JUDGMENT : Heard Mr. Nishant Roy, the learned counsel for the petitioners, Mrs. Shweta Singh, the learned counsel for the respondent-State and Mrs. Khalida Haya Rashmi, the learned counsel appearing for the O.P.No.2. 2. At the outset, Mr. Roy, the learned counsel appearing on behalf of the petitioners submits that the petitioner no.1 namely, Dr. R.N.Singh, has left for his heavenly abode and in that view of the matter this petition has become infructuous so far as the petitioner no.1 is concerned. He submits that now this case is confined to the petitioner no.2 namely, Dr. A.K.Verma. 3. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 15.4.2010 in connection with Doranda (Argora) P.S.Case No.05 of 2010 (corresponding to G.R. No.80 of 2010) pending in the court of learned Chief Judicial Magistrate, Ranchi. 4. The F.I.R has been registered alleging therein that husband of informant namely Asgar Ali, Bariyatu, Ranchi showed his neck problem to Dr.R.N.Singh (Petitioner no.1) on 21.6.2008 who got pathological test done and after investigation said that there was growth of mass which would be removed upon operation. On 29.6.2008 she admitted her husband in Balaji Clinic and Research Centre, Argora Housing Colony, Ranchi where operation was conducted on 29.6.2008 and he was discharged on 01.7.2008 but after some days the wound and pain started aggravating upon which he was again shown to Dr.R.N.Singh who prescribed certain medicine and on not being cured again visited to the doctor who asked to go to some other doctor. Because of increasing problems they visited Kolkata where doctors questioned about the person who had conducted operation and asked the slide and block which were tested at the place of Dr.A.K.Verma (petitioner no.2) be brought and they said that after test they would say further about the complication which had been terms as mere growth of mass for which operation has been done. Doctors at Kolkata said that Dr.R.N.Singh had made wrong treatment and conducted operation whereas it was cancer and due to operation the ailment had aggravated. After this the informant took him to Tata Cancer hospital where the doctors after examining told that problem had got aggravated and whosoever had done had done it wrongly and the patient is at advance stage which could not be cured. Accordingly the FIR was registered under section 270 of 34 IPC. After this the informant took him to Tata Cancer hospital where the doctors after examining told that problem had got aggravated and whosoever had done had done it wrongly and the patient is at advance stage which could not be cured. Accordingly the FIR was registered under section 270 of 34 IPC. Hence this petition. 5. Mr. Roy, the learned counsel for the petitioners submits that if the entire allegation is even accepted to be true that is against the petitioner no.1 who has already left for his heavenly abode and so far as the petitioner no.2 namely Dr. A.K.Verma is concerned, there is no allegation as he has only done certain tests in the capacity of pathologist and there is no allegation that the test report was not correctly provided by Dr. A.K.Verma. He further submits that in such cases the case of “Jacob Mathew v. State of Punjab”, reported in (2005) 6 SCC 1 is required to be considered and in absence of any medical expert report the case has been registered and on this ground he submits that the entire criminal proceeding may kindly be quashed. 6. On the other hand, the learned counsel for the O.P.No.2 fairly submits that the allegations are against the petitioner no.1 who has already left for his heavenly abode. She submits that this Court at this stage may not interfere in view of the fact that the cognizance has already been taken. On this ground, she submits that this petition may kindly be dismissed. 7. Mrs. Shweta Singh, the learned counsel appearing for the respondent State submits that charge sheet has been submitted and the learned court has already taken cognizance. 8. In view of the above submission of the learned counsels appearing for the parties, this Court has gone through the materials on record including the contents of the FIR as well as the order taking cognizance. In the contents of the FIR the entire allegation is against the petitioner no.1 who has already left for his heavenly abode and the petitioner no.1 had conducted operation on the body of the deceased. In the contents of the FIR the entire allegation is against the petitioner no.1 who has already left for his heavenly abode and the petitioner no.1 had conducted operation on the body of the deceased. This is a case against the doctor and for proceeding in such type of matters, the direction issued by the Hon’ble Supreme Court in the case of “ Jacob Mathew v. State of Punjab”(supra) is required to be followed by the investigating agency given at paragraph nos.48, 49, 50, 51 and 52 of the said judgment, which are quoted below: “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. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] , WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set out in para 19, p. 19 herein.]] holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. 49. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta case [ (2004) 6 SCC 422 : 2004 SCC (Cri) 1785] and reaffirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta case [ (2004) 6 SCC 422 : 2004 SCC (Cri) 1785] . Suresh Gupta case [ (2004) 6 SCC 422 : 2004 SCC (Cri) 1785] and reaffirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta case [ (2004) 6 SCC 422 : 2004 SCC (Cri) 1785] . We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage [ [Ed.: The following is the said extract from Merry and McCall Smith: Errors, Medicine and the Law, cited with approval in Dr. Suresh Gupta case, (2004) 6 SCC 422 (at pp. 247-48 of the book):“Criminal punishment carries substantial moral overtones. The doctrine of strict liability allows for criminal conviction in the absence of moral blameworthiness only in very limited circumstances. Conviction of any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrongdoing, levels four and five are classification of blame, are normally blameworthy but any conduct falling short of that should not be the subject of criminal liability. Common-law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high — a standard traditionally described as gross negligence.***Blame is a powerful weapon. When used appropriately and according to morally defensible criteria, it has an indispensable role in human affairs. Its inappropriate use, however, distorts tolerant and constructive relations between people. Some of life's misfortunes are accidents for which nobody is morally responsible. Others are wrongs for which responsibility is diffuse. Yet others are instances of culpable conduct, and constitute grounds for compensation and at times, for punishment. Distinguishing between these various categories requires careful, morally sensitive and scientifically informed analysis.”]] from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta case [ (2004) 6 SCC 422 : 2004 SCC (Cri) 1785] (noted vide para 27 of the Report). 50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Suresh Gupta case [ (2004) 6 SCC 422 : 2004 SCC (Cri) 1785] (noted vide para 27 of the Report). 50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards. 51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 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 the Bolam [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” 9. In paragraph no.52 of the aforesaid judgment, it has been held by the Hon’ble Supreme Court that in a case of medical negligence competent medical opinion with regard to negligent act or omission or act of the doctor is necessary and that judgment has been followed in series of judgments by the different High Courts including this Court. Further, so far as petitioner no.2 is concerned, there is no allegation of any negligence in the contents of the FIR. The Court has gone through the order taking cognizance and finds that the order taking cognizance dated 15.4.2010 is also not in accordance with law as the word ‘cognizance’ and the name of the transferring court have been filled up in blank space which suggest that there is non-application of judicial mind. 10. In view of the above reasons and analysis, the entire criminal proceeding in connection with Doranda (Argora) P.S.Case No.05 of 2010 (corresponding to G.R. No.80 of 2010), including the order taking cognizance dated 15.4.2010 pending in the court of learned Chief Judicial Magistrate, Ranchi is quashed. 11. This petition is allowed and disposed of. 12. Pending petition if any also stands disposed of.