The Supreme Court observed that mens rea as intent is not required in a case of medical negligence.

The bench of Justices AM Khanwilkar and Sanjiv Khanna observed that before summoning the accused in a criminal medical negligence complaint, the complainant has to lead medical evidence or examine a professional Doctor by the complainant in support of his case made out in the complaint.

In this case, the complainant filed a medical negligence complaint under Section 304,316/34 of the Indian Penal Code. The Magistrate issued summons to the accused. Challenging the summons order, the accused approached the High Court which then quashed it on the ground that there was no evidence regarding mens rea, to show malicious or bad intent.

In appeal, the bench of Justices observed that this view of the High Court is erroneous.

"For, when it is a case of medical negligence, it need not be because of mens rea as intent. Sans mens rea in the above sense also it would still constitute offence of medical negligence", the Court said.

The bench noticed that the Trial Court, without insisting for medical evidence or examination of professional Doctor by the complainant in support of his case made outin the complaint. That is required in terms of the exposition of this Court in Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1, the Court observed.

Therefore, the bench set aside both orders (Of High Court and of Trial Court) and relegated the parties before the Trial Court for reconsideration of the issue afresh.

"We make it clear that the Trial Court may have to call upon the complainant to first examine the professional Doctor as witness in support of the case made out in complaint and then proceed to consider the matter afresh on its own merits and in accordance with law."

Source: https://www.livelaw.in/top-stories/supreme-court-medical-negligence-case-mens-rea-as-intent-179110