ORDER : D.V.S.S. Somayajulu, J. 1. This criminal petition is filed under Section 482 Cr.P.C. seeking to quash the proceedings in FIR No. 129 of 2019 dated 19-4-2019 of Nagarampalem Police Station. The petitioners/A-1 is a Hospital and A-2 is a Doctor, who worked at the said hospital. The first respondent/complaint underwent an eye surgery in the said hospital on 23-11-2016. Claiming that the Doctor did not perform the surgery as required that the first petitioner gave an advertisement stating that they are a "Multi Specialty Hospital"; that after the operation the complainant realized that the Doctors are not qualified and the hospital does not have a specialist to treat the complainant etc., the present complaint is filed under Sections 416, 417, 418 and 419 r/w 34 IPC against the Hospital and the Doctor. A private complaint was filed and the same was referred for investigation and the FIR was registered. 2. This Court has heard Sri T. Sreedhar, learned counsel for the petitioners and first respondent/complainant in person, who has filed a written counter opposing the application. 3. Learned counsel for the petitioners submits that the complainant underwent a surgery in the A-1/hospital and he was under the care of A-2 and during the surgery known as PHACO. An IOL (Intra Ocular Lens) was inserted into the eye of the complainant. Latter, after some time, it was noticed that IOL was dislocated. Alleging that the Doctors were negligent, the complainant filed a consumer case bearing C.C. No. 38 of 2017. Learned counsel submits that the consumer case was decided on merits and it was allowed in part. Questioning the same, an appeal is filed, which is also pending as per the learned counsel for the petitioners. He submits that this is essentially a civil dispute which is being converted into a criminal case to coerce the doctors into accepting the claim. Learned counsel submits that the operation was performed in November, 2016 and the private complaint was filed one year later in November, 2017 and after the consumer case was filed. Counsel also submits that there is inordinate delay in filing the complaint. He also states that none of the sections quoted are applicable at all. Last, but not the least, he. Counsel also submits that there is inordinate delay in filing the complaint. He also states that none of the sections quoted are applicable at all. Last, but not the least, he. submits that after the judgment of the Hon'ble Supreme Court in the case of Jacob Mathew v. State of Punjab 2005 (3) ALT (Crl.) 1 (SC) : (205) 6 SCC 1, a private complaint cannot be entertained unless there is a prima facie medical opinion produced by the complainant. He therefore, submits that the lower Court committed an error in taking the complaint on record and also taking cognizance of the offence. 4. In reply to this, the party-in-person argues that the operation was conducted in November, 2016 and soon thereafter the IOL was found to have dropped due to non-support of the retina. He, therefore, submits that he had to take further medical treatment. He also submits that the first accused/hospital has advertised itself as a Multi Specialty Hospital with 24/7 availability of specialists. The grievance of the complainant is that soon after his operation, bills were collected, but neither Multi Specialty Services nor Emergency Services were provided. He submits that therefore, the offences are made out. In addition, he also states that the case is still at investigation stage and the power under Section 482 Cr.P.C. should not be exercised. He relies upon the order passed of the consumer form which held that the petitioners are guilty of negligence. 5. This Court after hearing the learned counsel for the petitioners and the party-in-person notices that a decree of Consumer Court has also been challenged in the Appellate Forum and the matter is pending there. The learned counsel also relies upon the Consent Form, which is filed at the time of surgery. He submits that in the Consent Form itself it is clearly pointed out that every surgery has some inherent complications and that there is 2% chance of complications. Learned counsel points out that this Consent Form is signed by the Daughter of the complainant and that therefore they were made aware of the fact that there can be a risk in the surgery. Learned counsel points out that this Consent Form is signed by the Daughter of the complainant and that therefore they were made aware of the fact that there can be a risk in the surgery. In the case of Jacob Mathew 2005 (3) ALT (Crl.) 1 (SC) : (205) 6 SCC 1 (supra), he draws the attention of the Court to the conclusions of the Hon'ble Supreme Court of India, wherein the distinction between civil liability and criminal negligence was drawn out by the Hon'ble Supreme Court. Learned counsel relies upon sub-paras 4, 5, 6 and 7 of the said judgment at para 48, which is to the following effect: "(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582 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 of 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 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 304-A 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." 