Calcutta High Court (Appellete Side)
Dr. Krishnendu Das vs The State Of West Bengal & Anr on 10 January, 2017
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
C.R.R. 1603 of 2009
with
C.R.R 3962 of 2009
Dr. Krishnendu Das
-Versus-
The State of West Bengal & Anr.
For the Petitioner : Mr. Tapandeb Nandi
(in CRR No.1603 of 2009) Mr. Soubhik Mitter
For the Accused : Mr. Brotindro Mullick
(in CRR No.3962 of 2009) Mr. Dipankar Dandapath
For the Opposite Party No.2 : Mr. Deep Chaim Kabir
Mr. Mashar Hossain Chowdury
For the State : Mr. Ayan Basu
Heard on : 28.09.2016, 24.11.2016 &
15.12.2016
Judgment on : 10.01.2017
Indrajit Chatterjee, J.:- This Court is hearing two revisional applications,
one filed by Dr. Krishnendu Das (in CRR No. 1603 of 2009) and the other
filed by Dr. Debasish Mukherjee and Dr. Debasish Chatterjee jointly,
registered as CRR No. 3962 of 2009 as both these criminal revisional
applications arose out of Shyampukur P.S. Case No. 171 dated 31-11-2005
under Section 304A of the Indian Penal Code (hereinafter called as the said
Code) which is now pending before the learned Metropolitan Magistrate, 15th
Court, Kolkata, as G.R. Case No. 1387 of 2005. Both these CRRs are taken
up together.
The fact relevant for the purpose of disposal of these criminal
revisional applications can be stated in brief thus:
That the daughter of the de facto complainant was admitted at
Sterling Hospital, a Private Treatment Centre at about 10-20 p.m. on 28-09-
20105. She (Anushila Bose) aged 5 years was declared dead on 29-09-2005
in the said Private Treatment Centre. After her death, a complaint was
lodged with Shyampukur Police Station by the father of the victim on 13-11-
2005 and the said Police Case was started with an explanation that as he
was mentally perturbed in the intervening days he could not lodge the
complainant earlier.
In the complaint it was written that since the night of 25-09-2005,
the said victim was suffering from fever and the de facto complainant
attended one Malaria Clinic on the next date (26-09-2005) run by Kolkata
Municipal Corporation for detection of Malaria of the said daughter of the de
facto complainant. After examination of her blood the germs of Malaria
could not be detected. The Platelet count of the said daughter was checked
from one Laboratory called as Madipath where the Platelet count was 2.35
Lakh/Cu.m.m.
On the very date (26-09-2005) in the night at about 10-00 p.m. the de
facto complainant took her daughter to Dr. Debasish Mukherjee, that is,
accused No.1 and the petitioner of CRR No. 3962 of 2009 and the doctor
examined the patient and also the blood examination report. Some
medicines were prescribed as per prescription dated 26-09-2005.
The fever did not subside and as such, in the morning of 28-09-20105
(Wednesday) the said daughter was taken to Calcutta School of Tropical
Medicine but the attending doctors there did not take any care of the
daughter as her temperature only 100o F and not 103o F. The attending
doctors there told the de facto complainant to take her daughter to bring
School on Friday or Saturday for Dengue Test and Sukumar Das (A-3) also
examined the blood report of the victim but he neglected as he did not
prescribe any fresh blood test.
On the same day, i.e. on 28-09-2005 at about 8-45 p.m. when the
said victim started vomiting, then the de facto complaint contacted Dr.
Debasish Mukherjee (A-1) over telephone at about 9-10 p.m. and in the
meantime, the victim was vomiting and withdrew the Syrup and thereafter,
call was again made to the A-1 just after five minutes of the first call and A-
1 was requested to come to the residence of the de facto complainant to
attend the said daughter but the doctor refused to come to attend the
patient and also told to administer on her Domestal Syrup again. It was also
disclosed by the de facto complainant to the said doctor that the victim was
not urinating since 3 p.m. A-1 told the de facto complainant to come to his
residence and chamber at 7-00 a.m. on the next day. Even though Demestal
Syrup was administered, vomiting did not stop. The telephone of the A-1
was found "switched off".
Then the de facto complainant contacted Dr. Debasish Chatterjee (A-
4) and he advised the de facto complainant to consult with Dr. Krishnendu
Das, i.e. A-5, one pediatrician and ultimately, the said girl was taken to
Starling Hospital located at 55/1, Bhupen Bose Avenue at about 10-00 p.m.
on 28-09-2005. Both Dr. Chatterjee and Mukherjee (A-4 and A-5)
respectively attended that daughter. There was examination of blood afresh
as per the treatment schedule of those two doctors and then, Platelet count
fell to 1,55,000/Cu.m.m. whereas the previous count was
2,35,000/Cu.m.m. as was mentioned in paragraph 2 of the complaint. The
matter was reported to the doctor even by the de facto complainant himself
and he told both the doctors that the Platelet count was rapidly going
downwards and was that enough sign for the fever 'Dengu' and as such, the
said father requested the doctors to take appropriate care and to put in
platelet to his daughter to save from her from 'Dengu' but they neglected
and rather assured that the said daughter will be cured on the next day
under their treatment.
The complainant and his wife requested the A-4 and A-5 to put their
child in the Intensive Care Unit (ICU) for better treatment and also
requested to have opinion from other better Child Specialist. But the
complaint is silent as to whether such request was considered. It was
unfortunate for the complainant that instead of giving her blood platelet, the
two doctors, i.e. A-4 and A-5 as per complaint started giving Monocef (1 mg)
and they injected 4 such injections on 28-09-2005 and two injections on 29-
09-2005, those were supplied from the Medicine Shop of the said Nursing
Home.
