JUDGMENT : RAJESH SHANKAR, J. 1. The present petitions have been filed for quashing the entire criminal proceeding including the order dated 21.01.2008 passed by the Judicial Magistrate, Ranchi in Complaint Case No. 1458 of 2006 whereby cognizance of the offence under Section 304-A IPC has been taken against the petitioners, pending before the said Court. 2. The brief facts giving rise to lodging of Complaint Case No. 1458 of 2006 is that the brother of the complainant-O.P. No. 2 namely Mithilesh Kumar Ray (now deceased) was suffering from the ailment of gall bladder stone for which the petitioner-Dr. Satish Midha was consulted on 05.08.2006, who after necessary tests done on 05.08.2006 and 06.08.2006, advised for operation/surgery of gall bladder stone along with appendix. Dr. Satish Midha told the O.P. No. 2 and Mithilesh that he was an expert in conducting surgery by Laparoscopic method and he would see to the risk which might occur after surgery. Dr. Satish Midha thus induced the complainant to get the said surgery done by him with a view to earn money and on such assurance, the complainant agreed for the surgery. Accordingly, the surgery by Laparoscopic method was done on 07.08.2006 by Dr. Satish Midha after which Mithilesh remained in the hospital till he was discharged in the morning of 10.08.2006. However, Mithilesh again experienced pain in the noon. Dr. Midha was informed about the pain at about 2.30 P.M. on his mobile phone and was requested to re-admit the patient, but he told that there was no necessity for the same. He prescribed some medicines on mobile phone and further told the complainant not to admit Mithilesh in any other hospital out of Ranchi. On 10.08.2006 at 6.10 P.M. the complainant went to the hospital of Dr. Midha where he came to know that Dr. Midha had departed for Hyderabad. Dr. Midha’s Assistant consulted Dr. Midha on phone and thereafter he prescribed some medicines. However, the pain increased and after midnight, the patient’s urinary system stopped functioning. On 11.08.2006, the complainant again approached Dr. Midha on mobile and he was advised to admit Mithilesh in the hospital and accordingly the treatment re-started in the hospital of Dr. Midha. When the condition of Mithilesh did not improve, the Assistant of Dr. Midha again contacted Dr. Midha on mobile, who advised him to get Mithilesh admitted in Gurunanak Hospital. On 11.08.2006, the complainant again approached Dr. Midha on mobile and he was advised to admit Mithilesh in the hospital and accordingly the treatment re-started in the hospital of Dr. Midha. When the condition of Mithilesh did not improve, the Assistant of Dr. Midha again contacted Dr. Midha on mobile, who advised him to get Mithilesh admitted in Gurunanak Hospital. Thereafter, Mithilesh was admitted to Gurunanak Hospital, Ranchi on 12.08.2006 at about 7.30 A.M. where the petitioner-Dr. R.K. Singh and other doctors conducted surgery of his stomach on 13.08.2006. However, Mithilesh died in Gurunanak Hospital on 14.08.2006 at about 01.10 A.M. It has been alleged in the complaint that Dr. Satish Midha was not having proper knowledge to use the apparatuses for performing laparoscopic surgery. During the Laparoscopic surgery, the instruments were also not properly sterilized and Dr. Midha due to his gross negligence, caused damage to some other vital internal organs and urinary system of Mithilesh and consequently he died. 3. The learned counsel for the petitioners submits that there are several contradictions and improvements in statements of the complainant dated 23.11.2006 recorded on oath vis-a-vis the statements made in the complaint. Three enquiry witnesses were examined on behalf of the complainant under Section 202 Cr.P.C. and they made palpable improvements evidently with a view to somehow implicate the said doctors. The impugned order of cognizance has been passed on non-existent facts and the same is based on misconceived notions about the medical science. The Court below has substituted itself as an expert in the medical field holding that now-a-days stone or appendix surgery are not considered to be very serious. Conjectural inferences have been drawn regarding the necessity of second surgery. It is further submitted that no expert opinion was resorted to before taking cognizance or issuing summons against the petitioners which is wholly illegal and contrary to the ratio laid down by the Hon’ble Supreme Court in the case of Martin F. D' Souza vs. Mohd. Ishfaq, (2009) 3 SCC 1 . It is further submitted that in order to attract Section 304-A of IPC, it is required to be established that the alleged act or omission on the part of a particular accused is not only sine qua non, but also the causa causans for the death. Ishfaq, (2009) 3 SCC 1 . It is further submitted that in order to attract Section 304-A of IPC, it is required to be established that the alleged act or omission on the part of a particular accused is not only sine qua non, but also