JUDGMENT/ORDER 1. The challenge in this petition is to an order dtd. 20/1/2023 passed by the learned Sessions Judge, South Goa at Margao in Criminal Revision Application No. 59 of 2022. The Revisional Court dismissed the revision fled by the petitioner/accused against the order passed by the trial Court on an application made by the accused under Sec. 258 of Code of Criminal Procedure ("Cr.P.C." for short). 2. The learned Judicial Magistrate, First Class at Vascoda-Gama, by the order dtd. 13/4/2022 kept the application for fnal disposal after examination of the material witnesses of the prosecution. It is against this order that the Criminal Revision Application was fled before the learned Sessions Court. 3. The facts of the case in brief are as under:- The petitioner, a registered medical practitioner is the accused no.1. That on 1/7/2010, a girl aged 17 years was admitted at the Pai Hospital, Vasco complaining severe abdomen pain. Dr. S. R. Pai was the director and chairperson of the Pai Hospital at Vasco-da-Gama. Since this was an emergency case, the petitioner went to Pai hospital in the early morning of 3/7/2010 and upon clinically examining the patient and fnding that she was having acute appendicitis, conducted a surgical operation, in the course of which the appendix was removed. 4. On 5/7/2010, the patient was discharged from the hospital. On 9/7/2010, the patient was readmitted by her mother at Pai Hospital when she was treated by Dr. Shantaram Surme (accused no.2) and Dr. Shridhar Pai. Since she was showing signs of distress, the petitioner was called. The petitioner suggested that she be immediately shifted and admitted to Goa Medical College Hospital ("GMCH" for short). The patient came to be shifted and admitted in the GMCH at 7.30 p.m on 10/7/2010. The patient was treated in the unit of GMCH of which Dr. Patil was in charge as the unit head. The patient was operated on 11/7/2010 and was thereafter admitted to ward no.106. The patient developed complications on 15/7/2010 when she was still at GMCH. Unfortunately, the patient died on 29/7/2010 at the GMCH. The patient was treated in the unit of GMCH of which Dr. Patil was in charge as the unit head. The patient was operated on 11/7/2010 and was thereafter admitted to ward no.106. The patient developed complications on 15/7/2010 when she was still at GMCH. Unfortunately, the patient died on 29/7/2010 at the GMCH. The case pertaining to her death was registered as Medico-legal case on 29/7/2010 on the recommendation of the petitioner in his capacity as the head of the surgery department of GMCH which was registered at Vasco Police Station as an unnatural death under Sec. 174 of the Cr.P.C. The post-mortem was conducted on 30/7/2010. 5. The victim's sister, in her complaint dtd. 2/8/2010 alleged that the death was on account of medical negligence. Pursuant thereto, the Government of Goa conducted an inquiry. A committee was asked to inquire into the incident of death. The statements of the petitioner and other doctors came to be recorded. The Report submitted by the committee was produced by the victim's father before the police. A case was registered as crime no. 193/2011 against the petitioner as accused no.1 and against accused nos.2 and 3 under Sec. 304, 468, 471, 201 read with 34 of the IPC. The chargesheet came to be fled in the Children's Court for the State of Goa which was registered as Special Case No. 63/2012. 6. Criminal Writ Petition fled by the petitioner in this Court was partly allowed. This Court quashed and set aside the applicability of the provisions of Sec. 8(2) read with Sec. 2(m) (ii) of the Children Act of 2003. Thereafter the chargesheet was transferred to the Sessions Court, South Goa at Margao and re-numbered as Sessions Case No. 40/2006. The arguments before charge were heard on 1/6/2017. The learned Additional Sessions Judge, South Goa, at Margao quashed and set aside the applicability of Ss. 304, 468, 471, and 201 of the IPC and directed the charge to be framed under Sec. 304A of the IPC against the petitioner and accused no.2. Accused no. 3 was discharged. The matter was thereafter allotted to Judicial Magistrate, First Class, Vasco-da-Gama and numbered IPC case No.1/2018/A. 7. Pending the trial, the Disciplinary Committee of the Goa Medical Council (for short "GMC") which was inquiring into the allegations of medical negligence against the petitioner, vide order dtd. 12/9/2016 exonerated him on merits. 8. Accused no. 3 was discharged. The matter was thereafter allotted to Judicial Magistrate, First Class, Vasco-da-Gama and numbered IPC case No.1/2018/A. 7. Pending the trial, the Disciplinary Committee of the Goa Medical Council (for short "GMC") which was inquiring into the allegations of medical negligence against the petitioner, vide order dtd. 12/9/2016 exonerated him on merits. 8. So far as the trial is concerned, upto 5/10/2021, nine witnesses were examined. The petitioner preferred an application before the trial Court under Sec. 258 of the Cr.P.C. The trial Court relied upon the statements of the victim's mother Gloria Rodrigues and Dr. Amir Ali. According to the trial Court, the petitioner did not visit GMCH for the operation. The trial Court observed that the medical negligence for which the petitioner is charged is not only prior to the operation which he conducted on the victim on 3/7/2010 but also for medical negligence if any, during the second operation and post operational period. According to the trial Court, as the petitioner had performed the operation on 3/7/2010 for appendicitis, the victim when was operated on 10/7/2010 at GMCH, it was duty of the petitioner to remain present during the operation. The trial Court was of the opinion that therefore the prosecution should be given an opportunity to examine material witnesses i.e the mother of the victim as well as Dr. Ali who performed the second operation before dealing in detail with the evidence that has come on record to check whether Sec. 258 of Cr.P.C. can be made applicable in the present case or not. The application was kept for fnal disposal after examination of the material witnesses of the prosecution. This order of the trial Court was challenged before the Sessions Court, South Goa by way of Criminal Revision under Sec. 397 of the Cr.P.C. 9. The Revisional Court was of the opinion that the evidence of most of the doctors show that the petitioner was not negligent. The Revisional Court has observed that evidence of none of the witnesses prove any act of negligence by the petitioner. It is further observed that in view of the law laid down by the Supreme Court in the case of Suresh Gupta Vs Govt Of N.C.T of Delhi and ors., (2004) 6 SCC 422 . The Revisional Court has observed that evidence of none of the witnesses prove any act of negligence by the petitioner. It is further observed that in view of the law laid down by the Supreme Court in the case of Suresh Gupta Vs Govt Of N.C.T of Delhi and ors., (2004) 6 SCC 422 . for fxing criminal liability on a doctor or surgeon, the standard of negligence required to be proved is to be so high as can be described as "gross negligence" or "recklessness". The Revisional Court observed that mere lack of proper care, attention and skill is not enough. The Revisional Court was however of the opinion that hardly four to fve witnesses are yet to be examined and therefore the trial Court can be directed to expedite the trial and conclude the same by a stipulated date. An observation is also made that the order passed by the trial Court is perverse to the extent that it did not consider the order of the Disciplinary Committee. The order of the Revisional Court is assailed in this writ petition. 