ORDER : K. Surender, J. This Criminal Petition is filed under section 482 of Cr.P.C by the petitioner/accused seeking to quash the proceedings against her in CC.No.6148 of 2019 on the file of VI Addl.Metropolitan Magistrate-cum-VI Additional Junior Civil Judge, Cyberabad, at L.B.Nagar, for the offence under Section 304-A of Indian Penal Code. 2. Briefly, the facts of the case are that the petitioner, Dr. Swapna Kumari, is a gynaecologist at Swapna Hospital, Chaitanyapuri, which she operates. The 2 nd respondent lodged a complaint with Chaitanyapuri PS, alleging that his marriage with Divya was solemnized on 11.11.2018. His wife, Divya, became pregnant and regularly visited Swapna Hospital for check-ups under the petitioner's care. On 20.2.2019, Divya was admitted to the hospital for an abortion on the advice of the petitioner and remained there until 22.2.2019. After receiving antibiotics, she was discharged. Due to excessive bleeding, Divya suffered a miscarriage, resulting in the foetus expelling itself. She was subsequently readmitted to the hospital to remove the remaining foetal tissue. The hospital authorities informed the 2 nd respondent that Divya’s blood level was only 7.8%. At 7:00 am, the petitioner took her to the operation theatre, and by 2:00 pm, the 2nd respondent was informed that Divya had lost consciousness and was advised to shift her to Omni Hospital. Upon Divya’s arrival at Omni Hospital, doctors declared that she was brought dead. When the 2 nd respondent returned to Swapna Hospital, the petitioner refused to communicate with him, leading to the filing of the present complaint. 3. Upon receiving the complaint, LW.18 registered Crime No. 99/2019 under Section 304-A of IPC. During the investigation, LW.19 collected the case sheet and other relevant documents from Swapna Hospital and forwarded them to LW.17, posing two specific queries: i. Whether a doctor can proceed with D&C (Dilation and Curettage) treatment on a two-and-a-half-month pregnant woman with haemoglobin levels at 7.8% and a prior history of cardiac disease. ii. Whether there was any negligence on the doctor’s part in treating Divya. 4. LW.17, Dr. K.V.Swarya, DM&HO, RR District, opined that there was clear negligence on the part of Dr. Swapna in treating Divya without adequate expert support and care, leading to her death, particularly given her history of cardiac disease. ii. Whether there was any negligence on the doctor’s part in treating Divya. 4. LW.17, Dr. K.V.Swarya, DM&HO, RR District, opined that there was clear negligence on the part of Dr. Swapna in treating Divya without adequate expert support and care, leading to her death, particularly given her history of cardiac disease. Additionally, LW.16 issued the PME Report and final opinion, wherein he opined that the cause of death was due to ‘gross pulmonary edema in a case of pulmonary artery hypertension consequent to congenital heart disease.’ 5. Learned Counsel for the petitioner/accused submits that the police committed an error in registering the FIR and filing the charge sheet without first obtaining a proper medical opinion from either a Committee of Doctors or an Expert Doctor specializing in the relevant field. The opinion of LW.17 cannot be considered an expert opinion, as she is neither a gynaecologist nor a cardiologist, and thus lacks the requisite expertise to determine negligence on the petitioner's part. The PME report does not indicate any negligence or suspicious circumstances warranting the registration of an FIR. It was further argued that the police failed to adhere to the legal principles established in the Jacob Mathew vs. State of Punjab and Ors , [(2005) 6 Supreme Court Cases 1] and Martin F. D'Souza vs. Mohd. Ishfaq , [ (2009) 3 SCC 1 ] 6. Counsel further argued that G.O.Ms.No. 465, dated 16.10.1998, was issued by the Health, Medical, and Family Welfare Department, directing police and revenue authorities to refrain from harassing medical officers without conducting a proper departmental enquiry. The order mandated the formation of a committee in each district, comprising the District Coordinator for Hospital Services as Chairman, a representative from the District Medical & Health Office as a member, and a general physician or surgeon nominated by the District Collector from a panel of available surgeons and physicians. Additionally, the order stipulated that all cases of professional negligence attributed to doctors must be referred to this committee by the District Collectors, and the committee, after conducting an inquiry, would submit a report for further necessary action. However, there is no such report by any committee. 7. Learned Counsel relied on the Judgment of the Honourable Supreme Court, in Martin F. D'Souza’s case (supra), wherein it was held that: “112. However, there is no such report by any committee. 7. Learned Counsel relied on the Judgment of the Honourable Supreme Court, in Martin F. D'Souza’s case (supra), wherein it was held that: “112. While this Court has no sympathy for doctors who are negligent, it must also be said that frivolous complaints against doctors have increased by leaps and bounds in our country particularly after the medical profession was placed within the purview of the Consumer Protection Act. To give an example, earlier when a patient who had a symptom of having a heart attack would come to a doctor, the doctor would immediately inject him with Morphia or Pethidine injection before sending him to the Cardiac Care Unit (CCU) because in cases of heart attack time is the essence of the matter. However, in some cases the patient died before he reached the hospital. After the medical profession was brought under the Consumer Protection Act vide Indian Medical Association v. V.P. Shantha MANU/SC/0836/1995 : AIR1996SC550 doctors who administer the Morphia or Pethidine injection are often blamed and cases of medical negligence are filed against them. The result is that many doctors have stopped giving (even as family physicians) Morphia or Pethidine injection even in emergencies despite the fact that from the symptoms the doctor honestly thought that the patient was having a heart attack. This was out of fear that if the patient died the doctor would have to face legal proceedings. 