On 29-09-2005 again the blood of the victim was examined at about
11 a.m. and Platelet count was found to be only 32,000/Cu.m.m that was
enough symptom that 'Dengu' was positive and at about 2-00 p.m. on the
same day, the victim started convulsion and developed other symptoms but
till then, those two doctors acted in a negligent manner and did not arrange
immediately to put Platelet to save the life of that child.
Ultimately, at about 4-00 p.m. on the same day, the daughter was
shifted to ICU for the first time just to keep the patient party in the dark.
The victim developed heart blockage but no RMO was found present in the
said Nursing Home at that moment. A-4, Debasish Chatterjee, came at
about 5-00 p.m. and asked regarding the blood group of the said daughter
and also asked the patient party to bring Platelet which was duly brought by
the father, complainant, from Manicktala Blood Bank and R.G. Kar Medical
College & Hospital and came to the hospital after about an hour from 5-00
p.m.
At about 6-00 p.m., Dr. Krishnendu Das came and administered
Platelet at the last stage but in the meantime at 7-00 p.m. Dr. Debasish
Chatterjee declared that the victim is dead. In the complaint, it was
specifically urged by the de facto complainant that had the doctors been
careful for her actual treatment the patient would not have died and the
death of the daughter was caused due to the negligence of the doctors (the
accused persons) as noted in the heading of the complaint.
The matter was investigated by the Shyampukur Police Station and as
per order of the Court the dead body of the victim was exhumed on 20th
December, 2005 from Hindu Burial ground and there was autopsy on the
dead body of the victim which was done by Prof. Dr. A. K. Gupta of Calcutta
Medical College and Hospital, who opined that the death in all probability
resulted from a generalized haemostagic response but he reserved his final
opinion till the receipt of report of preserved articles and thereafter, when
those reports were placed before Dr. Gupta again he opined that the
criminal negligence occurred in this case.
The case was being handled by the Detective Department of Calcutta
Police and a fresh opinion was received from Dr. Sukanta Chatterjee as the
Investigating Officer was interested to be doubly sure regarding the cause of
death of the victim. Dr. Sukanta Chatterjee, Prof. and Head of the
Department of Pediatric, Calcutta Medical College and Hospital, submitted a
report on 02-05-2007 to the Deputy Director of Health Services
(Administration), Department of Health and Family Welfare, Government of
West Bengal, as requested by the Investigating Officer through the said
Deputy Director. The said report of Dr. Chatterjee is there in page 32 of the
case diary, which has reference to Memo No. CEO-010/06/A4414 dated 14-
07-2006 of the said Deputy Director and the subsequent communication
and documents submitted by the Investigating Officer. The said doctor
opined that the child was offered recommended care but unfortunately,
could not be saved since Dengu fever has no specific medicine and the
mortality rate is 50%, (Nelsons Text Book of Pediatrics, 2004 was referred in
the report). This doctor further opined that the doses administered by the
doctors, i.e. broad-spectrum antibiotics, were rightly given. The doctor
further opined that Platelet transfusion was given when it was indicated that
the Platelet count came down to 32,000/c.m.m. or bleeding. The report
further reveals that Platelet transfusion was not indicated at 1.55 lakhs
count even in a case of Dengu fever and that low Platelet count in Dengu
fever is declared at 1 lakh count vide W.H.O. He also supported that two
doctors took due care and that ICU support with ventilator was given when
oxygen saturation dropped and that till this point of treatment, no deviation
from recommendation of the authority on Medical Science was done (some
words added by me for convenience).
For the convenience of the readers of the judgment, this may be
placed on record that Dr. (Prof.) A. K. Gupta submitted one report which is
at page nos. 13, to 23 of this revisional application regarding the cause of
death.
On behalf of accused, Dr. Krishnendu Das, Mr. Nandi, learned
Advocate, appearing on behalf of the petitioner took me to the list of dates
(taken on record with objection from the learned Advocate appearing on
behalf of the de facto complainant). He took me to internal page no. 6 of the
list of dates and took me to Annexure -P1 of this revisional application
which is dated 01/06/2007, wherein this de facto complainant was
communicated in reference to his letter dated 11.11.2005 that no medical
negligence could be proved against Dr. Debashis Mukhopadhay (A1), Dr.
Debashis Chatterjee (A4) and Dr. Krishnendu Das (A5) and the Registrar of
West Bengal Medical Council communicated this matter to the de facto
complainant as per Memo No. 611 dated 01/06/2007.
Learned Advocate also took me to the running page nos. 36 and 37 of
the revisional application, i.e. the reasoned order passed by the Registrar of
the said Council regarding the death of that girl, Anusila Bose. For the
convenience of the readers, I may note that the reasoned order was passed
on 06/09/2007 whereas the Registrar communicated the de facto
complainant regarding the decision of the said Council as back as on
01/06/2007.
It is the submission of Mr. Nandi that this report was suppressed to the Investigating Agency even though before the charge sheet was submitted on 10/08/2008, such report and the reasoned order already reached the hands of the de facto complainant. He further submitted that this court may also take into consideration that against the reasoned order of the State Medical Council, this de facto complainant filed one appeal before the Medical Council of India which was disposed of and as per letter dated 01/02/2011 of the Deputy Secretary of the said Council, it was communicated to the de facto complainant that the Ethics Committee has decided to upheld the decision of the West Bengal Medical Council dated 01/06/2007 and treated the matter as closed. He further submitted that it may be noted for future reference that before the Medical Council of West Bengal, three doctors were indicted but when the appeal was preferred before the Medical Council of India, the appeal was preferred against two doctors only, i.e., Dr. Debashis Mukhopadhayay and Dr. Krishnendu Das and not against Dr. Debashis Chatterjee. Thus, it is the submission of Mr. Nandi that the charge sheet believing the post-mortem report and the subsequent clarification of Dr.(Prof.) Gupta are not enough to come to a conclusion that the doctors were negligent in their acts in treating the victim.