10. Learned senior advocate relied upon several decisions of the Supreme Court and this Court to contend that this is not a case of even negligence much less gross negligence. It is submitted that it is not appropriate to subject the petitioner to face further trial. It is contended that the petitioner is facing criminal prosecution for the last 13 years. 11. Learned APP supported the order passed by the Courts below. According to him the allegations against the petitioner are serious. It is urged that as two material witnesses are yet to be examined, the impugned orders do not call for interference. 12. Heard Mr. Lotlikar, learned senior counsel for the petitioner, and Mr. P. Faldessai, learned Addl. Public Prosecutor for the respondents. 13. Before I proceed to deal with the question of whether the petitioner's application falls within the ambit of 258 Cr.P.C., I may remind myself of the law laid down by the Supreme Court with regard to medical negligence as an offence under Sec. 304-A IPC. In Suresh Gupta (supra) the Supreme Court dealt with an issue regarding causing death by negligence thereby fxing criminal liability on the doctor or surgeon and the standard of negligence required to be proved for making the act criminally liable under sec. 304-A of the IPC. In Dr. In Suresh Gupta (supra) the Supreme Court dealt with an issue regarding causing death by negligence thereby fxing criminal liability on the doctor or surgeon and the standard of negligence required to be proved for making the act criminally liable under sec. 304-A of the IPC. In Dr. Suresh Gupta (supra), the petitioner approached the High Court by a petition under Sec. 482 of the Cr.P.C. The High Court refused to quash the criminal proceedings. The order of the High Court was challenged before the Supreme Court. The scope and ambit of Sec. 304-A of the IPC in the context of criminal liability of a doctor or surgeon under Sec. 304-A of the IPC has been elaborately dealt with by Their Lordships. The relevant paragraphs read thus:- 12 It is on these medical papers produced by the prosecution, we have to decide whether the High Court was right in holding that criminal liability prima facie has arisen against the surgeon and he must face the trial. The legal position is almost frmly established that where a patient dies due to the negligent medical treatment of the doctor, the doctor can be made liable in civil law for paying compensation and damages in tort and at the same time, if the degree of negligence is so gross and his act was so reckless as to endanger the life of the patient, he would also be made criminally liable for ofence under Sec. 304-A IPC. 13 Sec. 304-A IPC reads thus: "304-A. Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fne, or with both." 14 On behalf of the doctor learned counsel referred to Sec. 80 and Sec. 88 IPC to contend that in various kinds of medical treatment and surgical operation, likelihood of an accident or misfortune leading to death cannot be ruled out. A patient willingly takes such a risk. This is part of doctor-patient relationship and mutual trust between them. 15 Ss. 80 and 88 read as under: "80. A patient willingly takes such a risk. This is part of doctor-patient relationship and mutual trust between them. 15 Ss. 80 and 88 read as under: "80. Accident in doing a lawful act.- Nothing is an ofence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. 88. Act not intended to cause death, done by consent in good faith for person's beneft.-Nothing, which is not intended to cause death, is an ofence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose beneft it is done in good faith, and who has given a consent, whether express or implied, to sufer that harm, or to take the risk of that harm." 20 For fxing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or "recklessness". It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. v. Adomako [(1994) 3 All ER 79 (HL)] relied upon on behalf of the doctor elucidates the said legal position and contains the following observations: "Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State." 21 Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as "criminal". It can be termed "criminal" only when the medical man exhibits a gross lack of competence or inaction and wanton indiference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not sufice to hold him criminally liable. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not sufice to hold him criminally liable. 22 This approach of the courts in the matter of fxing criminal liability on the doctors, in the course of medical treatment given by them to their patients, is necessary so that the hazards of medical men in medical profession being exposed to civil liability, may not unreasonably extend to criminal liability and expose them to the risk of landing themselves in prison for alleged criminal negligence. 23 For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confdence between the doctor and the patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an ofence of culpable negligence. 25 Between civil and criminal liability of a doctor causing death of his patient the court has a dificult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal ofence, the standard should be proof of recklessness and deliberate wrongdoing 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 ofence against the 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. The courts have, therefore, always insisted in the case of alleged criminal ofence against the 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." (emphasis mine) 14. The Supreme Court in Kusum Sharma and others vs Batra Hospital and Medical Research Centre and others, (2010) 3 SCC 480 . was concerned with a claim for compensation made on behalf of the victim attributing defciency in service and medical negligence. The complaint was under Sec. 21 of the Consumer Protection Act, 1986, claiming compensation. The observations made by the Supreme Court assume relevance as some of the observations are in the context of a criminal liability under Sec. 304-A, IPC. Paragraphs 45 to 65 read thus:- 45 According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, the defnition of negligence is as under: "22. Negligence.-Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient(c)." 46 In a celebrated and oft cited judgment in Bolam v. Friern Hospital Management Committee [(1957) 1 WLR 582 : (1957) 2 All ER 118] (Queen's Bench Division) McNair, L.J. observed: (i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. The direction that, where there are two diferent schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow one in preference to the other accords also with American law; see 70 Corpus Juris Secundum (1951) 952, 953, Para 44. The direction that, where there are two diferent schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow one in preference to the other accords also with American law; see 70 Corpus Juris Secundum (1951) 952, 953, Para 44. Moreover, it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself, negligence (ibid., 971, Para 48)." (All ER p. 119 A-B). McNair, L.J. also observed: Before I turn to that, I must explain what in law we mean by 'negligence'. In the ordinary case which does not involve any special skill, negligence in law means this : some 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, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that 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 man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufcient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. (WLR p. 586) 47 Medical science has conferred great benefts on mankind, but these benefts are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefts without taking risks. Every advancement in technique is also attended by risks. (WLR p. 586) 47 Medical science has conferred great benefts on mankind, but these benefts are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefts without taking risks. Every advancement in technique is also attended by risks. 48 Roe v. Minister of Health [ (1954) 2 QB 66 : (1954) 2 WLR 915 : (1954) 2 All ER 131 (CA)] Denning, L.J. said : (QB p. 83) "... It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefts on mankind, but these benefts are attended by [unavoidable] [Ed. : The words in the original are "considerable risks".] risks. Every surgical operation is attended by risks. We cannot take the benefts without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way." 49 It was also observed in the same case that : (QB pp. 84 and 86-87) "... We must not look at the 1947 accident with 1954 spectacles:" "But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifed and confdence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifed and confdence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure." 50 In Whitehouse v. Jordan [ (1981) 1 WLR 246 : (1981) 1 All ER 267 (HL)] House of Lords per Lord EdmundDavies, Lord Fraser and Lord Russell : (WLR p. 258 B and D) The test whether a surgeon has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon (dictum of McNair, L.J. in Bolam v. Friern Hospital Management Committee [(1957) 1 WLR 582 : (1957) 2 All ER 118], WLR p. 586 : All ER at p. 121). 51 In Chin Keow v. Govt. of Malaysia [(1967) 1 WLR 813 (PC)] the Privy Council applied these words of McNair, L.J. in Bolam v. Friern Hospital Management Committee [(1957) 1 WLR 582 : (1957) 2 All ER 118] : (WLR p. 586) "... 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." 52 This Court in State of Haryana v. Santra [ (2000) 5 SCC 182 ] in the matter of negligence relied upon Bolam v. Friern Hospital Management Committee [(1957) 1 WLR 582 : (1957) 2 All ER 118] and on Whitehouse v. Jordan [ (1981) 1 WLR 246 : (1981) 1 All ER 267 (HL)] . 53 In Poonam Verma v. Ashwin Patel [ (1996) 4 SCC 332 ] where the question of medical negligence was considered in the context of treatment of a patient, it was observed as under : (SCC p. 348, para 42) 42. 53 In Poonam Verma v. Ashwin Patel [ (1996) 4 SCC 332 ] where the question of medical negligence was considered in the context of treatment of a patient, it was observed as under : (SCC p. 348, para 42) 42. Negligence has many manifestations-it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or negligence per se...." 54 In the instant case, Dr. Kapil Kumar, Respondent 3 who performed the operation had reasonable degree of skill and knowledge. According to the fndings of the National Commission, he cannot be held guilty of negligence by any stretch of imagination. 55 Negligence per se is defned in Black's Law Dictionary as under: "Negligence per se.-Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes." 56 In Bolam v. Friern Hospital Management Committee [(1957) 1 WLR 582 : (1957) 2 All ER 118] Lord McNair said : (WLR p. 587) "... I myself would prefer to put it this way, : A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art." 57 In the instant case, expert opinion is in favour of the procedure adopted by Opposite Party 3 at the time of surgery on 2/4/1990. The test is the standard of ordinary skilled man exercising and professing to have that special skill. 58 In Roe [ (1954) 2 QB 66 : (1954) 2 WLR 915 : (1954) 2 All ER 131 (CA)] Lord Denning said : (QB p. 86) "... we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong." 59 Other rulings and judgments also hold and support this view. we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong." 59 Other rulings and judgments also hold and support this view. It is on these judgments that the Supreme Court has relied to determine negligence or otherwise. 60 Judgment in State of Haryana [ (2000) 5 SCC 182 ] in the context of "negligence per se", is not applicable in the instant case, as herein, there was no violation of public duty enjoined by law. The term "negligence" is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the respondents (sic appellants) that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. 61 In R. v. Lawrence [ 1982 AC 510 : (1981) 2 WLR 524 : (1981) 1 All ER 974 (HL)] Lord Diplock spoke for a Bench of fve Judges and the other Law Lords agreed with him. He reiterated his opinion in Metropolitan Police Commr. v. Caldwell [ 1982 AC 341 : (1981) 2 WLR 509 : (1981) 1 All ER 961 (HL)] and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said : (AC p. 526 F-G) "... Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the Sec. which creates the ofence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justifed in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it." 62 We are here concerned with criminal negligence. We have to fnd out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indiference to the consequences. 63 Lord Atkin in his speech in Andrews v. Director of Public Prosecutions [1937 AC 576 : (1937) 2 All ER 552 (HL)], stated : (AC p. 583) "... Simple lack of care such as will constitute civil liability is not enough : for purposes of the criminal law there are degrees of negligence : and a very high degree of negligence is required to be proved before the felony is established." Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case [Ed. : As observed in Potts (or Riddell) v. Reid, 1943 AC 1, p. 31.] : "... A higher degree of negligence has always been demanded in order to establish a criminal ofence than is sufcient to create civil liability." [Charlesworth and Percy on Negligence (10th Edn., 2001), Para 1.13.] 64 The aforementioned statement of law in Andrews case [1937 AC 576 : (1937) 2 All ER 552 (HL)] has been noted with approval by this Court in Syad Akbar v. State of Karnataka [ (1980) 1 SCC 30 : 1980 SCC (Cri) 59] . This Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. The Court opined that : (SCC p. 40, para 28) "28. ... there is a marked diference as to the efect of evidence viz. the proof, in civil and criminal proceedings. This Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. The Court opined that : (SCC p. 40, para 28) "28. ... there is a marked diference as to the efect of evidence viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufcient, and the defendant is not necessarily entitled to the beneft of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the ofence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment." 65 A three-Judge Bench of this Court in Bhalchandra v. State of Maharashtra [ AIR 1968 SC 1319 : 1968 Cri LJ 1501] has held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human afairs, would do, or doing something which a prudent and reasonable man would not do: "9. ... criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted." (Bhalchandra case [ AIR 1968 SC 1319 : 1968 Cri LJ 1501], AIR p. 1322, para 9) 15. Their Lordships then referred to the landmark judgment in the case of the Jacob Mathew Vs State of Punjab, (2005) 6 SCC 1 . Paragraphs 76 to 80 read thus:- 76 This Court in Jacob Mathew case [ (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] very aptly observed that : (SCC p. 22, para 28) "28. ... 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." 77 Doctors in complicated cases have to take chance even if the rate of survival is low. ... 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." 77 Doctors in complicated cases have to take chance even if the rate of survival is low. The professional should be held liable for his act or omission, if negligent; is to make life safer and to eliminate the possibility of recurrence of negligence in future. But, at the same time courts have to be extremely careful to ensure that unnecessarily professionals are not harassed or they will not be able to carry out their professional duties without fear. 78 It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Penal Code, 1860 has taken care to ensure that people who act in good faith should not be punished. Ss. 88, 92 and 370 of the Penal Code give adequate protection to the professionals and particularly medical professionals. 79 The Privy Council in John Oni Akerele v. R. [ AIR 1943 PC 72 ] dealt with a case where a doctor was accused of manslaughter, reckless and negligent act and he was convicted. His conviction was set aside by the House of Lords and it was held thus: (i) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State. (AIR p. 75a-b) (ii) That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. ... There is a diference in kind between the negligence which gives a right to compensation and the negligence which is a crime. ... There is a diference in kind between the negligence which gives a right to compensation and the negligence which is a crime. (AIR p. 75b-c) (iii) It is impossible to defne culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion. ... The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efciency of the medical profession if no one could administer medicine without a halter round his neck. (AIR p. 75d-e) (emphasis supplied) In the said case, Their Lordships refused to accept the view that criminal negligence was proved merely because a number of persons were made gravely ill after receiving an injection of sobita from the appellant coupled with a fnding that a high degree of care was not exercised. Their Lordships also refused to agree with the thought that merely because too strong a mixture was dispensed once and a number of persons were made gravely ill, a criminal degree of negligence was proved. 80 This Court in Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra [ AIR 1965 SC 1616 : (1965) 2 Cri LJ 550 : (1965) 2 SCR 622 ], while dealing with Sec. 304-A IPC, the following statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap [(1902) 4 Bom LR 679] was cited with approval: "To impose criminal liability under Sec. 304-A, Penal Code, 1860, it is necessary 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 efcient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non." (emphasis mine) 16. Reference also needs to be made to paragraph 86 in Kusum Sharma and others (supra) where the Supreme Court referred to the conclusions summed up in Jacob Mathew (supra). Paragraph 86 reads thus:- 86 In Jacob Mathew case [ (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder : (SCC p. 32, para 48) "48. Paragraph 86 reads thus:- 86 In Jacob Mathew case [ (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder : (SCC p. 32, para 48) "48. (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 afairs would do, or doing something which a prudent and reasonable man would not do. The defnition of negligence as given in Law of Torts, Ratanlal and 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 diference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is diferent 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. ... (3) ... 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 practises. ... (3) ... 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 practises. 