Order : ANAND SHARMA, J. 1. Both these petitions have been filed by the petitioners challenging the FIR No.846/2018 registered at Police Station- Shipra Path, District-Jaipur City (South) for offences under Sections 304 & 120B of IPC . 2. At the outset, learned counsels appearing for the petitioners submit that there is an inadvertent typographical error in the prayer clause of both these petitions, where FIR number has wrongly been shown as 848/2018 instead of 846/2018 and date of FIR has also been wrongly mentioned as 02.11.2018 instead of 10.11.2018. On oral request made by learned counsels for the petitioners, they have been permitted to carry out necessary rectification in the prayer with red pen after putting their signatures over the corrections. 3. Learned counsels appearing for the petitioners would submit that bare perusal of the contents of FIR makes it clear that there is no whisper with regard to ingredients of Section 304 of IPC in the entire FIR and at the best, it can be treated to be allegations for committing offences under A of for causing death on account of medical negligence. It is submitted that the sole allegation levelled in the FIR is that the doctors as well as hospital did not properly take care of the patient and on account of negligence of the doctors as the condition of the patient became pathetic and ultimately, the patient died on 05.11.2018. 4. It is further submitted by the learned counsels for the petitioners that treatment of a patient was conducted by the petitioners on the basis of guidelines and line of treatment prescribed in the authentic books; as well as on the basis of knowledge and experience acquired by the doctors. As such, without there being any opinion of expert reflecting any medical negligence whatsoever, the medical experts/hospitals cannot be prosecuted only on the basis of assumptions and allegations levelled by a layman. It has been specified in the petition that whatever best treatment has been prescribed in the authentic guidelines for treating a patient suffering from 'dengue shock syndrome', all the necessary steps were taken, which also reveals from the bed ticket and other record of the patient. It has been specified in the petition that whatever best treatment has been prescribed in the authentic guidelines for treating a patient suffering from 'dengue shock syndrome', all the necessary steps were taken, which also reveals from the bed ticket and other record of the patient. As the patient was suffering from critical illness and was having quite severe infection, therefore, after carrying out the necessary tests, it was found that the patient, who was initially admitted in Saket Hospital, Mansarovar, his condition became pathetic and thereupon, he was admitted in Fortis Escorts Hospital Emegency on 04.11.2018, where after assessing the physical condition of the patient necessary treatment was given to him. 5. It is also submitted by the learned counsels for the petitioners that as there was an increasing tendency to lodge criminal cases against the medical experts, which used to cause a hurdle in the functioning of hospitals as well as the same would demean the reputation of medical experts, the Hon’ble Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Anr. reported in 2005 (6) SCC 1 laid down certain guidelines for prosecuting the medical practitioners and it has been held that only after referring the matter to a Medical Board duly constituted and after receiving the report from the Medical Board, in case, medical negligence is found by the expert board, medical practitioners can be permitted to be prosecuted. However, in the instant case, without even referring the matter to the Medical Board and without waiting for report of Medical Board, the police has committed serious error in registering FIR against the petitioners. 6. It is further submitted by the learned counsels for the petitioners that during investigation, a complaint along with entire record of medial treatment of the patient was sent to the Medical Board and after meticulously analyzing and examining the record of treatment, Medical Board comprising of four medical experts has given following observations: "1. The child was admitted in Saket Hospital and later in Fortis Hospital with the diagnosis of dengue fever as the lgM and lgG by elisa were negetive and dengue NS-1 antigen was positive and clinical signs and symptoms were suggestive of dengue, the child died due to dengue shock syndrome, with refrectory shock and multiple organ dysfunction syndrome. 2. The child was admitted in Saket Hospital and later in Fortis Hospital with the diagnosis of dengue fever as the lgM and lgG by elisa were negetive and dengue NS-1 antigen was positive and clinical signs and symptoms were suggestive of dengue, the child died due to dengue shock syndrome, with refrectory shock and multiple organ dysfunction syndrome. 2. That treatment investigations and procedure adopted in both the hospitals were according to standard protocol and whatever medicines given were apropriate and were according to disease and symptoms." 7. It is also pointed out by the learned counsels for the petitioners that in the light of report given by experts, as treatment, investigation and procedure adopted by both the hospitals and their medical experts were according to the standard protocol and no negligence whatsoever has been held to be committed, in the light of guidelines laid down by the Hon’ble Supreme Court in the case of Jacob Mathew (supra) , the FIR lodged against the petitioners is liable to be quashed and set aside. 