6. He lastly relies upon conclusion para at 52, wherein it is clearly held that a private complaint cannot be entertained against a Doctor unless the complainant has produced evidence in the form of a credible opinion given by another Doctor to support the charge of rashness and negligence. Similarly, a note of caution was given to the Investigating Officers, who receive a complaint directly wherein it was held that they should first get an opinion from a qualified Government Doctor and then proceed with the investigation. 7. This Court after examining the case law submitted and hearing the submissions of the learned counsel notices that there is no allegation of gross negligence. In the case on hand, there is no allegation of any mens rea. This is the case of surgery that in the opinion of the complainant went wrong. Nothing more nothing less. 8. In addition, the sections under which the petitioners are charged do not also apply to the facts of the case. Sections 416 and 419 are not applicable. The mere fact that the petitioner/A-1 advertised itself as a Multi Specialty Hospital will not lead to a conclusion that these sections are applicable. Multi Specialty means that they have a number of Doctors who are qualified in various fields. Emergency services are also been provided by the hospital. Admittedly, after the surgery, the complainant received the treatment from the hospital. So it cannot be said that "Multi Specialty Services" are not being provided. The second accused is an MS in Ophthalmology and she attended on the complainant. 9. Last, but not the least, the caution sounded by the Hon'ble Supreme Court of India has been overlooked by the learned Magistrate while taking cognizance of the offence. A private complaint should not be entertained against a Doctor unless the complainant has produced prima facie evidence in the form of clear opinion by a competent Doctor in the same field to support a charge of rashness or negligence. Similarly, even a police officer cannot proceed against the Doctor, accused of rash and negligent act unless he gets an independent and competent medical opinion from a Doctor in Government Service etc., who is qualified in the branch and has given an impartial and un-biased opinion. The Hon'ble Supreme Court clearly held that a mere opinion is not enough. The opinion should be a 'credible' opinion given by another competent Doctor. The Hon'ble Supreme Court clearly held that a mere opinion is not enough. The opinion should be a 'credible' opinion given by another competent Doctor. Therefore, even the Doctor giving the opinion should be well qualified and he should examine the available material and then give an opinion which necessarily has to be impartial and unbiased. 10. A reading of these two summations, it is clear that a private complaint against a medical Doctor or a FIR against a medical Doctor should not be proceeded with or entertained unless and until it has supported by an independent impartial opinion given by another Doctor, who is specialized in the same filed. Even in the matter of arrest, unless and until the arrest is necessary, arrest has to be withheld. The Hon'ble Supreme Court of India again reviewed the entire case law on the subject in the case of Kusum Sharma v. Batra Hospital and medical Research Centre AIR 2010 SC 1050 . The conclusions of the Apex Court are at Paragraph 94, of these the following are very relevant for the present case. 94 VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. 95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that Doctors can never be prosecuted for medical negligence. As long as the Doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the Doctors must be able to perform their professional duties with free mind. 11. As long as the Doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the Doctors must be able to perform their professional duties with free mind. 11. In that view of the matter, after reviewing the submissions, perusing the material, this Court is of the opinion that the lower Court committed a serious error in ignoring the procedural safeguard mandated by the judgment of the Hon'ble Supreme Court of India in the case of Jacob Methew 2005 (3) ALT (Crl.) 1 (SC) : (205) 6 SCC 1 (supra). Without an independent impartial medical opinion, the Magistrate should not have been taken cognizance of the case. Apart from this, an examination of the complaint makes it clear that none of the offences that are mentioned are actually attracted in this case. This is purely a tortuous or civil wrong for which the petitioners have already invoked the remedy available to them. The invocation of the criminal process is therefore an abuse of process of Court. 12. For all these reasons, the criminal petition is allowed and the proceedings in FIR No. 129 of 2019 dated 19-4-2019 of Nagarampalem Police Station are quashed. 13. As a sequel, the miscellaneous applications, if any pending, shall stand closed.