JUDGMENT : SHARAD KUMAR SHARMA, J. 1. This C-482 Application itself encompasses a very peculiar fact and circumstance, which relates to a criminal action being taken against the applicant, who is providing services in the nature, which is crucial for public at large, which could be logically termed as to be the essential service. 2. In the case at hand, the present applicant is a medical professional and a Gynaecologist. Allegation against her in the FIR No. 104 of 2018, as it was got registered at Police Station Almora, was that on a delivery of a child, as it was conducted by her on the wife of the complainant, it was alleged in the FIR, that the manner in which the treatment or the delivery process was provided by the present applicant, there has been negligence on her part because as per the allegation, it was alleged that when the delivery had taken place, the child upon his delivery was not crying, though the child was clinically keeping well, but in order to provide warmth to the child to sustain him, certain medical devices were applied by the doctor, the present applicant, to keep the child warm in order enable him to survive. 3. The allegation in the FIR was that the device, which was provided as used by the doctor to keep the child warm has resulted into making burn marks on the back of the child, which he contends, that when he has questioned the doctor about the mode of treatment provided by her, she said that it is a “birth mark” and not a burn marks, which could be said to have been caused by the device supplied by the doctor, which was not believed by the complainant and an FIR was registered by him against the applicant. 4. The FIR, which was thus registered, being FIR No. 104 of 2018 on 16th October, 2018, the allegation levelled against the present applicant was for the commission of the offence under Sections 337, 338, 504 and 285 of the IPC. 5. 4. The FIR, which was thus registered, being FIR No. 104 of 2018 on 16th October, 2018, the allegation levelled against the present applicant was for the commission of the offence under Sections 337, 338, 504 and 285 of the IPC. 5. The matter was investigated upon and a Chargesheet No. 22 of 2019 dated 23rd April, 2019, was submitted by the Investigating Officer, on which, the cognizance has been taken by the Court of Chief Judicial Magistrate, Almora, and ultimately resulting into framing of the charge by an order dated 9th January, 2020, in Criminal Case No. 955 of 2019, State vs. Dr. Poonam Garkoti and Another. 6. The basic issue, which requires consideration by this Court in the instant case would be, that in a given set of circumstance, where a professional provides medical services in accordance to his or her hippocratic oath, it would be presumed, that no medical professional would ever spoil his or her case intentionally, by not providing a complete and adequate medical assistance to the patient and the allegation levelled in the FIR, that it was the burn mark caused because of the clinical devices supplied by the doctor, and hence, it was a case of a medical negligence, which has been established against the present applicant. 7. This Court is of the view, that the only aspect, which is required to be gone into in the instant case, apart from technical issues, which have been raised by the learned counsel for the respondent, as to what would be the nature of offence, whether it would be a summon trial or a warrant trial, this Court is of the view that in C-482 Application, where this Court exercises an inherent jurisdiction, Court has had to have a rational approach while considering such type of incident, where a medical professional is attributed with an allegation of negligence. It is always the intention which plays a pivotal role, to determine a civil or criminal liability of a medical professional. 8. It is always the intention which plays a pivotal role, to determine a civil or criminal liability of a medical professional. 8. This particular aspect came up for consideration before the Hon’ble Apex Court in a judgment as reported in Jacob Mathew vs. State of Punjab and Another, (2005) 6 SCC 1 wherein, factually, it was a case, where it was contended by the complainant, that owing to the medical negligence, a death has chanced of the patient resulting into a commission of the offence under Sections 304-A of the IPC, to be read with Section 34 of the IPC, and accordingly, an FIR was registered by the complainant as against the concerned medical practitioner for commission of an offence 304-A of the IPC. The Hon’ble Apex Court has dealt with the aspect as to what would actually amount to be the deliberate medical negligence mean. The Apex Court in the matter of Suresh Gupta vs. Govt. of NCT of Delhi, (2004) 6 SCC 422 , has observed that negligence or recklessness has had to be backed by a gross negligence with an intention and merely a carelessness or an unintended act may not be always taken as to be an attribute of negligence, on part of the medical practitioner, and the said concept of negligence cannot be