ORDER : M.K. Hanjura, J. 1. The petitioner, Shri Shyam Kumar Gupta, has craved the indulgence of this Court in granting him the following relief’s: "(A) To Quash and set aside the Order/Judgment dated April, 24, 2017 passed by the learned Chief Judicial Magistrate, Jammu, in File No. NIL/Misc. dated 17.03.2013 titled "Rajinder Parkash v. Dr. Shyam Kumar Gupta", whereby, the Station House Officer, Bakshi Nagar, Jammu, was directed to register First Information Report under Section 304-A Ranbir Penal Code, Svt. 1989 (1932 A.D) as against the petitioner and investigate the case under law, without considering the Medical Opinion No. GNH/J/1809 dated 09.03.2013 rendered by a team of experts pursuant to the Order No. DHSJ/5100/3631-35 dated 16.02.2013 passed by the Director Health Services, Jammu, as also the Report of Medical Board comprising of very senior Doctors constituted by the Principal, Government Medical College, Jammu, pursuant to the Order dated 23.02.2016 passed in Criminal Complaint No. NIL/MISC dated 17.03.2013 titled "Rajinder Parkash v. Dr. Shyam Kumar Gupta", read with the FIR No. 60/2017 registered at Station House Officer, Bakshi Nagar, Jammu for commission of offence under Section 304-A Ranbir Penal Code, Svt. 1989 (1932 A.D). (B) The respondents No. 1 to 3, especially the respondent No. 3-Station House Officer, Bakshi Nagar, Jammu, be restrained to proceed ahead with investigation of First Information Report No. 60/2017 for commission of offence under Section 304-A Ranbir Penal Code, Svt. 1989 (1932 A.D). (C) The respondent No. 4-Rajinder Parkash, be proceeded against for filing the wrong affidavit before this Hon'ble Court in Writ Petition (Other) No. 214/2015 titled "Poonam Sharma and ors. v. State of J&K and ors.". (D) Pass any other Order as this Hon'ble court may deem fit and proper in the facts and circumstances of the present case." 2. The facts, as these stem out from the instant petition, are that, the petitioner completed his Post Graduation (MS Surgery) from SKIMS in the year 2005. It is stated that the petitioner is also a member of Royal College of Physicians and Surgeons of Glasgow (United Kingdom) which is one of the prestigious institutions in the world. The facts, as these stem out from the instant petition, are that, the petitioner completed his Post Graduation (MS Surgery) from SKIMS in the year 2005. It is stated that the petitioner is also a member of Royal College of Physicians and Surgeons of Glasgow (United Kingdom) which is one of the prestigious institutions in the world. It is stated further that the petitioner initially came to be appointed in the Health Department as an Assistant Surgeon in the year 2005 and in the year 2011 he was posted as a B-Grade Surgeon Specialist in the Government Hospital at Sarwal and is presently working as a Lecturer in the Department of Surgery, Government Medical College, Jammu. 3. It is contended by the petitioner that one Jai Kumar visited Government Hospital, Sarwal, complaining pain on the right side of the abdomen. After his examination and the tests conducted, he was found to be having stones in the Gallbladder and was accordingly advised to undergo surgery for the removal of the Gallbladder. On 10th January, 2013, after all the preliminary tests and other requirements and after getting written informed consent from the patient and his attendants for undergoing surgery and anesthesia, the patient was operated and he gave up the ghost on 15.02.2013 at his residence. 4. It is stated that after sometime the patient complained of some discharge from the drain which was put in during the surgery for which he was observed and in order to get better care of the patient, he was referred to Tertiary Care Hospital, Government Medical College Hospital, Jammu to get specialized treatment and also in view of the fact that the Government Hospital, Sarwal, which is a District Hospital does not have such facilities as are available in the Government Medical College Hospital, Jammu. The said Jai Kumar, upon issuance of the referral letter to the Government Medical College Hospital, Jammu on 19th January, 2013 was discharged from the Government Hospital, Sarwal. Pursuant to the said communication the patient subsequently had reported at Government Medical College Hospital, Jammu and was put on treatment by admitting him in Ward No. 11. 5. The said Jai Kumar, upon issuance of the referral letter to the Government Medical College Hospital, Jammu on 19th January, 2013 was discharged from the Government Hospital, Sarwal. Pursuant to the said communication the patient subsequently had reported at Government Medical College Hospital, Jammu and was put on treatment by admitting him in Ward No. 11. 