JUDGMENT Hon’ble Anil Kumar Srivastava-II, J.—Heard Shri Rakesh Dubey, learned counsel for the petitioners and learned A.G.A. and perused the record. 2. Petition has been preferred to quash the proceedings of case No. 622 of 2009, State v. Shiv Dutt Sharma and others, charge-sheet No. 4/2009, arising out of case crime No. 18/2009, Police Station Akbarpur, District Kanpur Dehat, under Section 304 A IPC and 3 (1) (X) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, pending before the Court of learned Chief Judicial Magistrate, Kanpur. 3. Learned counsel for the petitioner submits that as per the prosecution version one Ram Shankar (deceased) husband of complainant Savitri Devi was admitted for treatment in Pushpeya Hospital Gandhi Nagar, Akbarpur, District Kanpur Dehat on 12.8.2008 by his nephew Om Narain an amount of Rs. 50000/- was deposited in the hospital but receipt of only 5500/- was issued. He was operated upon by Dr. Sohail and Dr. Vivek Shukla. It was advised by them that water should not be administered to the patient but the same was given to him on 16.8.2008. Deceased Ram Shankar died in the hospital. When the complainant demanded the receipt of Rs. 50,000/-, she was abused and threatened. It is further submitted that a poisonous injection was given to the deceased causing his death. Application under Section 156(3) Cr.P.C. was moved by the complainant on 1.11.2008 wherein the learned Magistrate passed an order for registration of the case which was registered on case crime No. 18/2009, under Section 304 IPC and 3 (2) (V) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 at Police Station Akbarpur. After investigation, Investigating Officer recorded a finding that at the most case is made out under Section 304 A IPC and 3(1) (X) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Accordingly, charge-sheet was submitted by him. It is further submitted that the petition was preferred by the petitioners being petition No. 718/2009 wherein the arrest of the petitioner was stayed vide order dated 29.1.2009. After submission of the charge-sheet cognizance was taken by the learned Magistrate. 4. Learned counsel for the petitioner submits that it is an abuse of process of law if the petitioners are tried by the Court below. After submission of the charge-sheet cognizance was taken by the learned Magistrate. 4. Learned counsel for the petitioner submits that it is an abuse of process of law if the petitioners are tried by the Court below. It is submitted that it is an admitted fact that Ram Shankar was admitted in the Pushpeya Hospital wherein he was operated by Dr.Sohail and Dr.Vivek Shukla on 14.8.2008. Operation was successful. Subsequently, due to a cardiac arrest Ram Shankar died in the hospital on 16.8.2008. It is submitted that the family members of Ram Shankar received the dead body after obtaining the death certificate and last rites were performed. After a gap of about three months application under Section 156(3) Cr.P.C. was moved with false allegations. It is further submitted that there was no allegation of negligence at the time of operation. Even the Investigating Officer has recorded its finding that if the allegation of giving poisonous injection are found to be correct then the FIR should have been lodged immediately but the same was lodged after a gap of three months. There is no material available on record to show that either any medical negligence ws committed or any excess money was charged as alleged in the complaint or any incident took place. 5. Learned A.G.A. opposed the prayer. 6. Dr. Sohail and Dr. Vivek Shukla are qualified doctors. Dr. Sohail is having M.S. degree in surgery while Dr. Vivek is M.D. They have stated that operation was successful. On 16.8.2008, suddenly patient collapsed due to cardiac arrest. Even in the statement of the complainant the only allegation is that they have specifically given a direction that the water should not be given to the patient but the same was given to him. Although, there is no material in support of the allegations as to who has administered water to the patient. Dr. Shiv Dutt Shukla is the owner of the Pushpeya Hospital while Pushpa Sharma is his wife. There is no allegation that they have administered water. Furthermore, so far as allegation of medical negligence are concerned, in a recent judgment of the Hon’ble Apex Court in Dr. Dr. Shiv Dutt Shukla is the owner of the Pushpeya Hospital while Pushpa Sharma is his wife. There is no allegation that they have administered water. Furthermore, so far as allegation of medical negligence are concerned, in a recent judgment of the Hon’ble Apex Court in Dr. Sou Jayshree Ujwal Ingole v. State of Maharashtra, Criminal Appeal No. 636 of 2017 (arising out of SLP (Crl.) No. 7186 of 2014), Hon’ble Apex Court has placed reliance upon Jacob Mathew v. State of Punjab and another, 2005 SCC (Cri) 1369 and Martin F. D’souza v. Mohd. Ishfaq, (2009) 1 SCC (Cri) 958, it was held in Dr. Sou Jayashree Ujwal that : “8. We have heard learned counsel for the parties. Learned counsel for the appellant has placed reliance on the judgment of this Court in Jacob Mathew v. State of Punjab and another, (2005) 6 SCC 1 , wherein this Court held that the Court should be circumspect before instituting criminal proceedings against a medical professional. This Court has held that negligence comprises of (i) a legal duty to exercise due care on the part of the party complained of; (ii) breach of the said duty ; and (iii) consequential damage. It was held that in cases where negligence is alleged against professionals like doctors the Court should be careful before instituting criminal proceedings. It is not possible for any doctor to assure or guarantee that the result of treatment would invariably be positive. The only assurance which a professional can give is that he is professionally competent, has requisite skill and has undertaken the task entrusted to him with reasonable care. It would be pertinent to quote the following relevant observations made in Jacob Mathew’s case (supra): 26.