JUDGMENT Mr. Daya Chaudhary, J.:- The present petition has been filed under Section 482 Cr.P.C for quashing of FIR No.103 dated 20.04.2012 under Section 304-A IPC registered at Police Station Cantonment, Amritsar and all consequential proceedings arising therefrom. 2. Briefly, the facts of the case are that the petitioner is a doctor by profession and was deputed to attend inmates confined in Central Jail, Amritsar. There are two parts of the jail i.e Central Jail and High Security Jail. The petitioner was posted in High Security Jail, whereas, the counterpart of the petitioner namely Dr. Ramesh Kumar was incharge of Central Jail, Amritsar. On 23.01.2011, the petitioner recieved an emergency call on his mobile number that the condition of a patient is serious. On receiving the call, he rushed to the hospital to attend the patient without any delay. The patient was found in a critical condition as he was feeling difficulty in respiration. The petitiner gave first aid to the patient Amarjit Singh and thereafter, he was referred to Guru Nanak Dev Hospital as ventilator was not available in the jail premises. The patient Amarjit Singh was taken to Guru Nanak Dev Hospital where he was declared dead. 3. A complaint was made by wife of the deceased to the Punjab State Women Commission and the FIR was registered under Section 304-A IPC on 20.04.2012. 4. The present petition has been filed for quashing of said FIR on the ground that the petitioner cannot be held at fault as he reached to the hospital without any delay. As per Chemical Examiner Report, the deceased had ingested chlorocompound group of insecticides and the cause of his death was respiratory failure due to chlorocompound group of insecticides poisoning which is sufficient to cause death in the ordinary course of nature. 5. Learned counsel for the petitioner has relied upon judgment of Hon’ble the Apex Court in Jacob Mathew vs State of Punjab and another, [2005(3) Law Herald (P&H) 673 (SC)] : 2005(3) RCR (Crl.) 836 as well as judgment of Madhya Pradesh High Court in case State of M.P etc. vs Dr. Ramlakhan Singh and others 2010(5) RCR (Crl.) 187, in support of his contention. 6. Reply has been filed by the State which is on record. vs Dr. Ramlakhan Singh and others 2010(5) RCR (Crl.) 187, in support of his contention. 6. Reply has been filed by the State which is on record. Learned counsel for the State submits that on the allegations of the complainantrespondent No.2, who is wife of the deceased, an inquiry was conducted under Section 176(1) Cr.P.C by the Judicial Magistrate Ist Class, Amritsar in context of custodial death of Amarjit Singh, who submitted an inquest report dated 26.07.2011. On the basis of said inquiry, a legal opinion of D.A (Legal), Amritsar was sought. As per opinion that the deceased died due to poisoning with chlorocompound group of insecticide and due to negligence of jail authorities and a prima facie case was made out against the jail officials. Learned State counsel submits that during investigation, Superintendent, Central Jail, Amritsar was requested to fix the responsibility upon the officials responsible for negligence of the death of said Amarjit Singh. In the inquiry, the present petitioner was found responsible. Learned State counsel also submits that it is a matter of evidence and the FIR cannot be quashed at this stage. Learned State counsel further submits that Amarjit Singh could have been saved in case, had the petitioner reached the jail hospital well in time. Learned Counsel also submits that there was cutting in the register which was at the instance of the petitioner and the same was done just to create an evidence that he was not late in reaching the jail hospital to attend the patient. 7. Heard the arguments of learned counsel for the petitioner as well as learned State counsel. 8. This issue also came up for hearing before Hon’ble Apex Court in Jacob Mathew’s case (supra) and the allegations in that case were of negligence against a doctor wherein it was held that in case the allegations against a doctor are presumed to be correct, whether the doctor can be held liable for criminal negligence in the case. As per facts in case State of M.P etc. (supra), two doctors namely Dr. Mangal Singh Rajput and Dr. Radheshyam Sharma, against whom the allegations of negligence were there as they could not be available at the relevant time and on the ground of their non-availability, they cannot be held responsible for such criminal negligence. As per facts in case State of M.P etc. (supra), two doctors namely Dr. Mangal Singh Rajput and Dr. Radheshyam Sharma, against whom the allegations of negligence were there as they could not be available at the relevant time and on the ground of their non-availability, they cannot be held responsible for such criminal