JUDGMENT Mrs. Sabina, J.: - Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’) seeking quashing of FIR No.330 dated 26.07.2010 under Section 304-A of the Indian Penal Code, 1860 (in short ‘IPC’) registered at Police Station Model Town, Panipat (Annexure P-1) and the report under Section 173 Cr.P.C. (Annexure P-13) and all the subsequent proceedings arising therefrom. 2. Learned counsel for the petitioner has submitted that before initiating criminal proceedings against the petitioner qua medical negligence, the investigating agency was required to seek report from an expert as to whether petitioner could be said to be guilty of any medical negligence. However, during the pendency of the petition, report was sought from the Medical Board by the investigating agency and the Medical Board, vide its report dated 01.07.2011, has opined that there was no deficiency in medical services/treatment and no medical negligence could be found after going through all the documents provided. In support of his arguments, learned counsel has placed reliance on Jacob Mathew Vs. State of Punjab and another, [2005(3) Law Herald (P&H) 673 (SC)] : AIR 2005 Supreme Court 3180 (1) wherein it was held as under:- We sum up our conclusions as under:- “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 Dhirailal (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’. 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. 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. 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. 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. 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. 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 decree. 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. The word ‘gross’ has not bee 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’. 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 such a nature that the injury which resulted was most likely imminent. Res ipso loquitur is only 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.” 3. Learned counsel has further placed reliance on Martin F. D’Souza Vs. Mohd. 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.” 3. Learned counsel has further placed reliance on Martin F. D’Souza Vs. Mohd. Ishfaq AIR 2005 SC 2049 wherein it was held as under:- “We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer for a (whether District, State of National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew’s case (supra), otherwise the policemen will themselves have to face legal action.” 4. Learned State Counsel, on the other hand, has failed to controvert the report submitted by the Medical Board dated 01.07.2011. 5. In the present case, prosecution story, in brief, is that son of the complainant aged about one month and three days was suffering from fever. Complainant got admitted his son in Malhotra Hospital run by the petitioner. Petitioner, however, did not give necessary treatment to the son of the complainant. At about 9.30 p.m., petitioner and Dr. Savitri Arora took the signatures of the petitioner on a form and advised him to take his son to Delhi or Rohtak. Complainant along with his parents brought his son back from the hospital. However, when the mother of the complainant checked the child, she found that the child had already died. It was alleged by the complainant in the FIR that his son had expired on account of negligence on the part of the doctor. Hence, FIR in question was registered. 6. It has been held by the Apex Court in Jacob Mathew’s case (supra) and Martin F. D’Souza Vs. Mohd. It was alleged by the complainant in the FIR that his son had expired on account of negligence on the part of the doctor. Hence, FIR in question was registered. 6. It has been held by the Apex Court in Jacob Mathew’s case (supra) and Martin F. D’Souza Vs. Mohd. Ishfaq (supra) that before proceeding with a complaint against a doctor or a hospital qua medical negligence, opinion should be taken from an expert qua the attributed medical negligence and thereafter, notice should be issued to the concerned doctor. In the present case, FIR was registered against the petitioner and his co-accused. During the pendency of the petition, opinion of the medical board has been sought by the investigating agency and vide its report dated 01.07.2011 (Annexure P-15) it has been opined as under:- “So, we opine that, no deficiency in medical services and treatment / any medical negligence could be found after going through all documents provided.” 7. Thus, the medical board found that there was no deficiency in medical services or treatment and thus, no medical negligence could be found after going through the documents. Since the Board has opined that the petitioner could not be attributed any medical negligence, continuation of criminal proceedings against the petitioner would be nothing but abuse of process of law. 8. Accordingly this petition is allowed. FIR No.330 dated 26.07.2010 under Section 304-A IPC, registered at Police Station Model Town, Panipat (Annexure P-1) and the report under Section 173 Cr.P.C. (Annexure P-13) and all the subsequent proceedings arising therefrom are quashed. --------0.B.S.0------------