ORDER : Sanjay Prasad, J. This Criminal Revision Petition has been filed on behalf of the petitioner challenging the order dated 22.4.2019 passed by Shri Pawan Kumar, learned Judicial Magistrate, Ist Class, Giridih in connection with Giridih Town P.S. Case No.286 of 2009, corresponding to G.R.No. 2208 of 2009, T.R. No. 1097 of 2019, by which the petition filed on behalf of the petitioner under Section 258 of the Cr.P.C. has been rejected. 2. The prosecution case, in brief, is that the informant-Shashi Jaiswal, w/o of Late Kamleshwari Prasad had given Fardbayan before the Officer-in-Charge on 15.10.2009 stating before him that her husband was suffering from abscess in the thumb of his right leg and for which on 07.10.2009 he came for treatment at the Private Clinic of Dr. Shashi Bhushan Choudhary, i.e. the petitioner and the doctor had operated her husband and on the instruction of the doctor she brought her husband to their house. She used to come for dressing to the doctor on alternate days. However, on 15.10.2009, while she came to the clinic of the doctor along with her husband at around 11 a.m. in the morning, then Dr. Choudhary had taken her husband to the ‘Operation Theatre’ for operating him and after half an hour her husband was brought outside in an unconscious condition. It is alleged that despite being forbidden by her husband the doctor had administered him injection for unconsciousness in higher quantity and due to which her husband never regained his consciousness and after half an hour he died. When she enquired from the Doctor about the death of her husband then no satisfactory explanation was given and the doctor fled away by taking the prescription of the medicine of her husband after closing the clinic. It is alleged that due to negligence of the doctor the husband of the informant has died. 3. Heard Mr. Jitendra Shankar Singh, learned counsel for the petitioner and Mr. Pankaj Kumar, learned Public Prosecutor for the State. 4. It is submitted by the learned counsel for the petitioner that the impugned order dated 22.04.2019, passed by the Judicial Magistrate, Ist Class, Giridih is illegal, arbitrary and not sustainable in the eye of law. It is submitted that there is no eye witness to the occurrence. Pankaj Kumar, learned Public Prosecutor for the State. 4. It is submitted by the learned counsel for the petitioner that the impugned order dated 22.04.2019, passed by the Judicial Magistrate, Ist Class, Giridih is illegal, arbitrary and not sustainable in the eye of law. It is submitted that there is no eye witness to the occurrence. It is submitted that there is no negligence on the part of the petitioner while treating the husband of the informant and to fasten liability in criminal law, the degree of negligence has to be higher. It is submitted that there is no mens rea on the part of the petitioner for causing the death of the deceased. It is submitted that the petitioner being a doctor will not commit any act or omission which may result into loss or injury to his patient as his professional reputation is at stake. It is submitted that petitioner has been implicated in this case on mere suspicion by the informant. It is submitted that the deceased was about 58 years of age and the death took place due to heart failure. It is submitted that the police has failed to locate anything about anesthesia. It is submitted that the patient was suffering from diabetes and at best it was an accidental death, but not due to the fault of the petitioner. Learned counsel for the petitioner, in support of his submission, has relied upon the judgment passed in the case of Jacob Mathew v. State of Punjab, reported in (2005) 6 SCC 1 . It is submitted that the Paragraph 14 of the Case Diary reveals that there was no mistake on the part of the petitioner as the patient was suffering from diabetes and hence, the impugned order may be set aside and this Criminal Revision may be allowed. 5. On the other hand, learned Public Prosecutor appearing for the State has submitted that this Criminal Revision Application is devoid of merit. It is submitted that no illegality has been committed by the learned Court below while passing the impugned order. It is submitted that although the petitioner is a doctor but he is negligent and due to his sheer negligence the husband of the informant has died. It is submitted that no illegality has been committed by the learned Court below while passing the impugned order. It is submitted that although the petitioner is a doctor but he is negligent and due to his sheer negligence the husband of the informant has died. It is submitted that despite knowing the fact that the husband of the Informant was suffering from diabetes, the petitioner had administered him injection for making the patient unconscious for the purpose of ‘Operation’ although the doctor was forbidden by the informant and her husband regarding