JUDGMENT 1. - The present miscellaneous petition has been filed by the petitioner against the order dated 14.10.2009 passed by the Chief Judicial Magistrate, Suratgarh (for short, the trial Court") in Final Report Case No. 176/2007 arising out of F.I.R. No. 154/2007 Police Station Suratgarh, whereby the learned trial Court took cognizance against the petitioner for the offences tinder Section 304-A I.P.C. The said order passed by the trial Court has been affirmed in revision by the learned Additional Sessions Judge (Fast Track), Anoopgarh, headquarter Suratgarh vide order dated 12.11.2009. 2. Briefly stated, the facts necessary for disposal of the miscellaneous petition are set-out here-in-under. 3. The petitioner is a doctor as also the owner and Incharge of Manju Bhargava Nursing Home. A complaint was filed in the Court of Additional Chief Judicial Magistrate, Suratgarh by one Amritpal Singh with the allegations that he was married to one Chinnu alias Bhawandeep Kaur. He further submitted that he and his wife Chinnu alias Bhawandeep Kaur were residing at Suratgarh and on 30.3.2007, when his wife was expecting and was taken to the petitioner's nursing home at the final stages of her pregnancy. The petitioner allegedly asked the complainant to bring two units of blood from Purohit Blood Bank, Sri Ganganagar and instructed the complainant that she would be calling the Purohit Blood Bank for doing the needful. It is said that thereafter the complainant went to Sri Ganganagar, brought two units of blood from Purohit Blood Bank for a sum of Rs. 2200/- and handed over the same to the petitioner. It is further alleged that the petitioner started administering the blood to the complainant's wife and ultimately complainant's wife gave birth to a child on 31.3.2007 at 9.0/10.00 AM. It is further alleged that one and half hour later, the petitioner informed the complainant that his wife had developed some reaction with the blood and as such two more units of blood were to be brought from Purohit Blood Bank, Sri Ganganagar. Accordingly, the complainant again went to Sri Ganganagar and brought two more units of blood but by the time he reached back, he was informed that his wife had expired. 4. Accordingly, the complainant again went to Sri Ganganagar and brought two more units of blood but by the time he reached back, he was informed that his wife had expired. 4. The complaint to this effect was filed with the allegations that the petitioner did not check the blood before administering the same to the complainant's wife and as such the blood caused reaction in the body of his wife, as a result of which she expired. It has further been alleged that the petitioner as well as Purohit Blood Bank were responsible for the death of complainant's wife. The complaint filed by the complainant in the Court of Additional Chief Judicial Magistrate No. 3 was sent to the Police Station, Suratgarh under Section 156 (3) Cr.P.C. for investigation and ultimately the police, after making thorough investigation of the matter, filed a Final Report in the case. The complainant was given numerous notices but he could not be located and as such the learned Magistrate proceeded to consider the matter suo motu and ultimately he proceeded to take cognizance against the petitioner and the owner of Purohit Blood Bank, as mentioned above. 5. Being aggrieved by cognizance, the petitioner and filed a revision petition which too has been dismissed, as stated above. It is against the said dismissal of the revision petition that the petitioner has approached this Court by way of present miscellaneous petitioner seeking quashing cognizance order and all subsequent criminal proceeding launched against her. 6. Assailing the impugned order and the proceedings sought to be taken against the petitioner, learned counsel for the petitioner submits that in this case the complainant was given a notice by the learned Court below but he did not appear despite repeated intimations and ultimately the counsel for the complainant before the trial Court pleaded "no instructions" in the matter. He submits that the post-mortem report of the deceased reveals that the cause of death was as a result of cardiogenic shock, still the learned Magistrate has taken the cognizance against the petitioner observing that the petitioner observing that the petitioner had administered the blood to the complainant's wife without checking the same and as such it is obvious that the order taking cognizance against the petitioner suffers from total non-application of mind. He further submits that when the allegation of the complainant regarding the manner in which his wife died, has not been substantiated by the medical evidence on record then the cognizance order is absolutely unjustified. He further submitted that as per the directions of the Hon'ble Supreme Court in the case of Jacob Mathew v. State of Punjab , before cognizance could be taken against the petitioner, the opinion of the Medical Board had to be taken for the purpose of finding out whether the death of the complainant's wife was as a result of medical negligence. It has been submitted that before cognizance could be taken for the death of a patient during his/her treatment, the findings of the Court taking cognizance has to be that the doctor committed gross negligence in the treatment and then only he/she could be prosecuted. He has taken this Court through the findings of the learned Magistrate in the impugned order, by which cognizance has been taken, as per which the Magistrate himself has found that there is a grave discrepancy in relation to the ocular evidence and the medical evidence in this case and that the Magistrate has not given a finding that the death of complainant's wife was as a result of gross negligence. Thus, assailing the impugned order of the learned Magistrate as affirmed by the revisional Court, it has been submitted to this Court that the proceedings against the petitioner, being illegal and amounting to abuse of the process of Court should be quashed. 