utilized to draw a criminal liability against doctor and the Court has deprecated, that the said aptitude of the complainant is to be deprecated because there are different technical and medical standards, which can be applied by the doctors depending upon their professional acumen and also depending upon the circumstances of each and every medical contingency and circumstances. By carrying a separate treatment by the doctors, the degree of recklessness or negligence could be under its plain understanding would depend upon its determination to be made by the expertise in the medical field, as to whether at all, there was slackness or lack of use of professional diligence on the part of the doctor or the negligence attributed was intentional in nature, intended to cause harm. 9. 9. The Hon’ble Apex Court in the matter of Jacob Mathew (Supra) in Para 9 has observed, that it is a general consciousness and feel of the public at large, that a right action is always expected and required to be taken by the doctors, who are professional and an action for damage or tort has to be taken, and in that eventuality, if at all, it is a tortuous liability, it could have been only decided only by virtue of Civil Suit or by approaching before the Consumer Forum under the Consumer Protection Act for fixation of a civil liability. But it cannot be by way of drawing a criminal proceeding as one at hand, because order of reference to enable to examine the concept of negligence, particularly the medical professional negligence, as to when and how and under what circumstances, it has chanced is a basic aspect, which is essentially required to be gone into, before fixation of any civil or criminal liability on a professional. 10. This Court is of the view, that the concept of negligence defines and deals with a precise definition, as to whether jurists or the Courts are competent and capable to determine, as to what would be the negligence within the meaning of the medical expertise of the doctors being supplied to the patient. 11. The Law of Torts in its 24th Edition, as it was published by Justice G.P. Singh has observed as under: “Negligence as a tort 10. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal and Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at page 441-442) “Negligence is the breach of a duty caused by the 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. It is stated (at page 441-442) “Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.....the definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.” 12. In a nutshell, owing to above, it would mean, that if it is a breach of duty caused because of an omission, which otherwise a reasonable man is expected to be guided with and ordinarily regulates his conduct of business or human affairs as a professional, it will not be a negligence because negligence constitutes following elements: (i) A legal duty to exercise due care on part of the party, which has complained of offence. (ii) The breach of said duty, which should be attributable to intention. (iii) The consequential damages, which are being caused because of intentional negligence. (iv) Whether such a negligence on being established by expert research team would be civil or criminal breach. 13. For that purpose, an inference could be drawn from yet another judgment as reported in Riddell vs. Reid, 1943 AC 1 (HL) where His Lordship Lord Porter, has defined as to what would actually the “negligence” means in the field of medical science, where a doctor provides medical services to their patients to the best of his ability and knowledge. It has been observed in the said judgment by His Lordship Lord Porter, that a degree of “negligence” always demands, for that it has had to be actuated and embraced by a criminal offence and should be sufficient enough to create a criminal liability. The relevant part of the judgment as referred to in Para 14 is extracted hereunder: “14. It has been observed in the said judgment by His Lordship Lord Porter, that a degree of “negligence” always demands, for that it has had to be actuated and embraced by a criminal offence and should be sufficient enough to create a criminal liability. The relevant part of the judgment as referred to in Para 14 is extracted hereunder: “14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found 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 indifference to the consequences. Lord Atkin in his speech in Andrews vs. Director of Public Prosecutions, (1937) AC 576, stated: “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, there exists a clear distinction exists between “simple lack of care” incurring civil liability and “very high degree of intentional negligence” which is required in criminal cases. Lord Porter said in his speech: “A higher degree of negligence has always been demanded in order to establish a criminal offence, than is sufficient to create civil liability. (Charlesworth & Percy, ibid, Para 1.13).” 