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." Their Lordships then in paragraph 94 culled out the basic principles which emerge in dealing with the cases of medical negligence and observed that while deciding that the medical profession is guilty of medical negligence, the well know principles set out in paragraph 89 are kept in view. Paragraph 89 reads thus:- 89 On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view: I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human afairs, would do, or doing something which a prudent and reasonable man would not do. II. Negligence is an essential ingredient of the ofence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his feld. V. In the realm of diagnosis and treatment there is scope for genuine diference of opinion and one professional doctor is clearly not negligent merely because his conclusion difers from that of other professional doctor. VI. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his feld. V. In the realm of diagnosis and treatment there is scope for genuine diference of opinion and one professional doctor is clearly not negligent merely because his conclusion difers from that of other professional doctor. VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her sufering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efciency of the medical profession if no Doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. 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. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. 17. The Supreme Court then in paragraph 90 did observe that it is not as if a doctor can never be prosecuted for medical negligence. The interest and welfare of the patients have to be paramount for the medical professionals. 17. The Supreme Court then in paragraph 90 did observe that it is not as if a doctor can never be prosecuted for medical negligence. It is observed that as long as the doctors have performed their duties and exercised an ordinary degree of professional skills and competence, they cannot be held guilty of medical negligence. It is further observed that it is imperative that doctors must be able to perform their professional duties with free mind. 18. Having considered the law laid down by the Supreme Court in the context of fxing the criminal liability on the doctor or surgeon under Sec. 304-A of the IPC, I now turn to the facts of the present case. For convenience of continuity some basic facts need to be repeated. 19. The petitioner performed the emergency operation at Pai Hospital on the victim on 3/7/2010 for acute appendicitis. This was the frst operation. On 5/7/2010 the victim was discharged from the hospital. On 9/7/2010 the patient was readmitted by her mother at Pai hospital. When the patient was showing some signs of distress, as advised by the petitioner, the victim was admitted to the GMCH on 10/7/2010. The petitioner was treated in another unit which was in charge of a different unit head. The victim was operated on 11/7/2010 and thereafter admitted to the ward. The victim developed complications on 15/7/2010. The victim died on 29/7/2010. A case was registered against the petitioner and other accused in 2011. 20. The pain of the victim's parents and her sister must be unbearable. Losing someone you love is the hardest thing in the world to deal with. It is a suffering of a worst kind. The trauma suffered by the parents and sister of the victim is beyond imagination. The Hon'ble Supreme Court has observed in Kusum Sharma and others (supra) that it is not as if 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 doctor must be able to perform their duties with a free mind. 21. The petitioner performed an emergency operation (frst operation) on 3/7/2010 whereupon the victim was discharged from the hospital. It is imperative that doctor must be able to perform their duties with a free mind. 21. The petitioner performed an emergency operation (frst operation) on 3/7/2010 whereupon the victim was discharged from the hospital. The victim developed complication after the second operation which admittedly was not performed by the petitioner. It is pertinent to refer to an order dtd. 6/4/2023 passed in First Appeal No.186/2014 preferred by the petitioner before the National Consumer Dispute Redressal Commission, New Delhi. In all fairness to the trial Court as well as the Revisional Court, it must be mentioned that the order of the National Commission was delivered after the impugned orders came to be passed and therefore there was no occasion for them to consider this order. Though, the fndings of the National Commission cannot be said to be of a binding nature in the criminal prosecution, nonetheless, need to be referred to. Paragraphs 12 to 23 read thus:- 12. On careful perusal of chronology of events we note that- the patient's primary physician (family physician) was Dr. Surme (OP-1), who on 20/6/2010 clinically diagnosed acute appendicitis and treated medically. On 2/7/2010, he admitted the patient in Pai Hospital and Dr. Shridhar Pai (OP-2) the surgeon also confrmed the diagnosis. It is an admitted fact that Dr. Pai was not doing any surgeries due to his old age and health problems. The regular Surgeon of Pai Hospital - Dr. Shekhar Salkar was not available on 3/7/2010, therefore in the late night of 2/7/2010, Dr. Pai called Dr. Amonkar (OP-3) to perform the appendectomy surgery. Therefore, on 3/2/2007, the OP-3 attended the emergency on humanitarian grounds. He examined the patient and confrmed the diagnosis of acute appendicitis on the basis of Alvarado scoring method, the score was 8'. The surgery was successfully completed. In the case, the Alvarado scoring method adopted by OP3 was an accepted reasonable standard of practice. This view dovetails from the case Achutrao Harbhau Khodwa Vs. State of Maharashtra[1], wherein the Hon'ble Supreme Court held that: "The skill of medical practitioner difers from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. This view dovetails from the case Achutrao Harbhau Khodwa Vs. State of Maharashtra[1], wherein the Hon'ble Supreme Court held that: "The skill of medical practitioner difers from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may difer with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and a court fnds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or sufers a permanent ailment, it would be dificult to hold the doctor to be guilty of negligence. 13. Moreover, the Disciplinary Committee of the Goa Medical Council did not fnd any negligence and accepted the treatment of appendectomy was correct methods of diagnosis and treatment skills difer from doctor to doctor. In compliance of Medical Council of India regulations, the Disciplinary Committee of the Goa Medical Council (GMC) exonerated Dr. Amonkar (OP-3) with the following observations: i. That there was no evidence that the Appellant received money/ fees for the Appendectomy. ii. The Alvarado method and clinical examination were suficient for preoperative diagnosis, given the absence of normative lab testing methods for appendicitis. iii. That the Appendix had in fact been removed, and there was no evidence that the diagnosis of the Appellant or other doctors at Pai Hospital was incorrect and the appendectomy had been performed iv. That Appellant was not on duty when Patient was admitted to GMC and could thus not have supervised the Patient in any manner. Thus, we agree with the observations and decision of GMC. In our view, at the time of discharge from Pai Hospital, the patient was was stable, no signs of any complications. Therefore, for the symptoms developed after a week, have no nexus with appendectomy. The negligence cannot be attributed to the act of OP-3. 