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2007 DIGILAW 326 (CAL)

Ashim Kumar Sarkar v. STATE OF WEST BENGAL

2007-05-02

ASHIM KUMAR ROY

body2007
Judgment :- (1). HEARD, the learned Counsel appearing on behalf of the petitioner, as well as on behalf of the State and the de facto complainant. (2). IN the instant criminal revisional application the petitioner, an orthopaedic Surgeon challenged the legality and validity of an order whereby the learned Additional Sessions Judge, Tamluk rejected his application under section 227 of the Code of Criminal Procedure for discharge and held that there are prima facie materials for framing charge under section 304/34 of the Indian penal Code. (3). THE brief facts of the case in a nutshell are as follows: (a) The nephew of the complainant, Sk. Siraj Ali Khan aged about 6 years suffered a fracture of femur bone due to a fall from the lap of his grandfather. At first he was examined by a local doctor and according to his advise x-ray was done. Thereafter, the patient was taken to Subhalaksmi Nursing Home where Dr. Nakul Palui examined the patient and after going through the x-ray plate opined that it was a case of simple fracture which needed a surgical operation but not anything serious. The said Dr. Nakul Palui further proposed operation might be done on June 11, 1997 at 5.00 p.m. by Dr. Ashim Kumar Sarkar, an Orthopaedic Surgeon under anaesthesia and a total sum of Rs. 4,500/- will be charged for such operation including the charge of operation, fees for doctors and medicines etc. Accordingly, on June 11, 1997 at around 11.00 a.m. in the morning the nephew of the complainant siraj Ali was admitted at Subhalaksmi Nursing Home and at around 7.30 in the evening the patient was taken to the operation theatre when no anaesthetist was present. At that time Dr. Palui stated to them that everything has been arranged and at his nursing home many other critical operations have been done under anaesthesia and there is nothing to be worried. Till 11.00 p. m. there was no news about the condition of the patient and only at around 11.30 p.m. they were called inside the OT. Room and in presence of Dr. Ashim Kumar Sarkar, other Doctor Nakul Palui informed them that during the operation his nephew had expired. (b) During investigation Dr. Nakul Palui was arrested and was released on bail after expiry of statutory period whereas the present petitioner Dr. Room and in presence of Dr. Ashim Kumar Sarkar, other Doctor Nakul Palui informed them that during the operation his nephew had expired. (b) During investigation Dr. Nakul Palui was arrested and was released on bail after expiry of statutory period whereas the present petitioner Dr. Ashim kumar Sarkar was granted anticipatory bail by this Honble Court. (4). THE learned Advocate appearing on behalf of the petitioner sought for quashing of the impugned proceeding on the ground that the materials collected by the investigating agency made out no case under section 304 of the Indian penal Code against the petitioner. According to him their is no material that the death of the nephew of the complainant was caused by the petitioner, an orthopaedic Surgeon either by any intentional act or by any act although unintentional but with the knowledge by such act the death was likely to be caused. It is his further submission that there is no other material even to suggest remotely that the death was caused due to the rash and negligent act of the petitioner. On the other hand, the learned Advocate of the de facto complainant submitted that the surgical operation of the nephew of the defacto complainant was undertaken by the petitioner without any competent anaesthetist. He further submitted even if no case under section 304 of the Indian Penal Code is made out against the petitioner since the death was caused due to the rash and negligent act of him, the petitioner is certainly liable for prosecution under section 304a of the Indian Penal Code. Mr. Ranjan Roy, the learned Advocate appearing on behalf of the State draws the attention of this Court to the opinion of the post-mortem doctor as well as to the anaesthetist notes and submitted that on the basis of the same the petitioner cannot be held responsible for the death of nephew of the complainant. (5). HEARD, the learned Advocates appearing for the parties. Perused the materials on record. (6). I have gone through the materials gathered by the investigating agency during the investigation of this case with the limited purpose to see whether any prima facie case has been made out as against the petitioner or not. (7). (5). HEARD, the learned Advocates appearing for the parties. Perused the materials on record. (6). I have gone through the materials gathered by the investigating agency during the investigation of this case with the limited purpose to see whether any prima facie case has been made out as against the petitioner or not. (7). IT appears from the materials available from the police report under section 173 (2) of the Code of Criminal Procedure in connection with the instant case that the postmortem of the deceased was held at the Calcutta Police Morgue by Dr. D. Guha Roy of Department of Forensic and State Medicine, Medical college and Hospital, Calcutta. The said autopsy surgeon submitted his final opinion taking into consideration nursing home records including the bed head ticket and operation notes. The final opinion of the post-mortem doctor amongst other was as follows: "it cannot be ruled out that anaesthetic hazards could be the cause of death as there was no other mentionable findings to attribute to the cause of death. "It further appears from the anaesthetic notes which are also the part of the police papers that the surgical operation of the nephew of the de facto-complainant was undertaken in presence of the anaesthetist Dr. Pravat mukherjee and there was no crisis during and after operation and at around 9.00 p. m. the patient in good condition and in conscious state was shifted to the ward. (8). THUS, the opinion of the post-mortem doctor completely excludes the possibilities of any lapses on the part of the petitioner, the Orthopaedic Surgeon, who operated the patient far less any lapses on his part which attributes to the cause of death. Moreover, it appears from the records that the operation was undertaken under proper anaesthesia given by a competent anaesthetist Dr. Pravat Mukherjee, Ex-Medical Officer, Anaesthetist, Sadar Hospital, midnapore, as such the allegations of the de facto -complainant that operation was done in absence of any anaesthetist is totally unacceptable. I also do not find any material as against the petitioner to make him prima facie liable for rash and negligent act which attributes to the cause of death of the patient. (9). I have therefore no hesitation to hold that in the instant case the framing of charge under section 304 of the Indian Penal Code as against the present petitioner is wholly unjustified and illegal. (9). I have therefore no hesitation to hold that in the instant case the framing of charge under section 304 of the Indian Penal Code as against the present petitioner is wholly unjustified and illegal. In the result, the instant criminal revisional application stands allowed and the impugned order is set aside. Criminal revisional application allowed.