JUDGMENT : M.G. GIRATKAR, J. 1. Heard Shri Daga, learned counsel for the applicants, Shri Junghare, learned counsel for the respondent no. 2 and Shri Ghurde, learned Additional Public Prosecutor for the State/ respondent no. 1. 2. Rule. Rule made returnable forthwith. 3. Both the applications are filed by the Doctors for quashing of First Information Report registered vide Crime No. 160/2016 by Police Station, Lakadganj, Nagpur. 4. Respondent no. 2 lodged report in the Police Station, Lakadganj on 16.5.2016. It is alleged in the report that his wife delivered son on 5.12.2015. On 30.12.2015, complainant admitted new born child in the hospital of Dr. Bagade. Health of child was deteriorated, therefore, on the advice of Dr. Bagade, child was admitted in the hospital of Dr. Jaiswal on 1.1.2016. Said child was indoor patient from 1.1.2016 to 7.1.2016. There was improvement in the health of child, therefore, Dr. Jaiswal referred the said child to the hospital of Dr. Bagade. Dr. Bagade admitted the said child and was under his treatment till 10.1.2016. Dr. Bagade discharged the said child from his hospital on 10.1.2016. Complainant taken his child to his house. 5. In the night of 11.1.2016, complainant noticed that health of his child was deteriorated, therefore, in the morning at about 5.30 a.m. on 12.1.2016, he had taken child to the hospital of Dr. Jaiswal. On duty doctor at hospital of Dr. Jaiswal, namely, Shri Prafulla Khobragade and Wankhede examined the child and gave prescription of medicine. They advised to take the child to house. At about 9.10 a.m. health of child was in a serious condition, therefore, complainant taken his child to the Child Specialist Dr. Abhishek Sondawale. Dr. Sondawale examined the child and told the complainant that child was in serious condition, therefore, advised the complainant to take the child to the hospital of Dr. Jaiswal. 6. The complainant taken his child in the hospital of Dr. Jaiswal. On duty Doctor Bhoot examined the child and declared him dead. Complainant lodged the report on 16.5.2016 alleging that Dr. Wankhede who examined the child in the hospital of Dr. Jaiswal not admitted him and Dr. Sondawale not given medical treatment and, therefore, due to their negligence, his child died. 7. Before registration of crime, police obtained the report of Medical Board. Medical Board came to the conclusion that Dr. Wankhede not admitted the child in the hospital of Dr. Wankhede who examined the child in the hospital of Dr. Jaiswal not admitted him and Dr. Sondawale not given medical treatment and, therefore, due to their negligence, his child died. 7. Before registration of crime, police obtained the report of Medical Board. Medical Board came to the conclusion that Dr. Wankhede not admitted the child in the hospital of Dr. Jaiswal, Dr. Sondawale not given treatment and, therefore, they have committed the mistake. 8. On the report of the complainant, crime was registered against Dr. Sondawale and Dr. Wankhede. In both the applications, they have challenged the registration of crime against them by Police Station, Lakadganj. It is contended by both the Doctors that they had not given any treatment to the child. As per the contention of Dr. Wankhede, he advised complainant to admit the child in the hospital of Dr. Jaiswal but instead of admitting the child, the complainant had taken back child to his house. It was specifically written in the prescription given to the complainant. He had not given any medical treatment and, therefore, he is not negligent. 9. Dr. Sondawale has submitted that he is running his child clinic at his house. He used to give medical treatment on O.P.D. basis. There is no any emergency facility in his hospital. When he examined the child, his condition was serious. Child was getting the treatment of Dr. Jaiswal, therefore, he referred the child to the hospital of Dr. Jaiswal. It is contended by Dr. Sondawale that he had not given medical treatment, therefore, he is not negligent while discharging his duty as a Doctor. 10. Shri Daga, learned counsel for the applicants submitted that both the Doctors are wrongly prosecuted by the complainant. There was no any intention on the part of both the Doctors. While prosecuting for the offence, there should be mens rea. Learned counsel Shri Daga has submitted that both the Doctors acted in good faith. Dr. Sondawale not given any medical treatment. He only referred the child to the hospital of Dr. Jaiswal because the said child was under the treatment of Dr. Jaiswal and Dr. Bagade. Therefore, it cannot be said that Dr. Sondawale was negligent while discharging his duty as a Doctor. 11. Shri Daga, learned counsel has submitted that as per the report, on duty Doctor Shri Wankhede and Assistant Doctor of Dr. Jaiswal because the said child was under the treatment of Dr. Jaiswal and Dr. Bagade. Therefore, it cannot be said that Dr. Sondawale was negligent while discharging his duty as a Doctor. 11. Shri Daga, learned counsel has submitted that as per the report, on duty Doctor Shri Wankhede and Assistant Doctor of Dr. Jaiswal, namely, Shri Khobragade both examined the child. Dr. Khobragade is not prosecuted. Learned counsel Shri Daga has submitted that Dr. Wankhede not given any medical treatment. As per the report, prescription was given by Dr. Wankhede. It is not submitted by the complainant along with the report. Shri Daga, learned counsel has submitted that Dr. Wankhede advised the complainant to admit his child but instead of admitting, he had taken back his child. Therefore, it cannot be said that Dr. Wankhede was negligent while discharging his duty as a Doctor. 