Learned Advocate has referred to a decision of the Apex Court as reported in (2005) SCC (Cri) 1369 (Jacob Mathew Vs. State of Punjab and Anr.) wherein the fact before the Apex Court was as follows:-
That the victim patient fell difficulty in breathing and the complainant's elder brother who was present in the room of the said patient contacted the Duty Nurse who, in her turn, called some doctors who attended the patient but unfortunately, no doctor turned up for about 20/25 minutes and thereafter the petitioner before the Apex Court came along with other doctors in the room of the patient and one oxygen cylinder was brought and that was connected in the mouth of the patient but the breathing problem increased further and the patient tried to get up but the medical staff asked him to remain in bed. It was also a fact before the Apex Court that the oxygen cylinder was found to be empty and there was no other gas cylinder available in the room and that the elder brother of the victim patient went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in between that 5/7 minutes wasted and by that time, another doctor came who declared the patient to be dead. The Apex Court in paragraph 48(2) of the said judgement took two issues regarding the negligence in the context of medical profession which calls for a treatment with a difference and that to infer rashness and negligence on the part of the professional, in particular a doctor, additional considerations will apply. The court further observed in that sub-paragraph that a case of occupational negligence is different from one of professional negligence. The Apex Court further observed that similarly when the charge of negligence arises out of failure to use some particular equipment, the charge will fall if the equipment was not generally available at that particular time (i.e. the time of incident) at which it is suggested it should have been used. The Apex Court further observed in that sub-paragraph that a case of simple lack of care, and error of judgement or an accident is not proof of negligence on the part of a medical professional. So far as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have to follow or resort to that practice or procedure which the accused followed.
The learned counsel also took me to the said decision of the Apex Court in paragraph 5 and 6 wherein the Apex Court held that as per jurisprudencial concept negligence differs in civil and criminal law and that what may be negligence in civil law may not necessarily be negligence in criminal law.
The Apex Court further said in paragraph 6 that the word 'gross' has not been used in Section 304A of the I.P.C. yet it is settled that criminal law negligence or recklessness, to be so held must be of such a high degree as to be 'gross' and that the expression rash or negligence as occurring in Section 304A of the I.P.C. has to be read as qualified by the word 'grossly'. Learned counsel submitted that this 'grossly' is to be taken only in cases of professional negligence.
Learned counsel took me to the final opinion passed by Doctor Professor A. K. Gupta, wherein he pointed out four features which convinced him to come to the conclusion that the attending doctors can be booked for 'Criminal Medical Negligence'. These features are as follows:-
1) That the attending doctors could not diagnosis Dengue Shock Syndrome causing acute lowering of platelet count at a proper time before it came down to 32 thousand/C.U.M.M.
2) Not providing blood transfusion or at a proper time to control generalise haemorrhagic response amounts to criminal negligence in the management procedure which ultimately caused death of a child of five years.
3) The visiting physician and attending doctors of the said private medical centre were further negligent by not physically attending the victim regularly after her admission except for a few hours prior to her death;
4) Not referring the patient to any higher center on the plea that the father did not agree and the said plea was assessed to be absurd by Dr. A. K. Gupta who put reliance to the fact that Anushila was put at ICCU with ventilation support only a few hours before her death and this is also a circumstance to prove that the attending doctors were also negligent.
On all these points, the learned defence counsel submitted that it may be true that there was an error in judgment but later on the said doctors could diagnose Dengue and gave all possible treatment. Regarding not providing blood transfusion, Mr. Nandi submitted that the blood transfusion may not have been provided at proper time and there may or may not be in giving proper advice and that when platelet was decreasing the patient party was asked to bring platelet. He further submitted regarding the third allegation levelled by doctor Gupta that none attended the victim properly is not matching with the complaint itself, if the complaint is meticulously read.
Regarding the fourth point of doctor Gupta for non-referring the patient to a higher center, the learned counsel submitted that when the matter was assessed properly, the victim was shifted to ICCU with ventilation support and the said nursing home was equipped with such lifesaving apparatus and it cannot be said in the same tune with doctor Gupta that the attending doctors were 'grossly negligent' i.e. the word used by the Apex Court in Jacob Mathew (supra).
Learned Advocate took me to the judgment of the Apex Court as passed in the case of Dr. Suresh Kmar Gupta Vs. NCT of Delhi & Anr., reported in 2004 SCC (Cri) 1785, wherein the Apex Court held that while fixing criminal liability on a Doctor or a Surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or "recklessness" and that merely lack of taking necessary care, attention and skill is not enough. In this decision the Apex Court relied upon the decision of House of Lords in R. Vs. Adomako wherein the House of Lords in that case observed "thus a doctor cannot be held criminally responsible for patient's death unless his negligence of incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State".
The Advocate further took me to paragraph 21 of the said decision wherein the Apex Court dealt with the said matter and observed that it can be termed as "criminal" only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence and where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it and mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.