14. Besides this, the Hon’ble Apex Court in the said judgment of Jacob Mathew (Supra) at the stage of determining a professional responsibility of negligence or a tortuous liability of the medical practitioner, has observed that it has had to be considered in the light of the facts of the case, as to whether it is an emergency or merely required to treat the patient. Holding a professional liable for an act of omission, or as to be negligent is to make life safe and eliminate the responsibility of reoccurrence of negligence in future. Holding a professional liable for an act of omission, or as to be negligent is to make life safe and eliminate the responsibility of reoccurrence of negligence in future. The Hon’ble Apex Court in Para 52 of the said judgment has observed, that the Courts are not competent to test the aspect of negligence on the part of medical practitioner because it is specifically an expertise body constituted by the Medical Council of India, which would be a body experts to scrutinize as to whether under the statutory rules or executive directions or the guidelines as framed by the Government of India or by the Medical Council, a medical practitioner has deliberately acted in violation of it to make him or her liable for commission of the offence of negligence to be tried for the offences under Section 337, 338, 504 and 285 of the IPC. 15. In a case, which has arisen from the West African Court, as it has been decided by the Four-Judges Bench of the Privy Council, as reported in AIR (30) 1943 Privy Council 72, the Privy Council in the said case has held that a doctor is not responsible criminally for a patient’s death until and unless his negligence or incompetent act is established to have passed beyond a mere matter of interpretation based on an evidence, and it crosses over the stage of compensating the person affected. 16. The degree of negligence required is, that it has had to be established by an unflinching evidence, that the negligence required is that it should be a gross, and that it reaches to a situation where neither a Jury nor a Court can transform negligence of a lesser degree into a gross negligence merely by giving it that appellation. A care should have been taken invariably before imputing a criminal negligence to a professional man acting in the course of discharge of his responsibility as a profession. Where a doctor is prosecuted for a criminal negligence because he has administered a wrong medicine, a too strong preparation by dissolving certain salt combinations medicine to be administered is a fact, which is required to be held, as to whether such an act committed by a doctor is a criminal act or not, or it was simply an act of lack of professional prudence. 17. 17. According to the Halsbury’s Laws of England, (Hailsham Edition) Volume 9, it has determined as to what actually would amount to be a negligence is to be regarded as a gross in question of a determination of the Jury depending upon the circumstances of each particular case. It is desirable that, as far as possible, the explanation and interpretation of a criminal negligence, which is to be given by a Jury, should not be a mere question of epithet, rather it is a sense or question of a very minute degree of determination, and it is for the Jury to draw a line, but there is a difference in the kind of negligence and its gravity, between a gross negligence, which is carried with an intention and the negligence, which crosses beyond a parameter, where the effected person could be compensated by paying of an amount of compensation for the alleged negligence. 18. It is basically impossible to lay down a strict jacketed interpretation, as to what would be the exact determination of medical negligence and as to which negligence could be made culpable for criminal negligence and it is basically not possible to make a distinction between actionable negligence and criminal negligence an intelligible differentia, accepted by means of illustration to be drawn from opinion of experts and based on the actual opinions and depending upon the circumstances of the each case. 19. In yet another judgment as reported in the Weekly Law Reports, Bolam vs. Friern Hospital Management Committee, as rendered on 26th April 1957, the Queen’s Bench Division, it had dealt with the aspect of negligence and in its page 586, it has basically dealt with, that in order to constitute an act as to be a medical negligence under law to make it cognizable offence, it would be that in an ordinary case, which does not involve any special skill, “negligence” in law means, a failure to do some act, which a reasonable prudent man in the given circumstances would be liable to do or doing of an act, which a reasonable man in the circumstances has not done, and it has ultimately resulted into a gross intentional failure or doing of the act, which results into an injury which is not compensatory and it is then only, where it gives a cause of action. So the basic test in its generality to determine, as to be an act or failure is negligence or not, in its ordinary sense, it generally when it could be just by an action of the man, or by any person and in its ordinary sense. But where, the determination of act of negligence requires an expertise skill, the test of its standard of ordinary skill means exercising a professional diligence to have that special skill. The man need not possess the expertise skill. It is well established law, that it is sufficient, if he exercises the ordinary skill of an ordinary competent man exercising that particular art, in which he or she has been trained. 