administration of injection for making him unconscious. It is submitted that the petitioner had wrongly given anesthesia to the deceased as a result of which he died. It is submitted that admittedly the petitioner had operated the deceased husband of the informant on 07.10.2009 and thereafter he was again taken for operation on 15.10.2009 and in which the deceased had died. It is submitted that witness Jageshwar Verma, whose statement was recorded in Para 15 of the Case Diary, has supported the prosecution case regarding the death of the husband of the informant and he has also supported the fact that the husband of the informant was suffering from diabetes and hence, there is no proper explanation that a patient will die of heart attack at the time of his dressing. Thus, there is no illegality committed by the learned Court below while passing the impugned order and hence this revision may be dismissed. 6. Perused the F.I.R., the impugned order and the Lower Court Records of this case and considered the submission of both the sides. 7. It appears from the F.I.R. that the husband of the informant was firstly operated on 07.10.2009 in the thumb of his right leg and his dressing was being done on every alternate day till 15.10.2009. However, on 15.10.2009, while the husband of the petitioner was taken for dressing or for the purpose of operation, then the deceased died due alleged administration of Anesthesia by this petitioner, who is the doctor. 8. However, on 15.10.2009, while the husband of the petitioner was taken for dressing or for the purpose of operation, then the deceased died due alleged administration of Anesthesia by this petitioner, who is the doctor. 8. It would appear that the informant, during her subsequent statement recorded at Para 5 and the witnesses namely, Sujata Jaiswal, Nikhil Kumar and Satendra Kumar, Rajiv Jaiswal, Jageshwar Verma, whose statements have been recorded in Paragraph 6, 7, 8, 9 and 15 of the Case Diary respectively, have stated about the death of the deceased husband of the informant while he was taken to the private clinic of the doctor i.e. the petitioner for the purpose of dressing. 9. It appears that the police, after investigation, had submitted chargesheet under Section 304 A of I.P.C. against the petitioner. 10. From perusal of post mortem report, it would appear that cause of death has been mentioned as Heart attack Secondary to acute M.I. (Cardiac Arrest). 11. It would appear from the F.I.R. that the petitioner is a doctor and a qualified professional. Normally, a doctor is not criminally responsible for the death of his patient unless his negligence or incompetence went beyond the maximum or at the extreme. The Hon’ble Supreme Court has held in several judgments that in order 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. 12. It has been held by the Hon’ble Supreme Court in the case of Jacob Mathew v. State of Punjab, reported in (2005) 6 SCC 1 , at Paragraph No.s 5, 6, 7, 26, 28, 48, 49, 50, 51 as follows:- Para 5:-The matter came up for hearing before a Bench of two learned Judges of this Court. Reliance was placed by the appellant on a recent two-Judge Bench decision of this Court in Suresh Gupta (Dr.) v. Govt. of NCT of Delhi [ (2004) 6 SCC 422 : 2004 SCC (Cri) 1785] . The Bench hearing this appeal doubted the correctness of the view taken in Dr. Reliance was placed by the appellant on a recent two-Judge Bench decision of this Court in Suresh Gupta (Dr.) v. Govt. of NCT of Delhi [ (2004) 6 SCC 422 : 2004 SCC (Cri) 1785] . The Bench hearing this appeal doubted the correctness of the view taken in Dr. Suresh Gupta case [ (2004) 6 SCC 422 : 2004 SCC (Cri) 1785] and vide order dated 9-9-2004 expressed the opinion that the matter called for consideration by a Bench of three Judges. This is how the case has come up for hearing before this Bench. Para 6:-In Dr. Suresh Gupta case [ (2004) 6 SCC 422 : 2004 SCC (Cri) 1785] the patient, a young man with no history of any heart ailment, was subjected to an operation performed by Dr. Suresh Gupta for nasal deformity. The operation was neither complicated nor serious. The patient died. On investigation, the cause of death was found to be “not introducing a cuffed endo'tracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage”. The Bench formed an opinion that this act attributed to the doctor, even if accepted to be true, could be described as an act of negligence as there was lack of due care and precaution. But, the Court categorically held: (SCC p. 430, para 24) “For this act of negligence he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.” (emphasis in original) Para 7:-The referring Bench in its order dated 9-9-2004 has assigned two reasons for their disagreement with the view taken in Dr. Suresh Gupta case [ (2004) 6 SCC 422 : 2004 SCC (Cri) 1785] which are as under: (1) Negligence or recklessness being “gross” is not a