ORDER : G. S. Ahluwalia, J. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:- 2. It is submitted by petitioner himself that brother of petitioner is a handicapped person and as B.P. Stent which was installed inside the body of brother of petitioner had stopped working, therefore, he took his brother to Kamla Raja Government Hospital, Gwalior. Accordingly, he was admitted on 27.12.2023. Since condition of his brother was deteriorating, therefore, he was referred to Neuro Surgery Department. Dr. Anand Sharma who was posted in Neuro Surgery Department suggested the petitioner to admit his brother in a private hospital. Since financial condition of petitioner is not good, therefore, he did not admit his brother in a private hospital. However, Dr. Aditya Shrivastava and Dr. Avinash Sharma refused to admit his brother in the Neuro Surgery Department and also suggested that petitioner should take his brother to a private hospital. Accordingly, under compulsion, petitioner got his brother admitted in Jay Arogya Hospital, Gwalior in general surgery department. It is alleged that during the admission of his brother in Neury Surgery Department, the condition of his brother deteriorated. Petitioner took his brother to OPD on 08.01.2024, but Dr. Ashish Shrivastava did not come to OPD. Because of negligent attitude of the doctors of a government hospital, petitioner took his brother to government AIIMS Hospital, New Delhi and as the petitioner had not taken any appointment, therefore, his brother could not be treated at AIIMS hospital. Thereafter, petitioner took his brother to Civil Hospital, Gujarat where his brother remained admitted for a period of one month and he was operated thrice. Thus, it is submitted that on account of negligent act of doctors of Jay Arogya Hospital, Gwalior life of brother of petitioner had come in danger. Thus, it is prayed that legal action should be taken against them. During course of arguments, it was contended by petitioner that FIR should be registered against the doctors who are negligent in performance of their dutues. 3. Considered the submissions made by petitioner. 4. Before considering the facts of the case, this Court would like to consider the law governing the field of registration of criminal offence against doctors. 5. The Supreme Court in the case of Jacob Mathew Vs. State of Punjab reported in (2005) 6 SCC 1 has held as under:- “48. 3. Considered the submissions made by petitioner. 4. Before considering the facts of the case, this Court would like to consider the law governing the field of registration of criminal offence against doctors. 5. The Supreme Court in the case of Jacob Mathew Vs. State of Punjab reported in (2005) 6 SCC 1 has 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 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. 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 v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, at p.586 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. 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 304A of 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 304A of the IPC has to be read as qualified by the word 'grossly'. The expression 'rash or negligent act' as occurring in Section 304A of the 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. Resipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. 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. 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 [1957] 1 W.L.R. 582, 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). 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.” 6. The Supreme Court in the case of S.K. Jhunjhunwala v. Dhanwanti Kaur and another reported in (2019) 2 SCC 282 (judgment dated 1/10/2018 passed in C.A. No.3971/2011) has held as under:- 21. So far as this Court is concerned, a three-Judge Bench in Jacob Mathew v. State of Punjab [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] examined this issue. R.C. Lahoti, C.J. (as he then was) speaking for the Bench extensively referred to the law laid down in Bolam case [Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] and in Eckersley case [Eckersley v. Binnie, (1988) 18 Con LR 1 (CA)] and placing reliance on these two decisions observed in his distinctive style of writing that the classical statement of law in Bolam case [Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] has been widely accepted as decisive of the standard of care required by both of professional men generally and medical practitioner in particular and it is invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence. 22. It was held in Jacob Mathew case [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] that a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what the entire person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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 not possess. 23. It was further observed in Jacob Mathew case [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] that the fact that a defendant charged with negligence who acted in accord with the general and approved practice is enough to clear him of the charge. It was held that the standard of care, when 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. It was held that the standard to be applied for judging whether the person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. His Lordship quoted with approval the subtle observations of Lord Denning made in Hucks v. Cole [Hucks v.Cole, (1968) 118 New LJ 469] , namely, “a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field”. (emphasis supplied) 24. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field”. (emphasis supplied) 24. In our view, the facts of the case at hand have to be examined in the light of the aforesaid principle of law with a view to find out as to whether the appellant, a doctor by profession and who treated Respondent 1 and performed surgery on her could be held negligent in performing the general surgery of her gall bladder on 8- 8-1996. 7 . Thus, it is clear that unless and until, an opinion is given by committee of an expert with regard to negligence of doctors, police cannot register an offence against the doctors only on the allegation of negligence in performance of their duty. Since petitioner has not approached the expert body, therefore, no direction can be given to the police to register the FIR merely on the opinion formed by petitioner. 8. Accordingly, the petition fails and is hereby dismissed.