20. This Court is of the view, that when despite of due diligence by the doctor treating upon a patient, if there happens to be certain minor negligence, which is not an intentional malicious act, the person cannot be held to be criminally negligent for his professional responsibility, because an element of human error is always possible, in every field of professional activity. 21. In the said judgment Mr. Fox-Andrews, it has been observed, that a doctor or a professional is not guilty of negligence, if he has acted in accordance with the laid down practice or accepted procedure, as a proper man by a responsible body of a medical man skilled in this particular art performing his professional duty. 22. That means to say, that a man is not negligent, if he has acted in accordance with such established practice merely because there is a body, which could have take a different opinion, who would take a contrary view, but if due diligence and intention is established by evidence, it cannot be brought within an ambit of negligence to make a professional criminally liable to be prosecuted for the offences under Sections 337, 338, 504 and 285 of the IPC, as it is in the instant case. 23. An issue emerged, when a doctor was prosecuted before the Consumer Forum, where under the provisions of the Consumer Forum Act, for his alleged medical negligence, which has resulted into certain losses to person treated upon, which have been caused to the patient, who has been treated upon by the professional, the question determined of medical negligence was negatived. 24. An issue emerged, when a doctor was prosecuted before the Consumer Forum, where under the provisions of the Consumer Forum Act, for his alleged medical negligence, which has resulted into certain losses to person treated upon, which have been caused to the patient, who has been treated upon by the professional, the question determined of medical negligence was negatived. 24. In a judgment reported in Indian Medical Association vs. V.P. Shantha and Others, (1995) 6 SCC 651 the Hon’ble Apex Court while dealing with as to how would the medical negligence be defined based upon the Mason’s Law and Medical Ethics, 4th Edition, and in its Para 53, the Hon’ble Apex Court has dealt with the aspect as to what would be the medical negligence. 25. The Hon’ble Apex Court, had summarised the philosophy of medical negligency that the affair of medical professional must be taken into account not with the legitimate claim of the patient cannot be ignored, but that has to be balanced. The relevant extract of Para 53 is given hereunder: “53. Dealing with the present state of medical negligence cases in the United Kingdom it has been observed: “The legal system, then, is faced with the classic problem of doing justice to both parties. The fears of the medical profession must be taken into account while the legitimate claims of the patient cannot be ignored. Medical negligence apart, in practice, the courts are increasingly reluctant to interfere in clinical matters. What was once perceived as a legal threat to medicine has disappeared a decade later. While the court will accept the absolute right of a patient to refuse treatment, they will, at the same time, refuse to dictate to doctors what treatment they should give. Indeed, the fear could be that, if anything, the pendulum has swung too far in favour of therapeutic immunity. [Page 16] It would be a mistake to think of doctors and hospitals as easy targets for the dissatisfied patient. It is still very difficult to raise an action of medical negligence in Britain; some, such as the Association of the Victims of Medical Accidents, would say that it is unacceptably difficult. Not only are there practical difficulties in linking the plaintiff's injury to medical treatment, but the standard of care in medical negligence cases is still effectively defined by the profession itself. Not only are there practical difficulties in linking the plaintiff's injury to medical treatment, but the standard of care in medical negligence cases is still effectively defined by the profession itself. All these factors, together with the sheer expense of bringing legal action and the denial of legal aid to all but the poorest, operate to inhibit medical litigation in a way in which the American system, with its contingency fees and its sympathetic juries, does not. It is difficult to single out any one cause for what increase there has been in the volume of medical negligence actions in the United Kingdom. A common explanation is that there are, quite