5. It is also contended that on 23rd January, 2013 the said Jai Kumar had been taken by his attendant without taking any discharge or permission from the Government Medical College, Jammu and had left without informing anybody although he could not have been discharged from the hospital as the treatment was going on. Subsequently, on the same day he got himself admitted in Government Hospital Gandhi Nagar, Jammu. He was operated upon and put on treatment and continued to remain there till 11th of February, 2013 and as per the report of the Government Hospital Gandhi Nagar, Jammu dated 11th February, 2013 the doctors found him to be stable, tolerating orals passing flatus and stools and judged him to be fit to be discharged from all standards without reporting any complication on discharge. 6. It is further alleged that the petitioner did not do any wrong, however, to his utter dismay he was told that the father of Jai Kumar namely, Rajinder Parkash, has filed a complaint before the Director of Health Department alleging negligence on the part of the petitioner. The Director Health Services constituted a committee of three senior doctors who after going through all the records and the specialized medical information submitted the Enquiry Report regarding the death case of Jai Kumar Vide No. GNH/J/1809 dated 09.03.2014 to the Director, Health Services. The report concluded that though the common Bile Duct was injured by the petitioner while conducting Laparoscopic Cholecystectomy which is a known complication in complicated cases, no negligence can be attributed to the doctor who had taken due pre-operative and post-operative care and followed the standard protocols of treatment for saving the life of the patient. It is alleged that despite the aforesaid enquiry report regarding the death of Jai Kumar submitted to the Director, Health Services, Jammu dated 09.03.2014, the father Jai Kumar, namely Rajinder Parkash, filed a Criminal Complaint No. NIL/Misc. dated 17.03.2013 titled 'Rajinder Parkash v. Dr. It is alleged that despite the aforesaid enquiry report regarding the death of Jai Kumar submitted to the Director, Health Services, Jammu dated 09.03.2014, the father Jai Kumar, namely Rajinder Parkash, filed a Criminal Complaint No. NIL/Misc. dated 17.03.2013 titled 'Rajinder Parkash v. Dr. Shyam Kumar Gupta' before the Chief Judicial Magistrate, Jammu, alleging medical negligence against the petitioner in the criminal complaint, on the basis of false and frivolous allegations including the one that the petitioner had asked Jai Kumar to undergo Lab Test in Treatwell Diagnostic Centre, where the wife of the petitioner was working. The said allegations have been made without any foundation especially when the petitioner's wife never worked in the aforesaid Diagnostic Centre. It is pertinent to mention that the petitioner did not receive any notice in the aforesaid Criminal Complaint filed before the learned Chief Judicial Magistrate, Jammu nor was he aware about it. However, after the passing of the impugned order the petitioner came to know that the court of learned Chief Judicial Magistrate, Jammu has passed an order on 23.02.2016 directing the SHO, Bakshi Nagar, Jammu, to conduct a preliminary inquiry in the matter and to get the opinion of the Board of Doctors in the matter and find out the element of the negligence of the petitioner resulting into the death of late Sh. Jai Kumar. 7. It is further contended that the Chief Prosecuting Officer, Saddar Courts, Jammu vide his communication No. CPO/C/J/16/617 dated 16.04.2016 forwarded the copy of the order dated 23.02.2016 of the learned Chief Judicial Magistrate, Jammu passed in the aforesaid Criminal Complaint along with the enclosures to the SHO, Police Station, Bakshi Nagar, Jammu for further action at his end in light of the Court order and report compliance. It is stated that vide communication No. 17311-12/SDCW dated 24.10.2016 of the Sub Divisional Police Officer, City West, Jammu, read with communication No. CC/20737-38 dated 07.11.2016 of the Superintendent of Police, City North, Jammu addressed to the Sr. Superintendent of Police, Jammu followed by Communication No. 1212/DMUJ/16 dated 07.01.2017 of the Additional District Magistrate, Jammu, a request was made to the Principal Government Medical College, Jammu for the Constitution of a Medical Board of Doctors, to extend opinion into the cause of the death of the deceased, namely, Jai Kumar. Resultantly, the Principal Government Medical College, Jammu, vide Office Order No. GMC/2016/Spl. Med. Resultantly, the Principal Government Medical College, Jammu, vide Office Order No. GMC/2016/Spl. Med. Board/3093 dated 21.01.2017 read with Addendum No. GMC/2016/Spl. Med. Board/3125 dated 25.01.2017 constituted a Special Medical Board comprising expert doctors for their opinion to ascertain the reasons for the cause of death of the deceased, namely, late Sh. Jai Kumar. It is further stated that the Medical Board after going through the history and the relevant material submitted the report stating it in unequivocal terms that there has been no negligence on the part of the petitioner. 