requirement of Section 304-A IPC and if the view taken in Dr. Suresh Gupta case [ (2004) 6 SCC 422 : 2004 SCC (Cri) 1785] is to be followed then the word “gross” shall have to be read into Section 304-A IPC for fixing criminal liability on a doctor. Such an approach cannot be countenanced. (2) Different standards cannot be applied to doctors and others. In all cases it has to be seen whether the impugned act was rash or negligent. Such an approach cannot be countenanced. (2) Different standards cannot be applied to doctors and others. In all cases it has to be seen whether the impugned act was rash or negligent. By carrying out a separate treatment for doctors by introducing degrees of rashness or negligence, violence would be done to the plain and unambiguous language of Section 304-A. If by adducing evidence it is proved that there was no rashness or negligence involved, the trial court dealing with the matter shall decide appropriately. But a doctor cannot be placed at a different pedestal for finding out whether rashness or negligence was involved. Para 26:-No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter-productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. Para 28:-A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. 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. Para 48:-We sum up our conclusions as under: (1) ……………………………………………….. ……………………………………………….. (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. 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. …………………………………………………………………… ………………………………………………………………… (3)………………………………………………………………… ………………………………………………………………… …………………………………………………………………... (4)………………………………………………………………… …………………………………………………………………… (5) ………………………………………………………………. …………………………………………………………………... (6)………………………………………………………………… …………………………………………………………………… (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) ………………………………………………………………… ………….……………………………………………………….... Para 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] . 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. 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). Para 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. Para 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. Para 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. 13. The above judgment has been followed in the case of Harish Kumar Khurana v. Joginder Singh, reported in (2021) 10 SCC 291 , Paragraph 12 and 13 of which are as follows:- Para 12:-Insofar as the enunciation of the legal position on this aspect is concerned, the learned counsel for the appellant had relied on the decision of the Hon'ble Supreme Court in Jacob Mathew v. State of Punjab [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] wherein it has been held that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. The accident during the course of medical or surgical treatment has a wider meaning. Ordinarily an accident means an unintended and unforeseen injurious occurrence, something that does not occur in the usual course of events or that could not be reasonably anticipated. Para 13:-The learned counsel has also referred to the decision in [Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 : (2009) 1 SCC (Civ) 735 : (2009) 1 SCC (Cri) 958] wherein it is stated that simply because the patient has not favourably responded to a treatment given by doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitor. It is further observed therein that sometimes despite best efforts, the treatment of a doctor fails and the same does not mean that the doctor or the surgeon must be held guilty of medical negligence unless there is some strong evidence to suggest that the doctor is negligent. 14. Thus, it would appear that the petitioner had tried to give treatment to the deceased husband of the informant but he could not succeed as a result of which the husband of the Informant had died. 15. In view of the law laid down by the Supreme Court and on the facts and in the circumstances of the case, the impugned order dated 22.4.2019, passed by Shri Pawan Kumar, learned Judicial Magistrate, Ist Class, Giridih in connection with Giridih Town P.S. Case No.286 of 2009, corresponding to G.R.No. 2208 of 2009, T.R. No. 1097 of 2019, is set aside and the matter is remitted back to the Court of Shri Pawan Kumar, learned Judicial Magistrate, Ist Class, Giridih or his Successor Court and the learned Court below is directed to pass an order on the petition filed on behalf of the petitioner afresh in view of the judgment passed in the case of Jacob Mathew v. State of Punjab, reported in (2005) 6 SCC 1 and Harish Kumar Khurana v. Joginder Singh, reported in (2021) 10 SCC 291 within Six (06) weeks from the date of receipt/production of a copy of this order. 16. Thus, this Criminal Revision Application is allowed and the matter is remitted back to the learned Court below with the observations mentioned above.