7. Learned Public Prosecutor has opposed the arguments made by the learned counsel for the petitioner and submitted that before administering blood to the patient, the petitioner was under an obligation to cross-check the blood and only after cross checking of the blood, the blood should have been administered to a patient. He submits that the act of the petitioner in administering the blood to the complainant's wife without checking the same, by itself shows that the petitioner acted in a grossly rash and negligent manner and thus the impugned order should not be interfered with. 8. I have considered the arguments advanced at the bar and perused the impugned order as well as the record of the case. 9. 8. I have considered the arguments advanced at the bar and perused the impugned order as well as the record of the case. 9. Before dealing with the contentions raised by the learned counsel for the petitioner on merit and consideration of observations or directions of the Hon'ble Supreme Court. In the case of Jacob Mathezv's case referred supra, wherein the Hon'ble Apex Court has issued extensive guidelines for the cases involving medical negligence and the prosecution of the doctors. In Jacob Mathezo's case, the Hon'ble Supreme Court held as under: "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. 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. 30. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason - whether attributable to himself or not, neither a surgeon can successfully wield his life-saving scalper to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being 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 the society. 31. The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science both are too complex to be easily understood. Such timidity forced upon a doctor would be a disservice to the society. 31. The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability. Conclusions summed up 49. 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. 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 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 posses. 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. (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 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 of the I.P.C. 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. 51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an F.I.R. being lodged and cognizance taken. 51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an F.I.R. being lodged and cognizance taken. The Investigating Officer and private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304A of I.P.C. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards. 52. 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 emphasise 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 pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 53. 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. 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." 10. This Court is of the opinion that by virtue of the directions issued by Their Lordships of the Hon'ble Supreme Court in Jacob Matheiu's case (supra), before a Medical Officer can be prosecuted for negligence, two conditions are essential. Firstly, there has to be a finding based on an opinion by a competent medical officer that the death of the patient was as a result of rash and negligent act of the doctor; and secondly, the Court has to arrive a finding that the act of the Medical officer was grossly negligent and thereafter only the cognizance for the offence under Section 304-A, I.P.C. is permissible against a medical officer for the offence of causing death of a patient under treatment. 11. Having perused the impugned order and the record of the case, it becomes apparent that neither of the aforesaid two conditions are present in the instant case. Neither the prosecution has taken any evidence or opinion of the Medical Board, nor is there a finding of the learned Magistrate that the petitioner's act in administering the blood to the deceased was an act of gross negligence. On the other hand, it is apparent that there is contradictory finding of the learned Magistrate to the effect that the medical evidenced shows that the death of the complainant's wife was as a result of cardiogenic shock and not as a result of administration of unmatched blood. There is no material on the record of the case apart from the oral assertion of the complainant that the death of Smt. Chinu was as a result of for administration of unmatched or unchecked blood. 12. There is no material on the record of the case apart from the oral assertion of the complainant that the death of Smt. Chinu was as a result of for administration of unmatched or unchecked blood. 12. Thus, in the opinion of this Court, the impugned order, whereby the petitioner has been summoned as an accused in the case for the offence under Section 304-A I.P.C., cannot be sustained in the eye of law. 13. Another reason whereby the impugned order cannot be sustained is that the learned Magistrate has taken cognizance against the petitioner and the "owner of Purohit Blood Bank". The impugned order, thus, totally suffers from non- application of mind. Before a person can be summoned as an accused for an offence, there has to be a finding of the Court as to how the person sought to be summoned is responsible for the act for which he is being summoned. The impugned order, whereby the cognizance has been taken, clearly shows that the learned Magistrate, without even finding out as to who is the owner of Purohit Blood Bank, Sri Ganganagar, has taken the cognizance. As such, the impugned order also suffers from vice of total non-application of mind. 14. Accordingly, the miscellaneous petition succeeds and is allowed. The impugned order, whereby cognizance has been taken against the petitioner as also all the proceedings subsequent thereto, are hereby quashed.Petition Allowed. *******