JUDGMENT : L. Mohapatra, J. - The Petitioner has filed this application u/s 482 Code of Criminal Procedure for quashing the order dated 10.8.2006 passed by the Learned S.D.J.M., Bhubaneswar in I.C.C. No. 2004 of 2006 taking cognizance of offences under Sections 269,271,307,506,354,323,304,337 and 338 of the Indian Penal Code. 2. The case of the complainant is that prior to 2.2.2004 the daughter of the complainant was maintaining good health and was a recognized singer. She met with an accident and was treated in the Capital Hospital, Bhubaneswar. After taking medicines prescribed by the physician of the said hospital, she suffered from Jaundice and her health became such that she was referred to Kalinga Hospital at Bhubaneswar for further treatment. The Petitioner took charge of treatment from 2.2.2004 and implanted a temporary peacemaker. According to the complainant, a peacemaker whether temporary or permanent is needed only when the breathing of the heart falls from 72 times per minute. The work of peacemaker is like an inverter to maintain the heart beat at a constant pace. According to the complainant, 7 to 8 days after the temporary peacemaker was implanted, the same was removed and the daughter of the complainant was shifted to general ward of the said Kalinga Hospital and was assured that she would be discharged within 4 to 5 days. On 24.2.2004 instead of discharging the daughter of the complainant, only to get a substantial amount of commission from the pacemaker company, the Petitioner in presence of Secretary of the Saraswati Sisu Mandir advised that unless a foreign made permanent pacemaker worth Rs. 1,50,000/- is implanted on the next day morning, the daughter of the complainant may suffer from paralysis or may die at any time. When the complainant expressed her inability to arrange such huge amount of money, she was advised to deposit a part of the money immediately and the balance at the time of discharge. Accordingly, the complainant was forced to agree for implanting a permanent pacemaker without the required test being done. However, on the advise of the Petitioner, a permanent pacemaker was implanted in the body of the daughter of the complainant. From the second day of implantation, the daughter of the complainant started vomiting continuously and also complained pain in the chest. Accordingly, the complainant was forced to agree for implanting a permanent pacemaker without the required test being done. However, on the advise of the Petitioner, a permanent pacemaker was implanted in the body of the daughter of the complainant. From the second day of implantation, the daughter of the complainant started vomiting continuously and also complained pain in the chest. In spit of such complain made by the daughter of the complainant, she was discharged from the Kalinga Hospital on 9.3.2004. Not being in a position to bear the pain and also due to continuous vomiting, a request was made to remove the permanent pacemaker, but the Petitioner did to listen. Since the pain became unbearable, the complainant contacted Dr. Hrudananda Mishra Professor and Head of the Department, Cardiology, S.C.B. Medical College and Hospital, Cuttack. However, it is alleged that Dr. Hrudananda Mishra neither treated her nor referred her to AIIMS, New Delhi. Being disgusted, the complainant and her daughter decided to commit suicide and accordingly, on 4.8.2006 both of them tried to commit suicide in the front of the State Assembly when the monsoon session was going on. However, they were prevented by the S.P., Bhubaneswar and were promised that action would be taken against the doctors treating her. It is also alleged that on 6.8.2006 the complainant and her daughter along with a social worker namely, Bhuban Behari Mohanty met the Petitioner for treatment but in spite of payment of consultation fees the Petitioner scolded them in obscene language and pushed the complainant and her daughter out of his consultation room. On these allegations, the complaint was filed for commission of offences under Sections 337, 338, 307 and 354 of the Indian Penal Code. However, the Learned Magistrate in the impugned order took cognizance of other offences apart from the above as stated earlier. 3. Shri Routray, the Learned Counsel appearing for the Petitioner submitted that the order taking cognizance is liable to be quashed solely on the ground that the Petitioner being a doctor was competent to give advice and when a doctor gives advice in good faith, no offence can be said to have been committed by him. Reliance is placed on a decision of the Apex Court in the case of Jacob Mathew Vs. State of Punjab and Another, . Reliance is placed on a decision of the Apex Court in the case of Jacob Mathew Vs. State of Punjab and Another, . The complainant and her daughter appeared in person and supported the compliant case and also submitted before the Court the manner in which the operation was done as well as the behaviour of the Petitioner during the post operation period. 4. In the case of Jacob Mathew v. State of Punjab and Anr. (Supra) an F.I.R. was lodged by one Ashok Kumar Sharma alleging therein that on 15.2.1995 his father late Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital, Ludhiana. On 22.2.1995 his father felt difficulties in breathing and the complainant's elder brother who was present in the room contacted the duty nurse, who in her turn called some doctor to attend to his father. No doctor turned up for about 20 to 25 minutes and then Dr. Jacob Mathew the Appellant before the Apex Court and one Dr. Allen Joseph came to the room where an oxygen cylinder was brought and connected in the mouth of the patient but the breathing problem developed. The patient tried to get up but the medical staff asked him to remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. The brother of the informant went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in between 5 to 7 minutes were wasted. By that time, another doctor came who declared that the patient had died. On these allegations, the case was registered for commission of offence u/s 304-A read with Section 34 of the Penal Code. The Apex Court in paragraphs-19 and 49 of the judgment held as follows: In the law of negligence, professionals such as lawyers, doctors, architects and Ors. are included in the category of persons professing some special skill or 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. are included in the category of persons professing some special skill or 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. