Judgment REKHA KUMARI, J. 1. Heard both the sides. 2. The case of the Complainant (O.R No. 2) in the Complaint Petition, in brief, is that his wife Sumanju Devi had some problem in her uterus on account of which she developed acute pain and was having bleeding problem. She was at first treated by Dr. Usha Didwania, Patna. She advised removal of uterus. As there were difficulty in getting her operated in Patna, he (O.P. No. 2) consulted the Petitioners on 7th March, 2000 and 11th November, 2000. The Petitioner also advised his to get his wifes uterus removed by operation and further advised urine test. On urine test, it was detected that his wife was suffering from E. Coli. The Petitioner prescribed medicine and also told O.P. No. 2 that his wife should be operated on 25th April, 2001. On 25th April, 2001 the Petitioner prescribed some test and fixed 18th May, 2001 for operation. On 18th May, 2001 his wife was operated upon. It is alleged that the Petitioner with a bad intention did not operate her properly, as a result of which the condition of his wife deteriorated and pain, burning and bleeding problem continued. O.P. No. 2 then got his wife examined by Dr. Shanti Roy specialist in Obstetrics & Gynaecology. She informed that both the Ovaries of his wife had been removed alongwith uterus, as a result of which her condition was deteriorating and that during treatment Cancer might be developed. 3. According to the Complainant, in order to extract money from the Complainant, the Petitioner with bad intention and fraudulently got theoveries of his wife removed. The Complainant then filed complaint on 4th January, 2004. He was examined on S.A. He examined the witnesses in enquiry under Sec.202 Cr.PC. The learned Judicial Magistrate found from the Ultra-sound report of Dr. Nidhi Krishna, Sonologist (submitted on reference made by Dr. Didwania) that both the Ovaries were healthy, appeared normal in size and shape. So, he was of the opinion that there was no reason for the Petitioner to remove the ovaries. He accordingly, passed the impugned Order. 4. Learned Counsel for the Petitioner and the learned Counsel for O.P. No. 2 made their submissions in support of the Order. Didwania) that both the Ovaries were healthy, appeared normal in size and shape. So, he was of the opinion that there was no reason for the Petitioner to remove the ovaries. He accordingly, passed the impugned Order. 4. Learned Counsel for the Petitioner and the learned Counsel for O.P. No. 2 made their submissions in support of the Order. At the out set it may be pointed out that though cognizance has been taken in this case under Sections 326 and 338 IPC, no offence under Sec.326 IPC can be said to be made out on the basis of the allegation. To constitute an offence under Sec.326, the act complained of must be done voluntarily. But the Petitioner is a practising professional and there is no allegation that she had any enmity with O.P. No. 2. Therefore, it is absurd to think that the Petitioner would voluntarily cause grievous hurt to the wife of O.P. No. 2 by removing ovaries.The case of O.P. No. 2 is that in order to extract money the Petitioner did like that. It has been observed by the Supreme Court in the came of Jacob Methew V/s. State of Punjab and Anr., reported in (2005) 6 SCC1, that "No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career." In this case also it cannot be conceded that in order to extract money, by keeping her reputation at stake, the Petitioner would voluntarily cause hurt to the Complainants wife by removing her ovaries. 5. Therefore, the basis of such allegations at best a case of negligence punishable under Sec.338 IPC can be contemplated. So, the question is whether the offence under Sec.338 IPC is made out in this case: In the case of Jacob Mathew(supra) the Court has observed that a different standard is to be applied for recording a finding of negligence when a professional particularly a doctor is to be held guilty for negligence and has held - "For negligence to amount 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 if a very high degree." In this case, the allegation is that the Petitioner was required to remove only uterus but she removed also the ovaries. If the allegation is prima facie true then clearly it is a case of gross negligence amounting to culpability. But from the prescription dated 11th November, 2000 and 25th April, 2001 issued by the Petitioner and filed with the complaint, it appears that before operation, the Petitioner had advised total hysterectomy and in total hysterectomy, normally both the ovaries are removed when woman is aged 40 years or more (vide textbook of Gynaecology and Contraception by Prof. C.S. Dawn - relied on by the Petitioner). The prescription shows that the patient was aged more than 40 years. Therefore, when the patient was examined by the Petitioner before operation and she was advised total hysterectomy and the Petitioner accordingly, removed the ovaries, no case to made out that the Petitioner was required to remove only the uterus and she removed the ovaries also and that too without the knowledge of the patient or her husband. In the prescription dated 26th May, 2001 written by the Petitioner it is also mentioned that the total hysterectomy was done on 18th May, 2001. So, it cannot also be said that when the patient was examined by Dr. Shanti Roy, the Complainant came to know that his wifes ovaries had been removed. 6. Then though the report of Dr. Nidhi Krishna is that both the ovaries appeared normal in shape and size, the learned Counsel for the Petitioner submitted that the report also shows that it was seen in PCD (Pouch of Donglas) and PID (Pelvio infra. disease) which was suggestive of removal of ovaries. He further submitted that the problem with which the Complainants wife was suffering, was due to adhesion all around uterus and ovary and hence, the ovaries had to be removed. His submission also is that such adhesive lision are not projected in Ultra-sound report and are detected after opening the abdomen. 7. disease) which was suggestive of removal of ovaries. He further submitted that the problem with which the Complainants wife was suffering, was due to adhesion all around uterus and ovary and hence, the ovaries had to be removed. His submission also is that such adhesive lision are not projected in Ultra-sound report and are detected after opening the abdomen. 7. Learned Counsel for O.P. No. 2, an the other hand, referred to an article regarding Pelvic Adhesions written by J. Glenn Bradley (M.D.) OEGYN, net Editorial Advisor, (copy attached with record), wherein it is mentioned that "Given significant symptomatic pelvic adhesions being suspected from the history and physical exam, a thorough workup is indicated, which may include special x-ray studies and ultrasound" and submitted that such adhesions are detected in ultrasound. But in that very Article three paragraphs above the sentences it is mentioned. "It should be remembered that ultra-abdominal and pelvic adhesions rarely if ever show up on X-ray or ultrasound." Therefore, the above submission of the learned Counsel for the Petitioner is not controverted. 8. In the Supreme Court decision referred to above it has also been held, that "when negligence is essential ingredients of an offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon the error of judgment, but there is no material much less an expert report on record to show that on the basis of ultrasound report, no ordinary competent doctor exercising ordinary skill in the profession would have advised for total hysterectomy. Negligence can be attributed to a doctor as long as he is performing his duties to the best of his ability and with due care and caution. So, when on the basis of ultrasound report and the case history, the Petitioner came to the conclusion that it was a case of total hysterectomy, it cannot be said that she was negligent much less grossly." 9. Thus, so far post operation complications, a surgeon cannot and does not give guarantee that the result would invariably be beneficial much less to the extent of sent per cent. A Medical practitioner would be held liable only where his/her conduct fell below that of standards of a reasonable competent practitioner in his/her field. Thus, so far post operation complications, a surgeon cannot and does not give guarantee that the result would invariably be beneficial much less to the extent of sent per cent. A Medical practitioner would be held liable only where his/her conduct fell below that of standards of a reasonable competent practitioner in his/her field. But there is no material on record to show that the complication could not have arisen if the Petitioner would have taken reasonable care in performing the operation. So, simply because the patient did not respond favourably to the treatment given by the Petitioner she cannot be held liable per se. 10. It, therefore, appears that the prosecution has failed to make out a case of negligence against the Petitioner to be proceeded against criminally and no offence under Sec.338 IPC is made out against the Petitioner. To the result, this petition is allowed and the impugned Order is quashed.