114. Hence Courts/Consumer Fora should keep the above factors in mind when deciding cases related to medical negligence,and not take a view which would be in fact a disservice to the public. The decision of this Court in Indian Medical Association v. V.P. Shantha (Supra) should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. In fact in the aforesaid decision it has been observed (vide para 22) : In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control.... 115. In fact in the aforesaid decision it has been observed (vide para 22) : In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control.... 115. It may be mentioned that the All India Institute of Sciences has been doing outstanding research in Stem Cell Therapy for the last eight years or so for treating patients suffering from paralysis, terminal cardiac condition, parkinsonism, etc, though not yet with very notable success. This does not mean that the work of Stem Cell Therapy should stop, otherwise science cannot progress. 116. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action.” 8. The counsel appearing for the respondent/complainant would submit that a competent doctor has given opinion that there was negligence. It is for the trial Court to decide the issue and at this initial stage, the proceedings cannot be quashed. In view of the Supreme Court’s direction in the aforementioned case, along with G.O.Ms. No. 465, dated 16.10.1998, it is evident that in matters of professional negligence, before issuing a notice to the doctor or hospital against whom the complaint has been made, the Consumer Forum or Criminal Court must first refer the matter to a competent doctor or a committee of doctors specialized in the relevant field of medical negligence. No. 465, dated 16.10.1998, it is evident that in matters of professional negligence, before issuing a notice to the doctor or hospital against whom the complaint has been made, the Consumer Forum or Criminal Court must first refer the matter to a competent doctor or a committee of doctors specialized in the relevant field of medical negligence. Only after receiving a report from such a doctor or committee confirming a prima facie case of medical negligence should a notice be issued to the concerned doctor or hospital. Furthermore, as per the G.O.Ms., all cases of professional negligence attributed to doctors must be referred to the committee by the District Collectors, and the committee shall then conduct an inquiry and submit a report for further necessary action. 9. Therefore, in the present case, obtaining the committee’s opinion is a mandatory prerequisite before proceeding with any action against a medical practitioner for medical negligence. 10. In the present case, an opinion was issued by LW.17, and based on LW.17’s opinion, LW19, the Sub-Inspector of Police, filed a charge sheet against the petitioner. 11. LW.19 sent a letter to the District Medical and Health Officer (DM&HO), requesting an opinion regarding the medical treatment provided by the petitioner to the patient, Divya. Furthermore, as per R.C. No. 1266/DEMO/DMHO/RR/2019, issued by the office of the District Medical and Health Officer, a direction was given for the appointment of Dr. B. Lalitha, Civil Assistant Surgeon, as the Joint Enquiry Officer to conduct an inquiry into the alleged negligence. 12. However, there is no evidence indicating that a three- member committee was constituted, and no committee report or expert medical opinion establishing a prima facie case of medical negligence was submitted before issuing notice to the petitioner and subsequently filing the charge sheet, as mandated by G.O.Ms. No. 465. 13. The opinion in this case was issued solely by LW.17, who is the DM&HO, Ranga Reddy District. However, it has not been specified in which field LW.17 is an expert. Although Dr. B. Lalitha, Civil Assistant Surgeon, was appointed to assist the DM&HO in conducting the inquiry, it has not been established that she possesses training in obstetrics and gynecology (OB-GYN) to be considered an expert qualified to render an opinion in this case. Furthermore, appointing only one surgeon to investigate the allegation of medical negligence against the petitioner is contrary to the procedure prescribed under G.O.Ms. Furthermore, appointing only one surgeon to investigate the allegation of medical negligence against the petitioner is contrary to the procedure prescribed under G.O.Ms. No. 465, which explicitly requires the opinion of a three-member committee before any further action can be taken. 14. Additionally, the Supreme Court, in Martin F. D’Souza’s case , issued a caution to police officials, stating that doctors should not be arrested or harassed unless the facts of the case clearly fall within the parameters laid down in Jacob Mathew. Failing to adhere to this directive would make the police officers themselves liable to face legal action. 15. The finding of the Supreme Court in Jacob Mathew’s case is as follows: “49. 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. 