ORDER 1. The legality, correctness and propriety of the order dated 05.07.2016 passed by the learned Additional Sessions Judge No.2, Hanumangarh in Criminal Revision Petition No.72/2015 has been assailed by the petitioner by way of filing the instant Criminal Revision Petition. 2. Bereft of elaborated details, the brief facts giving rise to the instant criminal revision petition which are necessary for disposal of the petition are that the petitioner-Dr. Renu Setia is a Gynecologist, duly approved by the Medical Council of India, who was running a hospital in the name and style of Bombay Hospital at Hanumangarh Junction. On the fateful day i.e. 15.09.2008 at 6:00 A.M. a lady named Pinki W/o Rajesh Kumar was admitted in the Bombay Hospital, Hanumangarh, as she was having labour pain. She was taken to labour room at 5:00 p.m. On the very same day, it was observed that the child had died in her womb. It was alleged that despite repeated request, the petitioner did not turn up to take care of her and as a consequence of which, the patient Pinki, mother of the child also died due to negligent conduct of the petitioner and medical attendant Praveen. After investigation, a charge sheet for accusation of offence under Section 304 IPC came to be submitted against the petitioner and the nurse Praveen. As per the postmortem report, the cause of death of deceased Pinki was opined to be hemorrhagic shock. The visceras were preserved for chemical and histopathological examinations and in the report of expert dated 10.11.2008, it was mentioned that uterus was found intact and no specific pathology was seen. A Medical Board was constituted for the purpose of autopsy to know the cause of death and to verify the allegations of negligence and as per its report dated 14.11.2008, there appears no negligence during the course of delivery. It was specifically mentioned that in intra uterine death cases, cesarean section was not essential and forceps delivery can be performed. The investigating agency sent a questionnaire to the Medical Board and in response to which the Board gave a reply, as per which, there was no negligence or omission on the part of the accused-petitioner. Admittedly, in this case, instead of cesarean section, the forceps delivery method was adopted by the doctor. The investigating agency sent a questionnaire to the Medical Board and in response to which the Board gave a reply, as per which, there was no negligence or omission on the part of the accused-petitioner. Admittedly, in this case, instead of cesarean section, the forceps delivery method was adopted by the doctor. Upon submission of charge sheet, the arguments were heard on the point whether there appears reasonable ground to take cognizance of the offence and if yes, then under which offence the matter should be proceeded with. Vide judgment dated 05.03.2011, the Judicial Magistrate, Hanumangarh (hereinafter referred to as 'the learned trial Court') after elaborate discussion of the factual and legal aspects applicable in the matter found no case for proceeding further in the matter for offence under Section 304 IPC or under Section 304-A of the IPC and thus, discharged the petitioner while declining to take cognizance. 3. Aggrieved by the judgment dated 05.03.2011, the complainant filed a Criminal Revision Petition No.72/2015 before the learned Additional Sessions Judge No.2, Hanumangarh (hereinafter referred to as 'the revisional Court'). The revisional Court after hearing the parties vide order dated 05.07.2016 has set aside the order passed by the learned trial Magistrate and remanded the matter back with a specific direction to pass an order afresh as to whether there were sufficient grounds for taking cognizance or not, the said order is under assail before this Court. 4. The office report dated 18.10.2016 revealing that the notices upon non-petitioners Nos.2 & 3 were duly served and received by the party personally, however, it is observed that since the Year 2016, no-one has put in appearance on behalf of them. The matter was listed yesterday too, but no-one on behalf of the respondent Nos.2 & 3 appeared even in two rounds. Today also, no-one has put appearance on their behalf. 5. Learned Public Prosecutor has appeared on behalf of the State. 6. Heard learned counsel for the petitioner and learned Public Prosecutor for the State. Perused the material available on record. 7. The law with regard to the medical negligence is now no more res-integra in view of the judgment passed by Hon'ble the Supreme Court in the matter of Jacob Mathew Vs. State of Punjab & Anr. reported in 2005 Cr.L.J. 360 wherein the identical issue and controversy was decided by Hon'ble the Supreme Court and certain guidelines were laid down. The law with regard to the medical negligence is now no more res-integra in view of the judgment passed by Hon'ble the Supreme Court in the matter of Jacob Mathew Vs. State of Punjab & Anr. reported in 2005 Cr.L.J. 360 wherein the identical issue and controversy was decided by Hon'ble the Supreme Court and certain guidelines were laid down. To adjudicate the complaints against the doctors for alleged medical negligence, Hon'ble the Supreme Court again in the case of Kusum Sharma and Ors. Vs. Batra Hospital & Medical Research Center & Ors., 2010, AIR SCW 1315 has laid down the guidelines and parameters to examine the issue and this Court is guided by the above referred judicial pronouncements. 