The distinction between medical negligence and criminal offences, and the need for obtaining a credible opinion from another doctor in cases of criminal rashness or negligence alleged against a doctor.

ORDER

1. The petitioner is before this Court seeking for the following reliefs:

a) "This Hon'ble Court may be pleased to quash the Complaint dated 11.02.2018 lodged by the second respondent the certified copy of which is produced as Annexure - A to the Criminal Petition.

b) This Hon'ble Court may be pleased to quash the FIR in Crime No.59/2018 registered by K.R.Pet Town Police Station pending before the Additional District and Session Judge, Mandya, the certified copy of which is produced as Annexure B to the Criminal Petition.

c) This Hon'ble Court may be pleased to quash Charge Sheet in Crime No.59/2018 dated 05.01.2019 filed by K.R.Pet Town Police Station as against this Petitioner for offences punishable under Secs. 363, 363A, 370A(1), 326, 365, 367, 370, 465, 468, 376, 34 of IPC, Sec.6, 21 of Protection of Children from Sexual Offences Act, 2012 and Sec. 75 of the Juvenile Justice Act, 2000 the certified copy of which is produced as Annexure D to the Criminal Petition.

d) This Hon'ble Court may be pleased to quash criminal proceedings numbered as Spl.C.No.14/2019 for offences punishable under Secs. 363, 363A, 370A(1), 326, 365, 367, 370, 465, 468, 376, 34 of IPC, Sec.6, 21 of Protection of Children from Sexual Offences Act, 2012 and Sec. 75 of the Juvenile Justice Act, 2000 pending before the I Additional District and Session Judge, Mandya, as against the petitioner herein.

e) This Hon'ble Court may be pleased to restrain the 3rd respondent CID from proceeding with the further investigating of the case as against this Petitioner in Crime No.59/2018, in the interest of justice and equity."

2. A complaint had been filed on 11.02.2018 by the second respondent, the grand mother of one Chandan Kumar stating that the petitioner along with several others, had conducted a forcible sex change operation on Chandan Kumar, changing his sex from male to female by kidnapping him etc. Apart therefrom, there are various allegations which have been made against the different accused including offences under Section 376 of IPC and Sections 6 and 21 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act' for short).

3. After the completion of the investigation, a charge sheet has been laid including that the petitioner, who is accused No.4 therein.

4. Ms. Vijetha Nayak, learned counsel appearing for petitioner would submit that the petitioner is only a Doctor, who has wrongfully been implicated in the matter. She submits that the petitioner has not performed any operation as alleged or otherwise. She further submits that no criminal prosecution could be initiated against the petitioner, who is a Doctor, without following the guidelines laid down by the Hon'ble Apex Court in the case of MATHEW Vs. STATE OF PUNJAB AND ANOTHER reported in 2005 (6) SCC 1 paragraphs 51 and 52 thereof, which are reproduced hereunder for easy reference.

"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 emphasize 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 prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

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 com