JUDGMENT The petitioner is the accused in S.C.C. No. 965/2012 pending before the 3rd Judicial Magistrate, First Class, Beed. The said case is in respect of an offence punishable under section 304-A of the Indian Penal Code (IPC). The petitioner had made an application (Exhibit 14) before the Magistrate contending that there was no material in the charge-sheet to sustain the accusations, and that, she be, therefore, discharged. This application was opposed to by the Assistant Public Prosecutor, Incharge of the case. The learned Magistrate after hearing the parties rejected the said application, by an order dated 03.08.2013. By the present Petition, invoking the constitutional jurisdiction of this Court under Article 226 and 227 of the Constitution of India and the inherent powers of this Court, the petitioner is praying that the said order passed by the learned Magistrate be quashed and set aside and any other just suitable and equitable order may be passed in favour of the petitioner. 2. The facts of the case leading to the prosecution of the petitioner, as reflected from the police report and accompanying documents submitted before the trial Court, are as follows: On 02.08.2011, one Suraj Shendge, aged 5 years, was brought to Ruby Medical Services, Beed by his uncle Ganpat Shendge, the First Informant. It was advised that M.R.I. to be conducted on the said Suraj, who had swelling on his right leg. Suraj was otherwise normal and was able to walk and talk in a normal way. The petitioner is a medical practitioner. In addition to M.B.B.S. degree, she has obtained diploma in Anaesthesia at Yeshwantrao Chavan Memorial Hospital at Pune. The petitioner administered general anaesthesia to the said Suraj, so that M.R.I. could be conducted. That, it took about one and half hour to conduct the M.R.I. and during this period, Suraj was required to be administered repeated doses of anaesthesia. Suraj, however, did not regain consciousness at all. Suraj was, therefore, taken to Deep Hospital, Beed, but as the hospital authorities refused to admit him, he was taken to Civil Hospital, Beed, where he was declared to be dead. Ganpat Shendge, uncle of Suraj thereafter lodged a report with Shivajinagar Police Station, Beed in respect of said incident, which came to be registered as A.D.R. no. 23/2011. Investigation, as contemplated under section 174 of the Code of Criminal Procedure (hereinafter referred to as “the Code”), was carried out. Ganpat Shendge, uncle of Suraj thereafter lodged a report with Shivajinagar Police Station, Beed in respect of said incident, which came to be registered as A.D.R. no. 23/2011. Investigation, as contemplated under section 174 of the Code of Criminal Procedure (hereinafter referred to as “the Code”), was carried out. Since the case related to an allegation against a Medical Practitioner of having caused death by rash or negligent act, as per the Government Notification no. MIS-2005/Pra.Kra. 78/05/Act, the opinion of a Committee of Medical Experts formed under the Chairmanship of the Civil Surgeon, Beed, was sought for. After the opinion was received, no further investigation was carried out and on the basis of the investigation that had been carried out under the provisions of section 174 of the Code, a chargesheet came to be filed against the petitioner. 3. The allegation against the petitioner is that she had negligently or recklessly administered anaesthesia to the said Suraj, in much larger quantity and this incorrect or improper doses of anaesthesia resulted in the death of Suraj. 4. When the postmortem examination on the dead body of Suraj was performed on 02.08.2011, the opinion as to the probable cause of death was reserved and viscera was preserved for Chemical Analysis. After the microscopic examination report, the final opinion as to the probable cause of death of Suraj was given as “HYPOXIA DUE TO RESPIRATORY FAILURE”. 5. The main contention advanced by Mr. S.S. Jadhavar, the learned counsel for the petitioner is that there was absolutely no evidence that the death of Suraj had been caused due to any rash or negligent act of the petitioner. It is submitted that the petitioner is a duly qualified anaesthetic and she had taken all the necessary precautions while administering anaesthesia. It is submitted that simply because the patient died, negligence cannot be attributed to a Medical Practitioner. It is submitted that the expert committee has not attributed any rashness or negligence in treating the patient, to the petitioner, and that, in the absence of a medical opinion attributing negligence or rashness to the petitioner, her prosecution was not maintainable. 6. Mr. Jadhavar submitted that in order to hold a medical practitioner criminally liable for negligence, there ought to be medical opinion to that effect. 6. Mr. Jadhavar submitted that in order to hold a medical practitioner criminally liable for negligence, there ought to be medical opinion to that effect. He submitted, it would not be open to attribute negligence to a medical professional unless a body of the medical experts would hold such an opinion; and that, it would not be for laymen to decide, whether the medical practitioner had, in fact, been negligent or not. Mr. Jadhavar placed strong reliance on the authoritative pronouncement of the Supreme Court of India in Jacob Mathew V/s State of Punjab and another { AIR 2005 S.C. 3180 (1)} in support of his contentions. 