8. At the outset, this Court is of the firm opinion that no material is available on record from which it can be inferred that the petitioner was having an intent to cause death of the deceased Pinki and the child in her womb nor there is an iota of evidence to show or suggest that the petitioner being a medical practitioner, had knowledge that the act she did in her course of practice was such as likely to cause death of deceased Pinki. Certain degree of knowledge regarding a patient can die any moment is not sufficient enough. The degree of foisting culpability regarding knowledge of death of patient under treatment must be higher in cases pertaining to medical negligence. As propounded by Hon'ble the Supreme Court in the cases referred supra; A medical practitioner faced with an emergency, ordinarily tries his/her best to redeem the patient out of his/her suffering. He or she does not gain anything by acting with negligence or by omitting to do an act and deviation from normal practice is not necessarily a concerete evidence to establish criminal liability based on deviation. It has to be shown by the prosecution that there is a general and usual practice and the accused doctor has not adopted it and that the course which was adopted by the doctor for the treatment of the patient was such as no professional man of ordinary skill would have taken the said course. As propounded by Hon'ble the Apex Court in the case of Jacob Mathew (Supra), wherein it has been held that there are three essential components of negligence (i) duty, (ii) breach and (iii) resulting damage. As propounded by Hon'ble the Apex Court in the case of Jacob Mathew (Supra), wherein it has been held that there are three essential components of negligence (i) duty, (ii) breach and (iii) resulting damage. The Hon'ble Apex Court summed up the conclusion as under:- (1).... (2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. 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. 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. 9. It is imperative upon the complainant to satisfy the Court on the evidence of the all three components. Guidelines for prosecuting a medical professional has been made in the case of Jacob Mathew (Supra), which is reproduced as under:- Guidelines re: prosecuting medical professionals As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of the IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards. 10. In the case at hand, the petitioner had performed forceps delivery instead of cesarean. There is no dispute that forceps delivery is a well known and recognized general method of delivery. The report of the Medial Board suggests that in uterine death cases cesarean section is not essential and forceps delivery can be performed. As observed by Hon'ble the Supreme Court in the cases referred to supra, it was not for the Court to question the expert opinion in absence of any better expert opinion. The report of the Medial Board suggests that in uterine death cases cesarean section is not essential and forceps delivery can be performed. As observed by Hon'ble the Supreme Court in the cases referred to supra, it was not for the Court to question the expert opinion in absence of any better expert opinion. Since there is no basis to hold the same as a perverse opinion, the learned Court of first instance has aptly discussed the legal and factual aspects of the matter in which no illegality, incorrectness or impropriety could be traced. In my opinion, the learned Court of revision was not correct in remanding the matter back. As provided under the Code, the High Court or the Court of Session can exercise the revisional jurisdiction only with a view to examine the legality, correctness and propriety of the impugned judgment, order and sentence etc. 11. It is not the case of the complainant that the accused was not a qualified doctor to treat the patient whom she agreed to treat rather it is alleged that she adopted another method instead of cesarean method. I am of the view that it is for the expert who in emergent circumstances in labour room or operation theater spontaneously and instantaneously as per his/her skill decides what action to be taken or what procedure should be adopted in order to redeem the patient or to save his/her life. Unless total recklessness is shown the medical practitioner should not be allowed to be proseucted. 12. Though, the learned revisional Court has remanded the matter back to the learned Magistrate to decide the matter afresh but nowhere in the entire order dated 05.07.2016, any illegality has been pointed out. In my view, the learned Court of revision has exceeded its jurisdiction in setting aside the well reasoned order of the learned Judicial Magistrate which was passed upon the preposition of law enunciated by Hon'ble the Supreme Court in the celebrated judgment referred supra. Thus, this Court is of the firm opinion that the order passed by the Court of revision dated 05.07.2016 is not in consonance with the spirit of law and justice and, therefore, the same is not sustainable in eye of law and deserves to be quashed and set aside and the order passed by the learned Judicial Magistrate would be liable to be affirmed. 13. 13. Accordingly, the instant criminal revision petition succeeds and the same is hereby allowed. The order dated 05.07.2016 passed by the learned Additional Sessions Judge No.2, Hanumangarh in Criminal Revision No.72/2015 is hereby quashed and set aside and the order dated 05.03.2011 passed by the learned Judicial Magistrate, Ist Class, Hanumangarh in Original Case No.33/2011 is approved and thus affirmed. The petitioner is already discharged vide order dated 05.03.2011 and the same is upheld by this Court. Record of the case be sent back forthwith. 14. Stay petition and all pending applications, if any, stand disposed of.