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. 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. Xxxx xxxx xxx 28. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. 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. 29. 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 himself 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 chance of success may be 10% (or so), rather than taking the 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 a disservice to society. 30. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. Such timidity forced upon a doctor would be a disservice to society. 30. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability. After discussing the entire law on the subject, this Court concluded as follows: “48. 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 v. Friern Hospital Management Page 8 Committee (1957) 1 WLR 582 at p. 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. (4) The test for determining medical negligence as laid down in Bolam v. Friern Hospital Management Page 8 Committee (1957) 1 WLR 582 at p. 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 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.” 7. So far as medical negligence is concerned, firstly the private complaint itself should not have been entertained. Secondly, there is no opinion of any board or expert doctors about the medical negligence. Allegations of giving poisonous substance could also not found support from the fact that the First Information Report was lodged after about three months. There is no explanation for the same. Secondly, there is no opinion of any board or expert doctors about the medical negligence. Allegations of giving poisonous substance could also not found support from the fact that the First Information Report was lodged after about three months. There is no explanation for the same. Further, although mere delay in lodging the report could not be a ground to disbelieve the prosecution version but at the same time facts and circumstances of the case has to show that the delay was not intentional or there were sufficient reasons for the same but in the present case no such reason is shown. If the poisonous injection was administered in the hospital then immediately the matter should have been reported to the police which has not been done. It appears that after the death of Ram Shankar after due deliberations, a complaint was filed in the application under Section 156 (3) Cr.P.C. Allegations of payment of Rs. 50,000/- only could also not found substance. Even if it is so, then it is a matter wherein a civil relief could have been claimed. It is not the case of the prosecution that there was any cheating by the doctor or Shiv Dutt Sharma. The only allegation against the petitioners is that they have issued a receipt of less amount but no allegation of cheating is levelled. 8. In Devendra and others v. State of Uttar Pradesh and another, (2009) 7 SCC 495 , the Hon’ble Apex Court has referred the in V.Y. Jose v. State of Gujarat and another, (2009) 3 SCC 78 , this Court opined: “14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: (i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.” The same view was reiterated in the case of V.Y. Jose (Supra) which reads as under: “25. Mr. Das, furthermore, would contend that the order of the High Court dated 17.10.2005 would operate as res judicata. With respect, we cannot subscribe to the said view. The principle of res judicata has no application in a criminal proceeding. The principles of res judicata as adumbrated in Section 11 of the Code of Civil Procedure or the general principles thereof will have no application in a case of this nature. 26. The High Court has refused to quash a First Information Report as a different standard therefor was required to be applied. However, when materials are collected and a charge-sheet is filed on the basis whereof the Magistrate takes cognizance of the offence, the same would give rise to a new cause of action. An order taking cognizance of an offence on the basis of a charge-sheet filed by the investigating officer and/or directing issuance of summons on a complaint petition, indisputably, would attract the provisions of Section 482 of the Code of Criminal Procedure if a case has been made out for invocation thereof.” 9. Having considered the submissions and after going through the material available on record, I am of the considered view that there is no material available on record which could substantiate the charges as levelled by the prosecution against the petitioners. In view of the law laid down in State of Haryana and others v. Ch. Bhajan Lal and others, 1992 Supp (1) SCC 335, it would be abuse of process of law if the proceedings continue against the petitioners. 10. Accordingly, petition is allowed. In view of the law laid down in State of Haryana and others v. Ch. Bhajan Lal and others, 1992 Supp (1) SCC 335, it would be abuse of process of law if the proceedings continue against the petitioners. 10. Accordingly, petition is allowed. Proceedings of case No. 622 of 2009, State v. Shiv Dutt Sharma and others, charge-sheet No. 4/2009, arising out of case crime No. 18/2009, Police Station Akbarpur, District Kanpur Dehat, under Section 304 A IPC and 3 (1) (X) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, pending before the Court of learned Chief Judicial Magistrate, Kanpur are quashed.