JUDGMENT : Rakesh Kumar, J. At the very outset, Sri Sachidanand Choudhary, learned counsel for petitioners, in presence of Smt. Asha Kumari, learned Addl. Public Prosecutor as well as Sri Amrendra Kumar, learned counsel for the complainant/opposite party no. 2, submits that during pendency of this petition, petitioner no. 1 namely Dr. Viveka Nand Choudhary has left for heavenly abode. The submission made by learned counsel for petitioners was not disputed by learned counsel for the complainant, rather he also accepts that petitioner no. 1 died. Accordingly, the present petition, so far as petitioner no. 1 (Dr. Viveka Nand Choudhary) is concerned, stands dismissed as same has abated. 2. Heard Sri Sachidanand Choudhary, learned counsel for the petitioner, Smt. Asha Kumari, learned Addl. Public Prosecutor as well as Sri Amrendra Kumar, learned counsel for the complainant/opposite party no. 2. 3. The petitioner namely Vikash Yadav, who was compounder in the clinic of Dr. Viveka Nand Choudhary (since died) had earlier approached this Court along with Dr. Viveka Nand Choudhary invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, with a prayer to quash an order dated 05-02-2013 passed by Sri A. Kumar, learned Judicial Magistrate 1st Class, Naugachhia in Complaint Case No. C-904 of 2011. By the said order, the learned Magistrate has taken cognizance of offence under Sections 269, 270, 336/34 of the Indian Penal Code and directed to summon the accused persons. 4. Short fact of the case is that the opposite party no. 2 filed a complaint in the court of learned Additional Chief Judicial Magistrate, Naugachia, which was registered as complaint case no. 904 of 2011. In the complaint, fact was disclosed that son of the complainant, aged about 13 years, while was moving on NH-31, electric wire touched his head and while he tried to get escape, his hand was electrocuted. Anyhow, he was carried to a clinic of Dr. Viveka Nand Choudhary on the same date i.e. on 04-10-2011. The son of the complainant was examined by Dr. Viveka Nand Choudhary and the petitioner Vikash Yadav being his compounder was directed to conduct dressing on the injury of the victim. It was alleged that repeatedly dressing was done by the petitioner, however; instead of getting cured, the condition of the victim's injury was deteriorating. The son of the complainant was examined by Dr. Viveka Nand Choudhary and the petitioner Vikash Yadav being his compounder was directed to conduct dressing on the injury of the victim. It was alleged that repeatedly dressing was done by the petitioner, however; instead of getting cured, the condition of the victim's injury was deteriorating. Finally, on 30th October, 2011, after noticing the blackness in the hand of the son, the complainant raised some suspicion and made complaint to the concerned doctor i.e. Dr. Viveka Nand Choudhary, who again tried to defer the matter, then on 01-11-2011, the victim was got examined by another doctor namely Dr. Nalini Ranjan, an Orthopedic Surgeon of the Begusarai district. After noticing the same, he said that four fingers of the victim had completely been damaged and there is possibility to save thumb only. The complainant thereafter consulted one another doctor namely Dr. Somen Kumar Chatterjee at Bhagalpur. Finally, as per advice of the doctor, the hand below the wrist of the victim was got amputated. It was complained that the concerned doctor i.e. Dr. Viveka Nand Choudhary and the present petitioner Vikash Yadav had committed the offences mentioned herein above and a complaint petition was filed. During enquiry, in support of complaint, four witnesses were got examined, including the victim boy, who supported the case. Thereafter, on 05-02-2013, cognizance order was passed, which has been assailed in the present case. 5. In this case, while admitting the present petition on 29-04-2016, Lower Court Record was summoned and the stay order was confirmed. 6. Sri Sachidanand Choudhary, learned counsel for the petitioner submits that the order of cognizance is liable to be set aside, mainly on the ground that without any expert opinion the complaint petition was entertained by the learned Magistrate. He submits that in a case of allegation against a doctor regarding an act of negligence, pertaining to any treatment, before filing complaint, it is required to obtain opinion of the medical expert. If there is definite opinion of medical expert showing negligence on the part of a doctor, only then a complaint petition can be entertained. He submits that in the present case, neither the expert opinion has been brought on record nor any expert has been examined in support of the complaint case. He submits that during enquiry, four persons were examined, as complainant witnesses, namely 1. Anandi Thakur, 2. He submits that in the