JUDGMENT : Sanjeev Prakash Sharma, J. 1. By way of this revision petition, the petitioner who is serving as Doctor with the State Government, has challenged the order passed by learned Magistrate, by which the learned Magistrate has taken cognizance of offence under Section 304A IPC against the petitioner inspite of the State having refused to grant prosecution sanction. 2. The cognizance has been taken for having caused death by committing medical negligence in treating a patient who happened to be a retired Director General of Police, vide order dated 10.05.2003. 3. Counsel for the petitioner submits that the petitioner was holding the post of Head of the Cardiology Department in S.M.S. Medical College since July, 1995. He is possessing qualification of D.M. in Cardiology. It is his case that the deceased patient who was a retired police officer, was already under his treatment for several years. The patient was suffering from severe diabities, acute hypertension, advance heart disease, hyper lepedema, single function kidney and kidney dis-function. The petitioner had provided best possible treatment to the patient Shri Kalia and his unit members Dr. Rajiv Bagerhatta, Dr. Vijai Pathak and Dr. Arvind Sharma were closely monitoring his health. On 10.08.1999 the said patient complained of breathlessness and the petitioner immediately attended him and passed appropriate instructions to Dr. Bagerhatta, and Dr. Vijay Pathak. Despite best possible treatment, patient expired on the very date. On this accord, complaint was preferred to the Chief Minister by the son of the deceased patient and one I.A.S. Officer was appointed to conduct the enquiry. 4. The said I.A.S. Officer submitted his report based on opinion of one Dr. S.K. Chutani who was immediate subordinate to the petitioner and was engaged in litigation with the petitioner relating to his suspension and adverse remarks. The petitioner further states that he objected to such report which was malicious and with an intention to harm the petitioner by a doctor who was already engaged in litigation with him. Judgment reported in 2003 (2) WLC 527 is cited. The State Government then sent the record to the Professor and Head of the Department of Cardiology, Dr. S.C. Manchanda, of All India Institute of Medical Sciences for re-examination. Dr. Judgment reported in 2003 (2) WLC 527 is cited. The State Government then sent the record to the Professor and Head of the Department of Cardiology, Dr. S.C. Manchanda, of All India Institute of Medical Sciences for re-examination. Dr. S.C. Manchanda submitted his report on 30th March, 2002 which was shown to the court by the learned counsel and from the opinion submitted by him, it is apparel that no obvious negligence in resuscitation was caused and the treatment given during the terminal event was appropriate. On the basis of the report submitted by the head of the Department AIIMS, it appears that the State Government refused to grant sanction for prosecution under Section 304A IPC. 5. The police therefore, submitted final report, however, it appears that the concerned Magistrate on the basis of an application filed by additional Public Prosecutor requesting for taking cognizance under Section 304A IPC and also stating that sanction from the State Government would not be required for cases relating to medical negligence, the Learned Additional Chief Judicial Magistrate No. 6, Jaipur City, Jaipur, proceeded to take cognizance vide impugned order dated 10.05.2003 under Section 304A IPC. 6. The present revision petition was preferred assailing the order dated 10.05.2003. The case was fixed on 08.06.2017 during vacations. The court 5 issued bailable warrants as no one appeared and directed the petitioner to remain present before the court on 30.06.2017. 7. The petitioner presented himself before the court on 30.06.2017 along with his counsel and after hearing both the counsel, judgment was reserved. 8. Learned counsel for the petitioner submits that cognizance under Section 304A IPC for causing death due to negligence could not have been taken against the petitioner as no document in support thereof was placed on record to prove that the petitioner had committed negligence which resulted in causing death of the deceased patient. The patient was terminally ill and the best possible treatment which could be made available to the patient, was provided by the petitioner along with his colleagues. 9. Further the learned counsel also submitted that the learned Magistrate could not have taken cognizance for offence under Section 304A IPC is the wake of declining of prosecution sanction by the State Government and such refusal order was not challenged by any one before any competent court of law. 10. 