ORDER : Heard Mr. Gautam Kumar, learned counsel appearing for the petitioner and Mr. Rajesh Kumar Mishra, learned A.P.P. 2. In this application the petitioner has prayed for quashing of the order dated 16.12.2013 passed by the learned Judicial Magistrate, 1st Class, Ranchi in connection with Bundu P.S. Case No. 71 of 2013 whereby and whereunder cognizance has been taken for the offence punishable under Section 304(A) of the Indian Penal Code. 3. It has been stated by the learned counsel for the petitioner that no offence under Section 304(A) of the Indian Penal Code is made out against the petitioner. Learned counsel submits that the operation on the wife of the informant was carried out as an emergency measure and absence of blood in the hospital would not tantamount to negligence on the part of the petitioner. It has further been stated that all the witnesses in course of examination under Section 161 of the Cr.P.C. have categorically stated about how the operation was carried out by the petitioner and since bleeding did not stop the patient was referred to RIMS. Learned counsel submits in absence of any medical negligence which could be attributed to the petitioner continuation of the criminal proceedings as against the petitioner would be an abuse of the process of the court. 4. Learned A.P.P., on the other hand, has opposed the prayer made by the petitioner and has stated that the First Information Report itself discloses about the negligence committed by the petitioner which resulted in death of the wife of the informant. It has been stated that whether a case under Section 304 -A of the Indian Penal Code is made out against the petitioner or not cannot be decided in this proceeding as only in course of trial will the actual fact emerge. 5. A First Information Report was instituted on the allegation that the wife of the informant who was having labour pain was admitted in the Sub Division Hospital, Bundu. The informant had purchased medicines as was told to him by the doctor and he was further told that the patient has to remain for a week. It is alleged that in the evening the informant was informed that his wife was profusely bleeding and for better treatment she was to taken to RIMS and on reaching RIMS his wife was declared dead. 6. It is alleged that in the evening the informant was informed that his wife was profusely bleeding and for better treatment she was to taken to RIMS and on reaching RIMS his wife was declared dead. 6. Based on the aforesaid allegation Bundu P.S. Case No. 71 of 2013 was instituted. After investigation culminated in submission of charge-sheet cognizance was taken by the learned Judicial Magistrate, 1st Class, Ranchi on 16.12.2013 for the offence punishable under Section 304(A) of the Indian Penal Code. Although the First Information Report tends to allege medical negligence on the part of the petitioner but the evidence of the witnesses as recorded at Paras 7, 8, 9 and 10 of the case diary discloses otherwise. 7. P.W. 7 Sanoka Debi is a Shayika who has stated that the operation had taken place by way of an emergency measure and since the deceased was profusely bleeding and as there was no provision of blood in the Hospital she was advised to be taken to RIMS. Amar Singh Munda in Para 8, Purni Debi in Para 9 and Doman Munda in Para 10 have reiterated what has been stated by Sanoka Debi. It would thus appear from the evidence of the witnesses that the operation was performed by the doctor as an emergency measure. If the doctor had played safe the patient as well as her child would have been in greater peril. Now it has to be seen as to whether such emergency measure taken by the doctors including the petitioner and absence of blood in Sub Division Hospital, Bundu can be said to constitute negligence so as to prosecute the petitioner who was a medical officer in the Sub Division Hospital, Bundu. 8. In the case of Jacob Mathew v. State of Punjab & Anr. reported in [2005 (4) EastCrC 169 (SC)] the concept of negligence professional negligence or medical negligence whether can give rise to an account under the criminal law was under consideration before the Hon'ble Supreme Court. After considering the gamut of cases it was held 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. 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. 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. 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. 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”. (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.” 9. The conclusion so arrived at was considered in the backdrop of the fact situation of that particular case and it was held as follows:- “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 304-A IPC on the parameters of the Bolam’s test.” 10. The view expressed by the Hon'be Supreme Court in the case of JM was furthered in the case of Martin F. D'Souza v. Mohd. The view expressed by the Hon'be Supreme Court in the case of JM was furthered in the case of Martin F. D'Souza v. Mohd. Ishfaq reported in [2009 (2) EastCrC 206 (SC)] wherein a direction was issued which is as follows:- “117. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case 2006 (2) JCR 184 (SC): 2005 (4) EastCrC 169 (SC) (supra), otherwise the policemen will themselves have to face legal action.” 11. The judicial pronouncements referred to above has clearly laid down the parameters as to when a medical professional can be prosecuted. The facts emerging in the present case and as has been discussed above cannot be construed to be a professional negligence as compared to may be of occupational negligence. Occupational negligence would include perhaps occupational hazards which in the present case was the absence of blood in the hospital itself. The petitioner along with the other accused as could be seen from the evidence of the witnesses had done what was called for by the noble profession as the patient was immediately operated upon when the complication had arisen in giving natural birth to the child. The profuse bleeding which caused the death of the patient could have perhaps been stalled if blood was available in the hospital in adequate quantity. The accused persons after completing the operation had to refer the patient to RIMS as a last ditch effort to save the mother. The profuse bleeding which caused the death of the patient could have perhaps been stalled if blood was available in the hospital in adequate quantity. The accused persons after completing the operation had to refer the patient to RIMS as a last ditch effort to save the mother. The absence of blood would in any way would have led the patient to her death in the hospital itself if she was not referred to RIMS, Ranchi where indeed she was declared dead on arrival. 12. The Sub Division Hospital, Bundu could have been proceeded against for not having separate provision for keeping blood but absence of blood cannot lead to prosecution of the petitioner as the same cannot be termed to be a negligence or a deliberate negligence which caused the death of the patient. 13. Since no offence under Section 304(A) of the Indian Penal Code is prima facie made out against the petitioner continuation of the criminal proceeding as against the petitioner would be an abuse of the process of the court. Accordingly, in view of what has been stated above, this application is allowed and the entire criminal in connection with Bundu P.S. Case No. 71 of 2013 is, hereby, quashed and set aside.