JUDGMENT : In this application petitioner prayed for quashing the order dated 13.01.2005 passed by learned Additional Chief Judicial Magistrate, Rajmahal in P.C.R. Case No. 395 of 2002 whereby and whereunder he took cognizance of the offence under section 304 and 420 read with section 34 of the IPC. The petitioner further prays for quashing the entire criminal proceeding. 2. The case of prosecution in short is that the sister of O.P. No. 2 was admitted in the clinic of petitioner on 5.7.2002, where she had been injected saline for normal delivery. It is further alleged that even on administration medicine when normal delivery did not take place, petitioner advised for operation. Thereafter on operation, a female child borne to the sister of O.P. No. 2. It is then alleged that thereafter on 6.7.2002 profuse bleeding started to the sister of O.P. No. 2, whereupon the nurse of the clinic, Sona Tudu (accused no. 2) had injected some medicine to the sister of O.P. No. 2. It is further stated that after administering the said injection some more complications arose, thereafter O.P. No. 2 called this petitioner for attending his sister. It is stated that the petitioner attended the patient and asked the nurse to administer other injection. But the sister of O.P. No. 2 could not survive and ultimately died. It is alleged that due to the wrong administration of medicine, sister of O.P. No. 2 died. It is alleged that due to negligence of petitioner and attending nurses the sister of petitioner died. It is also alleged that the petitioner had demanded Rs. 10,000/-for the operation, but O.P. No. 2 could only arrange and paid Rs. 4,000/-to the petitioner. It is further alleged that because of the aforesaid reason intentionally wrong medicine administered to his sister. Thus, it is alleged that the action of petitioner as well as the nurse of his clinic is punishable under section 304 and 420 of the IPC. 3. It appears that learned Additional Chief Judicial Magistrate, Rajmahal, examined the complainant on S.A. and also examined witnesses in course of inquiry under section 202 of the Cr.P.C. It further appears that after considering the materials, learned Additional Chief Judicial Magistrate passed the impugned order and took cognizance of the offence under Section 304, 420 read with 34 of the I.P.C. Against that present application has been filed. 4. 4. It is submitted by learned counsel for the petitioner that no offence under section 304 and 420 of the IPC is made out. It is further submitted that the petitioner being a doctor had taken full care and caution in operating the deceased and had also administered right medicine to her, unfortunately she died due to cardio respiratory failure. It is further submitted that the complaint petition has been filed without producing any evidence in the form of a credible opinion given by another competent doctor to support the charge of negligence on the part of petitioner. It is further submitted that the occurrence took place on 6.7.2002 and the present complaint petition has been filed on 3.12.2002 i.e. after about five months with an ulterior motive to pressurize the petitioner to pay uncalled for compensation. Accordingly, it is submitted that the learned court below wrongly took cognizance of the offence, which is an abuse of the process of court. 5. It appears that a notice was issued to the O.P. No. 2, which has already been served upon him, but in spite of the same he did not turn up and oppose this application. 6. Having heard the submission, I have gone through the record of the case. From the perusal of the complaint petition as well as the statement of complainant on S.A. it appears that two years ago, deceased (sister of O.P. No. 2) delivered a caesarian child at Rampur Hat. Thus it appears that the petitioner had rightly advised for operating the deceased for the second delivery after waiting for sometime. It further appears that petitioner successfully conducted second operation and a female child born out of said operation. It appears that the said female child is still surviving. However, it appears that some post operational complication developed to the deceased, for that medicine was administered her by the nurse of the clinic. It further appears that even after injecting the medicine, when the complication did not subside, then the petitioner attended the deceased and directed to administer some more medicine, but in spite of that the deceased could not survive and died. Thereafter the death certificate has been issued by the petitioner stating therein that the deceased died due to cardiorespiratory failure. However the complainant alleged that his sister (deceased) died due to wrong administration of medicine. Thereafter the death certificate has been issued by the petitioner stating therein that the deceased died due to cardiorespiratory failure. However the complainant alleged that his sister (deceased) died due to wrong administration of medicine. It is also alleged that later on the complainant came to know that the petitioner is not qualified for a major operation and he had caused the death of the complainant’s sister intentionally. From the perusal of prescription, which is annexed with the complaint petition, it appears that the petitioner is a MBBS, therefore, it cannot be said that he is not qualified to operate the deceased. 