JUDGMENT : - D.P. Sarkar-II, J.: This is an application under section 482 Cr.P.C. arising out of and connected with Criminal. Case No. C-3882/1998 under section 304A of the Indian Penal Code pending before the Id. Chief Judicial Magistrate, 24-Pgs. (South) at Alipore. 2. The said case was started on the basis of a petition of complaint filed under section 200 Cr.P.C. by Sri Malay Kr. Ganguly as a constituted Attorney of Dr. Kunal Saha, a resident in U.S.A, working as an Assistant Professor of Paediatric there. His wife-Anuradha used to live with him. On the occasion of the marriage of her brother, both of them reached Calcutta on 1st April, 1998 and put up at 38 N, New Ballygunge Road. On arrival at Calcutta the said Anuradha developed sore throat with low temperature. On 17th April, 1998 she developed high fever with signs of infection of the upper respiratory track. On 25.4.98 her blood was tested and the cause of her illness was indicated as viral infection. On 26.4.98 skin rash appeared on her body and at this stage petitioner No.2 Dr. Sukumar Mukherjee was contacted and he examined the patient at the residence of the patient and he diagnosed the disease as Vasculitis and prescribed some medicines. But this time the skin rash appeared in a more severe form and Dr. Mukherjee was again contacted and as per his advice the patient was taken to his chamber on 7.5.98 at Nightingle Diagnostic and Eye Care Research Center Pvt. Ltd. He issued a prescription on the same day with his clinical findings as "Angio Neurotic Oedema with Allergic Vasculitis" and advised Depo Medrol Injection 80 Mgs. (I.M.) twice daily for three days with other medicines to be followed by oral steroid after three days. Dr. Mukherjee pushed the first injection of Depo Medrol on 7.5.98 at the said chamber in presence of Dr. Kunal Saha and his classmate-Dr. Aloke Majumdar and also the elder brother of the patient. Unfortunately, the skin rash and oedema became worse inspite of the administration of the medicines' as prescribed by Dr. Mukherjee. When Dr. Dr. Mukherjee pushed the first injection of Depo Medrol on 7.5.98 at the said chamber in presence of Dr. Kunal Saha and his classmate-Dr. Aloke Majumdar and also the elder brother of the patient. Unfortunately, the skin rash and oedema became worse inspite of the administration of the medicines' as prescribed by Dr. Mukherjee. When Dr. Mukherjee was contacted again over-phone and was reported about the condition of the patient he advised to continue the treatment with Depo Medrol Injection followed by Steroid for a further period and advised the patient to be removed to Advanced Medi Care & Research Institute Ltd., (henceforth to be mentioned as A.M.R.I.). The patient was removed accordingly on 11.5.98 to A.M.R.I. but by that time she had skin rash all over her body in. the worst form and her skin was being peeled off by simple touch. The general condition of the patient was very much fragile and the entire skin of her back side was peeled off. The petitioner-Dr. Sukumar Mukherjee examined the patient at AM.R.I. at 2.15 P.M. on 11.5.98 and advised to continue the Depo Medrol Injection at least for four days more and assured the husband of the patient that the patient would recover. He also advised to consult a Dermatologist and requested Dr. Abani Kr. Roy Chowdhury to examine the patient and give his opinion. Dr. Mukherjee on the next day left for America to attend a conference. As per advice of Dr. Mukherjee, Professor, Dr. B Halder-a renowned Dermatologist was requested to examine the patient. Dr. A.K. Roy Chowdhury was also requested to examine the patient and to give his opinion. On 12th May, 1998 it is alleged that both of them examined the patient-Anuradha and Dr. Halder gave a prescription substituting Prednisolone Capsule 40 Mgs. thrice daily in place of Depo Medrol Injection but without I.V. fluid and supportive medicines and medi-care and diagnosed the disease as Toxic Epidermal Necrolysis. Dr. Halder and Dr. Roy Chowdhury, it is alleged, had the knowledge that Dr. Mukherjee pushed 880 Mgs. of Depo Medrol Injection equivalent to 1100 Mgs. Prednisolone which already was in the body of the patient. The condition of the patient became bad to worse everyday and virtually she was without any treatment in A.M.R.I. since 15.5.98. Dr. Halder and Dr. Roy Chowdhury, it is alleged, had the knowledge that Dr. Mukherjee pushed 880 Mgs. of Depo Medrol Injection equivalent to 1100 Mgs. Prednisolone which already was in the body of the patient. The condition of the patient became bad to worse everyday and virtually she was without any treatment in A.M.R.I. since 15.5.98. The husband of the patient himself being a doctor became anxious about the life of his wife i.e. the patient and requested Dr. Halder to release the patient for her better treatment of Beach Candy Hospital at Mumbai at the risk of the party. Dr. Halder also issued a fitness certificate for the patient to travel by air. Thereafter, on 17.5.98 the patient was taken to Mumbai by a chartered plane and she was admitted in Beach Candy Hospital at Mumbai, but she could not survive. On 28.5.98 she expired due to Necrolysis leading to Cardio Respiratory Arrest. Dr. Kunal Saha the husband of the unfortunate lady, then