JUDGMENT Heard learned counsel for the petitioners and learned counsel for the State as also learned counsel for the complainant opposite party No. 2. 2. The petitioners are aggrieved by the Judgment dated 26.9.2006 passed by learned 3rd Additional Sessions Judge, Fast Track Court, Dumka, in Criminal Appeal No. 58 of 2002, whereby in the appeal filed by the accused petitioners against the Judgment of conviction and Order of sentence for the offence under Section 304 A of the Indian Penal Code, though the appeal was allowed and the Judgment and Order passed by the Trial Court were set aside, but the matter was remanded back to the Trial Court below for disposal in accordance with the observations made by the Appellate Court. It may be stated that the petitioners were found guilty and were convicted for the offence under Section 304 A of the Indian Penal Code and upon hearing on the point of sentence, they were sentenced to undergo rigorous imprisonment for one year each, by Judgment and Order dated 21.6.2002 passed by learned S.D.J.M., Dumka, in P.C.R. Case No. 205 of 1999 / T.R. No. 1626 of 2002. 3. It appears that a complaint case was filed before the Chief Judicial Magistrate, Dumka, which was registered as Complaint Case No. 205 of 1999, by the complainant Pradeep Prasad Sah, wherein the petitioners were made accused. It appears from the impugned Judgment that the petitioners were the medical practitioners in Mohulpahari Christian Hospital, Shikari Para, District Dumka, where the deceased Rekha Devi was admitted for delivery, as she was pregnant. Considering her condition, the surgical operation was conducted on her on16.5.1999 and ultimately, she died in the hospital on 30.5.1999. The complaint petition was filed by the brother of the deceased on 17.6.1999 alleging medical negligence on the part of the accused doctors in treating his sister. It appears that the petitioners were ultimately put to trial for the offence under Section 304 A of the Indian Penal Code. In course of trial, the prosecution had examined three witnesses, who are P.W.1 Pappu Khan, P.W.2 Pramod Kumar Sah and P.W.3 Pradeep Prasad Sah, the complainant. None of the prosecution witnesses was any medical expert who could have proved the medical negligence, if any, on the part of the accused-petitioners. In course of trial, the prosecution had examined three witnesses, who are P.W.1 Pappu Khan, P.W.2 Pramod Kumar Sah and P.W.3 Pradeep Prasad Sah, the complainant. None of the prosecution witnesses was any medical expert who could have proved the medical negligence, if any, on the part of the accused-petitioners. The witnesses were also examined on behalf of the defence and it appears that on the basis of the evidence on record, the Trial Court below had found the petitioners guilty for the offence under Section 304 A of the Indian Penal Code and had convicted and sentenced them as aforementioned. 4. In the appeal filed by the petitioners before the Appellate Court below, the Appellate Court below came to the conclusion that no medical expert was examined and the incriminating circumstances were not put to the accused persons in their statements recorded under Section 313 Cr.P.C., and accordingly, set aside the Judgment of conviction and Order of sentence passed by the Trial Court below, but at the same time, directed the Trial Court below to provide opportunity to the complainant to examine medical expert in respect of his claims, if he so desired, and thereafter also to record the statements of the accused petitioners under Sections 313 Cr.P.C. putting the incriminating circumstances appearing against them. 5. It is apparent from the Judgment of the Appellate Court below that after death of the deceased, the complainant had taken the dead body of the deceased to her native village where she was cremated and thereafter upon the request of the husband of the deceased, the complaint was filed on 17.6.1999. It is further apparent that even the postmortem examination of the deceased was not conducted before her cremation. 6. Learned counsel for the petitioners has submitted that the petitioners have been falsely implicated in this case, inasmuch as, due treatment was given to the deceased and it is apparent from the Judgment passed by the Appellate Court below that not a single medical expert was examined, nor the postmortem examination of the deceased was done, so as to prime facie establish any case of medical negligence. It has also been submitted that the law regarding prosecution of the medical practitioners for medical negligence has been settled by the Supreme Court of India in Jacob Mathew Vs. It has also been submitted that the law regarding prosecution of the medical practitioners for medical negligence has been settled by the Supreme Court of India in Jacob Mathew Vs. State of Punjab & Anr., reported in (2005) 6 SCC 1 , wherein it has been held as follows:- “52. ----------A private complaint may not be entertained unless the complainant has produced prime 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.---------.” 7. Reliance has also been placed by the learned counsel for the petitioners upon the decision of the Supreme Court of India in Kusum Sharma & Ors. Vs. Batra Hospital and Medical Reserch Centre & Ors., reported in (2010) 3 SCC 480 , wherein, the Apex Court has discussed the previous precedents on the point of medical negligence in detail and has laid down the principles which must be kept in deciding whether the medical professional is guilty of medical negligence, which have been detailed as follows:- “89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the case of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view: I. Negligence is the breach of a duty exercised 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. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”. 8. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”. 8. Placing reliance on these decisions, learned counsel for the petitioners has submitted that in the facts of the present case, since there is neither the postmortem report of the deceased to establish any prime facie case of medical negligence, nor any medical expert was examined in the Court below, the approach of the Appellate Court below in remanding back the case is absolutely alien to the law of the land. Learned counsel accordingly, submitted that the impugned Judgment so far as it remanded back the case to the Court below cannot be sustained in the eyes of law. 9. Learned A.P.P. for the State as also learned counsel for the complainant opposite party No. 2, on the other hand, have submitted that there is no illegality in the impugned Judgment, inasmuch as, the Court below found that some incriminating circumstances were not put to the accused persons in their statements under Section 313 of the Cr.P.C., and as such, relying upon the decisions of the Supreme Court and the other High Courts, the Appellate Court below has remanded back the case mainly for recording the statements of the accused persons under Section 313 of the Cr.P.C., and has also given an opportunity to the complainant to examine the medical expert, if any. 10. After hearing learned counsels for both the sides and upon going through the record, I find that admittedly after the death of the deceased, her dead body was taken by the complainant to the village home where she was cremated. Admittedly, even the postmortem examination of the deceased was not done. The witnesses examined by the complainant are not the medical experts, rather, one witness is a driver of a vehicle and the other two witnesses are the complainant himself and his relative. Admittedly, even the postmortem examination of the deceased was not done. The witnesses examined by the complainant are not the medical experts, rather, one witness is a driver of a vehicle and the other two witnesses are the complainant himself and his relative. The law is well settled in this regard in the case of Jacob Mathew (supra), wherein, it has been specifically held by the Apex Court that a private complaint should not be entertained unless the complainant has produced prime 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. Similarly in the case of Kusum Sharma (supra), the Supreme Court has discussed the various precedents and has laid down the principles, which must be kept in mind in deciding the medical negligence of a medical professional. Taking into consideration these guiding principles, I am of the considered opinion that even the complaint filed by the complainant could not have been entertained by the Court below. Accordingly, the impugned Judgment passed by learned 3rd Addl. Sessions Judge, Dumka, so far as the matter was remanded to the Trial Court below for examining the witnesses afresh and for recording the statements of the accused persons afresh under Section 313 of the Cr.P.C., cannot be sustained in the eyes of law. 11. In view of the aforementioned discussions, the Judgment dated 26.9.2006 passed by the learned 3rd Addl. Sessions judge, Dumka, in Criminal Appeal No. 58 of 2002, is hereby, set aside, only so far as it remanded the case back to the Trial Court below. The Judgment of acquittal passed by the learned Appellate Court below is hereby confirmed. This revision application is, accordingly, allowed. Let the Lower Court Record be sent back forthwith.