7. Indeed, the said decision rendered by Their Lordships of the Supreme Court of India lays down the legal position about the liability of medical professionals and medical practitioners for negligence. The observations made by Their Lordships indicate that it would not be open for a lay person to judge whether a medical practitioner had indeed acted in a rash or negligent manner, without medical opinion to that effect. A need to form such an opinion only after taking prevailing practices acceptable to medical profession was emphasized. The conclusions arrived at by Their Lordships are summed up in para 49 of the reported judgment. The most relevant part thereof, in the context of the present Petition, is found at Sr. Nos. 6 and 7 in the said para. The same is wroth reproducing here:- “(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 inquiry which resulted was most likely imminent.” 8. There is sufficient material to show that after administration of anaesthesia Suraj never recovered. The hazard taken by the accused doctor should be of such a nature that the inquiry which resulted was most likely imminent.” 8. There is sufficient material to show that after administration of anaesthesia Suraj never recovered. The cause of death is, as aforesaid, ‘Hypoxia due to respiratory failure’. It is well known that modern anaesthesia is complex and by no means free from danger, and that, as such a number of precautions are necessary to be taken while administering anaesthesia. {See Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology (Sixth Edition) (published by CBS Publishers & Distributors) (Page 1.47).} 9. It is however true, that considering the legal position about the liability of a Medical Practitioner for prosecution in respect of an offence punishable under section 304-A of the IPC, as made clear by Their Lordships of Supreme Court of India in the aforesaid reported judgment in the case of Jacob Mathew (supra), it would not be open for Investigating Agency or to the Court to conclude about the death of Suraj having been caused due to the rash or negligent act of the petitioner in the absence of any material to show that the petitioner had deviated from the normal and accepted practice in the profession and had not taken the well known minimum precautions, while administering anaesthesia. 10. A perusal of the charge-sheet reveals that specific opinion of the Committee of expert was sought by the Investigating Agency in the course of investigation, on ‘whether Suraj had died because of the administration of anaesthesia’. However, inspite of collecting all the relevant documents from the Investigating Agency, no categorical answer in that regard has been given by the Committee of experts formed under the Chairmanship of District Civil Surgeon. The opinion of the expert committee is as follows: Translated in English, it would read thus: 1) The death of Suraj Somnath Shendge has been caused due to complications arising after administration of anaesthesia. 2) As per the record, the anaesthetic is found to have made strenuous efforts to save the patient. 11. I have gone through the order passed by the learned Magistrate rejecting the petitioner’s application for discharge. The Magistrate observed that the report given by the Committee did not show that the accused (petitioner) is not responsible for the post anaesthesia complication, which resulted into death of Suraj. 11. I have gone through the order passed by the learned Magistrate rejecting the petitioner’s application for discharge. The Magistrate observed that the report given by the Committee did not show that the accused (petitioner) is not responsible for the post anaesthesia complication, which resulted into death of Suraj. He was of the view that had the Committee given a report that the accused was not responsible for the post anaesthesia complications and for the death, then there would be no case for prosecution. The Magistrate observed that report of the Committee was, however, ‘ambiguous’, and therefore, it needed an opportunity to be given to the prosecution to lead evidence. The Magistrate’s view was that whether for the post anaesthesia complications accused (petitioner) could be held responsible or not, would be decided on the basis of evidence. 12. I have carefully considered the matter. Though, ordinarily, the charge-sheet must contain positive material to show negligence or rashness on the basis of an accused and as per the law laid down by the Supreme Court of India in Mathew’s case (supra), such material must include opinion of medical experts in that regard, the circumstances of the present case are rather peculiar. Medical opinion was sought to be obtained, but it has not been given. The opinion :viz:- ‘that the anaesthetic made strenuous efforts to save the patient’ is not very relevant in the context of the question as to whether there had been initial rashness or negligence on the part of the petitioner, while administering anaesthesia. After all, the petitioner is a Medical practitioner and on having noticed that the condition of the patient was becoming critical, it would natural on her part to make all the possible efforts to save life of the patient. That, however, would not establish a negative namely, that the petitioner was not negligent while administering anaesthesia. 13. This appears to be a case where inspite of efforts made by the Investigating Agency, no opinion from the medical experts could be obtained, either supporting the allegations or refuting the same. The opinion given by the Committee of experts appears to be vague and evasive. 13. This appears to be a case where inspite of efforts made by the Investigating Agency, no opinion from the medical experts could be obtained, either supporting the allegations or refuting the same. The opinion given by the Committee of experts appears to be vague and evasive. Clarification as to what is meant by ‘death has been caused due to complications after administration of anaesthesia and what were the complications and whether they had arisen because of the lack of taking any proper precaution by the Anaesthetic’ would be necessary for deciding the propriety of prosecuting the petitioner. The Investigating Agency, perhaps, could have insisted on a more clear opinion from the Committee of experts, but as the position stands today, it is not possible to understand the significance of the medical opinion that is available in the chargesheet – whether it either indicates negligence on the part of the petitioner, or the absence thereof. 