GORI SHANKAR GUPTA Vs. PAWAN KUMAR

JUDGEMENT

(1.) Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of complaint No. 225 dated 29.4.2010 (Annexure P-1) and all the subsequent proceedings arising therefrom including the summoning order dated 8.12.2010 (Annexure P-2) and order dated 3.8.2011 (Annexure P-3).

(2.) Learned counsel for the petitioner has submitted that the Trial Court could not take cognizance of the matter as the Medical Board had opined that petitioner had not committed any medical negligence. In support of his arguments, learned counsel has placed reliance on Jacob Mathew Vs. State of Punjab and another, 2005 AIR(SC) 3180 wherein it was held as under:- We sum up our conclusions as under:-

(3.) Negligence in the context of 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 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. 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 of the professional proceeded against on indictment of negligence.