JUDGMENT : 1. In this petition, filed under Section 561-A of the Code of Criminal Procedure Code (Cr. P.C.), the petitioner is seeking quashment of the impugned order dated 30th of May, 2009, alongwith all proceedings emanating therefrom, passed by the Court of learned Chief Judicial Magistrate, Srinagar, in case titled ‘State v. Dr. Tahir Mehmood & Anr.’. 2. The facts, as these stem out from the instant case, are that on 25th of May, 2006, the complainant went to ‘Ahmads Nursing Home’ Nowgam, Byepass, for a routine check-up of his wife (Smt. Nelofer) who was pregnant. He was advised by the doctors admit her immediately. At about 2100 hrs, she was operated upon without seeking the prior permission of the complainant. Within 15 minutes, the doctors came out of the operation theatre and informed the complainant that his wife has given birth to a male child and that she will recover after some time, but even after the expiry of a great deal of time, the complainant could not find any signs of improvement in the condition of her health. He smelt something fishy. He tried to contact the doctors who operated his wife, but they were not available in the Nursing home and that they had immediately after conducting the surgery for the reasons best known to them left the Nursing Home. After some hours, the concerned doctor came to attend the wife of the complainant. She was unconscious and was in a state of coma. To hide their negligence, the doctors in a hurry removed her to SKIMS (Soura). After conducting a preliminary examination of the wife of the complainant, the doctors informed the complainant that her condition is very critical, and such a situation has arisen due to the negligence and mishandling by the doctors of Ahmads Nursing Home. Finally, the wife of the complainant died at SKIMS (Soura). A First Information Report was accordingly lodged against the accused/ petitioners herein, for the commission of an offence punishable under Section 304-A of the Ranbir Penal Code (RPC). On the completion of the investigation of the case, a report was laid before the Court of learned Chief Judicial Magistrate, Srinagar, in terms of Section 173 Cr. PC. A First Information Report was accordingly lodged against the accused/ petitioners herein, for the commission of an offence punishable under Section 304-A of the Ranbir Penal Code (RPC). On the completion of the investigation of the case, a report was laid before the Court of learned Chief Judicial Magistrate, Srinagar, in terms of Section 173 Cr. PC. After hearing the preliminary arguments on charge/discharge of the accused/petitioners herein and on scanning the material available on record, the learned Chief Judicial Magistrate, Srinagar, held as under : “The allegations against the accused that they have been negligent in post-operative care of the patient who is alleged to have died due to said negligence on behalf of the accused who have operated upon her. For the negligence on behalf of the accused in the operation of the wife of the complainant, there is sufficient material on record in the shape of evidence of the complainant and evidence of other witnesses. From the material available on the record, there are sufficient grounds for proceeding against the accused. The grievances agitated by the learned Counsel for the accused may be relevant at the final stage but at the stage of framing the charge if two views are possible, the view supporting the prosecution is to be relied upon, while it is reverse at the conclusion of the trial. The suspicion at the stage of the charge regarding the involvement of the accused is sufficient for framing the charge. It will not be proper to make and go into detailed reasons at this stage as the same may have bearing during the trial. From the material available on the record, I am satisfied that sufficient material is available for the charge of the accused. The charge under section 304-A RPC be framed against the accused.” 3. Heard and considered. 4. 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. 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. 5. In a case of the 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 SC 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. 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. 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. 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. 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.” 6. In the case of “Jacob Mathew v. State of Punjab & Anr.”, reported in “ AIR 2005 SC 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 this petition 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. 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. 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. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. 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 (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. 56. All the interlocutory applications be treated as disposed of.” 7. Testing the instant case from the above perspective what can be said, is that the certificate issued by the authorities of Sheri Kashmir Institute of Medical Science, Soura, attached to the charge sheet laid before the trial court in terms of the Section 173 Cr. PC, bears testimony to the fact that the deceased died due to Cardiac Arrest. There is no other certificate or the opinion of any other medical expert on record to state that the deceased died due to the criminal negligence of the petitioners. There is no expert opinion to suggest that the petitioners were remiss or callous in operating the deceased. The police authorities have recorded the statements of those witnesses under Section 161 Cr. PC, who cannot be supposed to have the knowledge of medical science so as to 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. PC, who cannot be supposed to have the knowledge of medical science so as to 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 the Investigation Officer and the private complainants, 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 which, the patients will be left in a lurch. 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. A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. 8. 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. 9. Such timidity forced upon a doctor would be disservice to the Society. 9. Taking the above aspect into consideration, the Apex Court of the country in Jacob Mathew’s case felt 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 further 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 regulated. In the guidelines incorporated by the Apex Court, the Court ordained that the 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. 10. Viewed in the context of what has been said and done above, the petition of the petitioners, on the analogy of the judicial precedents cited above, is allowed, as a sequel to which, the impugned order dated 30th of May, 2009, passed by the Court of learned Chief Judicial Magistrate, Srinagar, in case titled ‘State v. Dr. Tahir Mehmood & Anr.’, and the proceedings emanating therefrom are ordered to be quashed. 11. Registry to send down the records to the Court below alongwith a copy of this order.