ORDER 1. Parties through their counsel. 2. Petitioner before this Court has filed this present petition for quashment of the order dated 4.1.2014 passed by the Judicial Magistrate First Class, Indore in Criminal Case No.205/2014, who has taken cognigence pursuant to the charge sheet filed by the State of M.P. for offence under section 304A of IPC. 3. Facts of the case reveal that the petitioner is a doctor and working as an anaesthetist at Choithram Netralaya, a hospital under the Choithram Trust. The petitioner is practicing as an anaesthetist for the last 13 years and holds post graduate degree. On 6.8.2012, the child was brought to Choithram Netralaya with some eye problem and one Dr. Ritu Verma diagnosed the deceased as ‘Limbal Dermoid with Lateral Canthus both sides Dermoid’ and a child was recommended for transplantation of cornea. The child was referred to Dr. Bhagyesh Pore, Oculoplastic Surgeon. Dr. Bhagyesh Pore diagnosed the patient with “Goldenhar’s Syndrome” - congenital anomalies. The patient was also suffering from Mild Coloboma i.e. incomplete development of the eye lid. On the same day i.e. on 6.8.2012, Dr. Ritu Verma directed for examination of the patient for Pre-Anaesthetic Evaluation and the patient was looked by Dr. K. J. Keshwani, a Paediatrician on 6.8.2012 and after conducting the investigation required she was declared fit for General Anaesthesia. The patient was called on 8.3.2013 and again called for general surgery on 9.4.20163 and she was taken for surgery. She was given intracath for intravenous patency and she was also given 100% oxygen, however, patient expired on the table. 4. Report was lodged on 9.4.2013 at Crime No.400/2013 for the offence under section 304A of IPC. 5. In the present case, investigation was also carried out by the Dean, Mahatma Gandhi Medical College (Government College). Dean of Mahatma Gandhi Medical College has given report with the does investigation keeping in view the weight of the the patient and medicines were given in proper quantity. 6. Learned counsel has placed reliance upon a judgment delivered by the apex Court in case of A.V. S. Narayanan Rao v. Ratnamala and another, reported in (2013)10 SCC 741 , and his contention is that in light of the aforesaid judgment criminal proceedings deserve to be quashed. 7. Ms. Preeta Moita, learned Government Advocate submits that she does not have file with her and declines to argue the matter. 8. 7. Ms. Preeta Moita, learned Government Advocate submits that she does not have file with her and declines to argue the matter. 8. Shri Harish Tripathi, learned counsel appearing for the applicant has stated before this Court that he has filed Vakalatnama and prays that he may be permitted to argue the matter on behalf of the complainant. He has vehemently argued before this Court that proper does was not given to the patient and the doctor has administered the anaesthesia negligently resulting death of four years child. As the child was given over dose by the anaesthetist, the case has rightly been registered against him. 9. It is not in dispute in the present case that the death of the child was on account of cardiac respiratory arrest and the report submitted in the matter by the Dean, Mahatma Gandhi Medical College is also on record dated 17.12.2013. There is a report dated 17.12.2013 on record (Annexure P-2) which reflects that the medicines given to the child were as per weight of the child which is reflected from the case sheet. 10. This Court has heard the learned counsel for the parties at length and has carefully gone through the record and also the judgment delivered by the apex Court in the case of A. V. S. Narayanan Rao (supra). Paragraphs No.10 to 15 of the aforesaid order read as under :- “10. This Court further opined that though doctors are not immune from legal proceedings in the event of their negligence in discharging their professional duties, in the interest of the society, it is necessary to protect doctors from frivolous and in just prosecution. It was further pointed out the need to frame either statutory rules or administrative instructions incorporating guidelines for 5 prosecuting doctors on charges of criminal negligence. This Court, therefore, ordered that until such guidelines are laid down, the following procedure is required to be followed :- “52. …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 practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam 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 investigating 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. From the final report submitted by the police in the instant case, it can be gathered that the records pertaining to the treatment given to the deceased were forwarded to the Andhra Pradesh Medical Council and also the Medical Council of India which opined that the “doctors seem to have made an attempt to do their best as per records”. 