negligence. It was also held that at the most, they can be dealt with in accordance with their service rules, if any lapse appears on their part. The relevant portion of the observation made by Madhya Pradesh High Court in para 12 of the said judgment is as under :- “ 12. Ultimately, Hon’ble Court allowed the appeal of Dr. Jacob Mathew in that case in the aforementioned facts mentioned in para I of the case. As observed by the Apex Court in the aforementioned case, with regard to the alleged negligence of Dr. Ramlakhan Singh, it may be mentioned that the facts of the case of Dr. Jacob Mathew (supra) are more or less similar to the present case. In the aforementioned facts, the Hon’ble Apex Court has observed that no such negligence appears on the part of the doctor, for which he can, be prosecuted for the aforesaid offence of Section 304-A of Indian Penal Code. In absence of post-mortem of the deceased, the cause of death is still unknown. No certificate has been obtained by the Investigating Officer of an independent and competent medical officer as it is required as per the observation of the Apex Court in paragraph 53 of the case of Dr. Jacob Mathew. In view of the observation of the Apex Court in the case of Dr. Jacob Mathew (supra), the facts being similar, the framing of charge against Dr. Ramlakhan Singh under Section 304-A, Indian Penal Code does not appear justified. 12-A. With regard to the rest of the two doctors; namely Dr. Mangal Singh Rajput and Dr. Radheshyam Sharma, the allegation against them mainly is that on call they could not be available at the relevant time. It is a fact that they did not treat the deceased at all. On these facts of their non-availability, they cannot be held responsible for such criminal negligence, on which they can be prosecuted for the offence punishable under Section 304-A of Indian Penal Code. It is a fact that they did not treat the deceased at all. On these facts of their non-availability, they cannot be held responsible for such criminal negligence, on which they can be prosecuted for the offence punishable under Section 304-A of Indian Penal Code. As rightly submitted on behalf of these doctors, at the most they can be dealt with in accordance with their service rules, if any lapse appear on their part.” 9. In Jacob Mathew’s case (supra), the judgment of Dr. Laxman Balkrishna Joshi vs Dr. Trimbak Bapu Godbole and Anr., 1969(1) SCR 206 , Indian Medical Association v. V.P. Shantha and others 1995(6) SCC 651 , Poonam Verma vs Ashwin Patel and others 1996(4) SCC 332 , Achutrao Haribhau Khodwa and others vs State of Maharashtra and others 1996(2) SCC 634 and also the judgment M/s Spring Meadows Hospital and Another vs Harjol Ahluwalia through K.S. Ahluwalia and another 1998(4) SCC 39 were discussed and following conclusions were drawn by Hon’ble the Apex Court which are reproduced as under :- “(i) The social efficacy of blame and related sanctions in particular cases of deliberate wrong doings may be a matter of dispute, but their necessity - in principle - from a moral point of view, has been accepted. Distasteful as punishment may be, the social, and possibly moral, need to punish people for wrongdoing, occasionally in a severe fashion, cannot be escaped. A society in which blame is overemphasized may become paralysed. This is not only because such a society will inevitably be backwardlooking, but also because fear of blame inhibits the uncluttered exercise of judgment in relations between persons. If we are constantly concerned about whether our actions will be the subject of complaint, and that such complaint is likely to lead to legal action or disciplinary proceedings, a relationship of suspicious formality between persons is inevitable. (ibid, pp. 242-243) (ii) Culpability may attach to the consequence of an error in circumstances where substandard antecedent conduct has been deliberate, and has contributed to the generation of the error or to its outcome. In case of errors, the only failure is a failure defined in terms of the normative standard of what should have been done. There is a tendency to confuse the reasonable person with the error-free person. In case of errors, the only failure is a failure defined in terms of the normative standard of what should have been done. There is a tendency to confuse the reasonable person with the error-free person. While nobody can avoid errors on the basis of simply choosing not to make them, people can choose not to commit violations. A violation is culpable. (ibid, p. 245). (iii) Before the court faced with deciding the cases of professional negligence there are two sets of interests which are at stake : the interests of the plaintiff and the interests of the defendant. A correct balance of these two sets of interests should ensure that