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon can not 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 practicing 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; 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 professional. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Company Ltd., (2001) P.N.L.R. 233. CA. Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the Defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid. In Michael Hyde and Associates v. J.D. Williams & Company Ltd., (2001) P.N.L.R. 233. CA. Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the Defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid. Para 8.03) xx xx xx 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 & 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 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 simple 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. 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. 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). I 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. (6) The word 'gross' has not been used in Section 304A of Indian Penal Code, 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 Indian Penal Code has to be read as qualified by the word 'grossly'. The expression 'rash' or 'negligent act' as occurring in Section 304A of the Indian Penal Code 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 applicability in trial on a charge of criminal negligence. 5. In the notes of submission given by the complainant and her daughter, a stand is taken that in an application u/s 482 Code of Criminal Procedure, the Court should exercise the inherent power in appropriate cases with caution and should do real and substantial justice to the parties. It is also stated in the notes of submission that only when a complaint does not disclose commission of any offence or is frivolous vexatious or oppressive, inherent power u/s 482 Code of Criminal Procedure should be invoked. Reliance in this regard is placed by the complainant on two decisions of the Apex Court in the case of Dhanalakshmi Vs. R. Prasanna Kumar and Others, and in the case of Janata Dal Vs. H.S. Chowdhary and Others, . 6. From the allegations made in the complainant it is clear that initially the daughter of the complainant had been treated in the Government Capital Hospital at Bhubaneswar and when she developed complications, she was referred to the Kalinga Hospital. The Petitioner is working as a Senior Consultant in the Department of Cardiology in the Kalinga Hospital. On examination of the daughter of the complainant, the Petitioner was of the view that she needed a peacemaker to survive. The Petitioner is working as a Senior Consultant in the Department of Cardiology in the Kalinga Hospital. On examination of the daughter of the complainant, the Petitioner was of the view that she needed a peacemaker to survive. It is stated that this decision was taken by the Petitioner on examination of the patient and the decision is based on his knowledge in ailments with regard to heart and experience as a doctor in Cardiology. The Learned Counsel appearing for the Petitioner contended that if such a decision is taken in good faith and the Petitioner was of the view that in absence of a peacemaker, the patient may die, no offence can be said to have been committed by the doctor by taking such decision. This submission of the Learned Counsel for the Petitioner gets support from the observations made by the Supreme Court in the case of Jacob Mathew v. State of Punjab and Anr. (Supra). Apart from above, the Learned Counsel for the Petitioner also submitted that the complainant was also examined by the doctors working out side of the State and nobody advised to remove the pacemaker. This contention of the Learned Counsel appearing for the Petitioner is not refuted by the complainant or her daughter. As a matter of fact, the daughter of the complainant who made submissions in the Court clearly stated that she had gone for medical check up to AI.I.M.S., New Delhi and also to some hospital at Chandigarh. It was also contended by her that though the doctors who examined 'her in those two hospitals were of the view that implanting a pacemaker was not necessary, they did not advice her neither to remove it nor they did that themselves. On being questioned by the Court, the daughter of the complainant stated that in order to help the Petitioner those doctors did not agree to remove the pacemaker. Such submission made by the daughter of the complainant is not acceptable. Under these circumstances, I am of the view that it is a fit case that the order taking cognizance should be quashed and the Learned Magistrate should be directed to reconsider the matter with reference to the observations made by the Apex Court in the case of Jacob Mathew v. State of Punjab and Anr. (supra). 7. Under these circumstances, I am of the view that it is a fit case that the order taking cognizance should be quashed and the Learned Magistrate should be directed to reconsider the matter with reference to the observations made by the Apex Court in the case of Jacob Mathew v. State of Punjab and Anr. (supra). 7. I, accordingly quash the impugned order dated 10.8.2006 and direct the Learned S,D.J.M., Bhubaneswar to reconsider the matter with reference to the allegations made in the compliant and the decision of the Apex Court as aforesaid and pass an appropriate order. The CRLMC is accordingly allowed. Final Result : Allowed