Judgment 1. This is an application for quashing the order dated 29.4.2005 passed by Sri S.K. Singh, Judicial Magistrate 1st Class, Patna City in Complaint Case No. 953 of 2004 by which he has taken cognizance of the offences under Sections 304A, 304 Part II, 328 and 468 of the Indian Penal Code against this petitioner and others. 2. The prosecution case, in short, is that the wife of the complainant, Tabassum Parween was ailing in the month of May, 2004. On 27.5.2004 she was taken to Arshi Clinic where Dr. M.A. Rasheed examined her and prescribed certain medicines. He also advised for three tests which were carried out by Dr. A. Aziz. After seeing the test reports Dr. Rasheed modified the treatment but there was no improvement in the condition of the patient Tabassum Parween who was found to be close to her death. 3. On 1.6.2004 the patient was taken to the clinic of Dr. U.C. Samal (the present petitioner) who prescribed certain medicines. Since the vomiting by the patient persisted, Dr. Samal prescribed certain other medicines. At 6 P.M. on 2.6.2004 Dr. Samal advised urgently to give intervenous injection to the patient. When even then the condition of the patient did not improve, Dr. Samal advised the complainant to take the patient to Magadh Hospital at Rajendra Nagar. Magadh Hospital, however, had no vacant bed at that time and, therefore, it refused to admit the patient. Thereafter Dr. Samal referred the patient to Kurji Holy Family Hospital since Hepatic Encephalopathy was detected. The patient was admitted in the said Hospital on 2.6.2004 where she felt breathing trouble but the Hospital failed to provide her ventilator. Ultimately the patient died on 5.6.2004 at 7.05 A.M. 4. Consequent to the death of the patient the complaint petition was filed on 6.12.2004. From Annexure-3 it would appear that this complaint petition was dismissed on 12.1.2005 by the learned Judicial Magistrate for the reasons recorded in it. Against this order of dismissal Cr. Revision No. 37 of 2005 was filed which was heard and disposed of by the learned Addl. Sessions Judge, XII, Patna who by his order dated 26.2.2005 set aside the order of dismissal by the learned Judicial Magistrate and remanded back the case to the learned court below to proceed with further enquiry. Against this order of dismissal Cr. Revision No. 37 of 2005 was filed which was heard and disposed of by the learned Addl. Sessions Judge, XII, Patna who by his order dated 26.2.2005 set aside the order of dismissal by the learned Judicial Magistrate and remanded back the case to the learned court below to proceed with further enquiry. On receiving this order the learned Judicial Magistrate by his impugned order took cognizance of the offence under sections mentioned above against the accused persons including the present petitioner. It is against this order that the present application has been filed. 5. In this application various questions have been raised. Briefly stated, the petitioner, Dr. U.C. Samal has stated that he was the Ex. Professor of Cardiology and Head of the Department of Medicine of Patna Medical College and Hospital. His role in the entire treatment of the deceased was very limited as will appear from paragraph 3 of the present petition. From the prosecution case itself it would appear that the deceased was firstly taken to Arshi Clinic, Sultanganj on 27.5.2004 which was managed by another accused no. 2, namely, Mrs. Jameela Rasheed as its Director. Accused No. 1, Dr. M.A. Rasheed examined the patient and advised certain Pathological test which was conducted by Dr. A Aziz. In this process accused no. 1 Dr. M.A. Rasheed wasted four days and failed to examine her clinically. He also prescribed drugs irrationally and accordingly it has been observed in this paragraph of the petition at pages 5 and 6 that all the treatment prescribed by Dr. M.A. Rasheed brought the patient close to death. 6. It was at this stage the patient was taken to the clinic of Dr. U.C. Samal accused no. 3 (present petitioner) at 10.30 A.M. on 1.6.2004. On 2.6.2004 the patient was persisting in vomiting and restlessness. At 6.30 P.M. the present petitioner advised some intervenous injection of glucose. Since, however, the condition of the patient did not improve, the present petitioner advised the complaint to take the patient to Magadh Hospital where, however, she could not be admitted for nonavailability of vacant bed. This is how the patient was taken to Kurji Holy Family Hospital where she breathed her last on 5.6.2004 at 7.05 A.M. 7. Since, however, the condition of the patient did not improve, the present petitioner advised the complaint to take the patient to Magadh Hospital where, however, she could not be admitted for nonavailability of vacant bed. This is how the patient was taken to Kurji Holy Family Hospital where she breathed her last on 5.6.2004 at 7.05 A.M. 7. On behalf of the petitioner it has been submitted that in view of the facts alleged in this petition as also in view of the complaint petition no negligent act can be attributed to him since at the time when the patient was brought to his clinic she was almost dead and she required urgent treatment. The petitioner being a Senior Doctor took all necessary precaution in the treatment of the patient which, however, could not yield any result. Seeing the condition of the patient the petitioner advised the complainant to take her to Magadh Hospital on 2.6.2004 at 6 P.M. Thereafter the patient was taken to Magadh Hospital and finally admitted in Kurji Holy Family Hospital. From this it would appear that the role of the present petitioner started at 10.30 A.M. on 1,6.2004 and ended at 6.30 P.M. on 2.6.2004. On behalf of the petitioner it has been submitted Jhat at the time when the patient was brought to his clinic she was in a very critical condition. Earlier she was under the treatment of Dr. M.A. Rasheed and finding that the condition of the patient was going out of control she was moved to the clinic of the petitioner. He, however, took all precaution, administered proper medicines and finding no improvement in