the causa causans for the death. In the instant case, since the death has preceded two surgeries conducted at different time and places by different persons, the case is bound to fall on the principle of causa causans. It is further submitted that the lack of application of judicial mind is evident in the impugned order dated 21.01.2008 inasmuch as the cognizance of the offence under Section 304-A of IPC has been taken against Dr. R.K. Singh despite the fact that the allegation against him was only of concealment under Section 201 of IPC. It is further submitted that the impugned criminal proceeding is completely vexatious and is intended to harass the petitioners who are the medical professionals of repute. Though the surgery at Gurunanak Hospital, Ranchi was conducted by other doctors, yet they have not been implicated. Moreover, the petitioners have been defending a consumer complaint also in connection with the present issue in which the complainant and his witnesses have given absolutely contrary versions belying the correctness of the allegations made against the petitioners in the present case. 4. The learned counsel for the O.P. No. 2-complainant submits that since the deceased died due to rash and negligent acts of the petitioners, the Court below has rightly taken cognizance of the offences under Section 304-A IPC against them and the same may not be interfered with. It is further submitted that the deceased was a healthy person while he was admitted to the hospital which goes to show that the death of the deceased was causa causans of the act of the petitioners. Though the petitioner-Dr. Satish Midha had assured the complainant that he was fully competent to perform laparoscopic surgery, yet he failed to keep his promise and damaged the vital organs of the deceased while conducting the said surgery. It is further submitted that in spite of repeated requests of the complainant, the bed head ticket and operation theatre notes have not been handed over to him as yet. 5. Heard the learned counsel for the parties and perused the relevant materials available on record. It is further submitted that in spite of repeated requests of the complainant, the bed head ticket and operation theatre notes have not been handed over to him as yet. 5. Heard the learned counsel for the parties and perused the relevant materials available on record. The petitioners, who are the doctors by profession, have been implicated in the present criminal case for the death of the complainant’s brother alleging that the same was caused due to negligence on their part. 6. Bolam vs. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 AII ER 118 (QBD) is an English case on law of tort which lays down the typical rule for assessing appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. While deciding the said case, Mc Nair, J. has explained the law in the following terms: “In the ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man. In one case it has been said you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” 7. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” 7. Subsequently, the proposition laid down in the aforesaid case known as ‘Bolam Test’ was frequently followed both by the English Courts as well as by the Indian Courts including the Hon’ble Supreme Court of India. 8. In the case of Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1 , a Three-Judge-Bench of the Hon’ble Supreme Court had the occasion to deal with a criminal case relating to death caused due to the alleged medical negligence punishable under Section 304-A of IPC. The Hon’ble Supreme Court has held that in the law of negligence, the professionals such as lawyers, doctors, architects and others who are included in the category of persons professing some special skills impliedly assure the persons dealing with them that the skills which they profess to possess shall be exercised with reasonable degree of care and caution, however, they do not assure the result. 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 as to 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 practises. The law laid down by the English Court in Bolam’s case (Supra) has been accepted by a Three- Judge-Bench of the Hon’ble Supreme Court. 9. It has further been held in the said case that a mere deviation from normal professional practice is not necessarily the evidence of negligence. Moreover, neither a mere accident is the evidence of negligence nor an error of judgment on the part of a medical professional can be treated negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. Moreover, neither a mere accident is the evidence of negligence nor an error of judgment on the part of a medical professional can be treated negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. No sensible medical 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 uses to be 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 performed by a surgeon has failed, he/she cannot be held liable per se by applying the doctrine of res ipsa loquitur. 