, Dr. Mukherjee was dropped from the prosecution, and the appellant's omission did not constitute abetment as there was no overt act attributed to him. The court concluded that the appellant's conduct did not meet the threshold for criminal liability under Section 338 IPC.

Conclusion:
The Supreme Court set aside the conviction of the appellant under Section 338 IPC, concluding that while the appellant's conduct constituted professional misconduct and civil negligence, it did not amount to criminal negligence under Section 338 IPC. The appeal was allowed, and the impugned judgments were set aside.