O R D E R This petition is filed to quash the proceedings C.C. 117 of 2004 on the file of the XXIII Metropolitan Magistrate, Hyderabad. 2. The allegations, in the charge sheet filed in C.C.117 of 2004, under Section 304-A I.P.C. in Crime No.29 of 2002 of Panjagutta Police Station, are that the deceased Sri K. Ramakrishna Reddy underwent an ear operation on 8.1.2002 at Dr. G.V. Rao ENT Hospital, Panjagutta, Hyderabad and that the petitioner-accused Dr. G.V.Rao had, himself, administered anesthesia negligently, without seeking the assistance of an anesthetist, resulting in complications and the death of the patient on 9.1.2002 while undergoing treatment. 3. On 9.1.2002 at 21.30 hours, the complainant (L. W .1) lodged a complaint stating that his brother-in-law Sri K. Ramakrishna Reddy aged 27 years, a Software Engineer in Baan Info Systems India limited, was suffering from ear problem for the last couple of months, that he was admitted in Dr. G.V. Rao ENT Hospital, Panjagutta on 7.1.2002 for surgery and that Dr. G.V.Rao had performed surgery on the deceased on 8.1.2002. The complainant had alleged that Dr. G.V. Rao had shifted the deceased to S.V.R. Super Specialty Hospital, Dharam Karam Road, Ameerpet, Hyderabad where the doctors declared the patient brought dead. The complainant alleged that the surgery performed on the deceased was minor, that the patient was young and healthy and that the complainant suspected that the deceased had died due to the negligence of the doctor. L.W.14 registered a case, in Cr.No.29 of 2002 under Section 304 -A I.P.C, and entrusted investigation to L.W. 15. 4. During the course of investigation, the presence of L.Ws.1 to 7 was secured, they were examined and their detailed statements recorded. L.W.1, the complainant, corroborated the contents of the F.I.R. L.W.2, the younger brother of the deceased stated that the deceased was suffering with ear problem, having undergone treatment under the accused - Dr. G.V. Rao, that the deceased was admitted in the hospital for undergoing surgery by the accused. L.W.3, father of the deceased, corroborated the version of L.W.2. L.Ws.4 and 5, friends of L.W.2 and who were present along with L.W.2 at the hospital after the surgery was performed, corroborated the version of L.W.2. L.W.6, the nurse working under the accused, and L.W.7, the Lab Technician of Sai Diagnostic Centre, stated about the blood test of the deceased. L.W.3, father of the deceased, corroborated the version of L.W.2. L.Ws.4 and 5, friends of L.W.2 and who were present along with L.W.2 at the hospital after the surgery was performed, corroborated the version of L.W.2. L.W.6, the nurse working under the accused, and L.W.7, the Lab Technician of Sai Diagnostic Centre, stated about the blood test of the deceased. L.W.15 held inquest over the dead body of the deceased on 10.1.2002, in the presence of L.Ws.9 and 10 mediators, at the Gandhi Hospital Mortuary. He got the dead body photographed and subjected the dead body to postmortem examination. L.W. 12 conducted autopsy over the dead body and opined that the cause of death was due to “pulmonary oedema and cerebral oedema”. Since the opinion of L.W.12 involved medical terminology, L.W.16 sought the expert opinion, of the Professor & Head of the Department of Forensic Medicine, Gandhi Medical College, to ascertain as to who was responsible for the death of the deceased since the complainant and other witnesses had alleged that the deceased had died due to the negligence of doctor who had performed operation on the deceased. P.W.13, the Professor & Head of the Department of Forensic Medicine, Gandhi Medical College, basing on the available medical records, postmortem report etc., opined that the cause of the death of the deceased was due to complications of anesthesia administered by the surgeon. In his opinion, L.W. 13 stated that E.C.G Test, X-ray skull and scanning were done, that the surgeon himself had administered anesthesia, that post operative complications suffered by the patient were convulsions due to delayed action of local anesthesia on the brain leading to hypoxia and death, that the complications were avoidable and treatable if a qualified anesthetist was available for administering the local anesthesia and monitoring post operative care etc. L.W.16 also examined L.W.8, who, on the request of S.V.R. Hospital, Ameerpet, had visited the Hospital, examined the deceased and found that the deceased was brought dead by the accused. Since a prima facie case of negligence was made out against Dr. G.V. Rao, he was arrested by L.W. 16 on 6.1.2006 and was released on bail since the offence was bailable. 5. Since a prima facie case of negligence was made out against Dr. G.V. Rao, he was arrested by L.W. 16 on 6.1.2006 and was released on bail since the offence was bailable. 