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2021 DIGILAW 341 (KAR)

Manipal Hospital v. Binayak Bhattacharjee

2021-03-02

H.P.SANDESH

body2021
ORDER : This petition is filed under Section 482 of Cr.P.C. praying this Court to set aside the impugned order dated 18.08.2020 passed by the LXXIII Additional City Civil and Sessions Court (CCH-74) Mayo Hall Unit, Bengaluru in Crl.R.P.No.25021/2019. 2. The factual matrix of the case is that the respondent had filed a private complaint before the Trial Court and the same is numbered as P.C.R.No.55291/2018. The learned Magistrate after taking the cognizance proceeded to record the sworn statement and dismissed the complaint. Being aggrieved by the order of dismissal of the complaint, revision petition was filed before the Revisional Court, which is numbered as Crl.R.P.25021/2019. The Revisional Court after considering the material on record, set aside the order of the learned Magistrate in dismissing the complaint and restored the complaint and directed to take cognizance against the accused/petitioners herein and proceed in accordance with law. Hence, the present petition is filed. 3. The factual matrix of the case is that the complainant/respondent is a citizen of USA, who is residing in India as an Overseas Citizen of India, on his employment. The complainant’s mother was also residing with him. The petitioner No.1 is the hospital and petitioner No.2 is the doctor Shankar Kumar who gave treatment to the complainant’s mother Mrs.Gouri Debi @ Gouri Bhattacharya. The complainant had taken his mother to Manipal Hospital, petitioner No.1 herein, for treatment with a history of profuse bleeding inside her mouth, for consultation of Dr.Shankar Kumar, petitioner No.2 herein, who is doctor of internal medicine in petitioner No.1 hospital, wherein the petitioner No.2 is practicing. 4. The complainant had informed the petitioner No.2 herein that his mother is suffering from anemia and GI (gastrointestinal) bleeding in anemia and she had taken treatment on previous occasion in the same hospital for bleeding and anemia, informed hypothyroidism and uncontrolled chronic hypertension, previous treatment for the same, but, the complainant had informed petitioner No.2 that his mother had no any heart problems or chest pain, chest discomfort and she never had any heart attack or stroke in the past and present. The complainant also contended that petitioner No.2 herein failed to ascertain the exact nature of disease, from which the complainant’s mother was suffering. The complainant also contended that petitioner No.2 herein failed to ascertain the exact nature of disease, from which the complainant’s mother was suffering. But, by ignoring the previous and recent treatment history of the patient, the petitioner No.2 without going to the history of the patient, without proper treatment, without ascertaining the disease of the patient, had prescribed a new medicine i.e., Zyrova-C capsule that contained Rosuvastatin and blood thinner antiplatelet medication Clopidogrel, but, Clopidogrel is not recommended for patient with a history of bleeding. Without giving any treatment for controlling the blood pressure, petitioner No.2 used to give new medicine, which is not meant for disease from which the patient was suffering. 5. It is contended that Clopidogrel is a dangerous drug, which is meant for patient who had heart attack, stroke or coronary stent insertion. The petitioner No.2 has given wrong treatment to the complainant’s mother, on account of which, the complainant’s mother died. The petitioner No.2 gave treatment without ascertaining the disease which caused side effect to old age patient, when the patient was suffering from heavy bleeding in her brain and sub-arachnoid hemorrhage, which was caused on account of consumption of Clopidogrel, a wrong medicine prescribed by the doctor, petitioner No.2. Though petitioner No.2 found that the patient has uncontrolled chronic hypertension, failed to change the correct medication. The wrong treatment and consumption of wrong medicine Clopidogrel prescribed by petitioner No.2 led to rupture of anurysm, subarachnold hemorrhage, excessive bleeding and worst prognosis, on account of which patient went in coma for 28 days and died on 14.10.2015. 6. The learned Magistrate after receiving the complaint, recorded the sworn statement and passed the order dated 03.11.2018 dismissing the complaint. While dismissing the complaint, the learned Magistrate has given the reason that the complainant has produced medical certificate of cause of death, which is marked as Ex.C.2 issued by the Institute of Neurosciences, Kolkata. The certificate discloses the cause of death as natural and the age of the mother is mentioned as 81 years. On perusal of the materials available on record, same are not sufficient to hold that due to wrong medication the mother of the complainant passed away and as such medical certificate for cause of death discloses the death of mother of the complainant is natural. 7. On perusal of the materials available on record, same are not sufficient to hold that due to wrong medication the mother of the complainant passed away and as such medical certificate for cause of death discloses the death of mother of the complainant is natural. 