N. HORE, J. ( 1 ) THIS is an application sections 397/401 read with section 482 Code of Criminal Procedure, 1973, for quashing the proceeding in Case No. C/206/81 under sections 304a/114 of the Indian Penal code pending before the learned Metropolitan Magistrate 16th Court Calcutta. ( 2 ) PRADEEP Kr. Rampuria the only son of opposite party No 1 Shri Manak Chand Rampuria, who was suffering from dental trouble was admitted to the Bellevue Clinic on 15/5/1977 for a minor operation. Unfortunately shortly after the operation Pradeep died due to cardiac arrest as a result of tracheal aspiration. On October 15, 1977 that is, about 5 months after the occurrence, opposite party No. 1 Manak Chand Rampuria filed a petition of complaint before the learned Chief Metropolitan. Magistrate, Calcutta, under sections 304-A/114, Indian Penal Code, against the petitioners alleging that on May 15, 1977 the petitioners caused the death of Pradeep Kumar Rampuria by rash and negligent act in the matter of his operation at the operation theatre of the Bellevue Clinic by aiding and abetting each, other in the commission of the said offence. The material allegations were as follows: ( 3 ) PRADEEP Kumar Rampuria, the only son of O. P. No. 2 Shri Manak Chand Rampuria, was complaining of toothache prior to his operation. Petitioner No. 2 Dr. Sobha Chand Bengani, the family physician of the Rampurias was called and after examining Pradeep Dr. Bengani opined that a minor incision by an expert dental surgeon would relieve him completely of the pain. O. P. No. 1 being a man of means and Pradeep being his only son, suggested to Dr. Bengani to consult the best Dental Surgeon and if necessary, to arrange for the proposed minor operation Dr. Bengani mentioned the name or petitioner No. 1 Dr. NK. Mitra as the best Dental Surgeon to deal with the case and accordingly, arrangement was made with Dr. A. K. Mitra for examination of Pradeep. After examination of Pradeep Dr. Mitra agreed with Dr. Bengani that a minor operation would give complete relief to Pradeep. The parents and the newly married wife of Pradeep agreed to the said operation by Dr. Mitra and arrangements were accordingly made- by. Dr. Bengani for the operation at the Bellevue Clinic on May, 15 1977, X-ray of the affected part was taken. Pradeep was further pathologically examined by Dr. The parents and the newly married wife of Pradeep agreed to the said operation by Dr. Mitra and arrangements were accordingly made- by. Dr. Bengani for the operation at the Bellevue Clinic on May, 15 1977, X-ray of the affected part was taken. Pradeep was further pathologically examined by Dr. R. S. Saxena on 10. 5. 77. Dr. Bengani assured O. P. No. 1 that the best and the most qualified anaesthetist would be selected for ensuring safe operation on Pradeep. The particulars of the anaesthetist were not, however, disclosed to opposite party No. 1 till the end but he came to know the name of the anaesthetist as Dr. G. C. Gulgulia, petitioner No. 3 when he found him in the team of doctor at time of operation Dr. Gulgalia is attached to the dispensary of Dr. Bengani and to the knowledge of O. P. No. 2, is not an experienced anaesthetist. Pradeep reported at the Bellevue Clinic on 15-5-77 at 545 a. m. for his operation which was to be held at 700 a. m. Pradeep was removed to the operation theatre and after an unusually long time, the doctors came out of the operation theatre and the patient was removed to his cabin after the operation O. P. No. 1 found Dr. Kamal Mukherjee, petitioner No. 4 an eminent anaesthetist practicing in Calcutta, going inside the operation theatre. After some time, Dr. Mukherjee came out of the operation theatre with a grim face and left the place saying nothing to the O. P. No. 1 and the other members of his family. Pradeep however, was taken back to the operation theatre once more and all the doctors slipped out of the operation theatre avoiding O. P. No. 1 and Pradeep was declared dead and the death certificate was handed over to O. P. No 1. Dr. Kamal Mukherjee, a well-known anaesthetist did not administer anesthetic but was called only when the case became hopeless and the recovery seemed to be impossible. Dr. Gulgulia administered anesthetic. It is alleged that due to negligence and culpable rashness of petitioner No. 3 Dr. Gulgulia in administer inganaesthetic, there was accumulation of air or fluid in a body cavity where unusual collections took place. It was further alleged that there was culpable negligence on the part of Dr. Dr. Gulgulia administered anesthetic. It is alleged that due to negligence and culpable rashness of petitioner No. 3 Dr. Gulgulia in administer inganaesthetic, there was accumulation of air or fluid in a body cavity where unusual collections took place. It was further alleged that there was culpable negligence on the part of Dr. Mitra or failure to guide and direct the anaesthetist and he was guilty of abetment of an offence under section 304-A, Indian Penal Code. Dr. Bengani was also guilty of abetment of an offence under section 304-A, Indian Penal Code and so was Dr. Kamal Mukherjee who allowed his name to be used as the doctor in-charge of anesthesia in the medical certificate and in the record of treatment knowing fully well that it was not true. ( 4 ) ON receipt of the said petition of complaint on October 15,1917 the learned Chief Metropolitan Magistrate directed the Deputy Commissioner, Detective