He further submitted that this judgment of Suresh Gupta (Dr.) (Supra) was affirmed by three Judges Bench as passed in in the case of Jacob Mathew Vs. State of Punjab, reported in 2005 SCC (Cri) 1369 about which I have already stated. Putting the principles laid down by the Apex Court on the fact of the case before the floor of this Court Ld.Counsel submitted that this Dr. Das first attended the patient when the patient was admitted at about 10.20 p.m. on September 28, 2005 and thereafter this doctor attended the patient on the next day morning. Learned Advocate submitted that when the Doctor attended the patient first the platelet count was 2.35 lakhs cq/mm and that was very much normal and when on the next day he attended the patient in the morning he advised for blood test and the blood test was made in one centre and the report was placed before the Doctor at about 11.00a.m. when the platelet count was found to be 32 thousand cq/mm He further submitted thereafter the Doctor advised the patient-party to bring platelet and such requisition was placed to the de facto complainant only at 5.00 p.m. and platelet was brought by him at 6.00 p.m. Learned Advocate further submitted to consider the fact that the victim was already admitted in ICCU at about 4.00 p.m. It may be mentioned that bringing of platelet did not yield any result and the victim girl succumbed to death and she was declared dead by Dr. Debasish Chatterjee (Accused No. 4) at 7.00 p.m. It is the contention of the learned defence Counsel appearing on behalf of the Accused No. 5 Krishnendu Das that he only attended the patient at night on September 28, 2005 at about 10.00 p.m. and thereafter this Doctor attended the patient at about 6.00 p.m. as per complaint and during the intervening period(to be checked with the complaint)patient was attended by other Doctor.
He further took me no the complaint to show that at about 2.00 p.m. convulsion started and that at about 4.00 p.m. patient was shifted to ICCU and at 5.00 p.m. Dr. Debasish Chatterjee came and asked the de factor complainant regarding the blood group of the victim and asked him to bring platelet and as per that complaint this Dr. Krishnendu Das came to the hospital thereafter at about 6.00 p.m. Thus, he submitted that this Doctor practically had no role in the treatment of the victim and he has been implicated falsely by the de facto complainant.
Learned Advocate also took me to the decision of the Apex Court in the case of Martin F. D'Souza Vs. Md. Irfaq, reported in (2009) 1 SCC (Cri 958 at paragraph 31 to show that in this case the Apex Court relied on its own decision as passed in Jacob Mathew (Supra) and he submitted that in paragraph 31, the Apex Court relied on the decision of Bolam Vs. Friern Hospital as reported in (1957)1 WLR 582, wherein it was held by that Court that the test is standard of ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill, "it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art".
Learned Advocate also took me to paragraph 34 of the said judgment to convince this Court that a Medical Practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment. The Apex Court further observed that one would be liable only when his conduct fell below that of the standards of a reasonably competent practitioner in his field.
The learned Advocate again took me to paragraph 36 of he said judgment wherein the Apex Court held that it is not enough to show that there is a body of competent professional opinion which considered that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. Thus, he tried to suggest that apart from the opinion of the Dr. Gupta, there are opinions of Dr. S. Chatterjee and also the expert opinion when the matter was considered by the West Bengal Medical Council and also by the Indian Medical Council.
He also took me to paragraph 38 of the said decision referred to above to convince this Court that at times the professional is confronted with making a choice between the devil and the deep sea and has to choose the lesser evil. The doctor is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk etc. Learned Advocate also took me to the paragraph 40 of the said judgment to say that the Apex Court said that simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur.
He further submitted that the Apex Court further observed that no sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake and a single failure may cost him dear in his lapse.
He also took me to paragraph 47 of the said judgment wherein the Supreme Court has prescribed some procedure to protect the doctors from frivolous complaints of medical negligence and in sub-paragraph (ii) the Apex Court prescribed that one competent medical opinion be also sought for by the investigating agency, preferably from a doctor in Government Service qualified in that branch of medical practice, who can normally be expected to give an impartial opinion applying Bolam test.
He thereafter took me to the report of Dr. Sukanta Chatterjee, Prof. and Head of the Department of Pediatric Medical College and Hospital, Kolkata dated 02.05.2007 to convince this court that the said doctor specifically opined that the treatment schedule administered to the patient was right and in the same breath the learned Counsel submitted that the report of Prof. Dr. Gupta may be ignored as the said doctor is not a Pediatrician and his branch is Forensic Medicine.
He further submitted that the report of the West Bengal Medical Council was very much with the investigating officer before the charge-sheet was submitted and this court can very well rely upon that document. (Mr. Basu, the learned State Counsel admits that such document is part of the case dairy).
The learned Counsel took me to paragraph 106 of Martin D'souza (Supra) regarding the direction given by the Apex Court as regards fixing up responsibility on the doctor.
He also took me to the judgment of the Apex Court as reported in 2014(1) C CLR (SC) 263 (AVS Narayanan Rao -Vs.- Ratnamala & Anr.) wherein the Apex Court in paragraph 11 noted that in the final report submitted by the police the opinion of Andhra Pradesh Medical Council and also the Medical Council of India were in the record wherein both the councils opined "Doctors seem to have made an attempt to do their best as per their records". The Apex Court in that case allowed the prayer of the doctor petitioner to quash the proceeding which was earlier negated by the High Court exercising jurisdiction under Section 482 of the Cr.P.C. It is better to say what was the fact of that case before the Apex Court. In that case the deceased after suffering a heart attack contacted the accused doctor and the said doctor performed one unsuccessful Angeoplasty and later a Bypass Surgery was conducted, but the patient died after developing complications.
Learned Counsel also took me to one Single Bench decision of Patna High Court reported in 2016(2) Crimes 496 Patna (Dr. Sanjay Singh @ Sanjay Kumar Singh & ors. -Vs.- State of Bihar) and the crux of that decision is that mere deviation from normal professional practice is not necessarily evidence of negligence so long it can be found that procedure which was in fact adopted was one which was acceptable to medical science on that date, medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
He also cited another decision of the Apex Court as reported in (2009) 2 SCC Cri 561 (INS. Malhotra (MS) -Vs.- Dr. A. Kripalini & ors.) wherein the Apex Court relied on its own decision as passed in Martin D'souza (Supra), Jacom Bathew (Supra) and Bolam (supra) held that medical negligence cannot be fastened easily and reiterated that unless negligence of doctor is established, primarily liability cannot be fastened on him.