10. The law laid down in Jacob Mathew’s case (Supra) reads thus:- “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. 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. 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. 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 case (1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD), WLR at p. 586 [Ed. Also at All ER p. 121 D-F and set out in para 19, p. 19 herein] 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 mensreamust 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. (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. 11. In the cases of Ins. Malhotra vs. Dr. A. Kriplani, (2009) 4 SCC 705 and S.K. Jhunjhunwala vs. Dhanwanti Kaur, (2019) 2 SCC 282 also, the law laid down in the case of Jacob Mathew (Supra) has been reiterated. 12. Admittedly, the petitioner-Dr. Satish Midha had performed a single surgery for both gall bladder stone and appendix of the deceased. The petitioner-R.K Singh conducted another surgery of the deceased in Guru Nanak Hospital, however, he died on 14.08.2006 at about 1.10 A.M. The deceased stayed in the private hospital of the petitioner-Dr. Satish Midha for three days and thereafter he was discharged. It is not the case of the complainant that since the date of surgery till the date of discharge, the patient had any complication. The thrust of the argument of the learned counsel for the complainant-O.P. No. 2 is that the petitioner-Dr. Satish Midha was lacking knowledge and skill for performing the alleged surgery and due to his negligence, the patient died. It has been alleged that though the petitioners were fully aware of the fact that during the said surgery, some other vital internal organs of the deceased got damaged, yet they did not disclose the same to the complainant. However, in support of the said allegation made in the complaint, the O.P. No. 2 did not bring on record the opinion of any other doctor. 13. In Jacob Mathew’s case (Supra), it has been observed that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are increasing rapidly either by private complainants or by the police on an FIR which leads to serious embarrassment and harassment to the medical professionals which ultimately ends with the acquittal of such professionals. 13. In Jacob Mathew’s case (Supra), it has been observed that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are increasing rapidly either by private complainants or by the police on an FIR which leads to serious embarrassment and harassment to the medical professionals which ultimately ends with the acquittal of such professionals. Having taken into consideration the entire situation and observing that such profession is a noble one, there is a requirement to frame statutory rules or executive instructions incorporating certain guidelines 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, a private complaint against a doctor alleging criminal rashness or criminal negligence may not be entertained unless the complainant produces 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 doctors 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 the Bolam (1957) 1 WLR 582 : (1957) 2 All ER (Supra) 118 (QBD) 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 the arrest is necessary for furthering the investigation or for collecting evidence or if the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution if not arrested. 14. Later on, in the case of Martin F. D' Souza vs. Mohd. 14. Later on, in the case of Martin F. D' Souza vs. Mohd. Ishfaq, (2009) 3 SCC 1 , a Two-Judge-Bench of the Hon’ble Supreme Court in para 106 has held that in all complaints against the doctor or hospital either filed in the Consumer Forum (whether District, State or National) or by the criminal Court, before issuing notice to the doctor or hospital against whom the complaint was made, the Consumer Forum or the 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 if that the doctor or the committee reports that there is a prima-facie case of medical negligence, the notice should be issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. It has been further held that the police officials may not arrest or harass the doctors unless the facts clearly come within the parameters laid down in Jacob Mathew’s case (Supra). 15. However, in the case of V. Kishan Rao vs. Nikhil Super Speciality Hospital and Another, (2010) 5 SCC 513 , the Hon’ble Supreme Court has held that the directions given in the case of D' Souza (Supra) are not consistent with the law laid down by the Larger Bench in Jacob Mathew’s case (Supra) as the direction for consulting the opinion of another doctor before proceeding with criminal investigation was confined only in the cases of criminal complaint and not in respect of the cases before the Consumer Forum. 