12. However, the High Court thought it fit to continue the prosecution of the appellant for two reasons (1) that the appellant chose to conduct the angioplasty without having a surgical stand by unit and such failure resulted in delay of 5 hours in conducting by-pass after the angioplasty failed; and (2) that the appellant did not consult a Cardio Anaesthesian before conducting an angioplasty. According to the High Court, both the above-mentioned ‘lapses’ on the part of the appellant “clearly show the negligence” of the appellant. 13. The basis for such conclusion though not apparent from the judgment, we are told by the learned counsel for the first respondent, is to be found in the evidence of Dr. Surajit Dan given before the A.P. State Consumer Redressal Commission in C.D. No. 38 of 2004. It may also be mentioned here that apart from initiating criminal proceedings against the appellant and others, the first respondent also raised a consumer dispute against the appellant and others. Surajit Dan given before the A.P. State Consumer Redressal Commission in C.D. No. 38 of 2004. It may also be mentioned here that apart from initiating criminal proceedings against the appellant and others, the first respondent also raised a consumer dispute against the appellant and others. It is in the said proceedings, the above-mentioned Dr. Dan’s evidence was recorded wherein Dr. Dan in his cross-examination stated as follows:- “…Whenever Cardiologist performs an angioplasty, he requests for the surgical team to be ready as standby. I was not put on standby in the instant case….” He further stated; “…The failure of angioplasty put the heart in a compromised position of poor coronary perfusion that increases the risk of the emergency surgery after that. In a planned coronary surgery, the risk is less than in an emergency surgery….” However, the same doctor also stated; “….The time gap between the angioplasty failure and the surgery is not THE FACTOR for the death of the patient. The time gap may or may not be a factor for the enhancement of the risk.” 14. Unfortunately, the last of the above extracted statements of Dr. Surajit Dan is not taken into account by the High Court which statement according to us is most crucial in the context of criminal prosecution of the appellant. 15. The High Court unfortunately overlooked this factor. We, therefore, are of the opinion that the prosecution of the appellant is uncalled for as pointed out by this Court in Jacob Mathew case (supra), that the negligence, if any, on the part of the appellant cannot be said to be “gross”. We, therefore, set aside the judgment under appeal and also the proceedings of the trial court dated 11.12.2006. 11. In the aforesaid case, it has been held that criminal proceedings are maintainable only if there is a prima facie gross negligence as opined by the independent doctor (preferably Government Doctor). 12. The apex Court in the case of Jacob Mathew v. State of Punjab and another, reported (2005)6 SCC 1 , in paragraphs No.51 and 52 has held as under : “50. As we have noticed hereinabove 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. As we have noticed hereinabove 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 304A 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 emphasize 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 pressurizing 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 practice 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. 13. This Court keeping in view the judgments, as there is a categorical report submitted by the Dean, Mahatma Gandhi Medical College, which is a Government Hospital that the anaesthesia administered to the child was administered keeping in view the weight of the child and, therefore, the anaesthetist is certainly not at all guilty of gross negligence. Present case ia a case where the anaesthesia was administered to a child and the child aged 4 years expired on account of cardiac respiratory arrest. 14. Keeping in view the aforesaid, this Court is of the considered opinion that present petition preferred under section 482 of CrPC deserves to be allowed. The order dated 4.1.2014 passed in Criminal Case No.205/2014 (State of Madhya Pradesh v. Dr. Lalit Kavdia) is hereby quashed. 15. No any other material has been brought to the notice of this Court either by the learned Government advocate or by Shri Harish Tripathi, learned counsel for the objector in support of the averments that the petitioner was negligent while administering the dose of anaesthesia. 16. With the aforesaid, the petition stands allowed.