8. It is further stated that the court of learned Chief Judicial Magistrate, Jammu, without going through the report submitted by the Special Medical Board comprising expert doctors directed the SHO, Police Station, Bakshi Nagar, Jammu to register a First Information Report under Section 304-A RPC as against the petitioner on the basis of some statement made by a private doctor about whom the court of learned Chief Judicial Magistrate, Jammu observed that he is Gastroenterology Surgeon in the Department of Surgery, Government Medical College, Jammu. It is contended that Dr. Vijant Singh Chandail, who in the order/judgment dated 24.04.2017 passed by the learned CJM, Jammu was reported to be a Gastroenterology Surgeon in the Department of Surgery, Government Medical College, Jammu, is a Medical Gastroenterologist working as a lecturer in the Department of Medicine, Government Medical College, Jammu. Besides it is also not understandable that how and in what capacity and on what authority, Dr. Vijant Singh Chandail, gave the aforesaid statement. 9. It is contended that the petitioner came to know about the registration of the FIR No. 60/2017 registered with Station House Officer, Bakshi Nagar, Jammu for the commission of an offence under Section 304-A RPC when a news item was published in a Local English Daily namely 'Early Times' in its issue dated September 17, 2017 under the Caption "Death at Sarwal Hospital; Police defy CJM's order". It is further contended that the father of late Sh. Jai Kumar, namely, Rajinder Parkash-the respondent No. 4, along with some of his family members filed an OWP titled 'Poonam Sharma & ors. It is further contended that the father of late Sh. Jai Kumar, namely, Rajinder Parkash-the respondent No. 4, along with some of his family members filed an OWP titled 'Poonam Sharma & ors. V. State of J&K & ors.' before the Hon'ble High Court of J&K at Jammu seeking the relief of lodging a First Information Report under Section 304-A RPC against the petitioner and the averments made before the learned CJM, Jammu in the Criminal Complaint dated 17.03.2013 (supra) are nothing but the reproduction of what has been pleaded in the above said OWP. In para 23 of the said petition, the petitioners including the respondent No. 4, Rajinder Parkash, the father of the deceased Jai Kumar, gave an undertaking to the effect that they have not filed any other writ petition, appeal or case before any court including the Apex Court on the same subject matter. 10. At the end, the petitioner has contended that to prevent the abuse of process of law and to otherwise secure the ends of justice, the petitioner is left with no option but to file the petition under Section 561-A Cr.P.C in this Court as no case of criminal negligence is made out against him. 11. The answering respondent No. 3, i.e. S.H.O, Police Station, Bakshi Nagar, Jammu, in the Status Report filed by him has stated that in compliance to the directions a written complaint of the complainant, namely, Rajinder Parkash (respondent No. 4) duly endorsed by the learned Chief Judicial Magistrate, Jammu was received in Police Station, Bakshi Nagar, Jammu. The complainant had been lodged by the complainant against the petitioner in the court of learned CJM, Jammu. It is contended that a case FIR No. 60/2017 for an offence under Section 304-A RPC was registered at Police Station, Bakshi Nagar, Jammu and the investigation of the case was entrusted to SI Rahul Mahajan. During the investigation the I.O. visited the spot, prepared the site plan and recorded the statement of the complainant under Section 161 Cr.P.C. The statements of other witnesses are yet to be recorded in the case. During the course of the investigation of the case the investigating officer, was transferred and the investigation has now been handed over to one Jatinder Singh Rakwal, SI. It is stated that a prima facie case is made out against the petitioner, and the investigation is at its initial stage. During the course of the investigation of the case the investigating officer, was transferred and the investigation has now been handed over to one Jatinder Singh Rakwal, SI. It is stated that a prima facie case is made out against the petitioner, and the investigation is at its initial stage. It is further submitted that once the FIR is registered, it is obligatory on the part of the Investigating Agency to investigate the matter and bring the real facts before the Hon'ble court but the investigation of the case could not be brought to the logical conclusion due to the non-cooperation of the petitioner, and, therefore, the petitioner be directed to cooperate with the investigating agency, so that, a final report is laid in the matter. 12. Heard and considered. 