Judgment ( 1. ) THIS petition under Section 482 of Cr. P. C. is directed for quashing the charge against the applicant framed by learned C. J. M. Indore vide order dated 23-7-2002 under Section 304-A of IPC and the same has been affirmed by lower revisional Court in Criminal Revision No. 548/2002, dated 21-3-2003. ( 2. ) THE necessary facts in narrow compass for decision of this petition is that on 17-3-1999, Police Station Sanyogitaganj, Indore received written compliant through Senior Police Officials filed by non-applicant No. 2 Surendra singh Pawar. In short the complaint was that his son Shakti Singh Pawar, aged 18 years was suffering from "ulcerative Coitus" and was under treatment of Dr. Girish Naik in Medicare Hospital, Indore. After six months of the treatment, dr. Naik suggested non-applicant No. 2 for operation of Shakti Singh Pawar because there was no improvement in his disease by medicine. Shakti Singh pawar was admitted in Suyash Hospital on 14-2-1999 where he was operated by applicant/dr. Ashok Ladha on 20-2-1999. For this operation, non-applicant No. 2 paid him rupees one lac on two installments. There was no improvement, therefore, Dr. Ladha again operated Shakti Singh Pawar on 10-3-1999 and for this operation he again demanded Rs. 50,000/- but non-applicant No. 2 could arrange only Rs. 10,000/- and some bottles of blood. In the complaint, non-ap-plicant No. 2 has alleged that after first operation, there was no proper care of the patient in spite of his repeated requests to Doctor. It is also alleged that without observing proper hygienic norms and without wearing gloves the Ward boy Dipak Kumar was asked to attach the bag which was fixed by the side of operated portion of the stomach in which pus and blood was coming out. The patient was kept in Suyash Hospital after operation and Dr. Ashok Ladha left the patient for post operative care under the supervision of his junior Doctor dr. Prashant Agrawal. According to the complainant/non-applicant No. 2, after first operation, patient developed Septicaemia and that was the cause for his death. It has also alleged in the complaint that Incharge of I. C. U. Dr. Thorani sent message to the applicant but applicant in spite of knowing the deteriorating condition of the patient did not come to the hospital and ultimately patient shakti Singh Pawar died in the hospital. ( 3. It has also alleged in the complaint that Incharge of I. C. U. Dr. Thorani sent message to the applicant but applicant in spite of knowing the deteriorating condition of the patient did not come to the hospital and ultimately patient shakti Singh Pawar died in the hospital. ( 3. ) AFTER registration of the crime, matter was investigated and charge-sheet was filed by Sanyogitaganj police, Indore before the learned c. J. M. , Indore. ( 4. ) THE contention of the learned counsel for applicant is that even if the complete material available in the charge-sheet is accepted as it is without any rebuttal, there is no legal evidence to frame charge under Section 304-A of the IPC against the applicant. The learned counsel has also submitted that in a case imputing negligence on the part of a medical practitioner, prosecution is required to show prima facie evidence of his criminal negligence and that both the Courts below have failed to consider report of the Medical Board which has clearly exonerated the applicant regarding any negligence on his part during the course of operation and treatment. The reports from Medical Board and independent Doctors were asked by the Investigating Agency and also filed along with the charge-sheet and that the material available in the charge-sheet is also reflecting the fact that patient was critically ill and he was brought to the doctor for operation after six months of the first advice given for operation. During this period, patient became very weak and anaemic. He was brought to the specialist for surgery as a last resort for his survival and each and every situation was explained to the complainant and his other relations by the applicant about the consequences of the operation. The applicant tried his level best but unfortunately patient being weak and anaemic, contacted infection leading to Septicaemia and died for which the applicant cannot be held responsible. In support of his contentions, the learned counsel has placed reliance on a leading judgment of Privy Council passed in case of john Oni Akerele Vs. The king, AIR (30) 1943 PC 721 and unreported judgment passed by this High court in Criminal Revision No. 355/1994 dated 22-4-1995. ( 5. In support of his contentions, the learned counsel has placed reliance on a leading judgment of Privy Council passed in case of john Oni Akerele Vs. The king, AIR (30) 1943 PC 721 and unreported judgment passed by this High court in Criminal Revision No. 355/1994 dated 22-4-1995. ( 5. ) ON the other hand, the learned counsel for State as well as non-applicant No. 2/complainant have submitted that there is prima facie material for framing the charge against the applicant and they have supported the order passed by the learned Magistrate