went back to America and after consulting the manufacturing company of Depo Medrol Injections and other experts on the disease, he filed one case for damages under the Consumers' Protection Act before the National Commission at Delhi against those three doctor-petitioners and also filed a case under section 304A of the IPC against them before the ld. Chief Judicial Magistrate, Alipore, 24-Pgs. (South) through constituted Attorney, inter alia, on the grounds that Dr. Mukherjee i.e. the petitioner No.2 committed error in diagnosis and also in prescribing Depo Medrol Injection or Steroid beyond the limit of dose quantity and dose interval and as such wrong treatment by Dr. Mukherjee followed by the treatment of Dr. Halder who prescribed Prednisolone Capsule 120 Mgs. per day without supportive medicines in consultation with Dr. A. K. Roy Chowdhury was the ultimate cause of death of Anuradha Saha i.e. the wife .of Dr. Kunal Saha. 3. The ld. Chief Judicial Magistrate after perusal of the petition of complaint and the statements of the complainant and his witnesses including Dr. Kunal Saha took cognizance against all the three petitioners under section 304A of the IPC and issued bailable warrant of arrest against all the three. 4. The said order passed by the Id. Kunal Saha. 3. The ld. Chief Judicial Magistrate after perusal of the petition of complaint and the statements of the complainant and his witnesses including Dr. Kunal Saha took cognizance against all the three petitioners under section 304A of the IPC and issued bailable warrant of arrest against all the three. 4. The said order passed by the Id. Chief Judicial Magistrate is challenged before this Court under section 482 Cr.P.C. with the prayer for quashing the entire proceeding OB the ground, inter alia, that the facts contained in the petition of complaint and made out in statements of the witnesses of the complainant do not constitute any offence because, the first part of the complaint contains statements regarding facts of treatment and diagnosis of the disease, but the second part contains mainly the allegations of wrong diagnosis and wrong application of medicines, aggravating the disease, ultimately leading to the death of the patient. This part is based on opinion, not of an expert in the filed, and as' such not admissible. 5. In this connection, the senior Advocate Mr. Roy has placed his reliance on a long catena of decisions reported in the case of Madhu Limaye vs. State of Maharashtra, reported in AIR 1978 SC 47 , in the case of State of Karnataka vs. L. Muniswami, reported in AIR 1977 SC 1489 , in the case of R.P. & poor vs. State of Punjab, AIR 1960 SC 866 , then famous Bhajanlal case reported in AIR 1992 SC 604 , in the case of Madhab Rao Jiyaji Rao Sindhiya vs. Sambhaji Rao Angre, reported in AIR 1988 SC 709 , in the case of Ashoke Chaturbedi vs. Shitul Chanchani, reported in AIR 1998 SC 2796 , then M/s. Pepsi Food Ltd vs. Special Judicial Magistrate, reported in AIR 1998 SC 128, in the case of State of West Bengal vs. Swapan Kumar, reported in AIR 1982 SC 1949. The common principle of law on the scope of section 482 Cr.P.C. as enanciated in all those decisions mentioned above is in short that the High Court can exercise the inherent power under section 482 Cr.P.C. where the facts stated in the FIR or the complaint do not constitute prima facie any offence or make out any case against the accused even if the facts contained in the FIR or the petition of complaint remain. Uncontroverted and accepted in its entirety and where such initiation of criminal proceeding is malicious in nature or vexatious in character, the provision u/s. 482 Cr.P.C. shall be attracted. 6. In this context, it is to be noted that when an FIR is lodged under section 154 of the Cr.P.C. the investigating agency i.e. the police has got statutory power as conferred by section 156 of the Cr.P.C. to enter into investigation. It should not be forgotten that the purpose of such investigation is to verify the facts contained in the FIR for coming to a conclusion if those facts were malicious or vexatious or false or otherwise constitute an offence prima facie against the accused person/persons. So, if the FIR is quashed at the initial stage, unless it is found to be false and harassing on the face of it, it is not proper to quash the FIR. Investigation is the primary stage of the criminal proceeding. It is followed by submission of charge-sheet under section 173 of the Cr.P.C. and then by framing of charge followed by examination of witnesses and admission of other evidence. If after investigation no case is found the police would pray for the discharge of the accused persons and shall not send them up for trial. At the time of framing of charge if that ld. Court finds no materials to frame a charge the accused persons will be discharged. Similar is the case after recording evidence, on the conclusion of the trial, if the Magistrate finds accused not guilty the accused person would be acquitted. 