present case, neither the expert opinion has been brought on record nor any expert has been examined in support of the complaint case. He submits that during enquiry, four persons were examined, as complainant witnesses, namely 1. Anandi Thakur, 2. Md. Jamal Ali, 3. Md. Abbas Ali and 4. Arbaz Ali (victim) and as such, it is evident that no expert was examined to establish the allegation of negligence either on the part of the concerned doctor Late Dr. Viveka Nand Choudhary or the petitioner, who was compounder. He further submits that to the best of his ability, the concerned doctor i.e. Dr. Viveka Nand Choudhary had examined the victim and the petitioner, being compounder of late Dr. Viveka Nand Choudhary, had done the job of dressing on the injury of the victim without any intention to cause any injury, rather the intention was to cure the ailment of the son of the complainant. By way of referring to prescription of the Dr. Viveka Nand Choudhary dated 04-10-2011, it has been argued that the doctor had advised for dressing on alternate date, whereas, in complaint petition, the complainant himself had admitted that the dressing was done at the interval of 6 or 7 days. Meaning thereby that complainant himself had taken the injury of his victim son casually and negligently. In support of his submission that without expert opinion complaint was not required to be entertained by the learned Magistrate, learned counsel for the petitioner has placed heavy reliance on a judgment of the Apex Court reported in 2005 (4) PLJR (SC) 213 (Jacob Mathew v. State of Punjab & Anr.). He has specifically referred to paragraph – 54 of the judgment, which is quoted here-in-below :- "54. 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. 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. 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." 7. On aforesaid ground and particularly the ground that the concerned doctor i.e. Dr. Viveka Nand Choudhary (since died), under whose supervision the victim was treated, has already left for heavenly abode, it has been argued that no purpose would be served in proceeding with the matter against the petitioner, who was admittedly a compounder. In view of non-availability of the expert opinion, he submits that order of cognizance is liable to be set aside. 8. Learned Addl. Public Prosecutor as well as Sri Amrendra Kumar, learned counsel for the complainant/opposite party no. 2 have vehemently opposed the prayer of the petitioner. Sri Amrendra Kumar, learned counsel for the complainant, by way of referring to the prescription of Dr. Nalini Ranjan of Begusarai, which has been brought on record in the complaint petition by the complainant himself, vide Annexure – 2A, submits that Dr. Nalini Ranjan had categorically recorded in its prescription, which is as follows :- "Thumb seems alive, but least chance. Nalini Ranjan of Begusarai, which has been brought on record in the complaint petition by the complainant himself, vide Annexure – 2A, submits that Dr. Nalini Ranjan had categorically recorded in its prescription, which is as follows :- "Thumb seems alive, but least chance. **gkFk dh pkj vaxqfy;kWaa iw.kZr% lM+ pqdk gS] dkyk gks pqdk gSA vaxqBk esa FkksM+k tku yxrk gS ysfdu cp ik;sxk ;k ugha dguk eqf'dy gSA vk/kk palm rFkk dorsum Hkh dkyk gks pqdk gSA Foream right side 3/4" Hkh dkyk gks pqdk gSA gkFk dk cpuk vlaHko gSA iVuk tkdj cM+s vLirky esa vo'; ijke'kZ ysaA** 9. He further submits that the complainant was a poor person and he was not properly advised by late Dr. Viveka Nand Choudhary, even though he was well aware that the victim was required to be examined by the expert. According to him, the material on record categorically suggests commission of offences, for which learned Magistrate had taken cognizance and there is no illegality or irregularity warranting interference with the matter. 10. Besides hearing learned counsel for the parties, I have perused the materials on record. After going through the same, the Court is satisfied that the learned Magistrate had entertained the complaint and passed order of cognizance in absence of any expert opinion showing specific negligence on the part of late Dr. Viveka Nand Choudhary or his compounder namely Vikash Yadav, the petitioner. Since the Apex Court in paragraph - 54 of Jacob Mathew's case (supra) has categorically held that private complaint without expert opinion may not be entertained, this Court is of the opinion that order of cognizance is not sustainable in the eye of law. 11. Accordingly, the impugned order i.e. order dated 05-02-2013 passed by Sri A. Kumar, learned Judicial Magistrate 1st Class, Naugachia in Complaint Case No. C-904 of 2011 as well as entire proceeding, so far as petitioner Vikash Yadav is concerned, is hereby set aside. 12. The petition stands allowed.