and affirmation of the same by the lower Revisional Court. ( 6. ) HAVING heard the learned counsel for parties and after perusing the entire record, this Court is of the opinion that barring some oral allegations levelled by the complainant / non-applicant No. 2, there is no material available in the charge-sheet for putting the applicant for trial for commission of culpable or gross negligence at the time of performance of operation or in post operative care. The Supreme Court in the case of Kurban Hussain Mohammedali rangawala Vs. State of Maharashtra ( AIR 1965 SC 1616 ) and also in the case of Syed Akbar Vs. State of Karnataka ( AIR 1979 SC 1848 ) has observed that "to impose criminal liability under Section 304-A, it is necessary that the death should have been the direct result of a rash and 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 causa sine qua non. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. " ( 7. ) IN the case of John Oni (supra), the Lordship Lord Porter speaking for the bench of four Judges observed as under :-"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 nor a Court can 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". ( 8. ) APPLYING the above mentioned principle laid down by the Privy council and Supreme Court, on consideration of the material available in the charge-sheet, this Court is of the opinion that prima facie case against the applicant Dr. Ashok Ladha for commission of gross or culpable negligence is not made out. ( 9. ) THE deceased Shakti Singh Pawar was suffering from "ulcerative coitus". He was treated by Dr. Girish Naik for a long period but there was no response to the treatment. Therefore, Dr. Naik suggested for operation and this opinion of Dr. Naik was the last resort to save the life of the patient. The patient was operated twice by the applicant Dr. Ashok Ladha and ultimately he died in suyesh Hospital on 13-3-1999 in the morning at 4. 00 a. m. The dead body was handed over to the non-applicant on the same day but the non-applicant No. 2 did not ask for post-mortem examination for revealing the exact cause of death of deceased Shakti Singh Pawar. Report was also lodged after four days and in the report as well as in the statement of the witnesses nothing is mentioned as to why the post-mortem was not desired by the parents of the deceased. The written complaint was submitted on 17-3-1999 to the S. P. Indore. In this complaint, the allegations of negligence was levelled against owner of Suyash hospital Dr. Govind Malpani, applicant Dr. Ashok Ladha, his Assistant, Dr. Prashant Agrawal and other employees of the Suyash Hospital. The chargesheet was filed only against applicant Dr. Ashok Ladha. During the course of investigation, police has seized complete medical documents regarding treatment of the patient/deceased Shakti Singh Pawar and same were sent to the medical Board seeking opinion. The opinion of Medical Board consisting of dr. P. Purohit, Dr. Paras Maru and Dr. AD. Tilloo was obtained. All these three doctors have referred the matter for second opinion from Professor and Head of Department of Surgery, M. G. M. Medical College and final report was given by Dr. The opinion of Medical Board consisting of dr. P. Purohit, Dr. Paras Maru and Dr. AD. Tilloo was obtained. All these three doctors have referred the matter for second opinion from Professor and Head of Department of Surgery, M. G. M. Medical College and final report was given by Dr. S. K. Shukla, Professor and Head of Department of Surgery, M. G. M. Medical College/m. Y. Hospital, Indore. According to this report, patient was advised surgery but came six months after the advice when his condition became bad. As the patient was in poor general condition, his relatives and friends were explained the pros and cons of surgical procedure and risk involved. Sufficient precautions were taken pre-operatively. Dr. S. K. Shukla, after detailed perusal of medical papers as well as reference made by the Committee of three Doctors finally given opinion that "i do not find any surgical fault or negligence to call for the outcome of the patient. " ( 10. ) AFTER submission of the report by Dr. Shukla dated 24-10-2000, again some query were put to answer by the Investigating Agency with specific questions and for answering these queries, another Medical Board was constituted consisting of Dr. S. K. Shukla, Professor and Head of Department, Surgery, m. Y. Hospital, Indore, Dr. P. K. Banerjee, Professor of Surgery Department of m. Y. Hospital, Indore and Dr. P. G. Raman, Professor and Head of Department, Medicine Department, M. Y. Hospital, Indore and this Medical Board which was formed by Superintendent cum Joint Director, Health Services, M. Y. Hospital, Indore also did not find any negligence on the part of applicant Dr. Ladha while performing surgery. ( 11. ) THE learned counsel for non-applicants have taken this Court through the statements of Dr. Mahesh Thorani recorded by the police. According to Dr. Thorani, who was the Incharge of I. C. U. in Suyash Hospital, after second operation, condition of the patient was very critical and same was deteriorating continuously, therefore, he explained condition of the patient on phone to applicant Dr. Ashok Ladha and also requested to come to hospital. Dr. Ladha suggested some injections to him and also told him about his reaching within 15 minutes but till 4. 