7. Similarly in a complaint case too, the magistrate taking cognizance, perused the petition of complaint and examined the complainant and his witnesses present and if the Magistrate; satisfied from the facts stated in the complaint as well as appearing from the statements of the complainant and his witnesses he will proceed to issue process under section 204 Cr.P.C. But if he is not satisfied and comes to the conclusion that no case has been made out he shall dismiss the complaint under section 203 Cr.P.C. Again, if there is prima facie case, the Magistrate shall embark on recording further evidence after framing charge or before charge, as the case may be. If no case is made out or if the complaint is found groundless, the Magistrate may record the discharge of the accused persons. If no case is made out or if the complaint is found groundless, the Magistrate may record the discharge of the accused persons. So, the scope of fair trial is not going to be closed to the accused persons either in an FIR case or a complaint case. 8. Ld. senior Advocate appearing for the O.P., on the other hand, has referred to the decisions of the Apex Court in the case of K.P.S. Gill, reported in AIR 1996 SC 309 and also the case reported in AIR 1976 SC 1947 . It is submitted that the High Court in order to quash the FIR or the complaint would have to proceed entirely on the basis of allegations made in the complaint and the documents accompanying it. It has no jurisdiction to examine the correctness or otherwise of the allegations without averting to any defence the accused has got no locus standi to be heard under section 202 Cr.P.C. It is further submitted by the Id. Advocate appearing for the O.P. that the scope of section 200 Cr.P.C. is very much limited. It is necessary to ascertain whether the facts alleged, prima facie, constitute an offence or not. The scope of evidence at the time of trial is wider and as such the evidence recorded at the initial stage should not be equated with the evidence to be adduced at the time of trial. So far as the scope of an application of section 482 Cr.P.C. is concerned, hardly there can be any dispute but the real dispute is regarding the stage and the peculiar circumstance under which such power should be exercised by the High Court. 9. On reading the petition of complaint and the statements recorded by the Magistrate we find the allegations of wrong treatment. To speak more specifically, the commission of error is in deciding dose quantity and dose interval. According to the complainant, the patient was under the treatment of the accused persons who are eminent doctors of Calcutta in their own fields. These facts are almost admitted and supported by the treatment sheets and the prescriptions. But the other part that the patient died due to the wrong treatment, wrong diagnosis-those are all matters of opinion according to the petitioners. After careful consideration of the facts and circumstances and the background, I find, that those are not opinion but those are the allegations. But the other part that the patient died due to the wrong treatment, wrong diagnosis-those are all matters of opinion according to the petitioners. After careful consideration of the facts and circumstances and the background, I find, that those are not opinion but those are the allegations. Opinion should be based on facts but the allegations are preceded by facts. In the instant case, fact of treatment is there and the allegation is that the treatment was not properly done and as a result, the condition of the patient far from being improved, gradually turned from bad to worse and worse to worst and ultimately to death. On the basis of those facts the allegation has been made in the petition of complaint that the condition of the patient without being improved due to treatment, rather deteriorated gradually, but still there was no change in the method of treatment or administering of medicine. Actually, whether the patient's condition deteriorated gradually due to wrong treatment or not is a point to be established by the experts at the time of trial. It is not necessary to call and examine an expert at the time of recording initial statement. 10. In short, the allegations regarding facts can be verified and established during trial but not before that the prayer of quashing of the proceeding at the initial stage renders the process of justice defunct, which cannot be the intention of the legislature or which cannot be the interpretation of any judicial body. 11. The ld. senior Advocate for the petitioners has submitted that the facts contained in the petition of complaint do not constitute any rash and negligent act on the part of the petitioners. Because as member of the medical profession they exercised their expertise in medicine for the benefit of the patient, to relieve the patient from sufferings of disease and never with the intention to cause death. There is no dispute about the ethics of medical profession. Each doctor before joining the profession shall have to take Hipocracian oath to that effect. But err is to human being, and doctors may commit negligence or rash act in their professional service. But whether the present petitioners have committed any negligence or rash act in treating Anuradha Saha is a matter to be decided during trial- by the Trial Court. But err is to human being, and doctors may commit negligence or rash act in their professional service. But whether the present petitioners have committed any negligence