simply, more medical accidents occurring - whether this be due to increased pressure on hospital facilities, to falling standards of professional competence or, more probably, to the ever-increasing complexity of therapeutic and diagnostic methods.” [Page 191] A patient who has been injured by an act of medical negligence has suffered in a way which is recognised by the law - and by the public at large - as deserving compensation. This loss may be continuing and what may seem like an unduly large award may be little more than that sum which is required to compensate him for such matters as loss of future earnings and the future cost of medical or nursing care. To deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice. After After all, there is no difference in legal theory between the plaintiff injured through medical negligence and the plaintiff injured in an industrial or motor accident.” [Page 192-193] [Mason's Law and Medical Ethics, 4th Edn.] 26. Primarily, in order to arrive at a logical/rationale conclusion as to what would be the actual determining factor to conclude as to whether an act is medical negligence or not. It could well be derived from (4th Edition) Halsbury’s Law of England, Vol. 26, Page 17 - 18, where the negligence has been defined in the following manner: “45. According to Halsbury's Laws of England, 4th Edn. Vol. 26 pp. 17-18, the definition 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. According to Halsbury's Laws of England, 4th Edn. Vol. 26 pp. 17-18, the definition 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.” 27. In the light of the aforesaid definition of negligence, and which too has been based upon the decision of Bolam vs. Friern Hospital Management Committee (Supra), as rendered by the Queen’s Bench, wherein, it has been observed, that a doctor is not negligent, if he is acting in accordance with the established accepted medical practice accepted as a proper reasonable body of a medical man, skilled in that particular art would have normally adopted. Merely because, there is a body of such opinion, that takes a contrary view, it will not make a professional to be negligent. In accordance with the said judgment of Bolam (Supra), where it has observed, that for the purposes of determining the medical negligence, there are two Schools of thoughts, and both the practices have been recognised among the practitioners, that it is not negligent for a medical practitioner to follow one in preference to other thoughts also. Moreover, it seems that law has at times failed to determine, as to what would be the actual interpretation of terminology of “negligence” in relation to the medical practitioner, it has had to be determined by a use of expertises body and not by the determination which is made by common prudence or a prevalent circumstance or knowledge, which an interpretation can be given by a common man, who is not a skilled person in the field to determine as to whether an act actually falls to be a professional negligence or not. 28. 28. I am of the view, that in an ordinary case, the medical negligence cannot be said to be a negligence, which does not involve negligence in dereliction to adopt, any special skill or negligence in law means some failure to do an act, which a reasonable man in the circumstances would do or the doing of some act, which a reasonable man in the circumstances have not done, and if that failure for not doing of that act results into negligence, then there is a cause of action but not otherwise. 29. The basic issue would be as to how to test whether a particular act complained of is an act of failure or negligence, in an ordinary case, it is generally said, that the Judges while judging by an action of the man, he is an ordinary man. In one case, if he has said that Judges by the conduct of the man, it has had to be by an expert body to determine as to whether, the professional has derelicted in performance of the duty in order to bring the act as to be a negligent act. The aforesaid principal must be kept in mind, that while deciding the cases of medical negligence, it should not be a situation to be determined, that the doctors are inevitable, and they cannot be prosecuted for medical negligence so long as the doctor performs his duty and have exercised their ordinary degree of professional skill and competence. It cannot be held guilty of medical negligence. It is imperative that the doctor must be able to perform his professional duties with free mind, and un-circumscribed by the legal implications, which may follow or which may be interpreted by a common man as to be an act of medical negligence. As that may be leading to a de-motivating factor, which would be hampering the interest of the society in long run. 30. It is a settled principle that while dealing with the case of medical negligence, the conclusion becomes irresistible and which could only be determined when an act complained of is scrutinized by a expert body, who could be the best to assess as to whether an act complained of would fall to be