12. Learned counsel Shri Daga submitted that Medical Board without calling both the Doctors submitted its report to the police. In the report, it is stated that Dr. Wankhede not admitted child in the hospital, therefore, he has committed mistake. Dr. Sondawale not given treatment, therefore, he has committed mistake. 13. Learned counsel Shri Daga has submitted that to prosecute a Doctor for the offence punishable under Section 304-A of the Indian Penal Code, it is necessary to show that there was gross negligence on the part of Doctor. In support of his submissions, he relied on the decision of Dr. Sou Jayshree Ujwal Ingole vs. State of Maharashtra and Another, 2017 All MR (Cri) 2652 (SC). At last, learned counsel Shri Daga has submitted that Dr. Sondawale and Dr. Wankhede are falsely implicated in the crime by the complainant, therefore, prayed to quash and set aside the impugned order. 14. Shri Ghurde, learned Additional Public Prosecutor has strongly supported the registration of crime against both the Doctors. He has submitted that after receipt of report from Medical Board, police has registered crime. Both the Doctors were negligent while discharging their duties and, therefore, prima facie offence punishable under Section 304-A of the Indian Penal Code is attracted. 15. Shri Junghare, learned counsel for the respondent no. 2 has supported the action of the respondent no. 1 and submitted that because of the negligence on the part of Doctors, complainant lost his child, therefore, they are rightly prosecuted by the complainant by lodging report. 15. Shri Junghare, learned counsel for the respondent no. 2 has supported the action of the respondent no. 1 and submitted that because of the negligence on the part of Doctors, complainant lost his child, therefore, they are rightly prosecuted by the complainant by lodging report. At last, he submitted that the applications are devoid of merits, hence, liable to be dismissed. 16. There is no dispute that Dr. Sondawale is working as a Child Specialist. Dr. Wankhede was working in the hospital of Dr. Jaiswal. As per the contents of the report, child of complainant was admitted in the hospital of Dr. Jaiswal on 1.1.2016. Dr. Jaiswal gave medical treatment till 7.1.2016. Complainant admitted his child in the hospital of Dr. Bagade from 7.1.2016 to 10.1.2016. Dr. Bagade discharged the child from his hospital on 10.1.2016. As per the report, in the night of 11.1.2016, health of child was deteriorated. In the morning of 12.1.2016 at about 5.30 Hrs., he had taken his child in the hospital of Dr. Jaiswal. On duty Doctor Shri Wankhede and Assistant Doctor Shri Prafulla Khobragade examined his child and given prescription of some medicine. He advised him to take his child back. As per the allegation in the report, Dr. Wankhede and Dr. Khobragade not admitted the child in the hospital of Dr. Jaiswal. It is pertinent to note that report itself shows that prescription was given by Dr. Khobragade and Dr. Wankhede after examination of the child but that prescription was not submitted with the report. Admittedly, Dr. Wankhede not given any medical treatment to the child of complainant. 17. As per report of Medical Board, medical treatment was given in right direction. Medical Board has only observed that Dr. Wankhede not admitted child in the hospital, therefore, he has committed mistake. Report does not show that Dr. Wankhede was negligent while discharging his duty as a Doctor. This report also does not show that Dr. Wankhede had given any wrong treatment. Therefore, Dr. Wankhede cannot be held liable. It is pertinent to note that complainant has stated in his report that Dr. Khobragade and Dr. Wankhede both examined his child in the hospital of Dr. Jaiswal but he prayed action against only Dr. Wankhede. Why complainant not made any allegation against Dr. Khobragade is unexplained. 18. Dr. Wankhede not given any medical treatment. As per the contention of Dr. Khobragade and Dr. Wankhede both examined his child in the hospital of Dr. Jaiswal but he prayed action against only Dr. Wankhede. Why complainant not made any allegation against Dr. Khobragade is unexplained. 18. Dr. Wankhede not given any medical treatment. As per the contention of Dr. Wankhede, he advised the complainant to admit the child and it was specifically written in the prescription. But complainant not produced the said prescription with the report. Report of Medical Board also does not show any such prescription was brought before it. Therefore, the contention of the complainant that Dr. Wankhede not admitted his child and instead he directed him to take back is without any substance. 