14. The State Commission wrongly placed reliance on the fndings of the Committee. In our view, at the time of discharge from Pai Hospital, the patient was was stable, no signs of any complications. Therefore, for the symptoms developed after a week, have no nexus with appendectomy. The negligence cannot be attributed to the act of OP-3. 14. The State Commission wrongly placed reliance on the fndings of the Committee. The Hon'ble Supreme Court in the cases of State Bank of India v. National Housing Bank[2] and recently, in Dr. Harish Kumar Khurana v. Joginder Singh and Others[3], held that a magisterial inquiry ought to have been discarded by the consumer fora since it did not constitute "medical evidence". It is pertinent to note that the Inquiry Committee set up by the Government of Goa was merely an ad-hoc entity, set up without any statutory mandate governing its functioning, or any procedural safeguards. The Committee comprised of bureaucrats, one nonpractising doctor, and only two other doctors. The OPs were not heard before the Committee, it was against the principle of natural justice. 15. The State Commission wrongly accepted the statement of nurse Angela that there was nothing serious with the appendix specimen. It should be borne in mind that the nurse was neither an operating surgeon nor a Pathologist to interpret the specimen of appendix. The Pai Hospital handed over the specimen of appendix to patient's mother to take for histopathological examination. 16. The important issues involved in the instant matter is whether appendectomy was the cause of intra-abdominal hemorrhage, secondly was there delay in referring the patient to GMC by Pai Hospital, which could have saved the patient by emergency exploration at GMC. 17. It is pertinent to note that the OT notes of GMCH were clearly mentioned about appendicular stump with vicryl ligatures was intact and the ligature of mesoappendix was not slipped of. The PM fndings were consistent with the same. It is pertinent to note that after 7 days of operation (5 days after discharge), the patient developed signs of distension of abdomen and breathlessness. If there was any injury to vessel or any perforation caused during appendectomy, the patient would have developed signs within 24 hours. Thus by any stretch of imagination the hemorrhage seen during 2nd operation at GMC was not due to appendectomy. Therefore, in our considered view, the appendectomy was not a proximate cause of abdominal hemorrhage and death of the patient. 18. Thus by any stretch of imagination the hemorrhage seen during 2nd operation at GMC was not due to appendectomy. Therefore, in our considered view, the appendectomy was not a proximate cause of abdominal hemorrhage and death of the patient. 18. It is evident that on 9/7/2010, during 2nd admission in the Pai Hospital, the patient was under care of OP-1 and OP2. The patient was under conservative management and observation. On 10/7/2010, Dr. Sushila Shenoy attached to Pai Hospital conducted USG and reported it as fuid in the abdomen which could be haemorrhagic, it was confrmed by Dr. Pai by aspiration under USG guidance as a fresh blood. The bleeding was suspected to be due ruptured left hemorrhagic corpus luteal cyst and therefore, immediately Dr. Pai took decision to shift her to GMCH. It was confrmed by emergency exploratory laparotomy done at GMCH on 10/7/2010. 19. The next point for discussion is whether appendectomy was the proximate cause (Causa Causens) of the death of the patient. To repeat again, on analyzing the chronology of events, from the medical record, admittedly the appendectomy was done on 3/7/2010, it was uneventful and patient was discharged on 5/7/2010 in stable condition. Later on after 5 days of discharge, the Patient was re-admitted on 9/7/2010 in OP-1 and on the next day she was shifted to GMCH with suspected ruptured left ovarian hemorrhagic corpus luteal cyst. At GMCH emergency exploratory laparotomy was done on 10/7/2010 night and partial left ovarian cystectomy was performed. In the operative notes (OT) it was expressly mentioned that the appendicular base was normal, with intact vicryl ligatures also on mesoappendix. However, the Committee was conspicuously silent on those crucial OT fndings. Thus plain reading of the statement 'Septicemia because of intraabdominal hemorrhage following appendectomy' is wrong and misleading. After 10/7/2010, the exploratory laparotomy at GMC, her condition deteriorated and developed ARDS, pneumonia and multi-organ failure. In our view, there was no nexus between the appendectomy and the eventual death after 26 days of the Patient. It was not even remote consequence of appendectomy. Thus, it was nobody's case; the Committee does not say so, it only says that the death was caused by Septicaemia due to intra-abdominal haemorrhage following appendectomy. In real sense, in our view, the word "following appendectomy" does not mean that it was 'due to appendectomy'. 20. It was not even remote consequence of appendectomy. Thus, it was nobody's case; the Committee does not say so, it only says that the death was caused by Septicaemia due to intra-abdominal haemorrhage following appendectomy. In real sense, in our view, the word "following appendectomy" does not mean that it was 'due to appendectomy'. 20. We have perused few articles and Novak's Gynecology on the subject. (i) Ovulation is a physiological monthly event in women of reproductive age. Corpus luteum hemorrhage may occur spontaneously or often triggered by coitus, trauma, exercise, or vaginal examination. The risk of hemorrhagic complications of ovulation starts on the ovulation day and extends throughout corpus luteal life span, which is 14 days without pregnancy. Its presentation is variable depending on the extent of the hemorrhage but it can be massive requiring surgical intervention and blood transfusion. Patients on anticoagulation are at higher risk for signifcant severe hemorrhage from ruptured corpus luteum[4]. (ii) The Corpus luteum cyst rupture with consequent hemoperitoneum is a common disorder in women in their reproductive age[5]. The spontaneous massive hemoperitoneum secondary to a hemorrhagic corpus luteum cyst is an exceedingly rare, but potentially lifethreatening presentation, with few cases reported in the literature[6]. 