16. Thus, it has consistently been held by the different Benches of the Hon’ble Supreme Court that on private complaint alleging criminal culpability against the doctors should not be entertained unless the complainant produces 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. 17. In the present case, since the complainant failed to annex the opinion of any other doctor with the complaint in support of his allegation, on this score alone, the present criminal proceeding cannot be sustained in law. 17. In the present case, since the complainant failed to annex the opinion of any other doctor with the complaint in support of his allegation, on this score alone, the present criminal proceeding cannot be sustained in law. Moreover, no medical practitioner is normally supposed to act in a negligent manner as he/she would not get anything out of it, rather it would hamper his/her reputation and also the professional career. It is obvious that the well-wishers of the patient who do not get the desired result, would drag the doctor both in criminal and civil cases to take him/her to task as their emotions are attached with it, however, the Court or the police officers, who are dealing with the cases of criminal medical negligence, are required to be careful as it would sometimes give adverse impact on the career of some innocent doctors as well. A surgeon with shaky hands under fear of legal action cannot perform a successful surgery and a quivering physician cannot administer the end-dose of medicine to the patient. Sometimes the doctors are dealing with the cases wherein there is meager chance of success, yet they keep on trying their level best using their professional skills. Sometimes they succeed and sometimes don’t. However, in such unsuccessful cases also, it would not be appropriate to drag them in the Court claiming that the result would have been better. Such type of practice needs to be discouraged, failing which the medical professionalism which has the roots in almost every aspect of modern health care, will dwindle. 18. It is well settled that in criminal offences, the principle of benefit of doubt is attracted where the prosecuting party fails to bring before the Court the basic essential documents in support of its claim. As discussed hereinabove, while attracting the criminal liability in the cases of professional negligence, a very high degree of negligence is required to be proved before the felony is established. 19. As held in Jacob Mathew’s case (Supra), the negligence is of two types; as a tort and as a crime. It is the quantum of damages incurred which is determinative of the extent of liability in tort, but in criminal law it is not the quantum of damage, but the amount and degree of negligence that is determinative of liability. As held in Jacob Mathew’s case (Supra), the negligence is of two types; as a tort and as a crime. It is the quantum of damages incurred which is determinative of the extent of liability in tort, but in criminal law it is not the quantum of damage, but the amount and degree of negligence that is determinative of liability. To fasten the liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal Court consists of criminal negligence. Simple lack of care incurs civil liability, whereas a very high degree of negligence is required in criminal cases. Further, in civil proceedings, a mere preponderance of probability is sufficient and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty to convince the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the same is to be established by the prosecution which must be culpable or gross and not the negligence merely based upon an error of judgment. 20. Moreover, in the case of Kurban Hussein Mohamedalli Rangawalla vs. State of Maharashtra, AIR 1965 SC 1616 , the Hon’ble Supreme Court has held that to impose the criminal liability under Section 304-A of IPC, it must be established that the death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another’s negligence. It must be causa causans. It is not enough that it may have been the cause sine qua non. 21. It has not even been prima-facie established in the present case that the death of the deceased was the causa causans of the act of the petitioners. Thus, the criminal liability under Section 304-A of IPC is not attracted in the present case. Moreover, the complainant did not annex the opinion of any other doctor with his complaint in support of the allegations levelled against the petitioners. 22. Thus, the criminal liability under Section 304-A of IPC is not attracted in the present case. Moreover, the complainant did not annex the opinion of any other doctor with his complaint in support of the allegations levelled against the petitioners. 22. Under the aforesaid facts and circumstances, the impugned order of cognizance dated 21.01.2008 passed by the Judicial Magistrate, Ranchi as well as the entire criminal proceeding arising out of Compliant Case No. 1458 of 2006 is hereby quashed. 23. The present petitions are accordingly allowed.