tort liability is restricted to those cases where there is a real failure to behave as a reasonably competent practitioner would have behaved. An inappropriate raising of the standard of care threatens this balance. (ibid, p.246). A consequence of encouraging litigation for loss is to persuade the public that all loss encountered in a medical context is the result of the failure of somebody in the system to provide the level of care to which the patient is entitled. The effect of this on the doctor-patient relationship is distorting and will not be to the benefit of the patient in the long run. It is also unjustified to impose on those engaged in medical treatment an undue degree of additional stress and anxiety in the conduct of their profession. Equally, it would be wrong to impose such stress and anxiety on any other person performing a demanding function in society. (ibid, p.247). While expectations from the professionals must be realistic and the expected standards attainable, this implies recognition of the nature of ordinary human error and human limitations in the performance of complex tasks. (ibid, p. 247). (iv) Conviction for any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrongdoing, are morally blameworthy, but any conduct falling short of that should not be the subject of criminal liability. Common-law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high – a standard traditionally described as gross negligence. In fact, negligence at that level is likely to be indistinguishable from recklessness. (ibid, p.248). (v) Blame is a powerful weapon. Common-law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high – a standard traditionally described as gross negligence. In fact, negligence at that level is likely to be indistinguishable from recklessness. (ibid, p.248). (v) Blame is a powerful weapon. Its inappropriate use distorts tolerant and constructive relations between people. Distinguishing between (a) accidents which are life’s misfortune for which nobody is morally responsible, (b) wrongs amounting to culpable conduct and constituting grounds for compensation, and (c) those (i.e. wrongs) calling for punishment on account of being gross or of a very high degree requires and calls for careful, morally sensitive and scientifically informed analysis; else there would be injustice to the larger interest of the society. (ibid, p. 248).” 10. Para no.51 of the said judgment is also relevant and is reproduced 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 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 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. (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] 1 W.L.R. 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 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 304A of the IPC 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.” 11. In view of ratio of judgments as discussed above, it has been held that doctors cannot be prosecuted for an offence for which rashness or criminal negligence is an essential ingredient. Although, the care and caution is to be taken by doctors in the interest of justice and their interest is to be protected so that frivolous or unjust prosecutions may not be there. 12. Although, the care and caution is to be taken by doctors in the interest of justice and their interest is to be protected so that frivolous or unjust prosecutions may not be there. 12. In the present case, the petitioner has been held liable only on the ground that the responsibility was fixed by the Superintendent of Jail and it was found that the doctor came late and it was a case of negligence on the part of the doctor due to which Amarjit Singh died whereas as per report of Judicial Magistrate Ist Class, Amritsar, the cause of death was due to ingested chlorocompound group of insecticides and it was because of failure of respiratory function which was sufficient to cause death. Only because of the reason, the Superintendent Jail was directed to fix the responsibility. It appears that the Superintendent of Jail has transferred his responsibility to the petitioner being doctor. Nothing has been mentioned as to how the poisonous substance came in the premises of jail. Moreover, in view of guidelines set in Jacob Mathew’s case (supra), the petitioner being doctor, cannot be held liable for offence under Section 304-A IPC. 13. Accordingly, in view of ratio of judgment as mentioned above and also the facts of the present case, there is a merit in the contention raised by learned counsel for the petitioner and hence, the present petition is allowed. FIR No.103 dated 20.04.2012 under Section 304-A IPC registered at Police Station Cantonment, Amritsar and all consequential proceedings arising therefrom are hereby quashed. --------0.B.S.0------------