The Delhi High Court has quashed a criminal case against a hospital and a gynaecologist where an abdominal cotton mop was left inside the abdominal cavity of a patient who underwent a c-section surgery. The High Court held 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 High Court was considering a petition filed under Article 226 of the Constitution read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) by the petitioners, seeking quashing of the FIR registered under Sections 336, 337, 34 of the Indian Penal Code, 1860 (IPC) and all the consequential proceedings.

The Single Bench of Justice Amit Mahajan held, “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.”

“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”, the order read.

Advocate Petal Chandhok represented the Petitioner while ASC Yasir Rauf Ansari represented the Respondent.

Factual Background

The second Petitioner was engaged as Senior Consultant (Obstetrician and Gynaecologist) with the first Petitioner Venkateshwar Hospital and is currently the Associate Director in the Obstetrician and Gynaecologist Department. The Respondent Complainant was a patient taking treatment for her pregnancy at the Hospital and was under the supervision of the Senior Consultant. The FIR was registered pursuant to a complaint alleging that while conducting a Lower Segment C-Section surgery, a foreign object/abdominal cotton mop was left inside the abdominal cavity of the patient, which resulted in severe infection and pus collection in the area. She had to undergo another major surgery, after the C-Section surgery, due to the medical negligence of the Petitioners.

The petition before the High Court was filed on the ground that the matter had been amicably settled between the parties with the intervention of the Mediation Centre, Dwarka Courts, New Delhi, out of their own free will, without any force, coercion, or misrepresentation vide a Settlement Agreement.

Reasoning

The Bench, at the outset, explained that offences under Section 337 of the IPC are compoundable, whereas the offences under Section 336 of the IPC are noncompoundable. “It is well settled that the High Court while exercising its powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) [erstwhile Section 482 of the Code of Criminal Procedure, 1973] can quash proceedings in which offence is non-compoundable on the ground that there is a compromise between the accused and the complainant”, it added.

The Bench also affirmed 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.

On a perusal of the facts of the case, the Bench noted that as per the Medical Opinion, since an abdominal mop was retrieved from the abdominal cavity of the complainant, the same suggested 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. It was concluded that though the second Petitioner did not exercise due diligence which was expected from an ordinary prudent doctor, the acts or omissions were not reckless or patently wanton to invite criminal liability.

The Bench noted that these observations had also been confirmed vide the subsequent order of the Delhi Medical Board. The Bench mentioned that the medical opinion obtained revealed 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. The Bench also considered that the name of the doctor was removed from the State Medical Register of the Delhi Medical Council for a period of 30 days, disciplinary action was directed to be taken against the nurse, and the matter had been amicably settled between the parties.

Thus, exercising the discretionary jurisdiction under Section 528 of the BNSS, the Bench quashed the proceedings subject to payment of a total cost of ₹25,000 by Petitioners, to be deposited with the Delhi Police Martyrs’ Fund.

Cause Title: Venkateshwar Hospital v. State of Nct Delhi (Neutral Citation:2025:DHC: 11103)

Appearance

Appellant: Advocates Petal Chandhok, Garima Raisinghani

Respondent: ASC Yasir Rauf Ansari, Advocates Alok Sharma, Pardeep Dahiya, SI Gaurav

Click here to read/download Order


Delhi HCJustice Amit Mahajan

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.