JUDGMENT 1. - The petitioner has filed this criminal misc. petition under Section 482 Cr.P.C. against the order dated 18.6.2008 passed by the Additional Sessions Judge No. 2, Bikaner (hereinafter referred to as 'the revisional court') in Criminal Revision Petition No. 69/2007, whereby the revisional court dismissed the revision petition preferred by the petitioner against the order dated 13.7.2007 passed by the ACJM No. 2, Bikaner. The petitioner has also challenged the order dated 13.7.2007 passed by the ACJM No. 2, Bikaner (hereinafter referred to as 'the trial court') whereby the application filed by the petitioner under Section 197 Cr.P.C. was rejected. The petitioner has also prayed that the proceedings qua the petitioner pending in the trial court may be quashed and set aside. 2. Brief facts of the case are that one Smt. Rekha Jain lodged an FIR No. 9/2002 dated 6.1.2002 at Police Station Sadar, Bikaner while alleging that she was pregnant and was consulting with senior Doctor of PBM Hospital, Bikaner since last six months and as advised, she was admitted in the said hospital on 24.11.2001 and remained in hospital upto 2.12.2001. However, on 2.12.2001, she was transferred to the Labour Room and during her delivery, the child died and her uterus was also removed. It is also alleged in the complaint that death of child and removal of uterus were occurred due to gross negligence of the Doctors and Nurses of the hospital. 3. The police after investigation, filed charge sheet against the petitioner and other accused persons for the offences punishable under Sections 307, 316, 338 and 201 I.P.C. Thereafter the trial court took cognizance against the petitioner and other co-accused persons on 3.9.2004 for the offence under Section 301/34 I.P.C. The petitioner moved an application under section 197 Cr.P.C. and claimed that before taking cognizance against the petitioner, previous sanction, as required under Section 197 Cr.P.C., was not obtained from the Government and, therefore, the trial against the petitioner be quashed and he may be discharged. 4. The said application was dismissed by the learned trial court vide order dated 13.7.2007 while holding that at this stage, the petitioner cannot be discharged, since it can only be ascertained after taking evidence that the offence, alleged to have been committed by the petitioner, was committed during discharge of his official duty. 4. The said application was dismissed by the learned trial court vide order dated 13.7.2007 while holding that at this stage, the petitioner cannot be discharged, since it can only be ascertained after taking evidence that the offence, alleged to have been committed by the petitioner, was committed during discharge of his official duty. The learned trial court has also observed that as cognizance has already been taken against the petitioner on 30.9.2004 along with other co-accused persons for the alleged offences, the said order cannot be reviewed. 5. Being aggrieved with the order dated 13.7.2007 passed by the trial court, the petitioner preferred a revision petition before the revisional court, however, the revisional court vide order dated 18.6.2008 also dismissed the said revision petition filed by the petitioner and confirmed the order dated 13.7.2007. 6. Assailing the validity of the said orders dated 18.6.2008 and 13.7.2007 passed by the courts below, the learned counsel for the petitioner has argued that there is no material available on record to suggest that the petitioner has committed offence under Sections 338, 201 and 34 I.P.C. It is contended that the patient was neither under treatment of the petitioner nor she was operated by the petitioner and, therefore, it cannot said that any injury was caused by the petitioner to the complainant. It is also contended by the learned counsel for the petitioner that from the evidence available on record, it is clear that the petitioner was called for assisting the Doctors in an ongoing operation and the decision of conducting operation of the complainant or removing the uterus was not of the petitioner. It is also contended by the learned counsel for the petitioner that even if it is admitted that the complainant was operated by the petitioner and during that operation, her uterus was removed, then also it cannot be concluded that there was negligence on the part of the petitioner because for saving life of patient, it was necessary to remove her uterus and the same has been confirmed by the report of the Medical Board. 7. The learned counsel for the petitioner has placed reliance upon the judgment of Hon'ble Supreme Court rendered in Jacob Mathew v. State of Punjab & Anr. 7. The learned counsel for the petitioner has placed reliance upon the judgment of Hon'ble Supreme Court rendered in Jacob Mathew v. State of Punjab & Anr. reported in 2005 SCC (Cri.) 1369 and the decision of this Court rendered in Manju Bhargava (Dr.) v. State of Rajasthan reported in 2012(1) Cr.L.R. (Raj.) 267 and has argued that the Hon'ble Supreme Court as well as this Court have held that a Medical Officer can be prosecuted for negligence, if two conditions are satisfied. Firstly, there has to be a finding based on an opinion by a competent Medical Officer that any injury was caused to the patient on the negligence act of Doctor, and secondly, the court has to arrive on the finding that the act of Medical Officer was grossly negligent. It is contended by learned counsel for the petitioner that both conditions are missing in the present case and, therefore, the prosecution against the petitioner is liable to be quashed. 