J. N. HORE, J. ( 1 ) THIS is an application under Section 897/401 read, with Section 482 of the Code of Criminal Procedure 1973 for quashing the proceeding in case No C/206/81 under Section 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 tooth-ache was submitted into Bellevue Clinic on 15-5-77 for a minor operation. Some time after operation Pradeep unfortunately died due to cardiac arrest as a result of tracheal aspiration. On October 15, 1977 about 5 months after the occurrence, opposite party No. 1 Manak Chand filed a petition of complaint under Section 304a/114, Indian Penal Code against the petitioners alleging that on, May 15 1977 the petitioner caused the death of Pradeep Kr. Rampuria by rash and negligent act in the operation theatre of Bellevue Clinic and aided and abetted each other in the compensation of the said offence. The materials allegation may be stated as follows :-PRADEEP Kumar Rampuria, the only son of O. P. No. 2 Shri Manak Chand Rampuria, was complaining of tooth-ache prior to his operation. Petitioner No. 2 Dr. Sobha Chand Bengani, the family physician of the Rampuria, was called and after extracting Pradeep Dr. Bengani opted that a minor incision by an expert dental surgeon would relieve him of the pain completely. 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 of petitioner No. 1 Dr. A. K. 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 operation at 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. 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 operation at 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 details of the anaesthetist were not 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 the doctors at the time of operation. Dr. Gulgulia is attached to the dispensary of Dr. Bengani and to the knowledge of O. P. No. 2 he was not an expert or experienced anaesthetist Pradeep reported at Bellevue on 15-5-77 at 5-45 A. M. for his operation at 7-00 A. M. Pradeep was removed to the operation theatre and after an unusual long time the doctors came out of the operation theatre and the patient was removed to his cabin after operation. O. P. No. l found Dr. Kamal Mukherjee, petitioner No. 4, an eminent anesthetist 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. l 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 anaesthesia but was called only the case became helpless and the recovery was impossible, Dr. Gulgulia administered anaesthesia. It is alleged that due to negligence and culpable rashness of petitioner No 3 Dr. Gulgulia in administering anaesthetic, there was accumulation of air or fluid in a body where unusual collection 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 304a Indian Penal Code. Dr. Gulgulia in administering anaesthetic, there was accumulation of air or fluid in a body where unusual collection 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 304a Indian Penal Code. Dr. Bengani was also guilty of abetment of an offence under Section 304a Indian Penal Code and so was Dr. Kamal Mukherjee who allowed his name to be used as the doctor-in-charge of anaesthesia in the medical certificate and in the record of treatment knowing fully well that it was not true. ( 3 ) ON receipt of the said petition of complaint on October 15, learned Chief Metropolitan Magistrate directed the Deputy Commissioner, detective Department to take cognizance and. to investigate treating the said complaint as the First Information Report in Case No. C/2604 of 1977 under Section 56 (3) of the Code of Criminal Procedure. 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 as the report shows came of no avail. " ( 4 ) ON September 19 1980 the Investigating Officer submitted final report praying that the case be filed as it could not be substantiated against the accused persons. ( 5 ) ON January 17, 1981 opposite party No. 1 filed a Naraji petition praying for issue of process against the petitioners for an offence under Section 304a/114, Indian Penal Code. On. January 21, 1981 the learned Chief Metropolitan. ( 5 ) ON January 17, 1981 opposite party No. 1 filed a Naraji petition praying for issue of process against the petitioners for an offence under Section 304a/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, the learned Magistrate took cognizance of an offence under Section 304a/114, Indian Penal Code and issued process against the petitioners. The petitioners appeared before the learned Magistrate and were released on bail. The case was transferred to the learned Metropolitan Magistrate, 5th Court. It was subsequently withdrawn to file of the learned Chief Metropolitan Magistrate and transferred to the learned Metropolitan Magistrate, 16th Court. Being aggrieved the petitioners moved this Court in reunion and obtained the present Rule. ( 6 ) MR. Pradeep Ghosh, learned Counsel appearing on behalf of the petitioners, has strongly contended that the materials on record do not make out any prima facie case under Section 304a/114, Indian Penal Code against any of the petitioners and the continuance of the proceedings should be quashed. Mr. Prasun Ghosh , Id. Counsel for O. P. No. 1 , has contended , on the other hand , that tune is sufficient ground for proceeding, and the proceeding is not , therefore liable for quashment. On hearing the Id. Counsels for the parties and upon the careful perusal of the materials on record we are inclined to accept the contention of Mr. Ghosh. ( 7 ) AS held by the Supreme Court in Kurban Hussein Mohammedalli Rangawalla vs. State of Maharashtra (AIR. 1965 S. C. 1616), to impose criminal liability under Section 304a, Indian Penal Code, 1t 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 sufficient cause without the intervention of other negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. It must be the causa causans; it is not enough that it may have been the causa sine qua non. ( 8 ) IN R. vs. Crick, (1859) 1 F. and F. 519, Pollock C. B. summing up in a case in which the person who was not a regular practitioner had administered Cobelia, a dangerous medicine which produced death in his summing up: "if the prisoner had been a medical man, I should have recommended that to take the most favorable 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 Akerele vs. The King. (AIR (30) 1943 Privy Council 72 ). It has been observed by the Privy Council that a doctor is not criminally responsible for a patient's 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 as that ft should be gross, and neither a jury nor a court could transform negligence of lesser degree into gross negligence merely by giving if 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 powder in water as a result of which several persons died. It was held that the only negligence was the act in dissolving the powder in water before giving the inoculations; it was immaterial that the symptoms were revolting or meet the result make many persons ill, the act had already taken place and its observed consequence which only showed themselves at a later date could not add to its criminality 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 ( 9 ) BEARING the above in mind, let us see if the materials on record make out a prima facie case under Section 304/114, Indian Penal Code. ( 10 ) THE deceased was the holder of two Life Insurance Policies. For the purpose of recovery of the amount assured on the said policies, the complaint was required to furnish medical attendant's certificate The complaint obtained the said medical certificate from petitioner No. 1 on August 5; 1977 The said certificate which is on record the pause 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. 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 6f 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 ( 11 ) ASSUMING, however, that Dr. G. C. Gulgulia administered anaesthesia, that would not ipso facto make out a case under Section 304a, Indian Pena1 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 ". he 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 l without any demand for post-mortem examination. The materials on record also do not prima facie show any act of rashness or gross negligence on ". he 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 l without any demand for post-mortem examination. We may refer in this connection to 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 canes are on record where patients have died from cardiac arrest due to tracheal aspiration after surgical operation. So from the mere fact of the death of the deceased due to cardiac arrest from tracheal aspiration it cannot be inferred that the death was as due to the gross negligence of the anaesthetic The history sheet show that the operation was duly performed and the patient was taken track to his cabin at 9-30 A. M. At that time he was conscious and responding to the 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 failed to save the life of the patient. 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 were taken towards the revival of the patient. ( 12 ) THE materials on record, if unrebutted, 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 no sufficient ground for proceeding and 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 law and the impugned proceeding should be quashed for end of justice. There was no sufficient ground for proceeding and 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 law and the impugned proceeding should be quashed for end of justice. ( 13 ) IN the result, we allow the revisional application, make the Rule absolute and quash the impugned proceeding. Sankar Bhattacharyya, J. I, agree application allowed. .