5. It is alleged in the charge sheet that, from the facts and the evidence collected during the course of investigation, it was established that the deceased Sri K. Ramakrishna Reddy was suffering from ear problem, that he had approached the accused Dr. G.V. Rao, an E.N.T. Specialist, and had undergone treatment as per his advice, that he also underwent the prescribed tests, that the accused had suggested surgery and as per his advice the deceased was admitted in the hospital of the accused and, on 8.1.2002, the accused had performed surgery on the deceased, that on 9.1.2002 the condition of the deceased became very serious and he was shifted to SVR Super Speciality Hospital, Ameerpet, Hyderabad and that the doctors at the Super Speciality Hospital declared him brought dead. According to the charge sheet it is fully established that the surgery performed on the deceased by the accused was minor but the accused performed the surgery- negligently, that the accused had himself administered anesthesia and did not seek the assistance of an anesthetist and that the condition of the deceased was not properly monitored post operatively and there was no facility in the hospital of the accused to treat any emergency and hence the deceased died due to complications of anesthesia administered by the accused negligently, which constitutes an offence under Section 304-A I.P.C. 6. Sri C. Padmanabha Reddy, learned Senior Counsel, appearing on behalf of the petitioner, would rely on JACOB MATHEW V. STATE OF PUNJAB(1), to contend that, for negligence to amount to an offence, the element of mens rea must be shown to exist and for an act to amount to criminal negligence, the degree of negligence should be much higher i.e., gross or of a very high degree. According to the Learned Senior Counsel, while negligence, which was neither gross nor of a high degree, may provide a ground for action in civil law, it could not form the basis for criminal prosecution. According to the Learned Senior Counsel, while negligence, which was neither gross nor of a high degree, may provide a ground for action in civil law, it could not form the basis for criminal prosecution. Learned Senior Counsel would submit that, to attract the ingredients of Section 304-A I.P.C, negligence or recklessness must be of such a high degree as to be gross and when so understood it cannot be said that the petitioner herein had acted in gross negligence of his duties as a professional as to warrant his being prosecuted for an offence under Section 304-A I.P.C. Learned Senior Counsel would submit that the Apex Court, in Jacob Mathew(1), had held that the investigating officer, before proceeding against the doctor accused of rash or negligent act or omission, should 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. Learned Senior Counsel would submit that, since the allegation against the petitioner - accused is that he had administered anesthesia which had resulted in the death of the deceased, the qualified expert government medical doctor could only be the Professor of Anesthesia and not the Professor of Forensic Medicine. Learned Senior Counsel would submit that, since the independent opinion of an expert Anesthetist had not been obtained, the charge sheet based on an incompetent medical opinion was liable to be quashed. Learned Senior Counsel would refer to the expert opinion of the Professor and Head of the Department of Forensic Medicine, Gandhi Medical college, Hyderabad, and submit that the expert opinion cannot go beyond the postmortem report and that the opinion, that the deceased had died due to complications of anesthesia administered by the surgeon, went far beyond the postmortem report. Learned Senior Counsel would refer to the D.O. letter dated 14.3.1991, issued by the Deputy Secretary to the Government to the Director of Medical Education, Hyderabad, wherein certain guidelines were prescribed. Among the guidelines is that a Forensic Medicine Doctor is not a suitable person to comment on the procedure adopted to diagnose the nature of the ailment and whether the treatment given for the suspected ailment was reasonably correct or not, and that a Surgeon or a Physician was a more suitable person. Among the guidelines is that a Forensic Medicine Doctor is not a suitable person to comment on the procedure adopted to diagnose the nature of the ailment and whether the treatment given for the suspected ailment was reasonably correct or not, and that a Surgeon or a Physician was a more suitable person. Learned Senior Counsel would submit that, in view of the D.O. letter dated 14.3.1991, it was not open for the investigating officer to have obtained the opinion of the Professor and Head of the Department of Forensic Medicine. 7. In Jacob Mathew’ the Supreme Court observed: “.....We sum up our conclusions as under : (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three . ‘duty’,’breach’ and ‘resulting damage’. (2) 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. 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. (3) 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. (4) The test for determining medical negligence as laid down in Bolam’s case (1957) 1 WLR 582, 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word ‘gross’ has not been used in Section 304A of IPC, 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 of the IPC has to be read as qualified by the word ‘grossly’. (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. