JUDGMENT A.N.Jindal, J:- Petitioner has invoked provisions of Section 482 of the Code of Criminal Procedure directing respondent No.2(SP Faridabad) to initiate criminal action against two doctors namely Dr. Vikas Chopra and Dr.Rishi Gupta (hereinafter referred to as the respondent Nos.4 and 5) for committing criminal negligence for not attending a patient Rajan Chauhan of Escorts Hospital, Faridabad for not attending him since 08.06.06, 10P.M till 09.06.06, 9A.M and also directing the Medical Board Committee consisting of Civil Surgeon Faridabad for enquiring into the conduct of respondent Nos. 4 and 5 in the episode leading to the death of Rajan Chauhan. 2. The facts as in the back drop are that Rajan Chauhan having developed some heart problem was admitted in Metro Heart Institute, Sector 16, Faridabad. After angiography was conducted on him on 08.06.06 showing 100% blockage in LAD. He was advised to go in for surgery. The angiography diagnosed the coronary artery(significant single vessel) disease. Right dominant System. The doctors in Metro Heart Institute recommended for primary PTCA with stenting to LAD. Thereafter, deceased was shifted to Escort Hospital and Research Centre Ltd., Faridabad where he was admitted on 08.06.06 at 10 PM. However respondent Nos. 4 and 5 who were on duty in the hospital did not attend the deceased and he was discharged on 09.06.06 at 9A.M whereas as per record, the deceased left against the medical advise. The deceased could not sleep properly and was again admitted in the Escorts hospital at 10.06.06 at 10 AM for angioplasty and accordingly the payments were also deposited along with consent form. 3. Despite repeated requests of the petitioner and other relatives respondent Nos. 4 and 5 did not take any action nor any angioplasty was performed during the whole day. The petitioner was not even allowed to see the patient. At about 7.50 PM, the petitioner and other relatives were informed that the patient is no more. Doctors claimed that angioplasty was done and they are having full recording of the same. Original CD was not given to the petitioner and other family members rather a CD containing small clipping of 5 seconds was given, which was totally a manipulated affair of the Escorts Hospital, Faridabad. 4. On filing of the complaint against the Doctors the Dy. Commissioner referred the matter to Civil Surgeon, Faridabad to get the episode enquired. Original CD was not given to the petitioner and other family members rather a CD containing small clipping of 5 seconds was given, which was totally a manipulated affair of the Escorts Hospital, Faridabad. 4. On filing of the complaint against the Doctors the Dy. Commissioner referred the matter to Civil Surgeon, Faridabad to get the episode enquired. The Civil Surgeon constituted Medical Board of 4 doctors comprising of Dr. Ravinder Mathur, S.M.O, Dr. S.K.Manocha, S.M.O, Dr. B.D.Pathak, M.O, Dr. Lokveer, M.O for conducting the enquiry into the episode leading to death of Rajan Chauhan. The Board of Doctors in their report concluded as under:- “After going through records submitted by the Escorts Hospital, Faridabad and statement of Dr. concerned and patient attendant, following facts have been noticed by the members of the committee. That patient Mr. Rajan Chauhan was admitted in Metro Hospital on dated 08.06.06 at 5.00 PM. Coronary angiography was performed at Metro Hospital which showed complete blockage LAD at the ostium and patient was recommended emergent PCI (EXB. no.1). As per statement of patient’s brother in law Mr. Jitender Singh s/o Sh. Nathu Singh, Patient was taken to Escorts Hospital, Faridabad for the same procedure (PCI) after consulting with their family physician at Palwal. Patient was brought to Escorts Hospital at 10:15 PM on 08.06.06 (exhibit to patient’s attendant statement). After scruting all the papers(III-A, III-B, III-CI,IIII-C2 and upto III-L). The patient was attended by Dr. Rishi Gupta, Cardiologist at 10:00 AM on 09.06.06. It appears that patient was not attended by any cardiologist(Dr. Vikas Chopra/Dr. Rishi Gupta and no cornary intervention was done on the night of 08.06.06/09.06.06 for which the patient was shifted from the Metro Hospital. However, Dr. Rishi Gupta in his statement has stated that he attended the patient at 11.30 PM on 08.06.06 and did not perform PCI as the patient’s attendant did not give the consent. However, the