7. Being aggrieved by the order of the learned Magistrate, the revision petition is filed and the Revisional Court vide order dated 18.08.2020, reversed the findings of the learned Magistrate. While reversing the order of the learned Magistrate, the Revisional Court has observed that it is not in dispute that the deceased was not suffering from any chest pain, heart attack or stroke and the complaint clearly discloses that she was having bleeding in the mouth. It is further observed that petitioner No.2 herein has given Zyrova-C and Clopidogrel to the patient, which was not required for the treatment of the deceased. The Revisional Court also came to a conclusion that these materials are sufficient to take cognizance of medical negligence against petitioner No.2 and it requires a full fledged trial. A doctor or other medical practitioner, has a duty of care in deciding whether to undertake the case or not, duty in deciding what treatment to give, duty of care in administration of that treatment, duty not to undertake any procedure beyond his or her control and it is expected that the practitioner will bring reasonable degree of skill and knowledge and will exercise a reasonable degree of care. Hence, the order requires to be interfered and to set aside the order and direct to take cognizance and to proceed in accordance with law. 8. In the petition, the learned counsel for the petitioners would vehemently contend that the Revisional Court has committed an error in coming to the conclusion that it is a case for trial and there is a medical negligence. The Revisional Court ought not to have come to such a conclusion. In support of her contentions, the learned counsel claims that the report in respect of occult blood is negative and no complaint of bleeding as per medical records. The complainant had brought his mother for treatment on three occasions, on first occasion for throat irritation and weakness in the month of May 2015, on 27.06.2015 for shoulder pain and in such occasion the patient was referred to ortho. The patient was again brought to the hospital on 25.07.2015. The complainant had brought his mother for treatment on three occasions, on first occasion for throat irritation and weakness in the month of May 2015, on 27.06.2015 for shoulder pain and in such occasion the patient was referred to ortho. The patient was again brought to the hospital on 25.07.2015. At that time, blood pressure was in control and she was advised to go for counseling and the advise was not followed. The patient was also taken to the cardiologist on 31.08.2017 without the knowledge of the petitioners and what medication was suggested by the cardiologist is not known to the petitioners. The learned counsel would submit that the standard line of treatment was given. Clopidogrel was prescribed considering her age. 9. The learned counsel would submit that enquiry was conducted by the Karnataka Medical Council and no negligence was found on the part of petitioner No.2 and MCI also not found any medical negligence on the part of petitioner No.2. The patient’s son filed a private complaint and no material was found. Hence, the learned Magistrate has rightly dismissed the complaint. The Revisional Court while reversing the finding of the Trial Court has committed an error and erroneously allowed the petition. The learned counsel would submit that the Revisional Court failed to take note of the principles laid down in the judgment of the Apex Court in the case of JACOB MATHEW v. STATE OF PUNJAB AND ANOTHER reported in AIR 2005 SC 3180 and failed to take note of the mandate of the said judgment. 10. The learned counsel for the respondent would submit that when the mother of the complainant was taken to the hospital, she was suffering from high blood pressure and there was blood in the mouth. When such being the case, petitioner No.2 herein has prescribed the medicine Zyrova-C. As a result, adverse effect was caused to the mother of the complainant. The said medicine ought not to have prescribed for a person suffering from high blood pressure and there was bleeding. The said medicine ought to have been given only for antiplatelet when there was clotting of the blood. The medicine which was prescribed was not suitable and ought not to have prescribed the same. The said medicine ought not to have prescribed for a person suffering from high blood pressure and there was bleeding. The said medicine ought to have been given only for antiplatelet when there was clotting of the blood. The medicine which was prescribed was not suitable and ought not to have prescribed the same. As a result, it led to complication of the health of the mother of the complainant and the tablet is prescribed only for heart patients and who are having stroke. There is no need to take second opinion in view of the manufacturer’s warning that the same cannot be given to the patient, who is not suffering from stroke and the said medicine is prescribed against the advise of the manufacturers. The records reveal that the complainant’s mother was suffering from high blood pressure and bleeding in the mouth. Hence, the Revisional Court has not committed any error in reversing the finding of the Magistrate. 11. The learned counsel for the petitioners in reply to the arguments of the learned counsel for the respondent would contend that the patient was admitted at Kolkata on 16.09.2015 and she was in coma for a period of 28 days and she expired on 04.10.2015. There is no link for the cause of death of the complainant’s mother as the last treatment was taken from petitioner No.2 on 25.07.2015 and there was a 45 days gap and when the complainant’s mother was brought to the hospital one year back, she was suffering from occult blood and bacterial infection. The learned counsel would submit that this Court while granting the stay, considered the principles laid down in the judgment in the case of Jacob Mathew (supra). The Trial Court has not committed any error in dismissing the complaint and rightly observed that the report of the Kolkata Hospital, wherein the mother of the complainant passed away, has given the reason that it is a natural death and age old factor. The report available before the Court with regard to occult blood is negative and medicine which is advised to the mother of the complainant has not resulted in anurysm and hence cannot find fault with petitioner No.2 in providing the treatment. 