13. From a bare glimpse of what has been stated above it transpires that two enquiries have been conducted in the instant case by the Board of Doctors to trace out the cause leading to the death of the deceased. The first one was conducted by Dr. Romesh Gupta-Medical Superintendent, Govt. Hospital Gandhi Nagar, Jammu, Dr. Anoop Singh Manhas, State Veneriologist, Directorate of Health Services, Jammu and Dr. Rakesh Gupta-Consultant Surgeon, Govt. Hospital, Gandhi Nagar, Jammu. The report in this enquiry was laid on 09.03.2013, that is, prior to 01.05.2017 that is the date of the registration of the case for the commission of an offence under Section 304-A RPC, against the petitioner and the operative portion thereof reads as under: "Opinion: From the perusal of records from Govt. Hospital, Sarwal, Govt. Medical College Hospital, Jammu, Govt. Hospital, Gandhi Nagar, Jammu, the reply submitted by Dr. Shyam Kumar Gupta, who is a trained laparoscopic surgeon who has sufficient experience in the conducting laparoscopic surgery the CBD may have been injured during surgery which do happens in the best centers of the world also. Since there were lot of adhesions of omentum around calot's triangle the injury to the CBD can happen. The doctor tried to manage the patient as per standard protocols of the CBD injury in his set up but once it was found that things are beyond his control he shifted the patient to Govt. Medical College Hospital, Jammu a tertiary care hospital. Further after the patient absconded from Govt. Medical College Hospital, Jammu he was treated by a trained GI Surgeon at Govt. Medical College Hospital, Jammu a tertiary care hospital. Further after the patient absconded from Govt. Medical College Hospital, Jammu he was treated by a trained GI Surgeon at Govt. Hospital, Gandhi Nagar, Jammu and after treatment the patient was discharged on 11.2.2013 from the hospital in satisfactory condition. After four days the patient died at his residence the cause of which could not be ascertained as no postmortem has been conducted which could have revealed the cause of Death. However, in the opinion of the committee though the CBD was injured by Dr. Shyam Kumar Gupta while conducting Lap Cholecystectomy which is a known complication in complicated cases, no negligence seems to have been done as the doctor has taken due pre-operative and post-operative care and followed the standard protocols of treatment for saving the life of the patient." 14. The second enquiry report was laid on 25.02.2017 by the Board of Doctors comprising, Dr. Sunil Gupta-Surgeon Specialist, Deptt. of Surgery, GMC, Jammu, Dr. Smriti Gulhati-HOD Deptt. of Anesthesia, GMC, Jammu and Dr. Vikrant Chandail-Gastroenterology Surgeon, Deptt. of Surgery, GMC, Jammu. Mr. M.L. Raina (KAS), Administrator Associated Hospitals, GMC, Jammu also coopted in it. The relevant excerpts of this report are detailed below word for word and letter for letter: "1. Patient got admitted on 23.01.2013 at Gandhi Nagar, Hospital where he was managed conservatively till 28.01.2013 and on 28.01.2013 he was operated with findings of 1.5 litre of bile in peritoneal cavity, multiple dense adhesions of omentum with Gallbladder bed, omentum with abdominal wall and interloop, presence of pus flakes. The surgery done was exploratory Laparotomy with peritoneal lavage and drainage. 2. Patient was discharged from Gandhi Nagar hospital on 11.02.2013 when he was haemodynamically stable, tolerating orally, a febrile, passing flatus and stools, which shows his bowels were functioning normally. Discharge Report of G.N. Hospital annexure 'C'. There are no records available after 11.02.2013 and also no post-mortem autopsy has been done, so it is difficult to ascertain the reason for cause of death of Sh. Jai Kumar who died at home on 14.02.2013, some 34 days after he was operated in Govt. Hospital, Sarwal on 10.01.2013." 15. It will not be impertinent to state that the Inquiry Committee after going through the records from Govt. Hospital, Sarwal, Govt. Medical College Hospital, Jammu, Govt. Hospital, Gandhi Nagar, Jammu, the reply submitted by Dr. Jai Kumar who died at home on 14.02.2013, some 34 days after he was operated in Govt. Hospital, Sarwal on 10.01.2013." 15. It will not be impertinent to state that the Inquiry Committee after going through the records from Govt. Hospital, Sarwal, Govt. Medical College Hospital, Jammu, Govt. Hospital, Gandhi Nagar, Jammu, the reply submitted by Dr. Shyam Kumar Gupta, who is a trained laparoscopic surgeon and has sufficient experience in conducting laparoscopic surgery concluded that the CBD may have been injured during surgery which does happen in the best centers of the world also. Since there were lot of adhesions of omentum around calot's triangle injury to the CBD can happen. The doctor tried to manage the patient as per standard protocols of the CBD injury in his set up but once it was found that things went beyond his control he shifted the patient to Govt. Medical College Hospital, Jammu, a tertiary care hospital. The patient absconded from Govt. Medical College Hospital, Jammu, where after he was treated by a trained GI Surgeon at Govt. Hospital, Gandhi Nagar, Jammu and after treatment the patient was discharged on 11.2.2013 from the hospital in a satisfactory condition. After four days the patient died at his residence. The cause of his death could not be ascertained as no postmortem has been conducted which could have revealed the cause of Death. However, in the opinion of the committee though the CBD was injured by Dr. Shyam Kumar Gupta while conducting Lap Cholecystectomy which is a known complication in complicated cases, no negligence seems to have been done as the doctor had taken due pre-operative and post-operative care and followed