19. In the case of Dr. Sondawale, he had only advised the complainant to take his child in the hospital of Dr. Jaiswal. For the first time, complainant had taken his child at about 9.10 a.m. on 12.1.2016 in the hospital of Dr. Sondawale. Dr. Sondawale examined the child and found that health was serious and, therefore, he advised the complainant to take his child in the hospital of Dr. Jaiswal. Act of Dr. Sondawale cannot be said to be negligent act because admittedly, said child was getting treatment of Dr. Jaiswal and Dr. Bagade. Therefore, looking to the condition, he advised the complainant to take his child to hospital of Dr. Jaiswal because Dr. Jaiswal and Dr. Bagade were knowing about the line of treatment given to the child. Admittedly, Dr. Sondawale not given any medical treatment, hence, Dr. Sondawale cannot be held liable for any medical negligence on his part. 20. In the above cited decision in the case of Dr. Sou Jayshree Ujwal Ingole vs. State of Maharashtra and Another, Hon'ble Apex Court has held that “the act of Doctor may be an error in judgment but is definitely not a rash and negligent act contemplated under Section 304A IPC.” In the above cited judgment, Apex Court further held that mere inaction of Doctor leaving deceased at night and not waiting for Physician to turn up does not amount to rash and negligent act on her part, therefore, appellant not guilty of criminal negligence. 21. In the case of Jacob Mathew vs. State of Punjab and Another, 2005 All MR (Cri) 2567 (SC), Hon'ble Apex Court has observed as under: 27. 21. In the case of Jacob Mathew vs. State of Punjab and Another, 2005 All MR (Cri) 2567 (SC), Hon'ble Apex Court has observed as under: 27. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counterproductive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. 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. 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 the 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. 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. 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 WLR 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. (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 304-A 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 304-A 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. 22. In both the criminal applications, both doctors viz. Dr. Sondawale and Dr. Wankhede were not given any opportunity of hearing by the Medical Board. Medical Board in its report has submitted that Dr. Wankhede committed mistake by not admitting child in the hospital. Medical Board further observed that Dr. Sondawale not given medical treatment and, therefore, he has committed mistake. 23. Report of Medical Board does not show that Dr. Sondawale or Dr. Wankhede have committed any medical negligence. Negligence and mistake both are different things. Wankhede committed mistake by not admitting child in the hospital. Medical Board further observed that Dr. Sondawale not given medical treatment and, therefore, he has committed mistake. 23. Report of Medical Board does not show that Dr. Sondawale or Dr. Wankhede have committed any medical negligence. Negligence and mistake both are different things. Mistake is defined in Oxford English Dictionary as “something which is not correct......” In the present case, complainant had taken child for the first time to Dr. Sondawale. He examined child and found that child was in critical condition, therefore, advised the complainant to take the child in the hospital of Dr. Jaiswal because the child was under medical treatment of Dr. Jaiswal and Dr. Bagade. Therefore, it cannot be said that he has committed any mistake. Moreover, report does not show that Dr. Sondawale has committed any negligence. Word 'negligence' is interpreted by the Hon'ble Apex Court in the case of Jacob Mathew vs. State of Punjab and Another (cited supra). 24. As per the contention of Dr. Wankhede, he advised the complainant to admit the child in the hospital and accordingly he written the same on the prescription, but complainant did not admit his child. As per the report, medical prescription was given by Dr. Wankhede but it is not produced by the complainant. Therefore, there is no substance in the contention of complainant that Dr. Wankhede not admitted his child. Therefore, it cannot be said that he has committed any mistake. 25. For prosecuting Doctors, as per the judgment of Apex Court, there should be a gross negligence on the part of Doctor while giving medical treatment. In the present case, complainant not shown any gross negligence on the part of Dr. Sondawale and Dr. Wankhede. 26. Prima-facie, it is clear that Dr. Wankhede and Dr. Sondawale both were not negligent while discharging their duty as Medical Practitioners. Hence, there is no any ingredients of offence punishable under Section 304A of Indian Penal Code. Therefore, we are of the opinion that First Information Report registered vide Crime No. 160/2016 by Police Station, Lakadganj, Nagpur against both the applicants, namely, Dr. Pradeep Wankhede and Dr. Abhishek Sondawale is liable to be quashed and set aside. Accordingly, we allow both the criminal application viz. Criminal Application Nos. Therefore, we are of the opinion that First Information Report registered vide Crime No. 160/2016 by Police Station, Lakadganj, Nagpur against both the applicants, namely, Dr. Pradeep Wankhede and Dr. Abhishek Sondawale is liable to be quashed and set aside. Accordingly, we allow both the criminal application viz. Criminal Application Nos. 503 and 505 of 2016 in terms of prayer clause (a) and quash and set aside the First Information Report registered vide Crime No. 160/2016 by Police Station, Lakadganj, Nagpur.