12. The report available before the Court with regard to occult blood is negative and medicine which is advised to the mother of the complainant has not resulted in anurysm and hence cannot find fault with petitioner No.2 in providing the treatment. 12. In reply to the arguments of the learned counsel for the petitioners, the learned counsel for the respondent brought to the notice of this Court that occult blood report is positive and not negative and 16 tablets were prescribed for throat infection and while prescribing tablet Zyrova-C, petitioner No.2 has violated the manufacturer’s warning. The manufacturer also warned with regard to the side effects of the tablets and also categorical warning was made that the same should be advised to only persons who are having heart ailments and stroke and the said prescription was given against the warning of the manufacturers. The learned counsel relied upon the judgment of the Apex Court in the case of BALRAM PRASAD AND OTHERS v. KUNAL SAHA AND OTHERS reported in MANU/SC/1098/2013, wherein it is observed that excessive medication caused complications and more than the prescribed limit of the dosage given affected. In paragraph No.73 of the judgment, it is observed that the injection Depomedrol used at the rate of 80 mg, twice daily by Dr. Sukumar Mukherjee was in clear violation of the manufacturer’s warning and recommendation and admittedly, the instruction regarding direction for use of the medicine had not been followed in the instant case. This Court has also made it clear that the excessive use of the medicine by the doctor was out of sheer ignorance of basic hazards relating to the use of steroids as also lack of judgment. No doctor has the right to use the drug beyond the maximum recommended dose. 13. Having heard the learned counsel for the petitioners and the learned counsel for the respondent, this Court has to appreciate the material available on record and the question involved in the matter is whether it is a case of gross medical negligence on the part of petitioner No.2, who is working in the petitioner No.1 hospital. The respondent herein had approached the learned Magistrate by filing a private complaint in P.C.R.No.55291/2018 praying the Court to take the cognizance. The respondent herein had approached the learned Magistrate by filing a private complaint in P.C.R.No.55291/2018 praying the Court to take the cognizance. On perusal of Annexure-C complaint, though medical negligence is attributed against petitioner No.2 herein, the penal provisions have not been invoked for what offences the respondent is praying this Court to take the cognizance against petitioner No.2. The same is also noted in the order sheet at Annexure-D and the office has raised the objection that in the complaint the counsel has not indicated the offence under IPC. The learned Magistrate having considered the contents of the complaint took the cognizance and proceeded to record the sworn statement of the complainant. The complainant in support of his case examined himself and got marked the documents Exs.C.1 to 8. The learned Magistrate framed the points for consideration whether the complainant has made out grounds to take cognizance against the accused for medical negligence and it is a fit case to issue process invoking Section 204 of Cr.P.C. The learned Magistrate considering the grounds urged in the complaint and also the documents Exs.C.1 to 8 forms an opinion that the medical certificate which is produced as Ex.C.2 issued by the Institute of Neurosciences, Kolkata, the cause of death is mentioned as natural and the age of the mother is mentioned as 81 years. On perusal of the materials available on record, same are not sufficient to hold that due to wrong medication the mother of the complainant passed away. The same is questioned before the Revisional Court. The Revisional Court having perused the material on record, comes to a conclusion that petitioner No.2 herein ought not to have prescribed the tablet Zyrova-C and Clopidogrel to the patient, which is not required for the treatment of the deceased who was not having any heart ailment, stroke or any chest pain. Hence, formed an opinion that materials are sufficient to take the cognizance for medical negligence. 14. Now this Court has to evaluate the material available on record. On perusal of the document of out patient record dated 30.05.2015, the complainant’s mother was taken to the hospital with the history of throat irritation and weakness from last 15 days and BP was 170/80 and the doctor prescribed tablet Zyrova-C and also other drugs. 