the standard protocols of treatment for saving the life of the patient. The second enquiry report states empathetically that the patient was operated for Lap Cholecystectmoy on 10.1.2013 along with two more patients who had been listed for surgery by Dr. Shyam Kumar Gupta on that day. 16. Dealing with an almost identical case this Court adored by a Bench comprising me (Justice M.K. Hanjura, Judge) in the case bearing OWP No. 1729/2014, titled "Ghulam Ahmad Wani v. State of JK & Others", C/w 561-A No. 02/2015 and "Dr. Mufti Mehmood Ahmad Farooqi v. State of JK & Another", decided on 15.11.2017 held as under:- "The law is that the concept of negligence differs in civil and criminal law. Mufti Mehmood Ahmad Farooqi v. State of JK & Another", decided on 15.11.2017 held as under:- "The law is that the concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in the criminal law. The element of "mens rea" has to be shown to exist for concluding that the negligence amounted to an offence. To bring an act within the definition of criminal negligence, the degree of negligence has to be of a higher order, i.e. it should amount to gross negligence. Negligence, which can neither be rated as gross nor of a higher degree, may give a person the teeth to seek the settlement of his claim in Civil law, but it cannot form the baseline for the prosecution of an accused under Section 304-A RPC. The expression "Rash or Negligent Act", as it occurs in Section 304-A RPC, has to be read to mean "gross negligence" as is the settled position in the Criminal law. 10. In a case of prosecution of a medical professional for negligence under criminal law, it has to be shown authoritatively that the acts of omission and commission attributed to a person were such that no medical professional in his ordinary senses and prudence would have done or failed to do. The act of the accused doctor should be of such a nature that the injury which resulted was most likely imminent. The law laid down on the subject is beaming and clear. In "Dr. Suresh Gupta v. Govt. of N.C. T. of Delhi", reported in "AIR 2004 Supreme Court 4091", it has been held as under: "24. No doubt in the present case, the patient was a young man with no history of any heart ailment. The operation to be performed for nasal deformity was not so complicated or serious. He was not accompanied even by his own wife during the operation. From the medical opinions produced by the prosecution, the cause of death is stated to be 'not introducing a cuffed endo-tracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage'. This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. This act attributed to the doctor, even if accepted to be true, can be described as negligent act as there was lack of due care and precaution. For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable. 25. Between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct. 26. To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable. 27. See the following concluding observations of the learned authors in their book on medical negligence under the title 'Errors, Medicine and the Law' [by Alan Merry and Alexander McCall Smith at pg. 247-248]. The observations are apt on the subject and a useful guide to the courts in dealing with the doctors guilty of negligence leading to death of their patients :- "Criminal punishment carries substantial moral overtones. The doctrine of strict liability allows for criminal conviction in the absence of moral blameworthiness only in very limited circumstances. Conviction of any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrong doing, levels four and five are classification of blame, are normally blameworthy but any conduct falling short of that should not be the subject of criminal liability. Conviction of any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrong doing, levels four and five are classification of blame, are normally blameworthy but any conduct falling short of that should not be the subject of criminal liability. Common-law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high a standard traditionally described as gross negligence. Blame is a powerful weapon. When used appropriately and according to morally defensible criteria, it has an indispensable role in human affairs. Its inappropriate use, however, distorts tolerant and constructive relations between people. Some of life's misfortunes are accidents for which nobody is morally responsible. Others are wrongs for which responsibility is diffuse. Yet others are instances of culpable conduct, and constitute grounds for compensation and at times, for punishment. Distinguishing between these various categories requires careful, morally sensitive and scientifically informed analysis." 