9. Further the learned counsel also submitted that the learned Magistrate could not have taken cognizance for offence under Section 304A IPC is the wake of declining of prosecution sanction by the State Government and such refusal order was not challenged by any one before any competent court of law. 10. Learned counsel for the petitioner has relied on the view laid down by the Apex Court in the case of Jacob Mathew vs. State of Punjab and Another, 2005 (2) WLC (SC) Cri. 232 : AIR 2005 SC 3180 and another to argue that the petitioner cannot be said to have caused any negligence within the meaning of Section 304A IPC as well as in the case of Dr. Suresh Gupta vs. Govt. of NCT of Delhi and Another, 2004 (2) WLC (SC) Cri. 490 : 2004 (5) Supreme 604 and in the case of Manorama Tiwari and Others vs. Surendra Nath Raj, (2016) 1 SCC 594 . In support of his submissions he also relies on judgment passed by the court in the case of State of Maharashtra vs. Mahesh G. Jain, 2013 (2) WLC (SC) Cri. 460 : (2013) 8 SCC 119 . 11. Learned counsel for the respondent, however, submits that medical negligence, whether of a government servant/doctor or of any other doctor can be examined and cognizance relating to death caused by medical negligence does not require prior sanction of the State Government within the meaning of Section 197 Cr.P.C. 1973. 12. Having heard learned counsel for the parties and after having looked into the record, I think that while there was a medical opinion of Head of the Department of All MS, which clearly reflected that there was no medical negligence on the part of petitioner, it appears that the Magistrate has examined medical negligence by any perspective relating upon the local report of one Dr. S.K. Chutani and the IAS Officer. Admittedly Dr. S.K. Chutani was having litigation with the petitioner and there is a reported judgment in the case of Dr. Surendra Kumar Chutani vs. State of Rajasthan and Others, 2003 (2) WLC (Raj.) 527 wherein arguments of Dr. S.K. Chutani has been noted and pointed out his suspension at the instance of Dr. Ramesh Kumar Madhok, and thus a report prepared by Dr. S.K. Chutani could not have been relied upon by the concerned Magistrate. 13. Surendra Kumar Chutani vs. State of Rajasthan and Others, 2003 (2) WLC (Raj.) 527 wherein arguments of Dr. S.K. Chutani has been noted and pointed out his suspension at the instance of Dr. Ramesh Kumar Madhok, and thus a report prepared by Dr. S.K. Chutani could not have been relied upon by the concerned Magistrate. 13. In the case of Jacob Mathew vs. State of Punjab and Another, 2005 (2) WLC (SC) Cri. 232 : AIR 2005 SC 3180 and another the Larger Bench examined the medical negligence and examined the view taken in Dr. S.K. Chutani's case (Supra). The necessary paras are quoted as under: "19. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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 necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates vs. J.D. Williams and Co. Ltd. (2001) PN. L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charles worth & Percy, ibid, Para 8.03). 26. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. 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 counter productive. 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. 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. 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." 14. Thus, it is apparent that to hold a person of committing medical negligence resulting in causing death, and taking cognizance of such an offence has to be based on some cogent material and after due care and caution and also after having been satisfied that necessary ingredients as laid down by the Apex Court are available on record. I do not find that learned Magistrate has examined the criminal complaint with the perspective as laid down by the Apex Court. 15. In a recent judgment passed by the Apex Court in the case of Dr. Sau Jayshree Ujwal Ingole vs. State of Maharashtra and Another (supra), the cognizance for medical negligence has to be taken after due caution and after having been settled that necessary ingredients as laid down by the Apex Court, are available on record. 16. Coming to the facts of this case, this court finds that the learned Magistrate has failed to examine the criminal complaint in correct perspective in view of a recent judgment passed by the Apex Court in the case of Dr. Sou Jayshree Ujwal Ingole vs. State of Maharashtra and Another, 2017 (1) WLC (SC) Cri. 742 : 2017 (4) Scale 321 . The Apex Court applying the law held that medical negligence as 10 contemplated under Section 304A IPC is not made out. Sou Jayshree Ujwal Ingole vs. State of Maharashtra and Another, 2017 (1) WLC (SC) Cri. 742 : 2017 (4) Scale 321 . The Apex Court applying the law held that medical negligence as 10 contemplated under Section 304A IPC is not made out. It was held that an error in judgment would not amount to rash and negligent act contemplated under the said provisions. 