21. To bring successful claim (complaint) in medical negligence case the patient or the Complainant bringing the action must prove the four D's against the opposite parties -doctor or the hospital. The 4 D's of medical negligence stand for 'Duty', 'Deviation', 'Direct Cause' and 'Damages'. One of most important element of 4Ds' of medical negligence is 'Direct Cause'. The causation must be direct and the complainant will be unable to make any claims unless he can prove it. In fact, the Department of Forensic Medicine at GMC in its fnal opinion stated the cause of death after 19 days was not due to the second surgery. The State Commission in its impugned order has not considered it. In the instant case the OPs performed their duty as per the reasonable standards. There was no iota of evidence of deviation from the duty care. In our view there was no nexus between the suferings of patients after 9/7/2010 with the appendectomy operation performed on 3/7/2010. The complications arose due to ruptured corpus left ovarian luteal cyst. The operative fndings clearly revealed hemorrhagic corpus luteal cyst and the appendicular stump with vicryl sutures were intact. In our view there was no nexus between the suferings of patients after 9/7/2010 with the appendectomy operation performed on 3/7/2010. The complications arose due to ruptured corpus left ovarian luteal cyst. The operative fndings clearly revealed hemorrhagic corpus luteal cyst and the appendicular stump with vicryl sutures were intact. Thus, the septicemia developed after 2nd surgery was not due to initial appendectomy. 22. It is not enough to prove that harm occurred; the Complainant/ patient must also prove that the doctors failure to follow protocol was the direct cause of said injuries. It is pertinent to note that since patient had symptoms of pain and tenderness in right iliac fossa, after abdominal examination OP-1diagnosed it as acute appendicitis. No symptoms were suggestive of left ovarian pathology, and there was no need for detailed examination on left side. Appendicitis and left ovarian hemorrhagic cyst are distinct and separate entities. 23. Considering the peculiar facts of the case, the OP-1 being a Head of Department of Surgery at GMC, on humanitarian ground he visited Pai Hospital in early hours for an emergency appendectomy. Surgery was uneventful and ended without complications. Postoperative care was taken by Pai Hospital. After 5 days of post discharge, the patient presented with abdominal pain due to ruptured luteal cyst and bled inside the abdomen, which was unrelated to appendectomy which appears to be an innate body response of the patient and not due to negligence. 22. The National Commission referred to the decision of the Supreme Court in the case of Kusum Sharma and others (supra), Dr. Harish Kumar Khurana Vs Joginder Singh and others, (2021) 10 SCC 291 . State Bank of India Vs National Housing Bank, (2013) 16 SCC 538. in support of its fndings. 23. It needs to be borne in mind that the petitioner is facing a criminal prosecution since 2011. A Disciplinary Committee was formed which gave a report on merits. The Disciplinary Committee comprising of expert Doctors constituted by the GMC has exonerated the petitioner of all the charges by an order dtd. 12/9/2016. I may not be understood to mean that because the Disciplinary Committee exonerated the petitioner, he has to be absolved of the criminal liability. Learned senior advocate, Mr. Lotlikar, did urge in the light of the laid down by Radheshyam Kejriwal Vs State of West Bengal and ors., (2011) 3 SCC 581 . 12/9/2016. I may not be understood to mean that because the Disciplinary Committee exonerated the petitioner, he has to be absolved of the criminal liability. Learned senior advocate, Mr. Lotlikar, did urge in the light of the laid down by Radheshyam Kejriwal Vs State of West Bengal and ors., (2011) 3 SCC 581 . that the orders published by the Disciplinary Committee will be binding and the same will have to be considered. The Revisional Court, in my opinion, was justifed in observing that the learned Magistrate is not mandatorily bound to consider the report of the disciplinary committed in favour of the accused. 24. I have no hesitation in accepting the broad submission of Mr. Faldessai that the fnding of the National Commission or that of the Disciplinary Committee is not binding on the proceeding for the criminal prosecution. It may be that a Doctor is held liable by a Disciplinary Committee, however cannot necessarily be held guilty in a criminal trial. The standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. 25. In the facts of the present case, I am inclined to consider the exoneration of the petitioner by the disciplinary committee as one of the circumstance in favour of the petitioner. The National Commission has observed in paragraph 23 that fve days post discharge, the patient presented with abdominal pain due to ruptured luteal cyst and bled inside the abdomen, which was unrelated to appendectomy which appears to be an innate body response of the patient and not due to negligence. It found that the petitioner performed his duty with reasonable skills and competence in the interest of the patient. I may hasten to add that the fnding by the National Commission that the petitioner performed his duty with reasonable skill and competence in the interest of the patient is not binding in the proceeding for criminal prosecution. 26. At this stage, it is necessary to refer to the provisions of Sec. 258 of Cr.P.C to which resort is taken by the petitioner for making the application. Sec. 258 of Cr.P.C. reads thus:- . 26. At this stage, it is necessary to refer to the provisions of Sec. 258 of Cr.P.C to which resort is taken by the petitioner for making the application. Sec. 258 of Cr.P.C. reads thus:- . Power to stop proceedings in certain cases.-In any summons-case instituted otherwise than upon complaint, a Magistrate of the frst class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the efect of discharge. 