Department under section 156 (3) Criminal Procedure Code to investigate the case treating the said complaint as the First Information Report in Case No. C/2604 of 1977. During investigation, police seized the documents relating to the treatment and death of Pradeep Kumar Rampuria and sent them to Dr. J. B. Mukherjee, Professor and Head of the Department of Forensic and State Medicine, Medical College, Calcutta, for his opinion Dr. J. B. Mukherjee opined that in the absence of autopsy examination there was no scope to contradict the opinion of the operating surgeon as on record to the effect that the patient died due to cardiac arrest following tracheal aspiration after surgical operation. It was further stated by the expert that, cases are on record where patients have died from cardiac arrest from tracheal aspiration after surgical operation. As per typed copy of the report, adequate medical measures were taken towards the revival of the patient, which is the report shows, came of no avail. ( 5 ) ON September 19, 1980 the Investigating Officer submitted the final report praying that the case be filed as it could not be substantiated against the accused person. ( 6 ) ON January 17, 1981 opposite party No. 1 filed a Naraji petition praying for issue of processes against the petitioners for an offence under sections 304-A/114, Indian Penal Code. ( 6 ) ON January 17, 1981 opposite party No. 1 filed a Naraji petition praying for issue of processes against the petitioners for an offence under sections 304-A/114, Indian Penal Code. On January 21, 1981 the learned Chief Metropolitan Magistrate, took up the said petition for consideration and after taking the initial deposition of opposite party, No. 1 and also of one C S. Kathotia, took cognizance of an offence under sections 304-A/114, Indian Penal Code and issued processes against the petitioners. The petitioners appeared before the learned Magistrate and were released on bail. The case was thereafter transferred to the learned Metropolitan Magistrate, 5th Court. But, subsequently it was withdrawn to the file of the learned Chief Metropolitan Magistrate and transferred to the learned Metropolitan Magistrate, 16th Court for disposal. Being aggrieved, the petitioners then moved this court in revision and obtained the present Rule. ( 7 ) MR. Pradeep Ghosh, learned Counsel appearing on behalf of the petitioners, has strongly contended that the materials on record do not make out even a prima facie case under sections 304. A/114 Indian Penal Code against any of the petitioners and the continuance of the proceeding against the petitioners would amount to an abuse of the process of court and hence, for the ends of justice, the said proceeding should be quashed. Mr. prasun Ghosh, learned Counsel for the O. P. No. 1 has contended, on the other hand, that, there are sufficient materials against the petitioners and the impugned proceeding is not, therefore, liable to be quashed. ( 8 ) ON hearing the learned Counsels for the parties and upon 3 careful perusal of the materials on record, we are Inclined to, accept the contention of Mr. Ghosh. ( 9 ) AS held by the Supreme Court in Kurban Hussain Mohammedalli Rangawalia v. State of Maharashtra to impose criminal liability under section 304a, Indian Penal Code, it is necessary that death must be the direct result of the rash or negligent act of the accused and that act must be the proximate and efficient cause without the intervention of anothers negligence. It must be the cause causans; it is not enough that it may have been the cause sine qua non. It must be the cause causans; it is not enough that it may have been the cause sine qua non. ( 10 ) IT v. Crick, Pollock C. B. Summing up in a case in which the prisoner who was not a regular practitioner had administered Cobelia, a dangerous medicine which produced death said in his summing up: if the prisoner had been a medical man, I should have recommended you to take the most favourable view of his conduct, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck. This observation was quoted with approval by the Privy Council in John Oni Akerela v. The King, where their Lordships, observed that a doctor is not criminally responsible for a patients death unless his negligence or incompetence passed beyond a mere matter of compensation and showed such disregard for life and safety as to amount to a crime against the State. The degree of negligence required is that it should be gross, and neither a jury for a court could transform negligence of a lesser degree into gross negligence merely by giving it that appellation. Care should be taken before imputing criminal negligence to a professional man acting in the course of his profession. In that case, a doctor was prosecuted for criminal negligence because he had injected a too strong preparation by dissolving certain power in water as a result of which several persons died. It was held that the only negligence was the single act in dissolving the power in water before giving- the inoculations; it is immaterial that the symptoms were revolving or that the result was to make many persons ill; the act had already taken place and its observed consequences which only showed themselves at a later date could not add to its criminality. The negligence to be imputed depends upon the probable, not the actual result. Criminal negligence could not be said to have been proved merely because a number of