17. In Manorama Tiwari and Others vs. Surendra Nath Raj (supra) the doctors treating the patient who were Government servants, were put to trail on the basis of criminal complaint without sanction from the State Government. The Apex Court held as under:- "12. In view of the above settled position of law, we are of the opinion that in the present case, the High Court has erred in law in dismissing the criminal revision filed by the Appellants and affirming the order of the Magistrate rejecting their application as to maintainability of the criminal complaint without sanction from the State Government. In our opinion, it is a clear case where Appellants were discharging their public duties, as they were performing surgery on the patient in the Government hospital. It is not disputed that the Appellants were the Medical Officers in the Government Hospital. As such, the criminal prosecution of the Appellants initiated by the Respondent (complainant) is not maintainable without the sanction from the State Government. That being so, we are inclined to allow this appeal." 18. The same is the view taken by the Apex Court in Manorama Tiwari and Others vs. Surendra Nath Raj (supra) and in another case reported in the case of State of Maharashtra vs. Mahesh G. Jain 2013 (2) WLC (SC) Cri. 460 : (2013) 8 SCC 119 . The Apex Court has taken a similar view. 19. Taking into consideration the facts of the present case, I am satisfied that the petitioner cannot be said to have committed negligence in terms of Section 304A IPC. There may be an error in judgment relating to the treatment, however, as has come on record, there has been proper resuscitation of the patient but taking into consideration that the patient was suffering from multifarious deceases including Kidney failure, it appears that he did not respond to the treatment which was provided to him. There may be an error in judgment relating to the treatment, however, as has come on record, there has been proper resuscitation of the patient but taking into consideration that the patient was suffering from multifarious deceases including Kidney failure, it appears that he did not respond to the treatment which was provided to him. It is also seen that while the petitioner has been prosecuted the team of members which were treating the patient which included other members namely Dr Rajiv Bagerhatta, Dr. Vijay Pathak and Dr. Arvind Sharma, were not included in the complaint lodged in the police station. It appears that the complaint itself is motivated. This court is satisfied that the matter was properly examined by the Head of the Department of Cardiology Dr. S.C. Manchanda of All India Institute of Medical Sciences, whose opinion ought to have been looked into by the concerned Magistrate while taking cognizance under Section 304A IPC, as has been held by the Apex Court in the case of Jacob Mathew v. State of Punjab and another (supra). 20. The question relating to sanction for prosecution also needs to be addressed to under Section 197 Cr.P.C. 1973. The test is whether the offence alleged to have been committed by an accused on the acting or purporting to Act in discharge of his official duty means pertaining to his Official Act and if he does not do so it would amount to dereliction of the official duty. In other words it implies that the Act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of his duty which further must have been official in nature. 21. While examining such act or omission on part of a doctor one has to see two aspects namely the act or omission was on account of he being a doctor or on account of being as an official doctor performing his official duty are to be seen. As Head of Cardiology the petitioner was officially performing his duty at S.M.S. Medical College where the patient was being treated. As Head of Cardiology the petitioner was officially performing his duty at S.M.S. Medical College where the patient was being treated. Thus, the present alleged act or an omission if so construed, could be treated as dereliction of official duty alone and, therefore, provisions of Section 197 would be attracted and prosecution sanction from State was necessarily required and the court could not have taken cognizance for such alleged negligence conducted during course of official duty and no prosecution could have been set in motion without prior prosecution sanction. 22. In view of the aforesaid, the present petition is allowed. The order dated 10.05.2003 passed by the Learned Magistrate, taking cognizance under Section 304A IPC against the petitioner is quashed and set aside.