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2000 DIGILAW 422 (CAL)

Tapas Kumar Dutta v. Sabita Sanyal

2000-08-18

Debiprasad Sengupta

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Judgment Debiprasad Sengupta, J. In spite of notice nobody appears on behalf of the opposite parties. The affidavit of service filed by the petitioner's learned Advocate may be kept with the record. 2. This revisional application is for quashing of a proceeding being case No. 378-C of 1993 under section 304A of the Indian Penal Code pending in the court of learned Judicial Magistrate, 3rd. Court, Krishnanagar, Nadia. 3. Present opposite party No.1 filed a petition of complaint in the court of learned Chief Judicial Magistrate, Nadia at Krishnanagar against the present petitioner alleging commission of an offence under section 304A of the Indian Penal Code. In the said petition of complaint it was alleged that the husband of the complainant was admitted in Gandhi Memorial Hospital, Kalyani with a chest pain on 6.5.93. It was alleged that the complainant's husband was admitted in the hospital under Dr. Tapas Dutta (present petitioner). After his admission the hospital authority sent "Call Book" to the petitioner as he was the specialised Doctor at the relevant time. But the petitioner was not available in the hospital as he was not present at the relevant time. It was alleged that the accused neglected to perform his duty with which he was entrusted, as a result of which the husband of the complainant died at 7.10 p.m. in the said hospital due to negligent act of the accused. 4. On receipt of petition of complaint the learned Magistrate examined the complainant and her witnesses and issued process against the petitioner under section 304A of the Indian Penal Code. The accused-petitioner appeared before the learned Magistrate. He was examined under section 251 of the Code of Criminal Procedure. Substance of accusation was read over and explained to him to which he pleaded not guilty. It is at this stage the petitioner came up before this court for quashing of the proceeding. 5. Mr. Sudip Sanyal, learned Advocate appearing for the petitioner submits that the allegations made in the petition of complaint do not make out any offence under section 304A of the Indian Penal Code. Mr. It is at this stage the petitioner came up before this court for quashing of the proceeding. 5. Mr. Sudip Sanyal, learned Advocate appearing for the petitioner submits that the allegations made in the petition of complaint do not make out any offence under section 304A of the Indian Penal Code. Mr. Sanyal further submits that from the petition of complaint and the initial deposition of witnesses it becomes clear that the petitioner did not know that the husband of the complainant was admitted in the hospital; he could not be contacted by the hospital staff as he was not present in the hospital at that time; he did not examine the patient at all from the time of patient's admission till his death and there was no refusal by the petitioner to see the patient. So even assuming that the allegations made in the petition of compliant are correct, yet the same do not make out any offence under section 304A of the Indian Penal Code. Mr. Sanyal further submits that there was no rash and negligent act on the part of the petitioner which caused the death of the complainant's husband as it is the specific case of the petitioner that on the relevant date the accused-petitioner Dr. Tapas Dutta was not at all present in the hospital and in spite of repeated attempts he could not be contacted by the hospital authority as he was not available in the hospital. 6. I have heard the learned Advocate of the petitioner. I have carefully gone through the petition of complaint and initial depositions of witness. I find sufficient merit in the submissions made by Mr. Sanyal, learned Advocate of the petitioner. In the petition of complaint it has been stated that in spite of repeated efforts made by the hospital authority the petitioner could not be contacted as he was not available in the hospital. The main allegation against the petitioner is that being a specialist doctor he was not present in the hospital although he was supposed to be on duty during that period and because of such absence of the petitioner the husband of complainant died. The main allegation against the petitioner is that being a specialist doctor he was not present in the hospital although he was supposed to be on duty during that period and because of such absence of the petitioner the husband of complainant died. In a case under section 304A I.P.C. death should have been the direct result of rash and negligent act of the accused and there must be a nexus between the death of a person and rash and negligent act of the accused. In the present case there is no material to suggest that the petitioner acted in a rash and negligent manner causing death of the complainant's husband. If any doctor is found absent or is not available in the hospital during his duty hours, he may be answerable to his superior authority and for such conduct of the doctor he may be liable to face disciplinary proceeding initiated against him. But he can never be liable to be prosecuted for committing any offence under section 304A of the Indian Penal Code. 7. On a perusal of the petition of complaint as also the initial depositions of her witnesses I am of the opinion that the allegations made in the petition of complaint do not make out any offence under section 304A of the Indian Penal Code. This, in my considered opinion, is a fit case for interference by this court. Accordingly the revisional application is allowed. The impugned proceeding being case No. 378-C of 1993 pending in the court of the learned Judicial Magistrate, 3rd Court, Krishnanagar, Nadia is quashed. Proceeding quashed.