7. From the complaint petition as well as the statement of complainant on S.A. there is nothing to show that after the death of deceased, post mortem examination conducted on the dead body of deceased. Thus apart from the death certificate issued by the petitioner, there is no other expert opinion to show that the cause of death of deceased was something else. Complainant had also not produced any expert opinion to show that a wrong medicine administered to the deceased. Even the name of medicine was not mentioned in the entire complaint petition. Under the said circumstance, it cannot be presumed that the deceased died due to wrong administration of medicine. It is an admitted position that whenever O.P. No. 2 called the petitioner for attending the deceased, he came to his clinic and attended the deceased. 8. In Jacob Mathew Vs. State of Punjab, reported in 2005 CRI.L.J. 3710, their Lordships of Supreme Court noticed that the cases on doctors being subjected to criminal prosecution are on an increase. Accordingly their lordships at paragraph No. 53 directed the Government of India and/or State Government to issue statutory rules or executive instructions incorporating certain guidelines in this respect in consultation of Medical Council of India. However, so long it is not done, their Lordships laid down certain guidelines for the future, which should governed the prosecution of doctors for offences of which criminal rashness or is of criminal negligence is an ingredient. According to the said guideline “a private complaint may not be entertained unless the complainant has produced prima-facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of accused doctor”. (Emphasis added). 9. According to the said guideline “a private complaint may not be entertained unless the complainant has produced prima-facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of accused doctor”. (Emphasis added). 9. As noticed above in the instant case the complainant had not produced any opinion of any other competent doctor to show that the death of deceased took place due to the rash or negligence act of this petitioner. Even the post mortem of the deceased had not been conducted. Under the said circumstance, in the absence of any cogent and credible evidence given by some competent doctor, in my view, the learned court below ought not have entertained the present complaint petition. In the instant case, from perusal of complaint petition, I find that Dr. Smt. Sarita Tudu has been shown as one of the witness, but from the perusal of impugned order it appears that she has not been examined as witness during the inquiry. Thus, at the time of inquiry neither the complainant nor the learned court below had taken pain to examine any expert to show that the deceased died due to rash or negligence act of the petitioner. 10. In the instant case, I find yet another illegality in the order passed by the court below. It is apparent that in the complaint petition, the complainant had alleged that the petitioner had committed an offence under section 304 of the IPC and learned court below after inquiry had also come to the conclusion that prima-facie an offence under section 304 of the IPC is made out. It is needless to say that the offence under section 304 I.P.C. is exclusively triable by the court of sessions. Proviso to section 202 (2) of the Criminal Procedure Code 1973 makes it imperative for the magistrate to call upon the complainant to produce all his witnesses and examined them on oath, if it appears to the magistrate that the offence complained is triable exclusively by the court of sessions. 11. The list of witnesses accompanied with the complaint petition, contained the names of five witnesses including Dr. Smt. Sarita Tudu. The impugned order shows that out of aforesaid five witnesses Dilip Kumar Saha, Arun Kumar Mahto, Chinta Devi, Dhiren Mahto, have been examined. As noticed above Dr. 11. The list of witnesses accompanied with the complaint petition, contained the names of five witnesses including Dr. Smt. Sarita Tudu. The impugned order shows that out of aforesaid five witnesses Dilip Kumar Saha, Arun Kumar Mahto, Chinta Devi, Dhiren Mahto, have been examined. As noticed above Dr. Smt. Sarita Tudu has not been examined. There is nothing in the impugned order to show that learned court below called upon the complainant to produce Dr. Smt. Sarita Tudu for her examination. Thus, I find that learned court below has not followed the mandatory procedure as laid down in the proviso to section 202 (2) Cr.P.C. 12. In view of discussions made above no offence under section 304 or 304A and 420 of the IPC is made out against the petitioners. Under the said circumstance, the impugned order by which the cognizance of the said offences taken is against the law laid down by the Hon’ble Supreme Court in Jacob Mathew’s case (supra) and also violative of proviso to section 202 (2) Cr.P.C. 13. In the result, this application is allowed. The order dated 13.01.2005 passed by Additional Chief Judicial Magistrate, Rajmahal in P.C.R. Case No. 395 of 2002 is quashed, consequently the entire criminal proceeding in connection with P.C.R. Case No. 395 of 2002 is hereby quashed.