patient attendant’s statement (Exb.2) and the Hospital record (IIIA to III-L) does not support the statement of Doctors. Patient left the hospital against medical advise on his own risk at about 2:00 PM on 09.06.06. On 10.06.06 patient was readmitted in Escorts Hospital, Faridabad under care of Dr. Vikas Chopra and Dr. Rishi Gupta at 12.16 PM. He was in Cardiogenic Shock and Haemodynamically unstable condition and PTCA was attempted at 4:00 PM after taking the consent of the patient. On 10.06.06 patient was readmitted in Escorts Hospital, Faridabad under care of Dr. Vikas Chopra and Dr. Rishi Gupta at 12.16 PM. He was in Cardiogenic Shock and Haemodynamically unstable condition and PTCA was attempted at 4:00 PM after taking the consent of the patient. The patient’s attendants were informed about the critical condition of the patient at about 5:30 PM and the patient was declared dead at 7:50PM on 10.06.06(Exb. IV-A to IV-J). All the members of the committee after going through the hospital records(III-A to IIIL, IV-A to IV-J) patient attendant’s statements (Exb.2), Doctor’s statement, CAG report of Metro Hospital and literature (Exb.-I And Exb- V (4 pages) and Exb. VI (3 pages) are of the opinion that Patient Sh. Rajan Chauhan who had acute STEMI(ST Elevated Myocardial Infection) as a result of complete LAD block (Exb.I) was transferred from Metro Hospital to Escorts Hospital at 10:00 PM on the request of patient’s attendant for emergent PCI at 10:30 PM on 08.06.06(Exb.-III-D). The patient was attended by Dr. Rishi Gupta at 10:00 AM on 09.06.06 (Exb-III-D). Patient was not attended by any cardiologist (Dr. Vikas Chopra/Dr. Rishi Gupta) on the night of 08.06.06/09.06.06 and emergent PCI which was needed for the patient was not performed (Exb.-III-A to L) on the night of 08.06.06/09.06.06. We further feel that again the patient was admitted on 10.06.06 in Cardiogenic Shock and Haemodynamicaly unstable condition at about 10:16 PM earlier and timely intervention could have benefitted the patient. Sd/-(Dr. Ravinder Mathur) Sd/-(Dr. S.K.Manocha) Sd/- (Dr. B.D.Pathak) Sd/-(Dr. Lokveer)” The petitioner, further has submitted that according to the Indoor Admission Chart the doctors have mentioned cardiogenic shock at 7.50 PM on 10.06.06. The extensive interior wall MI >> 100% occlusion of LAD Ostium(Attempted PTCA) is shown. This Indoor Admission Chart also carries the consent declaration made by the petitioner. He referred this report as Annexure P-5. 5. Again a Medical Board gave a finding that no cardiologist attended the patient throughout the night of 08.06.06 and 09.06.06. Seeing the pathetic attitude of the doctors, the petitioner asked about the well-being of the patient on the next day that is 09.06.06 and was told to shift the patient as no angioplasty was required to be done on the patient. The patient was shifted but the doctors in order to complete their documents mentioned word ‘LAMA’ in the record. 6. The patient was shifted but the doctors in order to complete their documents mentioned word ‘LAMA’ in the record. 6. In nutshell, petitioner has submitted that since Rajan Chauhan died on account of the negligence of the respondent Nos. 4 and 5, therefore, necessary criminal proceedings be initiated against them. 7. The State as well as the respondent Nos. 4 and 5 filed the replies wherein they mentioned that earlier the patient was admitted with the history of chest pain 11 hours back and had lasted for 4 hours. The history further reveals that at Metro Hospital angiography test was carried out on him which revealed that 100% occlusion of LAD ostial blockage in his LAD and Doctors at Metro Hospital advised the patient either to go in for by pass surgery or angioplasty, however, the patient left the hospital against medical advise. The record of the Escorts Hospital reveals that he was admitted in the hospital at 10.30 PM on 08.06.06 and he was first attended by Dr. Sameer Behl, MD having 10 years experience in cardiology. 