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. “....We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. Such malicious proceedings have to be guarded against. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the 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 Bolam’s 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 investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may, be withheld“ (emphasis supplied). 8. While simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a Doctor, and as long as a Doctor follows a practice acceptable to the medical profession he cannot be held liable for negligence merely because a better alternative course or method of treatment is available. When it comes to an examination of the question whether there was failure by the doctor to take precautions, what has to be seen is whether such precautions were taken which, in the ordinary experience of men, would be found to be sufficient. 9. The allegations in the complaint and the charge sheet are that: (1) The petitioner - accused is an E.N.T surgeon and is not a qualified anesthetist. (2) The surgery which the deceased, a 27years old Software Engineer, underwent was a minor ear operation. 9. The allegations in the complaint and the charge sheet are that: (1) The petitioner - accused is an E.N.T surgeon and is not a qualified anesthetist. (2) The surgery which the deceased, a 27years old Software Engineer, underwent was a minor ear operation. (3) The petitioner-accused, though not an anesthetist, administered anesthesia on the patient. (4) The petitioner himself shifted the deceased to S.V.R. Super Specialty Hospital, Dharam Karam Road, Ameerpet, Hyderabad where the deceased was declared as having been brought dead. (5) It was while the deceased was under the petitioner’s care that his death had occurred. (6) The postmortem report records the cause of death as due to “pulmonary oedema and cerebral oedema”. (7) The Professor and the Head of the Department of Forensic Medicine, Gandhi Medical College (a Government Medical College), opined that the post operative complications suffered by the patient were convulsions due to delayed action of local anesthesia on the brain leading to hypoxia and death as revealed by the recordings of the hospital case records, that the complications were available and treatable if a qualified anesthetist was available for administering the local anesthesia and monitoring the case past-operatively, that the postmortem findings do not reveal any other condition which could have caused the death of the patient and that the effect of the anesthetic on the central nervous system and hypoxia could have caused the cerebral and pulmonary oedema. (8) The Professor opined that the deceased had died due to complications of anesthesia administered by the surgeon. 10. The law laid down by the Apex Court in Jacob Mathew’ required the investigating officer, before proceeding against an accused - doctor for rash and negligent act, to obtain an expert and competent medical opinion. That the opinion, obtained from the Professor and the Head of the Department of Forensic Medicine, Gandhi Medical College, is an independent and competent medical opinion is not in dispute. The contention, on the other hand, is that since the Apex Court required the opinion of an expert doctor of a government hospital, j6pecialized in that branch of medical practice, who could normally be expected to give an impartial and unbiased opinion and, since the Professor and Head of the Department of Forensic Medicine is not an expert in the branch of anesthesia, his opinion would not enable the Investigating Officer to proceed against the petitioner - accused. 11. 11. I am afraid I cannot agree. While requiring the Investigating Officer to obtain an independent and competent medical opinion, the Apex Court had observed that it would be “preferable” that such an opinion be obtained from a doctor in government service qualified ‘in that branch of medical practice. Since the words used are “preferable” it is clear that, as the opinion of the Arofessor and Head of Department of Forensic Medicine is an independent and competent medical opinion, that too from a doctor in government service, the mere fact that it is not from the professor of anesthesia would not disable the Investigating Officer, from prosecuting the petitioner accused, based on such an opinion. 