within an act of medical negligence or not. 31. Recently the Hon’ble Apex Court in a judgment as reported in Dr. 31. Recently the Hon’ble Apex Court in a judgment as reported in Dr. Chanda Ranii Akhouri and Others vs. Dr. M.A. Methusethupathi and Others, 2022 SCC Online SC 481 the Hon’ble Apex Court has dealt with an aspect as to what would be the medical negligence and that too it has derived its logic from the judgment of Jacob Mathew as it has already been dealt with above and following inference has been drawn by the Hon’ble Apex Court, yet again, basing its principle based upon the judgment of Bolam (Supra) as already observed above, and the following inferences have been drawn, which is extracted in Para 23 and 24. Para 23 and 24 are extracted hereunder: 23. In the case of medical negligence, this Court in Jacob Mathew v. State of Punjab and Another dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution but there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if (a) either a person (doctor) did not possess the requisite skills which he professed to have possessed; or (b) he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional. This Court held as under: “48. We sum up our conclusions as under: (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. This Court held as under: “48. We sum up our conclusions as under: (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty” “breach” and “resulting damage.” (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. 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. 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. xxx xxx xxx (4) The test for determining medical negligence as laid down in Bolam Case (1957) 2 All ER 118 (QBD), WLR at p. 586 holds good in its applicability in India. xxx xxx xxx (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.” 24. The term “negligence” has been defined in Halsbury Laws of England (Fourth Edition) Para 34 and as settled in Kusum Sharma and Others vs. Batra Hospital and Medical Research Centre and Others as under: “45. According to Halsbury's Laws of England, 4th Edn. Vol. 26 pp. 17-18, the definition 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.” 32. A breach of any of these duties will support an action for negligence by the patient.” 32. In fact, the Hon’ble Apex Court in the matter of Jacob Mathew (Supra) has observed, that the aspect of negligence on the part of the medical practitioner could only be when the Court is facilitated by a report, which is to be submitted by the experts, who would be competent enough to examine the medical perspective of negligence, before drawing any conclusion of medical negligence, because the local Police Investigating Officer, under the common criminal law may not be a competent person to come to a conclusion, as to whether at all under a given case the medical practitioner was responsible for negligence, and rather more particularly, an intentional medical negligence and in the absence of there being any prior report submitted by the experts as per the guidelines framed by the Medical Council of India or the Government of India, criminal liability cannot be invariably fastened upon the medical practitioner for an act of negligence in the absence of there being a prior report by the experts. The said aspect has yet again been based upon the judgment rendered in the matter of Bolam vs. Friern Hospital Management Committee, (1957) 1 WLR 582. The relevant part of the observation made by the Hon’ble Apex Court in Jacob Mathew (Supra) is extracted hereunder: “52. 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. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” 33. Recently, the similar issue came for consideration in the Court of Appeals of Texas, Dallas, wherein, in the matter of Kaufman vs. John Perales, the Court of Appeals of Texas, Dallas, has observed that a casual relationship is to be established by a credible proof as to whether the professional is at all negligent for an act or omission and it was an essential factor required to bring out a harm, and in the absence of an intentional act of commission of an harm, which could have occurred, it cannot be said to be, that it was a negligence, where a caution was required to be exercised by the medical practitioner for establishing a reasonable medical probability. The said judgment has gone to an extent to observe that the experts report must not be taken as to be an isolated document to fasten upon the criminal liability. The expert must show and explain the chain of events to begin with as to whether the health care and negligence was intentionally attributed to a medical practitioner. The relevant part of the judgment is extracted hereunder: “A causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm, and that, absent this act or omission, the harm would not have occurred Costello vs. Christus Santa Rosa Health Care Corp. The relevant part of the judgment is extracted hereunder: “A causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm, and that, absent this