14. Now this Court has to evaluate the material available on record. On perusal of the document of out patient record dated 30.05.2015, the complainant’s mother was taken to the hospital with the history of throat irritation and weakness from last 15 days and BP was 170/80 and the doctor prescribed tablet Zyrova-C and also other drugs. Again the patient was taken to the hospital on 27.06.2015 for pain in right shoulder and at that time BP was 150/85 and the said tablet was not continued. Again the patient was taken to the hospital on 25.07.2015 and at that time the patient was having shadows moving and BP was 170/80. These are the three documents available before the Court for having taken the deceased to the hospital from 30.05.2015 to 25.07.2015. On 27.07.2015, she was diagnosed with chronic anemia (under evaluation), Suspected Myelodysplastic syndrome (?Refractory Anemia), No organomegaly, normocytic anemia, Normal LDH, Reticulocyte & creat, Negative SPEP? Anemia due to RBC destruction due to AS, No transfusion till date. Having diagnosed the same, advise was made to give Inj. Encicarb (500 mg), Inj. Optineuron 1 ampule in 100 ml NS over 30 min IV once a week for 2 weeks, Tab. Folvite 5 mg., Rule out blood loss in view of occult blood positive test earlier in the past. It was advised for cardiology evaluation for assessing AS and possibility of anemia due to critical AS and advised for review in Hematology and Medical Oncology OPD after 2 weeks with CBC with prior appointment. 15. Having perused the records, it is not in dispute that the patient was treated as out patient for the above period and no material is placed before the Court with regard to cardiology evaluation for assessing AS and possibility of anemia due to critical AS. It is the contention of the learned counsel for the petitioners that the patient was taken to the cardiologist without the knowledge to the petitioners. Hence, it is clear that when the patient was taken to the hospital for the third time, the doctor also suspected and advised for cardiology evaluation. The very contention of the learned counsel for the respondent that she was not having cardiac problem, cannot be accepted. On perusal of the diagnosis, it was suspected chronic anemia and cardiology evaluation was also advised. When such being the case, the tablet Zyrova-C was continued. The very contention of the learned counsel for the respondent that she was not having cardiac problem, cannot be accepted. On perusal of the diagnosis, it was suspected chronic anemia and cardiology evaluation was also advised. When such being the case, the tablet Zyrova-C was continued. When petitioner No.2 advised Zyrova-C suspecting cardiac problem, the very contention of the respondent cannot be accepted. 16. It is also important to note that the learned Magistrate while dismissing the complaint referred the document Ex.C.2, wherein the report was given that the death was natural and the patient was 81 years old. In order to take the cognizance, there must be material before the Court. For the offence of criminal liability for negligence, there must be a substance before the Court. In the absence of documentary proof, criminal prosecution cannot be continued. No doubt, the Revisional Court comes to a conclusion that the tablet Zyrova-C and Clopidogrel ought not to have been provided to the patient. The Revisional Court did not discuss the out patient record dated 30.05.2015, 27.06.2015 and particularly the report dated 27.07.2015, wherein cardiology problem was suspected and advised to rule out blood loss in view of occult blood positive test earlier in the past. Without examining these documents, the Revisional Court reversed the findings of the Trial Court. It is important to note that the Revisional Court directed the learned Magistrate to take cognizance and on entire reading of the order, nowhere discussed the penal provisions to be invoked. In the complaint also no specific penal provision is invoked. The Revisional Court also failed to take note of the penal provisions and only formed an opinion that materials are sufficient to take cognizance of medical negligence against the petitioners. In order to come to a conclusion of criminal rashness or criminal negligence, there must be material before the Court. In the absence of the material, the Revisional Court ought not to have directed the learned Magistrate to take the cognizance for criminal negligence. 17. This Court would like to refer to the judgment of the Apex Court in the case of Jacob Mathew (supra), wherein the Apex Court in detail discussed with regard to torts, negligence, essential components are duty, breach and resulting damage. It is also observed that what may be negligence in civil law may not necessarily be negligence in criminal law. This Court would like to refer to the judgment of the Apex Court in the case of Jacob Mathew (supra), wherein the Apex Court in detail discussed with regard to torts, negligence, essential components are duty, breach and resulting damage. It is also observed that what may be negligence in civil law may not necessarily be negligence in criminal law. It is held that 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 of prosecution. Paragraph No.49 of the judgment reads 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. 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'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. (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.” 18. The Apex Court in order to prosecute a medial profession for criminal action discussed in detail and gave the guidelines, which are as follows: “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. 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. 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). 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.” 