8. It has been further stated that the condition of the patient was discussed by Doctor Behl with Dr.Rishi Gupta over the phone and the patient was told that a primary angioplasty may be conducted and the same may be accomplished in the next one or two hours. It was further informed to the patient and his relatives since almost 11 hours had elapsed after chest pain and the patient was stable with no pain and normal vital signs. The benefit of the procedure was not going to be as much, as it would have been if the patient would have either had it conducted at Metro Hospital or would have come to the Escorts Hospital earlier. It was further explained to the patient and his relatives that this was a high risk procedure because of ostial position of the blockage. For this patient was directed to sign the consent forms and deposit the requisite fee. 9. It was replied that on the aforesaid suggestion the patient’s relatives refused to go for above procedure, thereafter there was a heated arguments advanced by the respondents that the operation and the treatment of the patient was important to save his life. For this patient was directed to sign the consent forms and deposit the requisite fee. 9. It was replied that on the aforesaid suggestion the patient’s relatives refused to go for above procedure, thereafter there was a heated arguments advanced by the respondents that the operation and the treatment of the patient was important to save his life. The patient was explained that he was sitting on a time bomb, however the patient responded as under: “main daud lagaunga aur theek ho jaunga” Thereafter he left the hospital despite Doctors explaining him that this was most dangerous and his leaving the hospital was against the medical advise. 10. Eventually, it was submitted that under the aforesaid circumstances, no case for criminal negligence was made out. 11. Arguments heard and records perused. 12. Mr. Raj Mohan Singh, counsel for the petitioner has urged against respondents that though the respondent Nos. 4 and 5 were on duty and were supposed to examine the patient, issue prescriptions and treat him but omission on their part amounts to gross negligence falling within the purview of Section 304 A of the IPC. In this regard he has relied upon the judgment delivered by the Apex Court in case Jacob Mathew v. State of Punjab and another, [2005(3) LAW HERALD (P&H) 673 (SC)] :(2005)(3) RCR (CRIMINAL) 836. The judgment elaborates the guidelines for holding the medical negligence of the Doctors. The relevant extract of the judgment is reproduced as under:- 1. Doctors can be prosecuted for an offence of which rashness or negligence is an essential ingredient, but they are to be protected from frivolous and unjust prosecutions. 2. Many a complainant prefers recourse to criminal process as tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 3. 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. 4. The investigating officer, before proceeding against the doctor should obtain an independent and Competent medical opinion preferably from a Doctor in Govt. Service. 5. 4. The investigating officer, before proceeding against the doctor should obtain an independent and Competent medical opinion preferably from a Doctor in Govt. Service. 5. A doctor may not be arrested in routine, unless his arrest is necessary for furthering the investigation or for collecting evidence or the Doctor would not make himself available to face prosecution unless arrested. While distinguishing negligence in the civil law from that in the Criminal Law their Lordships issued guidelines for taking the medical negligence within the purview of criminal law while observing as under:- 1. 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. 2. The word ‘gross’ has not been used in Section 304-A 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 304 A of the IPC has to be read as qualified by the word ‘grossly’. 3. 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. While dealing with the provisions of Section 304A, 88,92 and 93 – Medical negligence the Supreme Court further clarified as under:- 1. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. While dealing with the provisions of Section 304A, 88,92 and 93 – Medical negligence the Supreme Court further clarified as under:- 1. 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. 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. 2.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. 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. 3.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 sense 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. 