8. Learned Public Prosecutor along with learned counsel for the complainant vehemently opposed these present criminal miscellaneous petitions and submitted that a child aged ten years untimely expired, as he was mistreated against the medical norms. Only on account of sheer negligence on the part of petitioners and their hospitals due to there being no proper treatment, patient had expired, which amounts to an offence under Indian Penal Code and looking to the specific contents of FIR, at this stage, no interference can be made while exercising jurisdiction under Section 482 Cr.P.C. 9. It is further submitted by the learned counsel for the complainant that mere report submitted by a Medical Board cannot decide the criminal element of an FIR, moreso when all the issues raised in FIR were not the subject-matter of the Medical Board. 10. Heard learned counsels for both the parties and perused the record. 11. It is an admitted fact between the parties that the dispute has arisen on account of question of propriety and legality of treatment of the deceased by the petitioners, who were treating medical practitioners of two different private hospitals. 10. Heard learned counsels for both the parties and perused the record. 11. It is an admitted fact between the parties that the dispute has arisen on account of question of propriety and legality of treatment of the deceased by the petitioners, who were treating medical practitioners of two different private hospitals. It has not been alleged in the FIR that the act was done by the accused- petitioners either with the intention to cause death or any bodily injury sufficient to cause death, nor is there any allegation about knowledge on the part of the petitioners, which are indispensable for making out any case either in Part I or II of Section 304 of IPC . Bare perusal of the contents of FIR would also reveal that allegations intend to prosecute the petitioners for committing medical negligence which falls under A of . 12. In the similar conditions, the cases of medical negligence and tendency to prosecute the medical practitioners was examined by the Hon’ble Supreme Court in the case of Jacob Mathew (supra) in detail and after relying upon the test laid down in the Bolam case, following observations have been made and guidelines laid down by the Hon’ble Supreme Court are as under: "24. The classical statement of law in Bolam case [(1957) 1 WLR 582: (1957) 2 All ER 118 (QBD)] has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, 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. Two things are pertinent to be noted. Firstly, 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. Secondly, 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 point of time on which it is suggested as should have been used. 25. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. 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. 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. 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. 29. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason — whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society. 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. 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. (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. (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. 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 -A 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. 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." 13. Aforesaid judgment in the case of Jacob Mathew (supra) has further been followed in subsequent cases by different High Courts. This Court has also examined the opinion of the Medical Board dated 28.01.2019, which reveals that the entire case has been discussed in detail by the Board and the measures taken for treatment of the patient have also been discussed including the cause of death; and after examination of the entire record, the Board came to the conclusion that patient was suffering from 'dengue shock syndrome' where NS-1 antigen was positive and the child died due to aforesaid disease with refractory shock and multiple organ dysfunction syndrome. It has been categorically observed by the Medical Board that the line of treatment and procedure adopted by both the hospitals was according to the symptoms and the procedure prescribed for treatment of disease. 14. Thus, in the light of aforesaid facts, where the medical experts have also not come to the conclusion that there was negligence on the part of the petitioner, in the light of guidelines laid down by the Hon’ble Supreme Court in the case of Jacob Mathew (supra), no case under Section 304A of IPC is made out against the petitioners. 15. So far as, Section 120B of IPC is concerned, such offence is not an independent offence and can be established only, if primary offence under Section 304A of is made out. Since, in the light of above observation, no case under Section 304A of is prima facie is made out against the petitioners. 16. 15. So far as, Section 120B of IPC is concerned, such offence is not an independent offence and can be established only, if primary offence under Section 304A of is made out. Since, in the light of above observation, no case under Section 304A of is prima facie is made out against the petitioners. 16. Consequently, permitting the petitioners to undergo trial against the principles laid down in the case of Jacob Mathew (supra) would amount to abuse of process of law, hence, in order to secure ends of justice and to prevent abuse of process of law, this Court deems it just and proper to quash and set aside FIR No.846/2018 registered at Police Station-Shipra Path, District-Jaipur City (South) along with all subsequent proceedings. 17. Accordingly, the present Criminal Miscellaneous Petitions are allowed. 18. Pending application(s), if any, also stands disposed of.