12. It is necessary to note that “Forensic Medicine” has been defined in dictionaries to mean: Black’s Law Dictionary (Sixth edition) Forensic medicine: That science which teaches the application of every branch of medical knowledge to the purposes of the law; hence its limits are, on the one hand, the requirements of the law, and, on the other, the whole range of medicine. Anatomy, physiology, medicine, surgery, chemistry, physics, and botany lend their aid as necessity arises; and in some cases all these branches of science are required to enable a court of law to arrive at a proper conclusion on a contested question affecting life or property. Butterworths Medical Dictionary (second edition): Forensic medicine: The study of medicine as related to the needs of the law. See also Pathology. Forensic pathology : The study of trauma and disease in relation to the needs of the law; the practice of autopsy and laboratory techniques in the investigation of deaths of medico legal interest. 13. While the Professor and the Head of the Department of Forensic Medicine is not an expert anesthetist, it cannot be lost sight of that the Investigating Officer had sought his opinion on the medical terminology used in the autopsy/postmortem report. Since “Forensic Pathology” includes the practise of autopsy and laboratory techniques in the investigation of deaths of medico-legal interest it is the Professor and Head of the Department of Forensic Medicine who is the expert in this field and cannot, therefore, be said to be incompetent to give his expert opinion in this regard. 14. Since “Forensic Pathology” includes the practise of autopsy and laboratory techniques in the investigation of deaths of medico-legal interest it is the Professor and Head of the Department of Forensic Medicine who is the expert in this field and cannot, therefore, be said to be incompetent to give his expert opinion in this regard. 14. The D.O. letter dated 14.3.1991, from the Deputy Secretary to the Government to the Director of Medical Education, was on the basis of the recommendations of a retired District Judge who was appointed as the Commission of Inquiry to inquire into the death of 14 persons in Tarbund and Bolarum areas of Secunderabad during the period 15-18 August 1985. In his report, the District Judge had recommended certain guidelines. Whether these guidelines are applicable to the case on hand, the evidentiary value to be attached to a D.O. letter, addressed by the Deputy Secretary to the Government to the Director of Medical Education, are all matters to be examined by the trial Court and are matters totally extraneous to proceedings under Section 482 Cr.P.C. 15. As long as the charge sheet, the allegations in the complaint and the documents annexed thereto, make out a case against the petitioner-accused of his having committed the offence of which he is charged, no interference is called for in proceedings under Section 482 Cr.P.C. It is well settled that this Court, while exercising its jurisdiction under Section 482 Cr.P.C, would not stifle a legitimate prosecution. The power under Section 482 Cr.P.C. must be exercised sparingly, with circumspection, in rarest of rare cases and not as a matter of course. 16. In the case on hand, accepting the allegations as true, a 27 year old, in the prime of his youth, went to the petitioner’s hospital to undergo a minor ear operation. The petitioner - accused, an E.N.T. Surgeon, (not a qualified anesthetist), administered anesthesia on the deceased. The postmortem report, coupled with the opinion of the Professor and the Head of the Department of Forensic Medicine of a reputed Government Medical College in Hyderabad, shows that the death was caused due to administration of anesthesia. The petitioner - accused, an E.N.T. Surgeon, (not a qualified anesthetist), administered anesthesia on the deceased. The postmortem report, coupled with the opinion of the Professor and the Head of the Department of Forensic Medicine of a reputed Government Medical College in Hyderabad, shows that the death was caused due to administration of anesthesia. Prima facie, the allegations in the charge sheet make out a case against the petitioner of his having committed an offence under Section 304-A I.P.C, and discloses “gross negligence” on the part of the petitioner-accused in having administered anesthesia on the patient though he was not a qualified anesthetist. The petitioner, an E.N.T. surgeon, had failed to take precautions, which ordinary experience of a man would find it sufficient. It was not for him to have administered anesthesia, even if it was local anesthesia, more so, over a sensitive portion of the human body near the ear. The allegations, in the complaint and the charge sheet, if accepted as true, prima facie satisfy the test of “gross negligence” as laid down in the judgment of the Supreme Court in Jacob Mathew’. Accepting the allegations in the charge sheet, as true, it cannot be said that no case has been made out against the petitioner-accused of his having committed the offence under Section 304-A I.P.C. I see no reason to quash the charge sheet in exercise of the jurisdiction under Section 482 Cr.P.C. It is, however, made clear that this Court has not gone into the truth or otherwise of the allegations in the charge sheet, as these are all matters of evidence for the trial Court to examine. 17. The Criminal Petition fails is accordingly dismissed. --X—