14. Prima facie, it appears that on the basis of the material collected during investigation and also the medical opinion, that the death had something to do with the administration of anaesthesia. For administering anaesthesia, the petitioner was responsible. Merely because the medical opinion is vague – or its significance cannot be grasped by a lay person without further clarification it cannot be considered as indicative of the fact of the petitioner having taken all normal reasonable precautions while administering anaesthesia. 15. The case presents a peculiar picture. A child was administered anaesthesia and did not recover thereafter. The death is opined to have been caused by Hypoxia due to respiratory failure. Hypoxia is a pathological condition in which the body as a whole (generalized hypoxia) or a region of the body (tissue hypoxia) is deprived of adequate oxygen supply. In Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology (Sixth Edition) (published by CBS Publishers & Distributors), the learned author while discussing the topic of ‘Investigation of Anaesthetic Deaths’ has classified the same in two groups. (i) deaths due to anaesthesia, and (ii) deaths associated with annaesthesia and surgical procedure. These two groups are again divided in subgroups. It is neither necessary nor advisable to enter into a theoretical discussion with respect to anaesthetic deaths, but what needs to be mentioned is that hypoxia has been associated with anaeshtetic deaths. (i) deaths due to anaesthesia, and (ii) deaths associated with annaesthesia and surgical procedure. These two groups are again divided in subgroups. It is neither necessary nor advisable to enter into a theoretical discussion with respect to anaesthetic deaths, but what needs to be mentioned is that hypoxia has been associated with anaeshtetic deaths. On pages 1.49 to 1.51 of the said book, the learned author has dealt with the aspect of investigation of anaesthetic deaths, but it appears that in this case, the investigation has not been done on the well accepted linesat least, that it was so done, does not appear to be the case. 16. Thus the situation in the present case cannot be properly described as absence of medical opinion pointing out negligence on the part of the petitioner, but rather as the available medical opinion is such as cannot be comprehended by a lay person to conclude on the relevant aspect without further clarification by experts. There are circumstances creating a strong suspicion about the death of Suraj being an anaesthetic death. Once this is so, the role of the petitioner required to be investigated into and proper medical opinion on the aspects relevant for determining the culpability of the petitioner ought to have been obtained. An attempt to obtain the same was made, but it did not succeed, as the medical opinion at least for a layman is not clear on the point needing determination. This has to be distinguished from non-availability of medical opinion. It is that the medical opinion given requires further clarification, which perhaps more appropriately could have been obtained at the investigation stage itself. However, the question is whether because of lack of clarity in the medical opinion, it should be held that the prosecution of the petitioner is liable to be quashed for want of medical opinion to establish her culpability in the matter. The Magistrate’s view was that it should not be and an opportunity be given to the prosecution to seek clarification of the medical opinion, as given by the expert committee. The question is, whether this view of the Magistrate needs to be interfered with in exercise of the writ jurisdiction. 17. The writ jurisdiction available to this Court is of extra ordinary nature. It is to be exercised to correct a patent error of law apparent on the face of record. Moreover, it is discretionary. The question is, whether this view of the Magistrate needs to be interfered with in exercise of the writ jurisdiction. 17. The writ jurisdiction available to this Court is of extra ordinary nature. It is to be exercised to correct a patent error of law apparent on the face of record. Moreover, it is discretionary. Similarly, the jurisdiction under Article 227 of the Constitution is meant to be exercised to ensure that the subordinate Courts function within the bounds of their authority. The view of the matter, as taken by the Magistrate, does not seem to be patently erroneous. 18. On an independent consideration of the matter also, it appears proper that the prosecution should be permitted to seek clarification of the opinion given by the expert committee, which could be done during the course of the trial. While deciding whether or not to quash the prosecution in the present case, the powers of the Investigating Agency to carry out further investigation, as contemplated under section 173(8) of the Code and the powers of the Court under section 311 of the Code, need to be kept in mind. More particularly, it appears desirable that the Investigating Agency carries out further investigation, at least for the purpose of seeking clarification from the Committee of experts, as to whether or not in their opinion, the petitioner had been rash or negligent and whether the death of Suraj is attributable to any rash and negligent act of the petitioner. 19. Considering all the relevant aspects of the matter, this does not appear to be a case where the prosecution of the petitioner should be quashed in exercise of the constitutional jurisdiction of this Court and its inherent powers. 20. The Petition is dismissed.