19. The learned counsel for the respondent relying upon the judgment of the Apex Court in the case of Balram Prasad (supra) brought to the notice of this Court paragraph No.73 of the judgment, wherein the Apex Court has discussed with regard to the giving of more dosage as against the manufacturer’s warning. The learned counsel referring this judgment would contend that in the case on hand, the said medicine was advised as against the advise of the manufacturer and hence it amounts to criminal culpability and it attracts Section 304A. 20. Having perused the principles laid down in the judgment referred supra, this Court has to evaluate the material available on record whether it is a fit case to continue the criminal proceedings against petitioner No.2 herein. On perusal of the document out patient record, it is clear that the patient was taken to the hospital with history of throat irritation and weakness for the first time. For the second time, she was taken to the hospital for pain in the right shoulder and for the third time, she was taken to the hospital for shadows moving. This Court already considered the diagnosis made by petitioner No.2, who suspected and advised for cardiology evaluation and when the cardiac ailment is suspected, the very contention that Zyrova-C would be advised only for the heart ailment patient, cannot be a ground for criminal prosecution for medical negligence. It is also important to note that the documents do not disclose anything about the bleeding in the nose and mouth, as contended by the respondent’s counsel. The fact that the deceased was aged about 81 years is not in dispute and when the patient is more than 75 years of age, when the doctor advices to rule out blood loss in view of occult blood positive test earlier in the past and also for cardiology evaluation, under the circumstances, the criminal culpability cannot be attributed against petitioner No.2. It is not a case for criminal prosecution for the reason that prima facie there are no material before the Court that death was due to the medicine prescribed by petitioner No.2. Ex.C.2 is clear that cause of death is natural and she is aged about 81 years. The other reports of the Medical Council is also not in favour of the respondent. The main contention of the learned counsel for the respondent is that when the manufacturers themselves have advised, the said medicine ought not to have been advised for the person, who is not having stroke, chest pain and heart ailments and no second opinion is required. 21. The Apex Court in the judgment in the case of Jacob Mathew (supra) issued the guidelines for prosecuting of the doctors for offences of which criminal rashness or criminal negligence is an ingredient. It is further observed that a private compliant may not be entertained unless the complainant has produced prima facie evidence before the Court in a 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 the branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test laid down in (1957) 1 WLR 582, 586 to the facts collected in the investigation. 22. Having perused the principles laid down in the judgment referred supra and considering the material on record, first of all there is no prima facie material before the Court that the death was caused due to wrong medication and no documents are produced before the Court for criminal prosecution that the prescription of the said tablet Zyrova-C itself leads to death. It is also not in dispute that the patient was treated as out patient. The patient went to the hospital for treatment i.e. throat irritation, weakness and shoulder pain and the doctor suspected cardiac problem and advised for cardiology evaluation since the occult blood was found. When such being the facts and circumstances, the Revisional Court has committed an error in reversing the finding of the Trial Court. The patient went to the hospital for treatment i.e. throat irritation, weakness and shoulder pain and the doctor suspected cardiac problem and advised for cardiology evaluation since the occult blood was found. When such being the facts and circumstances, the Revisional Court has committed an error in reversing the finding of the Trial Court. Apart from that, in the complaint also no specific penal provision is invoked to prosecute petitioner No.2. The Revisional Court has also not discussed anything about which provision applies for continuing the criminal proceedings, except directing the learned Magistrate to take cognizance. Both the courts failed to note that no penal provision is invoked against the petitioners. The learned Magistrate having perused the documents, particularly Ex.C.2, comes to a conclusion that no material to continue the criminal prosecution against petitioner No.2 herein. The Medical Council of India report and the KMC report also not against the petitioners. When such being the case, the Revisional Court has committed an error in reversing the finding of the learned Magistrate and directing to take cognizance. At the most, it is a civil negligence and not a case for criminal negligence in view of the judgment of the Apex Court in the case of Jacob Mathew (supra) and the guidelines laid down in the said judgment are aptly applicable to the case on hand. There must be a criminal culpability to proceed against the doctor who gave the treatment. 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 of prosecution. Criminal prosecution is a serious matter. But in the case on hand, the doctor treated the patient, that too three months prior to the death as out patient and not as an in patient. 23. In view of the discussions made above, I pass the following: ORDER (i) The petition is allowed. (ii) The impugned order dated 18.08.2020 passed in Crl.R.P.No.25021/2019 is set aside. (iii) The order of the Trial Court dated 03.11.2018 passed in P.C.R.No.55291/2018 is hereby confirmed.