28. After examining all the medical papers accompanying the complaint, we find that no case of recklessness or gross negligence has been made out against the doctor to compel him to face the trial for offence under section 304A of the IPC. As a result of the discussion aforesaid on the factual and legal aspect, we allow this appeal and by setting aside the impugned orders of the Magistrate and of the High Court, quash the criminal proceedings pending against the present doctor who is accused and appellant before us." 17. In the case of "Jacob Mathew v. State of Punjab & Anr.", reported in "AIR 2005 Supreme Court 3180", the legal principles and the law laid down in Dr. Suresh Gupta's case have been re-affirmed. The relevant excerpts of the judgment germane in the context of the issues raised here in these petitions are detailed as under: "49. 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 hereinabove, holds good. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, 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 practice 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 practice 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 practice 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. (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. 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'. (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. (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. 50. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta's case MANU/SC/0579/2004 : (2004) 6 SCC 422 and re-affirm the same. Ex abundant 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 51. 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 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. 52. 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. 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. 52. 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. 53. 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. 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. Case at hand 54. 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. Case at hand 54. Reverting back to the facts of the case before us, we are satisfied that all the averments made in the complaint, even if held to be proved, do not make out a case of criminal rashness or negligence on the part of the accused appellant. It is not the case of the complainant that the accused-appellant was not a doctor qualified to treat the patient whom he agreed to treat. It is a case of non- availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. Then, probably the hospital may be liable in civil law (or may not be we express no opinion thereon) but the accused appellant cannot be proceeded against under Section 304A IPC on the parameters of Bolam's test. Result 55. The appeals are allowed. The prosecution of the accused appellant under Section 304A/34 IPC is quashed". 18. Applying the ratio of law laid down above to the facts of the instant case, the act attributed to the accused here in this case, even if stretched to unreasonable lengths, can, at the most, be stated to be an act performed with lack of due care and precaution. The allegation levelled against the petitioner is that, although, the operation was successful, but the complications that arose during the post-operative period led to the death of the deceased. It is also brought to the fore that the doctors who attended the deceased referred him to the Tertiary Care Hospital, Government Medical College Hospital, Jammu, in order to get specialized treatment and also in view of the fact that Government Hospital, Sarwal, which is a District Hospital is not having such facilities as are available in the Government Medical College Hospital, Jammu. A simple lack of care, an error of judgment or an accident cannot form a proof of the negligence on the part of a medical professional. A simple lack of care, an error of judgment or an accident cannot form a proof of the negligence on the part of a medical professional. In a case, where a medical professional is accused of gross negligence, the Investigating Officer and the private complainants cannot be supposed to have the knowledge of medical science which will give them the stick to determine whether the act attributed to the accused (medical professional), does or does not amount to rash or negligent act under the provisions of Section 304(A) RPC. It will hover before their eyes like the mirage of an oasis. By taking resort to the practice, of registering cases against a medical professional for an offence under Section 304(A) of RPC on the mere asking of a private complainant that too after a great lull of approximately three years, the medical professionals will shirk from their work. The threat of criminal prosecution will always loom large on their heads and, as a consequence of this, the patients will be left in a lurch. 19. The law laid down in Civil Appeal No. 368/2013 arising out of the SLP (C) No. 26043/2010 highlights this aspect. It provides that 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 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 him or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the 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 chances of success may be 10 percent (or so), rather than taking a 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 disservice to the Society. 20. Such timidity forced upon a doctor would be disservice to the Society. 