Venkateshwar Hospital and Anr v. State of NCT Delhi and Anr

should be quashed when the parties have resolved their entire disputes among themselves.

29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.” (emphasis supplied)

11. Similarly, in the case of Parbatbhai Aahir & Ors. v. State of Gujarat & Anr.: (2017) 9 SCC 641, the Hon’ble Supreme Court had observed as under:-

16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.

16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.

16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned.

16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.

16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.”

12. In the present case, though serious allegations have been levelled against the Petitioners, however, the record indicates that the parties had duly appeared before the learned Disciplinary Committee of the Delhi Medical Council which had passed the detailed order dated 27.04.2022 with the following observations: “xxx xxx xxx

2) It is observed that the abdominal mop removed during the surgery ( laparotomy ) at Indraprastha Apollo Hospital, in all likelihood was the one which had been left during the LSCS procedure performed on the complainant on 12th January, 2021 at Venkateshwar Hospital; even though, as per records and of surgical safety check-list of the said Hospital, count was done at the start and at the end of surgery ( LSCS) which was correct as per the record. The fact that a mop was retrieved during laparotomy done at Indraprastha Apollo Hospital suggests that there was some error in counting of mops during the primary surgery.

3) It is further observed that proper management protocol has been followed in the post-operative period. Timely, surgical referral was done. Since paralytic ileus is the common cause of abdominal distension, hence, x- ray abdomen was advised. Surgical advice was followed properly and the complainant started improving.

4) We are further unable to reconcile the fact as to why, inspite of being advised CT scan, the same was not done at Venkateshwar Hospital, as the same would in all likelihood in this case confirmed the presence of mop and initiation of early remedial surgery. xxx xxx xxx In light of the observations made hereinabove, it is the decision of the Disciplinary Committee that Dr. Dipti K. Yadav did not exercise due diligence which is expected from an ordinary prudent doctor, in the treatment of the complainant Smt. Tamanna. The Disciplinary Committee, therefore, recommends that the name of Dr. Dipti K. Yadav ( Dr. Dipti Kumari, Delhi Medical Council Registration NO. 17457) be removed from State Medical Register of Delhi Medical Council for a period of 30 days. The Disciplinary Committee, however, observes that the acts or omissions on the part of Dr. Dipti K. Yadav in the management of the complainant were not reckless or patently wanton to invite criminal liability. It is also directed that a copy of this Order be sent to Delhi Nursing Council for taking appropriate disciplinary action against Nursing Staff Nurse, Ms. Menika Singh for her omission during the LSCS procedure done at Venkateshwar Hospital, as she was the scrub nurse who was responsible for taking proper count of all the surgical equipments used during the surgery ( LSCS) including the mops. The Disciplinary Committee further directs that a copy of this Order be sent to the Directorate General of Health Services, Govt, of NCT of Delhi with a request that the aforementioned guidelines be circulated to all the hospitals functioning under its jurisdiction.”

13. The above mentioned order of the learned Disciplinary Committee was taken up for consideration by the learned Delhi Medical Council, which passed a detailed order bearing number DMC/DC/F.14/Comp.3277/2/2022/305583, dated 10.05.2022, and while confirming the above order, the line “The counting of mop is a shared responsibility of a surgeon and staff nurse.” was directed to be added in Point (2) of the observations of the learned Disciplinary Committee.

14. It is no more res-integra that a complaint alleging criminal medical negligence by doctors should not ordinarily set the criminal law in motion, unless the opinion of the Medical Council is sought. The Hon’ble Apex Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, while laying down guidelines for prosecution of doctors in the cases of criminal medical negligence, had observed as under: -

State Governments in consultation with the Medical Council of India. So long as it is not done, 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 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 [(1957) 1 WLR 582: (1957) 2 All ER 118 (QBD)] 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. ”

15. Further, in the case of Suresh Gupta vs. Govt. of N.C.T. of Delhi and Ors., (2004) 6 SCC 422, Dr. Suresh Gupta, who was a Plastic Surgeon by profession, made a wrong incision while performing a minor procedure on the nasal cavity of the patient, due to which the blood entered his respiratory canal and thereby, causing the death of the patient. Consequently, criminal proceedings under Section 304A of the IPC, for causing death by negligence, were launched against Dr. Gupta. However, the Apex Court, while relying on the post-mortem report and the opinion of the three medical experts of the Special Medical Board, observed that the negligence in 'not putting a cuffed endotracheal tube of proper size in the nasal cavity, in a manner so as to prevent asphyxiation.' was not sufficient to impose criminal liability on the doctor. It was observed that: -

16. Keeping the above settled principles in mind the facts of the present case may be delved into.

17. Pertinently, the Medical Opinion had been obtained in the present case and it stands recorded in the order of the learned Disciplinary Committee that proper management protocol was followed in the post-operative period and timely, surgical referral was done by the Petitioners. Further, the surgical advice was followed properly and even the condition of the complainant had started improving. However, since, an abdominal mop was retrieved from the abdominal cavity of the complainant, the same suggests that there was some error in counting of mops during the primary surgery, which was the combined duty of the operating surgeon as well as the Nurse. Hence, it was concluded that though the Petitioner No. 2 did not exercise due diligence which is expected from an ordinary prudent doctor, but the acts or omissions were not reckless or patently wanton to invite criminal liability.

18. These observations have also been confirmed vide the subsequent order dated 10.05.2022 of the learned Delhi Medical Board.

19. Evidently, no such “gross lack of competence or recklessness” has been detected on part of the Petitioners. Even otherwise, the complainant has stated that she does not wish to pursue any proceedings arising out of the present FIR and she is satisfied with the compensation amount received by her.

20. This Court is fully cognizant of the discomfort suffered by the patient due to the inadvertent retention of a foreign object in her abdomen, which is unquestionably a matter of profound concern and merits unequivocal censure, as medical professionals are entrusted with the exacting duty of care. Nevertheless, the record, specifically the medical opinion obtained, reveals that the incident was unintentional and due oversight, bereft of the necessary mens rea and such degree of rashness to attract the rigours of a criminal trial.

21. At the best the facts could have delineated a civil liability, however, considering that the name of the Petitioner No. 2 was removed from State Medical Register of Delhi Medical Council for a period of 30 days, disciplinary action being directed to be taken against the nurse who incorrectly counted the no. of mops, the matter has been amicably settled between the parties and the compensation amount of Rs. 14,00,00/- has already been received by the Complainant, continuance of the proceedings will only cause undue harassment to all the parties and will be an abuse of the process of the Court.

22. Considering the totality of circumstances, I am of the opinion that this is a fit case to exercise the discretionary jurisdiction under Section 528 of the BNSS.

23. However, keeping in mind the fact that the State machinery has been put to motion and the chargesheet was filed, ends of justice would be served if the Petitioners are put to cost.

24. In view of the above, FIR No.455/2022 and all consequential proceedings arising therefrom are quashed, subject to payment of total cost of ₹25,000/- by Petitioners, to be deposited with the Delhi Police Martyrs’ Fund, within a period of four weeks from date.

25. Let the proof of deposit of cost be submitted to the concerned SHO.

26. The present petition is allowed in the aforesaid terms. Pending application also stands disposed of. AMIT MAHAJAN, J DECEMBER 2, 2025 “SK”