the condition of the patient he sincerely advised her removal to Magadh Hospital which is a private Hospital fully equipped to meet such exigencies. This is all that he is said to have done and his role is limited only to this extent in the treatment of this patient. Under these facts and circumstances it has been submitted on his behalf that he could not be accused of any rashness or negligence in the treatment of the patient, so as to make him liable under the sections under which cognizance against him has also been taken. Under these facts and circumstances it has been submitted on his behalf that he could not be accused of any rashness or negligence in the treatment of the patient, so as to make him liable under the sections under which cognizance against him has also been taken. He has pointed out that his case stands on a different footing from other accused persons of this case and he cannot be held liable for the offences under the Sections under which the cognizance against him has been taken. So far as other accused persons are concerned he has submitted that he has nothing to say in their regard and his present petition is only confined to taking of cognizance against him by the impugned order which he has challenged. 8. The law on this point appears to be well settled. In this connection a reference may be made to the judgment of Hon ble Supreme Court in the case of Jacob Mathew V/s. State of Punjab and Anr. [(2005)6 S.C.G.1] [: 2005(4) PLJR (SC)213]. In this case the patient felt difficulty in breathing and Doctor Jacob and another Doctor were called after a lapse of 20-25 minutes. The oxygen cylinder that was brought was found to be empty. No other cylinder was available which could be made functional and ultimately the patient died. Charges under section 304A/34 of the Indian Penal Code were registered and investigated. In its paragraph No. 34 it has been observed as follows:Medical professionals in criminal law: "34. The criminal law has invariably placed medical professionals on a pedestal different from ordinary mortals. The Indian Penal Code enacted as far back as in the year I860 sets out a few vocal examples. Section 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for persons benefit. Section 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to the person and that person has not consented to suffer such harm. There are four exceptions listed in the Section which are not necessary in this contest to deal with. Section 93 saves from criminality certain communications made in good faith." 9. There are four exceptions listed in the Section which are not necessary in this contest to deal with. Section 93 saves from criminality certain communications made in good faith." 9. Generally speaking in the law of negligence, professional such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or as skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. The skill which they profess to possess shall be exercised with reasonable degree of care and caution. Any such professional does not assure his client of the result. The Lawyer does not tell his client that he shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A Surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings (i) either he was not possessed of the requisite skill which he professed to have possessed or (ii) 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. 10. In this connection a reference may be made to the case of Bolam V/s. Friern Hospital Management Committee, (1957) 2 All. E.R. 118, at 121 D.F. which was produced in paragraph 19 of case of Jacob Mathew (supra). 10. In this connection a reference may be made to the case of Bolam V/s. Friern Hospital Management Committee, (1957) 2 All. E.R. 118, at 121 D.F. which was produced in paragraph 19 of case of Jacob Mathew (supra). It runs as follows: "Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill ..... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." This decision has been universally accepted by the courts of India and has been cited briefly in the case of Jacob Mathew (supra). 11 It has been further held in this decision (Jacob Mathew) in paragraph 48(7) "To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. Further in paragraph 40 of this decision it has been observed that a Doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence. In paragraph 43 of this Judgment a reference has been made to the case of Poonam Verma V/s. Ashwin Patel [ (1996)4 S.C.C. 332 ] to which a reference has also been made by the learned Magistrate in his first order dismissing the complaint petition under Section 203. In this case a Doctor registered as medical practitioner and entitled to practice in homoeopathy only, prescribed an allopathic medicine to the patient. The patient died. Here the Doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband. 12. In this case a Doctor registered as medical practitioner and entitled to practice in homoeopathy only, prescribed an allopathic medicine to the patient. The patient died. Here the Doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband. 12. The Hon ble supreme Court in the case of Jacob Mathew (supra) has held in paragraphs 48(6) and 38 that the word "gross" has not been used in Section 304A I.P.C., yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304A I.P.C. has to be read as qualified by the word "gross". To impose criminal liability under Section 304A Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and sufficient cause without the intervention of anothers negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. 