8. Per contra, learned Public Prosecutor has argued that enough evidence is available on record to suggest that the child of the complainant was died due to negligent act of the petitioner and other accused and on account of the said negligence, the uterus of the complainant was also removed and she suffered an irreparable injury as she could not become mother again. The learned Public Prosecutor has also argued that the courts below have rightly not granted the prayer of the petitioner and, therefore, no interference is called for in the impugned orders. 9. Heard learned counsel for the parties and perused the impugned orders as well as the charge sheet filed by the police. 10. Before taking into consideration the arguments of learned counsel for the parties, it will be useful to take into consideration the judgment of Hon'ble Apex Court rendered in Jacob Mathew's case (supra) wherein the Hon'ble Supreme Court has issued several guidelines for the cases involving medical negligence and prosecution of the doctors. In the above referred case, the Hon'ble Supreme Court has held as under:- 28. 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. In the above referred case, the Hon'ble Supreme Court has held as under:- 28. 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. 29. 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. 30. 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. The 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. ..... ....... ....... 48. 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. ..... ....... ....... 48. 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 & Dhirajlal (edited by Justice G.P. Singh), referred to herein above, 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 practise 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 practise 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 practise 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. 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. 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'. 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. 49. In view of the principles laid down herein above and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta's case. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta's case (noted vide para 27 of the report). GUIDELINES RE: PROSECUTING MEDICAL PROFESSIONALS 50. As we have noticed herein above 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 FIR being lodged and cognizance taken. Suresh Gupta's case (noted vide para 27 of the report). GUIDELINES RE: PROSECUTING MEDICAL PROFESSIONALS 50. As we have noticed herein above 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 FIR being lodged and cognizance taken. The investigating officer and the 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 304-A of IPC. 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. 51. 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. 52. 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 practise who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld." 11. This Court in Manju Bhargava's case has followed the decision of the Hon'ble Apex Court in Jacob Mathew's case (supra) and has quashed the prosecution of the Doctors for the offence punishable under Section 304-A I.P.C. 12. sIt is noticed that in the FIR, the name of the petitioner is not there and only it is alleged that it was the Senior Doctor, who was treating the complainant and other Doctors present in the labour room, have committed negligence. From the statements of witnesses recorded by the police under Section 161 Cr.P.C. namely Dr. Kamlesh Yadav, Dr. Shradha Agarwal, Dr. Yogendra and Dr. Sweta Rai, it is revealed that above named Doctors, after opening the stomach of the complaint, found that the child was dead and the uterus of the complainant was raptured. After finding that the further operation is complicated, they decided to call Senior Doctor Smt. Durga Gehlot, under whose care, the complainant was and when they informed about the condition of patient to her on telephone, she told them that she is coming and she is also sending the petitioner. On her call, the petitioner reached in the operation theater along with Dr. Durga Gehlot and thereafter they performed further operation and removed the uterus of the complainant. On her call, the petitioner reached in the operation theater along with Dr. Durga Gehlot and thereafter they performed further operation and removed the uterus of the complainant. From these statements, it is clear that the petitioner was not involved in the decision of removing the uterus. The petitioner reached in the operation theater when the operation of the complainant was already started and he carried out the further operation with Dr. Durga Gehlot and removed the uterus of the petitioner. 13. As per the report of Medical Board, which is available as the charge sheet, it was necessary to remove the uterus of the petitioner to save her life. 14. From the above evidence, it is clear that the petitioner attended the operation theater in the mid of the operation and the uterus of the complainant was removed to save her life. There is no evidence available on record to prove that decision of conducing operation upon the complainant was of the petitioner or she was under his treatment. On the contrary, evidence to this effect is available on record that the petitioner was asked to assist the other Doctors to attend an ongoing operation. In such circumstances, it cannot be said that the petitioner was guilty for the act which endangered the life of complainant. 15. From the above discussions, it is clear that the prosecution of the petitioner for the offences under Sections 338 & 201 read with 34 I.P.C. is absolutely unwarranted as from the evidence available on record, the petitioner cannot be held guilty for commission of said offences. 16. Resultantly, this criminal misc. petition is allowed and the proceedings pending against the petitioner in connection with FIR No. 9/2002 of Police Station Sadar, Bikaner, District Bikaner is hereby quashed and set aside. *******