act or omission, the harm would not have occurred Costello vs. Christus Santa Rosa Health Care Corp. 141 S.W. 3d 245, 249 (Tex App-San Antonio 2004, no pet.) Causation is generally established in medical malpractice.cases through evidence of a “reasonable medical probability or “reasonable probability that the alleged injuries were caused by the negligence of one or more defendants, in other words, the plaintiff must present evidence “that it is more likely than not that the ultimate harm or condition resulted from such negligence Jelinek, 328 S.W.3d at 532-33 (quoting Kramer vs. Lewisville Mem'l Hosp. 858 SW 2d 397, 399-400 (Tex 1993)) Statements based on reasonable medical probability, without explanation and without tying conclusions to the facts are not sufficient. Id at 539 [T]he expert must go further and explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented” Id. at 539-40; see also Van Ness, 461 S.W.3d at 142 (“An expert must explain, based on facts set out in the report, how and why the breach caused the injury”); Tenet Hosps. Ltd. vs. Garcia, 462 SW 3d 299, 308 (Tex App-El Paso 2015, no pet.) (expert's opinion “should certainly include an articulable, complete, and plausible explanation of how the alleged breaches (of the standard of carel led to the damages sustained”). The expert's report must not be conclusory in its explanation of causation, it “must explain the basis of [the expert's] statements to link his conclusions to the facts Bowie Merl Hosp. 79 SW3d at 52 (quoting Earle 998 SW2d at 890), see Taylor vs. Fossett, 320 S.W. 3d 570, 575 (Tex App-Dallas 2010, no pet.) (Expert report must contain sufficiently specific information to demonstrate causation beyond conjecture); see also Arkoma Basin Expl. Co. vs. FMF Assocs 1990-A, Ltd. 249 S.W. 3d 380, 389 n 32 (Tex 2008) (quoting BLACK'S LAW DICTIONARY 308 (8th ed. Co. vs. FMF Assocs 1990-A, Ltd. 249 S.W. 3d 380, 389 n 32 (Tex 2008) (quoting BLACK'S LAW DICTIONARY 308 (8th ed. 2004)) (defining “conclusory” as “Telxpressing a factual inference without stating the underlying facts on which the inference is based”); Castillo vs. August, 248 S.W. 3d 874, 883 (Tex App -El Paso 2008 no pet.) (“While a claimant is not required to conclusively prove [his] case through a preliminary expert report, the report may not merely state conclusions about any of the elements. An expert may show causation by explaining a chain of events that begins with a defendant health care provider's negligence and ends in injury to the plaintiff. See Mitchell vs. Satyu No. 05-14-00479-CV 2015 WL 3765771, at 8 (Tex. App-Dallas June 17/2015, no pet) (mem op). However “lajn expert's mere conclusion that in medical probability one event caused another differs little, without an explanation tying the conclusion to the facts, from an ipse dixit, which the supreme court has consistently criticized Id at 4; see also Jelinek, 328 SW 3d at 539.” 34. In yet another judgment as it was rendered by the Hon’ble Apex Court as reported in Maharaja Agrasen Hospital and Others vs. Master Rishabh Sharma and Others, (2020) 6 SCC 501 the Hon’ble Apex Court in its Para 12 has dealt with as to what would be the parameters to determine a negligence on part of the medical practitioners in order to make them liable for criminal prosecution and the following parameters has been laid down by the Hon’ble Apex Court in Para 12.4.3 and 12.4.4, which are extracted hereunder: “12.4.3. Medical negligence is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient. 12.4.4. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient. 12.4.4. The degree of skill and care required by a medical practitioner stated in Halsbury's Laws of England is as follows: “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.” 35. Degree of skill and care required - To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care...” 35. For the aforesaid reason too, the applicant cannot be said to be at all responsible for an intentional medical negligence requiring a criminal prosecution apart from civil liability if at all it is established by the experts report. 36. Hence, this Court is of the view, that until and unless a negligence on part of the medical practitioner is established by experts, the report of the Police Investigating Officer cannot be exclusively utilized for the purposes of drawing the criminal proceedings against the doctor or any other such professional. 37. Consequently, this Court is of the view, that in the absence of there being any material being placed on record that the negligence allegedly attributed to the present applicant was intentional to cause harm, it cannot be a negligence by the medical practitioner in the absence of there being adherence of the principles laid down by the Medical Council of India. 38. 38. Hence, the C482 Application is allowed, and as a consequence thereto, the Criminal Case No. 955 of 2019, State vs. Poonam Garkoti and Another, pending consideration before the Court of Chief Judicial Magistrate, Almora, District Almora, would hereby stand dropped.