The learned Counsel also took me to the decision to another decision of the Apex Court as reported in (2010) 2 SCC Cri 1127 (Kusum Sharma & ors. -Vs.- Batra Hospital and Medical Research Center and ors.) wherein the Apex Court held that the doctor would be liable only when his conduct falls below that of a reasonably competent doctor and divergence of opinion of other doctors not by itself sufficient to infer negligence.
The learned Counsel further argued by saying that this court will consider the circumstances before it and may consider whether the doctor was grossly negligent, 1) that this doctor attended the patient for the first time at about 10 p.m. at night when the Platelet count was 1,55,000 cu/mm., 2) that the said doctor administered Monocef injection. Then as per the complaint this doctor came at 6 p.m. 3) that the victim was admitted under Dr. Debasish Chatterjee, i.e., accused no. 4 as per the complaint, 4) that there is nothing on record to show that after this accused doctor attended the patient at 10 p.m. on 28.09.2005 he was not given any other call from the Nursing Home to attend the victim. By all these the learned Counsel tried to impress this court that at least this doctor was not grossly negligent in dealing with the patient.
Learned Counsel appearing on behalf of the petitioner took me to the treatment sheet to convince this Court that advice for dengue scrutiny was made as back as on September 28, 2005 at 10.20 p.m. He further submitted that the patient was duly attended by Dr. Das and also by Dr. Chatterjee in the said Nursing Home even in the midnight and thereafter the said patient was also attended at 1.35 a.m. and also at 11.00 a.m. He also submitted that offer was given to the de facto complainant to shift his baby but that was declined and as such no question of shifting to any other nursing home was contemplated.
He further contended that the patient was admitted at the ICCU at 2.10 p.m. on September 29, 2005 and at that point of time the platelet count was 32,000 cq/mm. He further contended that actually the requisition for platelet was made not at 5.00 p.m. but at 3.00 p.m. and the assertion of the complainant in the complaint to the effect is false. He further submitted that the report as regards platelet count came to the doctor not at 3.00 p.m. on September 29, 2005 (at page 21 of the supplied copy under Section 207 of the Cr.P.C).
He further submitted that as per that treatment sheet (page 19) platelet was infused at 4.50 p.m. on that very date and not at 6.00 p.m. He further contended that every time the complainant that is father of the victim was informed and option was given to him and as such it cannot be said that nursing home authority including this doctor was grossly rash and negligent in treating the patient contended that the mortality rate of dengue is 50% and it was the ill-luck that the patient did not survive.
He further submitted that dengue has no specific treatment and the doctor is to administer medicine considering the symptoms available. He contended that 'Monocef' injection was rightly administered twice since September 28, 2005 till her death and that was not rashness or illogical use of antibiotic and as such there was no rashness or negligent on the part of this Doctor.
Regarding choice of drug 'Monocef' learned Counsel submitted by taking me to the report of Prof. Dr. Chatterjee that in such a case 'Monocef' injection was rightly chosen by the attending doctor as because patient the had 'mucus in the stool' and also developed multi organ failure. To substantiate his claim that only two 'Monocef' injections were administered, learned Counsel submitted that actually four 'Monocef' injections were purchased, out of that two such injections were returned.
Learned Advocate appearing on behalf of petitioner attacked the report of the Dr. Gupta, the Autopsy Surgeon, to say that Dengue screening was advised not on the next day but on 28/09/2016 itself which is contrary to the claim of Dr. Gupta as the treatment sheet is matching with the contention of the learned defence Advocate.
He took me to the report of Dr. Chatterjee to say that the use of such broad spectrum antibiotic cannot said to be a grossly negligent act as the patient developed multi organ failure which will be evident from the treatment sheet of that private hospital. He reiterated that Dr. Das did not cross the limit of dose of 'Monocef' injection which may vary from 460 mg per day to 1840 mg per day considering the body weight. He reiterated that doctor was combating with one patient who developed multi organ failure. Regarding the non-taking of signature of the patient party on the treatment sheet, learned Advocate submitted that it was not the duty of Dr. Das to take such signature but it was the duty of Nursing Home authority and for that reason, this petitioner cannot be held responsible.
He further attacked the report of Dr. Gupta that this Dr. Das is not the visiting physician but he was the attending physician and he very much attended the patient to the best extent possible for the doctor if the treatment sheet is reviewed.
He further submitted that actually the platelet was asked to be brought in at 3-00 p.m. and not at 5-00 p.m.. He also contended that this doctor duly perused the blood report which will be clear from the treatment sheet dated 29/09/2005 at 3-00 p.m. He extended his argument by saying that dengue test report was found to be positive and it was made available only 3-00 p.m. and not before that and since thereafter the patient was admitted in the I.C.U. He banked upon the report of the Medical Council, West Bengal which exonerated this doctor and such Board was constituted with 19 doctors and the said report was with the Investigating Officer before the charge sheet was submitted and the copy of the same was handed over to the petitioner under Section 207 of the Code of Criminal Procedure. He further submitted that the report of the Medical Council, West Bengal has been upheld by the Medical Council of India on appeal preferred by the de facto complainant.
Learned Counsel took me to the report of Dr. Sukanta Chatterjee to show that the said doctor relying upon the Nelson Text Book opined that administration of monocef was right choice drug and as such, he ended his argument by saying that there was no gross negligence on the part of this doctor to rope him under Section 304A of the Indian Penal Code and such, this petition under Section 482 of the Code of Criminal Procedure may be considered allowed and the proceeding be quashed.