4. Act of negligence in performing an operation – Doctor may be liable in tort, if his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable – Permissible of law. The apex Court in this regard approved the judgment delivered in 2004 (3) RCR (Crl.) 925 (SC) 13. While assessing the facts of the instant case on the parameters laid down by the Apex Court it may be observed that as per records the patient first left the Metro Hospital, New Delhi of his own on 08.06.2006. The records further reveal that the patient was admitted in Escorts Hospital, New Delhi on 08.06.06 at 10 PM and left the hospital on 09.06.06 against the medical advise. Again he was admitted in the Escorts Hospital on 10.06.06 and expired after an unsuccessful operation. The petitioner wants me to hold criminal negligence of the respondent Nos. 4 and 5 merely on account of their omission to attend the patient for 12 hours that is from 08.06.06, 10.30 PM till 10 AM on 09.06.06. 14. In this regard it may be observed that patient did not die during this period when the patient was left unattended rather the records reveal that patient left the hospital against the medical advice on 09.06.06 and again came to the hospital on 10.06.06. It also can’t be ignored that doctors had asked for patient’s attendants and the patient for surgery but he did not give the consent. It also can’t be ignored that doctors had asked for patient’s attendants and the patient for surgery but he did not give the consent. It was also observed by the doctors that substantial damage had already been suffered during the period he remained admitted in Metro Hospital. Had the petitioner any grievance regarding the negligence of respondent No. 4 & 5 then he would not have returned to Escorts Hospital for his treatment. The previous conduct of the patient also goes against him as he left the Metro Hospital against the medical advice and thereafter he left the Escorts Hospital against the medical advise on 09.06.06. 15. No mens rea could be attributed to the doctors for taking the life of their esteemed patient. The principle of res-ipsa loquitur also is not attracted in this case. 16. Nothing has been alleged against the Doctors that omission on their part stood infected with mens rea ill motive or evil design. The alleged omission on their part can’t be turned as gross or of such a higher degree so as to bring the case within the purview of criminal negligence. 17. It may further be observed that after the deceased left the hospital at 10 AM on 9.06.06 and till next day it could not be anticipated if the problem deteriorated during this period for which the deceased or his relatives could be held responsible. The plea of the respondents that the petitioner left the hospital against the medical advice cannot be said to be false as Jatinder Singh brother-in-law gave in writing that the deceased had left the hospital against the medical advice. Deceased himself also recorded while leaving the hospital as under:- “Main daud lagaunga or theek ho jaunga” 18. It would further be essential to notice that under the directions of this Court, an enquiry into the episode was got conducted from Deputy Superintendent of Police, Faridabad, who also did not indict the petitioner. Deceased himself also recorded while leaving the hospital as under:- “Main daud lagaunga or theek ho jaunga” 18. It would further be essential to notice that under the directions of this Court, an enquiry into the episode was got conducted from Deputy Superintendent of Police, Faridabad, who also did not indict the petitioner. The relevant para of the affidavit furnished by Hari Kailash, HPS, Deputy Superintendent of Police, NIT Faridabad, relating to the status report of the enquiry conducted by him reads as under:- “After going through the facts and circumstances of the case, Medical report of the Board of Doctors of B.K.Hospital and all other relevant documents, I have come to the conclusion that it is a case of vicarious liability on the part of the doctors as well as the attendants of the patient including the petitioner. Moreover, as per medical report of the Board of Doctors of B.K.Hospital, Faridabad, no criminal negligence on the part of the doctors stands established. Thus, I am of the considered view that it is a case of civil nature and not of a criminal nature.” Thus under these circumstances, it could be safely held that no criminal negligence is made out against respondent Nos. 4 and 5 so as to initiate the criminal proceedings against them. 19. Consequently, finding no merit in the petition the same is hereby dismissed. ——————————