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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 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.3152/2021 Naresh Kumar Gupta Vs. State of M.P. and others 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".

10. Thus, unless and until the committee constituted as per the directions given by the Supreme Court in the case of Jacob Mathew (supra) gives its report about the medical negligence of the doctors, the doctors should not be prosecuted.

11. In the present case, the applicant has not filed any report of the committee. It is his contention that on the instructions given by respondents no.2 and 3 he had arranged plasma from Ajay Tyagi, as he had contacted one Jagdish Bhadkariya, who in his turn gave him the mobile number of Mahesh Mourya and Mahesh Mourya in his turn, arranged the talks of the family members of the patient Manoj Gupta with Ajay Tyagi. This Court cannot lose sight of the fact that the hospitals were overburdened in treating the patients in the first wave of covid 19 pandemic. The situation was horrible and the patients were in need of immediate treatment. It is not in dispute that every plasma bag contains the cross match report. Whether the doctors had sufficient time to send the plasma to the laboratory for re-examination of plasma including cross matching or not, cannot be adjudicated by the Court and in absence of any report by the Medical Board constituted as per the guidelines laid down by the Supreme Court in the case of Jacob Mathew (supra) this Court is of the considered opinion that the Trial Court did not commit any mistake in rejecting the application filed by the applicant under Section 193 of Cr.P.C.