Mr. Dandapath, learned Advocate, appearing on behalf of the accused, Dr. Debashis Mukherjee (revisionist in CRR 3962 of 2009) submitted that this doctor is one M.D., DCH and he is in no way connected with that private hospital. He took me to paragraph 2 of the complaint to say that actually the role of this doctor as made out in the complaint started from 26/09/2005 at about 10-00 p.m. when the complainant took his daughter to his home at 22A, Nalin Sarkar Street, Kolkata - 4 with the complaint of chest congestion with fever etc. and the said doctor attended the patient prescribed 'phexin syrup' (one antibiotic), one cough syrup and crocin syrup (paracetamol). Such prescription was taken at 9-00 p.m. He further submitted that as per the complaint, this patient party did not attend the chamber of the said doctor on 27-09-2005 and as per paragraph no.4 of the complaint, the patient party went to the School of Tropical Medicine at about 11-00 a.m. when in spite of the fact that the victim was running the temperature to the tune of 103 degree Fahrenhiet but the two doctors, namely, Dr. D. K. Neogy, the accused no. 2 and his colleague, Dr. Sukumar Das, the accused no. 3 advised that no further blood test is necessary and Dr. Sukumar Das even saw the blood report which must be of Medipath Laboratory, where the platelet count was 2.35 lakh C.U.M.M. The complaint further reveals that these two doctors advised the patient party to come on the next Friday or Saturday.
Thereafter, the complainant rang up this Dr. Debashis Mukherjee over his cell phone at about 9-10 p.m. on 29.09.2005 and complained that her daughter (the victim) was vomiting. This doctor prescribed over phone 'Domstal syrup' but that did not respond and thereafter the phone was attended by the Dr. Mukherjee and the de facto complainant requested Dr. Mukherjee to come to his residence to attend his daughter but the doctor told him to continue with 'Domstal syrup'. The de facto complainant also told the doctor that the victim was not passing her urine from 3-00 p.m. to 9-00 p.m. Dr. Mukherjee asked the patient party to report to his chamber- cum-residence at 7-00 a.m. on the next day on 29-09-2005 but thereafter, the cell phone of this doctor was found to be switched off and as per the claim of this petitioner/doctor his cell phone was not working as the charge dried out.
Learned Advocate submitted even in phone, this de facto complaint did not relay the doctor that in the morning on 28/09/2005, the complainant took his daughter to the School of Tropical Medicine, Kolkata. Learned Advocate submitted that this was the role of this doctor who has been roped under Section 304A of the Indian Penal Code for gross criminal negligence on his part and argued that such conduct cannot be treated to be an example of gross negligence.
Mr. Dandapath is also representing Dr. Debasish Chatterjee, who is the petitioner no. 2 in CRR 3962 of 2009. It is the submission of the learned counsel that when the de facto complainant could not contact over the phone Dr. Debasish Mukherjee then he contacted Dr. Debasish Chatterjee, the family physician of the de facto complainant.
Learned counsel took me to paragraph 4, internal page no. 3, of the complaint to say that there is no proof as regards the role of this doctor. HE submitted that this doctor is one M.D (General Physician). As per the F.I.R, this doctor is attached to Sterling Hospital and at the request of the de facto complainant this doctor supplied him the name and cell phone number of Dr. Krishnendu Das in the night of 28.9.2005 and thereafter the victim was admitted in that Sterling Hospital located at 55/1 Bhupen Bose Avenue at about 10.00 p.m where Dr. Das was present and after examining the victim Dr. Das admitted the patient under Dr. Debasish Chatterjee.
He further submitted by taking me to the treatment sheet dated 29.9.2005 at 11.45 a.m wherein this doctor noted "P.t is not improving. P.t was informed that they can consult other pediatrician or can sift (sic) to any other institution. Party refused".
Learned counsel submitted that even though this doctor was not authorised to write on the treatment sheet but he in discharge of his duties as a family physician gave such advice to his family friend, i.e. the defacto complainant.
Learned counsel also took me to the treatment sheet dated 29.09.2005 at 4.55 p.m to show that this doctor wrote, "patient had h/o of convultion, urgent more four units of plaetelate" and that Dr. Krishnendu Das ultimately declared the patient as dead at 7.05 p.m on 29.09.2005.
He further contended that both Dr. Debasish Mukherjee and Dr. Debasish Chatterjee were exonerated by West Bengal Medical Council and the defacto complainant did not file any appeal against the said finding before the Indian Medical Council as against Dr. Debasish Chatterjee.
Thus he submitted that as a family physician and one M.D doctor he discharged his burden which he had regarding the treatment of the victim and there was no question of gross negligence on his part to rope him under Section 304A of the Indian Penal Code.
On behalf of the opposite party/de facto complainant Mr. Kabir submitted that in a proceeding under Section 482 of the Code of Criminal Procedure, this Court cannot allow a mini-trial and that this Court now cannot arose the evidentiary value of documents relied upon by the petitioners unless these documents are tested through cross-examination.
He attacked the story of the petitioners that the victim was suffering from 'muti-organ failure'. By taking me to the treatment sheets he submitted that in no treatment sheet this phrase 'muti-organ failure' was used. He contended that only uncontroverted allegations as made out in the complaint may be considered by this Court in this proceeding and the defence may rely upon other documents only at the stage of evidence. He further submitted that every report is to be read as a whole and not in piecemeal.
He took me to the supplementary affidavit as submitted by the petitioners in CRR 1603 of 2009 at pages 25-26 to convince this Court that 'Monocef 1 mg. stat was administered at the time of admission and thereafter it might have been administered on the same night. He contended that thereafter this 'Monocef' was used again on the patient at 6 a.m.. He submitted that this Court should consider that the weight of the baby was 23 kgs. and her age was 5 years. Thus he contended by taking me to page 39 of that affidavit to show that such dose of 'Monocef' was much much higher to be used on such a tiny girl.