27. As indicated earlier, though the petitioner was discharged of the offences punishable under Sec. 304, 468, 471, 201 read with Sec. 34 of IPC, however, charge was ordered to be framed against the petitioner and accused no.2 for the offence punishable under Sec. 304- A of the IPC. 28. As on 13/4/2022 nine witnesses had been examined. The trial Court was of the opinion that two material witnesses i.e mother of the victim and Dr. Amir Ali who operated (second operation) the victim in GMCH are relevant and therefore, the application under Sec. 258 was kept pending for fnal disposal. In this petition it is averred that summons was issued to the victim's mother on several occasions but she failed to appear before the Court for examination. The evidence of victim's father is already on record. I fnd substance in the submission of learned senior advocate Mr. Lotlikar that the evidence of victim's mother is not going to make a material difference as the testimony of the victim's father is already on record. So far as the examination of Doctor Amir Ali is concerned, it is necessary to bear in mind that from the evidence of the majority of the witnesses who have been examined, comprising mostly of the Doctors, there is nothing to suggest that there was any negligence much less gross negligence or recklessness on the part of the petitioner. The Petitioner was not the one who performed the second operation. He was not even present at the time of the second operation. The Petitioner was not the one who performed the second operation. He was not even present at the time of the second operation. The trial Court was of the opinion that as the petitioner had conducted the frst operation, upon the victim being readmitted to Pai hospital and thereafter at GMCH, it was duty of the petitioner to remain present during the second operation. The trial Court noted that 'though none of the witnesses have spoken about the presence of the petitioner during the second surgery but certainly it was ethical on the part of the petition the then Head of the Department of the GMCH and who is well experienced surgeon who had performed the frst operation on the victim to remain present during the second operation'. In my opinion, having regard to the materials already on record, which even according to the Revisional Court do not indicate any gross negligence or recklessness on the part of the petitioner and as the petitioner was not the one who performed the second surgery, it would be unjust to subject the petitioner to further criminal prosecution. At this stage, regard may be had to the fact that in compliance of Medical Council of India regulations, the Disciplinary Committee of Goa Medical Council exonerated the petitioner on merits after recording the following observations:- i. That there was no evidence that the Appellant received money/ fees for the Appendectomy. ii. The Alvarado method and clinical examination were suficient for preoperative diagnosis, given the absence of normative lab testing methods for appendicitis. iii. That the Appendix had in fact been removed, and there was no evidence that the diagnosis of the Appellant or other doctors at Pai Hospital was incorrect and the appendectomy had been performed on account of urgency. iv. That Appellant was not on duty when Patient was admitted to GMC and could thus not have supervised the Patient in any manner. 29. It may also be indicated that the National Consumer Dispute Redressal Commissioner agreed with the observations of the Disciplinary Committee of the Goa Medical Council. From the evidence there is nothing to indicate that the second surgery had anything to do with the frst surgery performed by the petitioner. The National Commission has considered this aspect in some detail in its judgment and order observing that 'Septicemia developed after 2nd surgery was not due to appendectomy'. 30. From the evidence there is nothing to indicate that the second surgery had anything to do with the frst surgery performed by the petitioner. The National Commission has considered this aspect in some detail in its judgment and order observing that 'Septicemia developed after 2nd surgery was not due to appendectomy'. 30. So far as Sec. 304-A is concerned for which the petitioner is charged, the evidence already on record nowhere suggests that the petitioner was negligent or that he did not exercise due care and caution while performing the frst surgery. The Disciplinary Committee comprising of experts in the feld of medicine, exonerated the petitioner. The evidence which has come on record during the trial, upon examining as many as 9 material witnesses, who mostly are doctors, and as rightly observed by the Revisional Court, does not show that the petitioner was negligent. The trial Court need not have awaited the decision on the application under Sec. 258 Cr.P.C. just because two witnesses were yet to be examined. Applying the aforesaid judgments to the facts of this case, it is clear that the chances of conviction in the criminal trial appear to be bleak. 31. Sec. 258 empowers the Magistrate for reasons to be recorded by him to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses have been recorded, pronounce a judgment of acquittal. Merely because a couple of the witnesses remained to be examined, when their testimony is not likely to have a material bearing to prove the accusations against the petitioner, this is a ft case where the trial Court should have exercised powers under Sec. 258 of Cr.P.C. The Revisional Court having held that none of the witnesses prove any act of negligence or recklessness by the petitioner, then committed an error in refusing to interfere with the trial Courts order only on the ground that four to fve witnesses remain to be examined. The Revisional Court moreover has observed that since most of the witnesses have not deposed against the petitioner, it would be difficult to conclude that the petitioner was negligent in performing his duty as a doctor. The petitioner is facing a criminal prosecution since the year 2011. The Revisional Court moreover has observed that since most of the witnesses have not deposed against the petitioner, it would be difficult to conclude that the petitioner was negligent in performing his duty as a doctor. The petitioner is facing a criminal prosecution since the year 2011. There is nothing on record to indicate that the petitioner exhibited a gross lack of competence or inaction and wanton indifference to the victim's safety and which is found to have arisen from the gross ignorance or gross negligence for terming his act as "Criminal". It cannot be said that the materials indicate a high degree of negligence on the part of the petitioner. After examining the material on record, I do not fnd a case of recklessness or gross negligence is made out against the petitioner to compel him to face further trial under Sec. 304-A of the IPC. 32. The impugned orders of the Revisional Court and the trial Court are set aside. The application fled under Sec. 258 of Cr.P.C. before the trial Court is allowed. Further proceedings in the criminal case No.IPC/1/2018/A before the learned Judicial Magistrate First Class, at Vasco-daGama are stopped. Writ petition is allowed.