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. 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's case [1957] 1 W.L.R. 582 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. (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'. (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.” 16. In the present case, there is no dispute that the petitioner did not possess the requisite skill which she professed to have possessed. The question that needs to be determined is whether the petitioner did not exercise, with reasonable competence in the given case, the skill which she did possess. 17. Considering the evidence filed, namely the record of Swapna Hospital, it is evident that the petitioner obtained the patient’s signature on the consent form for surgery and informed her of the high-risk content. 17. Considering the evidence filed, namely the record of Swapna Hospital, it is evident that the petitioner obtained the patient’s signature on the consent form for surgery and informed her of the high-risk content. The informed high-risk consent form specifically mentions the risks associated with the surgery for incomplete abortion performed on the patient, Divya, and also acknowledges unexpected risks and unforeseen conditions that may arise during the procedure, to which the patient consented and signed. 18. The case of the 2 nd respondent is that, prior to the surgery, he was informed that his wife’s haemoglobin level was critically low at 7.8%. Despite being aware of the risks associated with the surgery, the petitioner proceeded with the procedure based on the consent given by the patient. Hence, it is evident that the petitioner exercised reasonable competence in the given circumstances. 19. Furthermore, the final opinion issued by LW.16, which states “gross pulmonary edema in a case of pulmonary artery hypertension consequent to congenital heart disease,” does not conclusively establish negligence on the part of the petitioner. 20. The opinion issued by LW.17, is as follows: “it is no usual practice to do D&C to the patient whose haemoglobin level is 7.8%, the D&C would have been done after blood transfusion under the supervision of General Physician or a Cardiologist and in this case no such procedure was done, patient was transferred to another hospital in gasping stage which led to death in transit during transport.” 21. The Honourable Supreme Court, in Jacob Mathews case (supra), stated that: “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.” 22. According to LW.17, it is not a usual practice that D&C is given to the patient whose haemoglobin level is 7.8%, however, in light of Honourable Supreme Court’s observation, petitioner not adopting the usual practice cannot be said to her being negligent. According to LW.17, it is not a usual practice that D&C is given to the patient whose haemoglobin level is 7.8%, however, in light of Honourable Supreme Court’s observation, petitioner not adopting the usual practice cannot be said to her being negligent. Further, the Honourable Supreme Court also observed that: “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”. 23. From the evidence on record, it shows that a record was made that at 10:40 a.m, patient was in a gasping stage, and CPR was started, further that HR dropped to 38/m. Further, doctor’s progress report shows that when CPR was continued, HR improved to 100/m, however, patient was still unconscious. 24. It is also scribed on the report that: “patient’s attendants are willing to shift to higher centre for further management and hence patient is shifted to higher centre.” Hence, it is apparent that petitioner had tried to do her best in the circumstances. 25 In Shiv Prasad Semwal v. State of Uttarakhand, , [ (2024) 7 SCC 555 ] the Honourable Supreme Court held as follows: “33. In State of Haryana v. Bhajan Lal , 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , this Court examined the principles governing the scope of exercise of powers by the High Court in a petition under Article 226 of the Constitution of India and under Section 482CrPC seeking quashing of criminal proceedings and held as follows : (SCC pp. 378-79, para 102) “102. 378-79, para 102) “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 34. Tested on the touchstone of the above principles, we are of the firm view that allowing continuance of the proceedings pursuant to the impugned FIR bearing No. 31 of 2020 registered at PS Muni Ki Reti, District Tehri Garhwal against the appellant is nothing but gross abuse of process of law because the allegations as set out in the FIR do not disclose necessary ingredients of any cognizable offence. Hence, the impugned FIR and all proceedings sought to be taken against the appellant are hereby quashed and set aside.” 26. On facts of the given case, where the allegations made in the FIR of the complaint do not disclose commission of any offence made against the accused, the proceedings can be quashed. 27. The Honourable Supreme Court in Jacob Mathew’s case held that negligence cannot be inferred only for the reason of there being a better alternative course of method of treatment, or that there was a better doctor who was more skilled than the doctor against whom the allegation is made. Such grounds cannot form basis to prosecute the doctor for negligence. As discussed above, the petitioner was a competent doctor who was running a hospital and had given treatment to the best of her ability. The Police have not followed the procedure prescribed by the Government in such conditions to take the opinion of a committee. 28. For the aforesaid reasons, the criminal petition deserves to be allowed, and is accordingly allowed.