He also took me to the other treatment sheets as used in the supplementary affidavit to show that the nurses on duty duly noted the pulse reading, pressure etc. of the victim. He took me to the report of the North Point Diagnostic Centre dated September 29, 2005 to show that there is nothing in this report at what time blood sample was collected and at what time that the said report was collected and there is no endorsement in the treatment sheet at what time the attending doctor was saw the said report. He said that the platelet count of 1,55,000 cu/mm was at the minimum lower side as much as possible. On that, he tried to convince this Court that the attending doctor ought to have been more careful in attending such a patient.
He further submitted that it is the circular of the World Health Organisation that in case of dengue no antibiotic is to be administered but in the present case even though it was suspected to be a case of dengue 'Monocef' injection was administered at least thrice in less than 24 hours.
He further submitted that in the second blood test report the platelet came down to 32,00 cu/mm but the doctor did not note numerical figure of the report on September 29, 2005 but only noted that the platelet count was in the lower side. He further submitted that the history sheet is silent at what point of time the said report was consider or at what time the said report was considered by the doctor is also not available in the treatment sheet. He contended that in case of a child the dose of 'Monocef' is 20 mg. to 80 mg./day and as such doses used by the doctors of the said nursing home was much much higher.
He further contended that actually Dr. Debashis Mukherjee is the family physician and not Dr. Debasish Chatterjee. Regarding the role of Dr. Mukherjee, it is his contention that he prescribed 'Phexin' (Cephalexin Group of Drug) and the said patient took that medicine for at least 2½ days and the side effect of such medicine is 'nausea, vomiting, diarrhoea, low urine output and neutropenia (wherein one component of RBC goes down). Thus he submitted that actually for the use of that medicine, this patient developed the symptoms for which she was brought to that nursing home and it was certainly a case of suspected dengue but no instant test was asked for but it was allowed to be done "C.M. (cras mane)" which means in English language 'do it tomorrow'.
Mr. Kabir took me to page 61 of the said supplementary affidavit that the case was referred to Dr. K. Das for management and advice at 11.30 p.m. which prima facie shows that Dr. Das was not there at that point of time. He further submitted by taking me to the examination sheet to convince this Court that such examination sheets may be created documents as in note sheet there is no signature of the patient party, as it is so done in other cases.
He took me to page 64 of that document to show that actually such advice for admission of the patient in the ICCU was recorded at 2.10 p.m. but as per complaint the patient was shifted to I.C.C.U at 4.00 p.m. He also took me to that page again to show that platelet count dropped considerably but even then the doctor did not mention the counting of such platelet count which is as low as 32,000 cu/mm.
He also took me to page 65 of the said supplementary affidavit to show that the doctor advised three units of platelet to be transfused at the rate of ½/bag and that is the perfectly matching with the complaint when the complainant was informed to bring those platelets at about 5.00 p.m. He further said that the father of the victim brought such platelets at 6.00 p.m. Regarding the reports of the two experts that is of Dr. Gupta (28.3.2006) and Dr. Chatterjee (2.5.2007) learned Counsel submitted that two reports are contrary to each other on fact and as such evidence it is to be laid before the Trial Court which is subject to cross-examination and only then value of the reports can be unearthed.
Still then he attacked the report of Prof. Dr. Chatterjee to say that the said Doctor endorsed the phrase "multi organ failure" even though nothing is there on the treatment sheet to show that there was 'multi organ failure'. Regarding the report of Prof. Dr. Chatterjee he submitted that the dose assessed by the said doctor as regards use of 'Monocef' was prescribed, it is for an adult and not for a girl aged 5 years with weight of 23 kgs. Thus on this point he submitted that the dose as prescribed by accused/revisionist Dr. Chatterjee cannot be a matching does for such a girl.
Regarding the report of the West Bengal Medical Council he submitted that only on May 31, 2007 the Registrar communicated the gist of the report whereas the reasoned report was only signed on September 06, 2007 (pages 36-37 of the CRR 1603 of 2009).
Mr. Kabir supplemented his argument further by saying that the delay in filing of the complaint for less than two months has been well explained in the FIR itself and he submitted that this Court may consider the mental suffering of that father who lost his only child and keeping that fact in mind the delay of two months cannot be said to be fatal.
Regarding the contrary reports, one submitted by Prof. Dr. Gupta and other submitted by Prof. Dr. Chatterjee, learned Advocate submitted that it cannot be decided here in the proceeding under Section 482 of the Cr.P.C. that which report is correct or not and extensive cross examination is necessary to unearth the truth. He further submitted that whether the report of Prof. Dr. Chatterjee came in the case docket in right process or not is also to be assessed at the time of trial by examining the Investigating Officer.
He submitted that some dates are to be taken into consideration by this Court that the body of the victim was buried either on 29th or on 30th September, 2005 and that the body was exhumed on 09-10-2006 and the post mortem was done on the body of the victim on that very date, that Prof. Dr. Gupta submitted his report on 28th March, 2006 and the report of Prof. Dr. Chatterjee was submitted on 2nd May, 2007. Regarding this time gap, roughly of one year of the report of Prof. Dr. Chatterjee, learned Advocate submitted that it is the matter to be decided by the learned Trial Court on appreciation of evidence of Prof Dr. Chatterjee.
He further contended that this Court in exercising jurisdiction under Section 482 of the Cr.P.C. must form a prima facie opinion only regarding gross negligence of the doctors but such opinion must be based on the FIR itself and the admitted documents. When I put a question to the learned Advocate as to what are the documents, he submitted that the Court may take into consideration certain facts that platelet count was 1.55 lakhs per cu/m.m. on 29th September and on 28th September, 2005, it was 2.35 lakh per cu/m.m. He further submitted that then it came down to 32,000 per cu/m.m. on 29th September itself and as such, there was decrease in trend of platelet count which is one feature of Dengue fever. He contended that even though it was within the knowledge of the two doctors, namely, Dr. Krishnendu Das and Dr. D. Chatterjee, but they did not take any step to consider that feature of the patient that platelet was decreasing and that said platelet was requisitioned only at 5-00 p.m. on 29th September, 2005 and not before that and it is a circumstance which this Court take may note that both these two doctors acted in a gross negligent manner.