20. Taking the above into consideration, the Apex Court of the country in Jacob Mathew's case felt and spelt out the need to incorporate certain guidelines in the Statutory Rules and Executive Instructions by the Government of India and/or the State Governments in consultation with the medical Council of India. It directed that till such time this is not done, certain guidelines which should govern the future prosecution of the doctors for offences of which criminal rashness or criminal negligence is an ingredient, require to be assimilated. In the guidelines laid down by the Apex Court, the Court ordained that a private complaint may not be entertained unless the complainant has produced, prima facie, evidence before the Court in the form a credible opinion given by another competent Doctor to support the charge of rashness or negligence on the part of the accused Doctor. The Supreme Court commanded that the investigating Officer should before proceeding against the Doctor accused of a rash or negligent act, obtain an independent and competent medical opinion preferably from a Doctor in Government service in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam's test to the facts collected in the investigation. The Supreme Court further held that 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. 21. Reverting back to the facts of the petition before me, pursuant to the complaint before the Director of Health Department, the Director of Health Services, Jammu constituted an enquiry Committee comprising of three senior doctors who examined the case of the deceased in compliance with the mandate of the guidelines laid down by the Supreme Court. The Committee of the Experts, which comprised of three Heads of the Departments of Surgery including the Medical Superintendent, State Veneriologist and Consultant Surgeon, after giving a complete background of the case, opined that the patient was managed as per the standard protocol mentioned in the literature. The Committee of the Experts, which comprised of three Heads of the Departments of Surgery including the Medical Superintendent, State Veneriologist and Consultant Surgeon, after giving a complete background of the case, opined that the patient was managed as per the standard protocol mentioned in the literature. No negligence on the part of the treating Doctors, who was involved in the management of the case, was found by them. The other enquiry revealed that the patient was discharged from Gandhi Nagar hospital on 11.02.2013 when he was haemodynamically stable, tolerating orally, a febrile, passing flatus and stools, which shows his bowels were functioning normally. Discharge Report of G.N. Hospital annexure 'C'. There are no records available after 11.02.2013 and also no post-mortem autopsy has been done, so it is difficult to ascertain the reason for cause of death of Sh. Jai Kumar who died at home on 14.02.2013, some 34 days after he was operated in Govt. Hospital, Sarwal on 10.01.2013. On the face of these reports of the team of Experts, constituted on the subject on which they alone could delve, that is whether the act attributed to the doctor, did or did not, constitute gross negligence on his part, the proceedings initiated against the petitioner on the basis of FIR No. 60/2017 registered against him at Police Station Bakshi Nagar, Jammu, cannot survive. The surgery having been conducted and the deceased having been referred to Government Medical College, Jammu, and thereafter he having been operated again at Gandhi Nagar, hospital, where after he was discharged from there on 11.02.2013 in a condition which has been termed to be stable how can the case of the petitioner be brought within the range of medical negligence. No post mortem of the deceased has been conducted to ascertain the cause of his death as can be seen from the enquiry report which is second in point of time. The deceased died after a period of four days from the date he was discharged from Gandhi Nagar, hospital and after a gap of more than a month from the date he was operated by the petitioner. The report of the doctor relied upon by the Court below pales into insignificance when tested on the parameters of the reports laid down by the Board of Doctors on two occasions. The report of the doctor relied upon by the Court below pales into insignificance when tested on the parameters of the reports laid down by the Board of Doctors on two occasions. Lack of necessary care, attention or skill in treating the patient, has been completely ruled out by the Committee of the Experts. 22. Viewed in the context of what has been said and done above, the petition No. 625/2017 under Section 561-A of the Code of Criminal Procedure filed by the petitioner, Dr. Shyam Kumar Gupta, is allowed on the analogy of the law cited above, as a sequel to which, the FIR bearing FIR No. 60 of the year 2017 registered against the petitioner at Police Station, Bakshi Nagar, Jammu and all the proceedings emanating there from are quashed. 23. Registry to place a copy of this order on both the files.