30 a. m. when the patient died, Dr. Ladha did not come to Suyesh Hospital to see the patient. Ashok Ladha and also requested to come to hospital. Dr. Ladha suggested some injections to him and also told him about his reaching within 15 minutes but till 4. 30 a. m. when the patient died, Dr. Ladha did not come to Suyesh Hospital to see the patient. Along with the charge-sheet, police has filed the bed head ticket and treatment notes written by Dr. Mahesh Thorani but in these medical papers of Suyash Hospital, Dr. Thorani no where mentioned that he made a call for arrival of Dr. Ashok Ladha. His statement, which was also recorded under Section 164 of the Cr. P. C. by the Magistrate is at variance with his own documents of treatment seized by the police from Suyash hospital. Dr. Thorani has also stated that if on call the operating surgeon is not attending the patient, the same would be considered as his negligence. After operation, patient was under the supervision and post operative care of Dr. Thorani in Suyash Hospital. ( 12. ) IN the statement of Dr. Mahesh Thorani recorded by the police, it is mentioned that on 11-3-1999, patient Shakti Singh Pawar was admitted in i. C. U. , he was operated on 10-3-1999 by Dr. Ashok Ladha. On 11-3-1999, in icu he was posted and took proper care of the patient. On 12-3-1999, in the night, he was also on duty and condition of the patient was not good. At that time, in the night, applicant Dr. Ashok Ladha also reached in the ward and saw the patient from distance. He also given some prescriptions. Thereafter the relations of the patient asked Dr. Ladha to stay on which Dr. Ladha after giving assurance, left the hospital. Thereafter in the intervening night ie. , 12th and 13 th March, 1999 at about 1. 00 a. m. the condition of the patient Shakti Singh became very bad. Then at 4. 00 a. m. he contacted on telephone Dr. Ladha and dr. Ladha assured him to come to the hospital but did not come and patient died at 4. 30 a. m. ( 13. ) ON the basis of the statement of Dr. Mahesh Thorani, it cannot be said that the applicant has committed criminal negligence especially when criminal negligence only on the basis of the statement that on call Dr. Ladha did not reach to the hospital. 30 a. m. ( 13. ) ON the basis of the statement of Dr. Mahesh Thorani, it cannot be said that the applicant has committed criminal negligence especially when criminal negligence only on the basis of the statement that on call Dr. Ladha did not reach to the hospital. Alongwith the charge-sheet, the police has also filed the statements of Dr. Govind Malpani and Dr. P. K Banerjee. Dr. Govind malpani is the Director of the Suyash Hospital and according to him, after admission of the patient, he was properly looked after and nobody had complained about any kind of negligence to him. Another statement is the statement of Dr. P. K. Banerjee who was Member of Medical Board and had given opinion on the basis of the medical documents of patient Shakti Singh Pawar. In the statement of Dr. Banerjee, it is mentioned that the Committee of all the three specialist Doctors, after perusing the bed head ticket and operation note, opined that the proper operation was done by Dr. Ashok Ladha which was required for the ailment. ( 14. ) ON careful perusal of the charge-sheet, this Court is of the opinion that no prima facie case is made out against the applicant, Dr. Ashok Ladha, for commission of criminal negligence or culpable/gross negligence and the Courts below have not considered the above mentioned factual and legal position while framing the charge. The Supreme Court in the cases of Union of India Vs. Prafulla Kumar Samal and another ( AIR 1979 SC 366 ) and Niranjan Singh karam Singh Punjabi Vs. Jitendra Bhimraj Bijia and others ( AIR 1990 SC 1962 ) have held that "at the stage of framing of charge, the Trial Court should not accept the allegations levelled in the charge-sheet as gospel truth but after due application of mind must consider whether prima facie case is made out for putting the accused to undergo the trial or not. " In the instant case, this Court is of the considered view that on the basis of the material available in the charge-sheet, no prima facie case is made out for asking the applicant to undergo the trial. ( 15. " In the instant case, this Court is of the considered view that on the basis of the material available in the charge-sheet, no prima facie case is made out for asking the applicant to undergo the trial. ( 15. ) IN the result, the petition for quashing the charge and proceeding pending before learned C. J. M. Indore in Criminal Case No. 2045/2002 is allowed and the order of framing of charge by the Trial Court dated 23-7-2002 and affirmed by Revisional Court dated 21-3-2003 are hereby quashed and applicant is discharged. M. Cr. C. allowed.