or rash act in treating Anuradha Saha is a matter to be decided during trial- by the Trial Court. This Court should not embark on that exercise causing thereby any prejudice to the mind of the Trial Court. But I like to refer what this Court understands by the words "negligence" and "rashness". Rash act means an act which is lacking in rationality and proper judgment and negligent act is an act which is lacking in adequate care and deliberation behind such act. But the existence of these ingredients of the offence under section 304A IPC is to be considered by the ld. Magistrate at the appropriate time. 12. The ld. senior Advocate for the petitioners has also pointed out that there is no treatment sheet for the period from 17.5.98 till the death of the patient at Beach Candy Hospital, Mumbai. Therefore, it is not possible, even it is assumed for the sake of argument the existence of negligence or rashness on the part of the petitioners which negligence ultimately led to the death of the patient, if such negligence was intervened by any other negligence or rashness. In this connection, I like to hold that this is also a question of facts which can be agitated at the time of trial; because there is no such allegation in the 'written complaint that there was any negligent act or rash act on the part of the doctors at Beach Candy Hospital. Even if there is such allegation i.e. to be considered at the time of trial but not at this initial stage. 13. The ld. senior Advocate appearing for the petitioners has submitted that it is necessary to establish a direct link between the death of the patient on one side and the allegation of wrong treatment on the other side. In this connection, I have already recorded my reasonings that this particular point can be established by a recognised medical expert at the time of trial. A recognised expert in the field of medicine can only say whether the treatment followed by the petitioners was absolutely wrong and prohibited by the Therapeutics and whether administration of such treatment was the ultimate cause of death of the patient. A recognised expert in the field of medicine can only say whether the treatment followed by the petitioners was absolutely wrong and prohibited by the Therapeutics and whether administration of such treatment was the ultimate cause of death of the patient. All these issues are issues to be considered at the time of trial. These issues should not be pre-judged at the time of taking cognizance. It is well settled law that if the facts alleged may constitute an. offence, prima facie, the Trial Magistrate can take cognizance and issue process under section 204 Cr.P.C. The Magistrate taking cognizance is to exercise his judicial discretion according to the established principle of law and such judicial discretion of the Magistrate cannot be or should not be substituted by the discretion of the higher Courts like High Court or Supreme Court. The Trial Court is the Judge of facts and he had the occasion, to record the statements of facts initially and if the Magistrate was satisfied after considering those facts, that the allegations contained in the petition of complaint supported by the statements of the witnesses are sufficient to establish, a prima facie case against the petitioners, he has got no option to refuse process under section 203 Cr.P.C., but to issue process under section 204 Cr.P.C. Such decision of the ld. Magistrate should not be interferred unless it can be shown that he has exercised his jurisdiction wrongly or without sufficient materials. 14. So far as the petitioner No. 3 Dr. Abani Kr. Roy Chowdhury is concerned, we do not find any prescription written by him, we do not find any record to show that Dr. A. K. Roy Chowdhury was consulted or that Dr. B. Halder, Dermatologist wrote out the prescription on 12.5.98 in consultation with Dr. A.K. Roy Chowdhury. It is not clear whether Dr. A.K. Roy Chowdhury gave any opinion about the treatment or even if he gave such opinion, whether such opinion was taken into consideration or honoured duly by the Specialist viz. Dr. B. Halder-Professor of Dermatology. It is submitted by the ld. Advocate of the opposite party complainant that the prescription of 12.5.98 is the joint prescription of Dr. A.K. Roy Chowdhury and Dr. B. Halder. There is an endorsement to that effect on that prescription in different ink, in different writing. Dr. B. Halder-Professor of Dermatology. It is submitted by the ld. Advocate of the opposite party complainant that the prescription of 12.5.98 is the joint prescription of Dr. A.K. Roy Chowdhury and Dr. B. Halder. There is an endorsement to that effect on that prescription in different ink, in different writing. But such endorsement is not there in the original treatment sheet seized by the police from the A.M.R.I. Therefore, such endorsement is an endorsement recorded subsequently by some interested person with an ulterior motive to rope in Dr. A.K. Roy Chowdhury. In the petition of complaint even there is reference of Dr. A.K. Roy Chowdhury only at a particular place that Dr. Halder made the prescription on 12.5.98 in consultation with Dr. A.K. Roy Chowdhury. If for the sake of argument we accept it as true, there is nothing on record to show