persons have been made gravely ill after receiving the injection. Merely because too strong a mixture was once dispensed and a number of persons were made gravely ill, a criminal degree of negligence could not be said to have been proved. Criminal negligence could not be said to have been proved merely because a number of persons have been made gravely ill after receiving the injection. Merely because too strong a mixture was once dispensed and a number of persons were made gravely ill, a criminal degree of negligence could not be said to have been proved. ( 11 ) BEARING the above in mind, let us see if the materials on record make out a prima facie case under sections 304a/114, Indian Penal Code. ( 12 ) C The deceased was the holder of two Life Insurance Policies. For the purpose of recovery of the amount assured on the said policies, the complainant was required to furnish medical attendants certificate. The complainant obtained the said medical certificate from petitioner No. 1 on August 5, 1977. In the said certificate which is on record the cause of death has been stated as sudden cardiac arrest after tracheal aspiration. It has also been stated in the certificate that Dr. Kamal Mukherjee petitioner No. 4. was the anaesthetist. The name of Dr. G. C. Gulgulia, petitioner No. 3, was nowhere mentioned in the said certificate. The complainant not only accepted the said certificate but also submitted the same to the Life Insurance Corporation of India and recovered the assured amount on the basis of the said certificate. In the case history also, the name of Dr. Kamal Mukherjee has been mentioned as the anaesthetist. The case history does not show that Dr. G. C. Gulgulia also attended on the patient. The documents seized in connection with the case, therefore, prima facie show that Dr. Kamal Mukherjee, petitioner No. 4 and not Dr. G. C. Gulgulia the petitioner No. 3, acted as the anaesthetist. ( 13 ) ASSUMING, however, that Dr. G. C. Gulgulia administered anesthetics that would not ipso facto make out a case under section 304-A, Indian Penal Code, against him. Specific rash or negligent act leading directly to the death is to be alleged and proved in order to substantiate a charge under section 304a, Indian Penal Code. Neither incompetence nor any specific act of rashness or gross negligence as the proximate and efficient cause of the death has been alleged. The materials on record also do not prima facie show any act of rashness or gross negligence on the part of the anaesthetist. Neither incompetence nor any specific act of rashness or gross negligence as the proximate and efficient cause of the death has been alleged. The materials on record also do not prima facie show any act of rashness or gross negligence on the part of the anaesthetist. There was no post-mortem examination and the dead body was cremated on the basis of the death certificate issued by the petitioner No. 1 without any demand for postmortem examination. We may in this connection reiterate the opinion of Dr. J. B. Mukherjee that in the absence of autopsy examination there was no scope to contradict the opinion of the operating surgeon to the effect that the patient died due to cardiac arrest following tracheal aspiration after surgical operation. It appears from his opinion that cases are on record where patients have died from cardiac arrest due to tracheal aspiration after surgical operation. So from the mere fact that the death of the deceased was due to cardiac arrest from tracheal aspiration, it cannot be inferred that the death was due to the gross negligence of the anaesthetist. The history sheet shows that the operation was duly performed and the patient was taken back to his cabin at 9. 30 a. m. At that time he was conscious and responding to questions and his pupils reacted to light. At 10. 00 a. m. , as the history sheet shows, the patient developed slight cyanosis and was brought again to the operation theatre. Oxygen was administered and the patient was duly attended to by the doctors. Medicines were administered. Necessary steps were taken for his immediate treatment. Unfortunately the patient developed sudden cardiac arrest following tracheal aspiration. External cardiac massage was given and all other necessary steps were taken but unfortunately all attempts to save the life of the patient failed. Resuscitating measures were also taken but they were of no avail. It appears from the opinion of Dr. J. B. Mukherjee that adequate medical measures was taken towards the revival of the patient. ( 14 ) THE materials on record, even if un-rebutted, do not, therefore, show that any of the petitioners was guilty of any rash or negligent act resulting in the death of the deceased. There was, therefore, no sufficient ground for issuance of process under section 204. Cr. P. C. against the petitioners. ( 14 ) THE materials on record, even if un-rebutted, do not, therefore, show that any of the petitioners was guilty of any rash or negligent act resulting in the death of the deceased. There was, therefore, no sufficient ground for issuance of process under section 204. Cr. P. C. against the petitioners. In our opinion, the continuance of the impugned proceeding would be a mere abuse of the process of court and the impugned proceeding should be quashed for the ends of justice. ( 15 ) IN the result, we allow the revisional application, make the Rule absolute and quash the impugned proceeding.