13. The degree or skill and care required by a medical practitioner is so stated in Halsburys Law of England (4th Additional Vol. XXX paragraph 35):- "35. The practitioner must bring to his task a reasonable degree and care neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable to negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way, nor he is guilty of negligence, if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art even though a body of adverse opinion also exists among medical men. Deviation from normal practice is not necessarily evidence. To establish liability on that basis it must be shown (i) that there is a usual and normal practice; (ii) that the defendant has not adopted it; and (ii) that the course, in fact, adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care." 14. To establish liability on that basis it must be shown (i) that there is a usual and normal practice; (ii) that the defendant has not adopted it; and (ii) that the course, in fact, adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care." 14. Thus from the detailed discussions made above it becomes clear that law on this point has been very clearly laid down by the Hon ble Supreme Court on the subject. This decision of the Hon ble Supreme Court has been given by a Bench of three Hon ble Judges. Even earlier a two Judges Bench in the case of Dr. Suresh Gupta V/s. Govt, of N.C.T. of Delhi & Anr., [2004(3) PLJR S.C. 321] has taken a similar view in the matter. In this case the appellant was a Plastic Surgeon who operated upon a person for nasal deformity. He gave incision at wrong part due to which the blood seeped into the respiratory passage and because of that patient immediately collapsed and died. In this decision it was held that for fixing criminal liability on a Doctor or Surgeon, the standard of neg-ligence required to be proved should be so high as can be described as "gross negligence" or "recklessness". It is not merely lack of necessary care, attention and skill. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. It has been further held that if taking the allegations and the complaint, as they are, without adding or subtracting anything, no offence is made out, the High Court wiil be justified in quashing the proceedings. This decision has been affirmed in the case of Jacob Mathew (supra) by a Bench of three Hon ble Judges. In paragraph 28 of the judgment in the case of Jacob Mathew (supra) it has been observed as follows: 28. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient." Further in paragraph 29 of the judgment it has been observed as follows: 29. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reasonwhether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society." 15. From the above two decisions it becomes perfectly clear that parameter under which a criminal liability can be fastened on a medical practitioner. Since the medical professional has been held to be placed on a pedestal different from ordinary mortals. The judgment in the case of Jacob Mathew (supra), the case of the Doctors have to be considered also in the light of Sections 88, 92 and 93 of the Indian Penal Code. 16. In a recent decision in the case of State of Punjab V/s. Sheoram [ (2005)7 S.C.C. 1 ] a Bench of three Hon ble Judges has affirmed the ratio of the decision in the case of Jacob Mathew (supra) and Bolam (supra). In this case carelessness and negligence was alleged against a lady Doctor to perform the tubectomy operation on the ground that even after that she conceived. It was held that in such a situation the operating surgeon cannot be held liable for compensation on account of un-wanted pregnancy or unwanted child. 17. In this case carelessness and negligence was alleged against a lady Doctor to perform the tubectomy operation on the ground that even after that she conceived. It was held that in such a situation the operating surgeon cannot be held liable for compensation on account of un-wanted pregnancy or unwanted child. 17. Before concluding I would like to refer to certain submissions made on behalf of the petitioner with respect to certain facts of this case which are glaring and deserve attention. Firstly my attention has been drawn to the inordinate delay of six months in filing this complaint petition. The patient had died on 5.6.2004 in the morning and the present complaint petition has been filed on 6.12.2004. No reasonable explanation has been given for this inordinate delay. This goes against the case of the prosecution. 18. Further the learned counsel for the petitioner has submitted that in paragraph 26 of the present petition it has been stated on behalf of the petitioner that the complainant (O.P. No. 2) is a greedy person and in the month of July, 2004 itself he had filed a petition (Complaint Case No. 9/2004) before the State Consumer Forum against the present petitioner and other accused persons of the case claiming a sum of Rs. 40 laksh by way of compensation. It has been further alleged that the present complaint petition before the A.C.J.M., Patna City has been filed only to put pressure. It has been filed with ulterior motive to compel the petitioner to part with money on account of the illegal claim of O.P. No. 2 (the complainant). 19. The learned counsel for the petitioner has drawn my attention to the counter affidavit filed on 19.9.2005 on behalf of the complainant (O.P. No. 2). Though this is a detailed counter affidavit not a word in it has been stated about the allegations made in paragraph 26 of the present petition which go unchallenged. All these go against the case of the prosecution and lend credence to the submissions of the petitioner that he has been falsely implicated in this case for this reason. Even otherwise on the question of law as thoroughly discussed above it becomes clear that the present petition is fit to be allowed. 20. From the detailed discussions made above it becomes perfectly clear to me that no criminal liability can be fastened on the present petitioner. Even otherwise on the question of law as thoroughly discussed above it becomes clear that the present petition is fit to be allowed. 20. From the detailed discussions made above it becomes perfectly clear to me that no criminal liability can be fastened on the present petitioner. As such the cognizance taken against him under various sections mentioned above cannot be allowed to stand and the same has to be quashed. 21. In the result this application is allowed and the impugned order only so far as it relates to the present petitioner as also the cognizance taken against him are quashed.