that consultation was done actually or the opinion of Dr. A.K. Roy Chowdhury was acted upon or what sort of opinion, if any, was given by Dr. A.K. Roy Chowdhury. Therefore, so far as Dr. Roy Chowdhury is concerned, hardly there is sufficient material to constitute an offence. There is no prescription in his writing, no record of consultation, no record of the nature of consultation, no record that his opinion was duly accepted or acted upon and formed the basis of the prescription dated 12.5.98 written by Dr. Halder. Here in this case, it is necessary to invoke the powers under section 482 Cr.P.C. lf Dr. A.K. Roy Chowdhury is allowed to face the trial as an accused for the offence under section 304A IPC as directed by the ld. Magistrate; in my view, that will be, absolutely wrong exercise of jurisdiction, and the abuse of power. 15. The power under section 482 Cr.P.C. should sparingly be used. It is well settled principle of law that where the accused-petitioners had any other remedy provided in the Code, the power under section 482 Cr.P.C. should not be invoked. The present petitioners shall get the liberty to challenge the accusation against them at the time of framing charge. If they are innocent, their remedy is not barred totally. It is open to them, at different stages, to seek their remedy from the appropriate forum. The present petitioners shall get the liberty to challenge the accusation against them at the time of framing charge. If they are innocent, their remedy is not barred totally. It is open to them, at different stages, to seek their remedy from the appropriate forum. To cut at the root of the case at the initial stage, cannot be conductive to the healthy growth of administration of criminal justice. The catena of decisions referred to me by the ld. senior Advocate appearing for the petitioners as well as by the ld. Advocate appearing for the opposite party are considered not necessary to be discussed elaborately. Because such deliberation on those decisions may amount to pre-judging the issues involved in the case and likely to cause prejudice to the free play of justice in the mind of the Trial Magistrate. 16. In short, the application under section 482 Cr.P.C. is, accordingly, allowed in part. The order of taking cognizance against Dr. A.K. Roy Chowdhury is hereby quashed. But so far as the other two doctor petitioners are concerned viz. Dr. Mukherjee and Dr. Halder, this Court is reluctant to exercise its jurisdiction under section 482 Cr.P.C. against the impugned order. The Criminal Case shall proceed against the two on the allegations contained in the petition of complaint according to law of procedure and evidence and the principle of equity and natural justice. 17. It is pointed out by the ld. senior Advocate for the petitioners that the ld. C.J.M. has issued bailable warrant although the alleged offence is an offence under summons procedure. He has submitted that in such a case summons should be issued, but if warrant is issued in that event Magistrate must record his reasoning. In the instant case no reasoning has been recorded by the ld. Magistrate. 18. Candidly speaking this particular portion of the order cannot be sustained. Because the accused-petitioners are all eminent doctors having their permanent residences, Nursing Homes and other properties within Calcutta. There is hardly any chance of absconsion on their part. So, it was not necessary to issue warrant instead of summons against them. The order directing to issue bailable warrant against the accused-petitioners is hereby modified. Accused-petitioners viz. Dr. Sukumar Mukherjee and Dr. Baidyanath Halder are hereby directed to surrender before Magistrate within three weeks from this day. The ld. There is hardly any chance of absconsion on their part. So, it was not necessary to issue warrant instead of summons against them. The order directing to issue bailable warrant against the accused-petitioners is hereby modified. Accused-petitioners viz. Dr. Sukumar Mukherjee and Dr. Baidyanath Halder are hereby directed to surrender before Magistrate within three weeks from this day. The ld. Magistrate is directed to consider favourably the question of their bail or prayer for exemption from personal appearance on adjourned dates. The Magistrate is hereby given the liberty to direct the accused-petitioners to appear in person at the time of framing of charge or at any other subsequent stage as he considers necessary. The impugned order stands hereby set aside in part so far it relates to the accused-petitioner No.3-Dr. Abani Kr. Roy Chowdhury. The application under section 482 Cr.P.C. is, thus, disposed of. 19. Later-Dated-21.5.99 1. On the prayer of the ld. Advocates appearing for the opposite parties it is directed that the L.C.R. be sent down to the Trial Court without any delay and the seized medical papers of A.M.R.I. which are at present in the custody of the Addl. Public Prosecutor, Mr. Moitra be also sent back Sudip Dey @ Chottu vs. State of W. B. (S. B. Roy, JJ.) 349 to the Trial Magistrate by the person in whose custody it is at present within a week. 20. Let a xerox plain copy of the order be given to the ld. Advocates for parties preferably in course of this day as prayed for. Allowed in part.