He further submitted that in this proceeding, this Court cannot jump to the conclusion that the doctors, the petitioners before this Court, were grossly negligent or not and whatever may be the answer, either of the parties will be prejudiced by the decision of this Court.
Regarding the decision of the Apex Court as cited by his counter-part, he submitted that all the principles laid down by the Apex Court are to be followed by this Court and he is not differing with the principle as laid down before the Apex Court but in the same breath, he submitted that in those cases before the floor of the Apex Court the age of the victim, the manner of treatment, the instruments used were also considered respectively by the Apex Court in the decisions so referred to above and the fact before the floor of the court cannot match with those decisions.
He supplemented his argument by saying that simply because negligence was not found on behalf of the doctor or doctors in those cases cited by his counterpart, such absence of negligence cannot be taken as conclusion while assessing this case.
He further contended that the report of the West Bengal Medical Council cannot be banked upon by this Court as until and unless the veracity of that report is tested before the learned Trial Court by way of cross-examining the doctors.
Regarding the gross negligence/inadvertence/lack of competency/ lack of skill or care/gross ignorance are matters of fact to be proved before the learned Trial Court.
He took me to the report of Prof. Dr. Gupta, which is a part of the supplementary affidavit, that seven features were noted by Dr. Gupta in arriving at the conclusion that all these petitioners were grossly negligent in taking care of the patient. He contended that Monocef injection was used on the patient and that too, in high dose knowing fully well that the patient was suffering from Dengue where no ante-biotic can be prescribed and that is one example of dereliction of duty on the part of the doctors, as concluded by Prof. Dr. Gupta. He also submitted that the doctors did not care to take into consideration the renal problem of the victim when such 'Monocef' injection was administered and such injection was enough to cause the renal failure of the patient.
He further submitted on the treatment sheet which his counter-part have relied upon that there is no signature of the patient party, i.e. the father of the victim and as such, such those documents cannot be believed even at this stage. He concluded his argument by referring to the decision of the Apex Court as passed in (2014) 1 SCC 384 (Dr. Kunal Saha -vs- Dr. Sukumar Mukherjee & Ors.) to say that civil, tortuous and criminal liability acts in different spheres and in the present proceeding before this Court, the Court is to only consider regarding the criminal liability of these accused persons.
On behalf of the State, it was submitted by Mr. Basu that in this proceeding, this court in exercise of jurisdiction under Section 482 of the Code of Criminal Procedure cannot evaluate expert opinion, that is the opinions of Prof. Dr. Gupta and Prof. Dr. S. Chatterjee. He further contended that this court is to assess these two applications relying on the F.I.R. and the uncontroverted document and if this court is satisfied that there is prima facie case to go for trial, then the petitioner's application may be treated as devoid of any merit. He took me to the decision of the Apex Court in Jackob Mathew (supra) to say that in that decision, a parameter has been fixed, that is one as to whether the act of the medical professional was done or omitted to have been done which one ordinarily skilled professional would not have done or would not have failed to do.
Regarding the presence of Dr. Das in the said Nursing Home, Mr. Basu submitted by taking me to the treatment sheets to convince this court that actually this Dr. Das did not come to the Nursing Home till 6-00 p.m. on 29-09-2005. He took me to different facets of the case and the document to prove his claim.
He took me to the report of the Prof. Dr. Gupta to say that the said report is exhaustive and the said doctor took care of the roles played by the doctors/petitioners. Regarding the report of the West Bengal Medical Council, he submitted that the procedure as followed by the said Medical Council cannot be equated with the standard of proof of a criminal liability and as such, the said report may have a persuasive value but cannot be of any binding effect.
On the point of negligence, he argued that it was a cumulative effect of five doctors whose role has duly been depicted in the report of Prof. Dr. Gupta.
In reply, it is submitted by the learned Counsel appearing on behalf of the petitioner that as per complaint, Dr. K. Das attended the patient at 10.00 p.m. on September 28, 2005 but as per Mr. Basu, learned Advocate for the State the said doctor attended the patient only at 6.00 p.m. on September 29, 2005 and if this doctor did not attend the patient at all then 'what is his responsibility'.
He further submitted that the said doctor administered 'Monocef' injection as per his skill and best of his knowledge. He also attacked the report of Professor Dr. Gupta on the ground that he being not an expert on the line his report is to be discarded in view of paragraph 106 of the decision of the Apex Court as passed in Martin F. D'souza (Supra). He further submitted that this Court has the authority even to accept the report of Prof. Dr. S. Chatterjee, who is one expert on the line.
He further contended that when this doctor attended the patient at 10.00 p.m. and suspected that it was a case of Dengue Fever, he had no other opportunity but to ask for blood report on the next day as it was already 10.00 p.m. and no pathological institute was opened at that point of time and as such it cannot be said that Dr. Das delayed in prescribing test for Dengue Test.
Mr. Counsel further contended that in a proceeding under Section 482 of the Code of Criminal Procedure, this Court has enough power to consider the 'titbits' of the case and that cannot be said to be exercising of jurisdiction beyond the capacity of the Court as contemplated in that section of the Code.
He further submitted that one doctor to be roped under Section 304A of the Indian Penal Code, the conduct of the doctor must be that of a 'gross negligence' done by one skilled professional and that error of judgment/procedure cannot be said to be one example of gross negligence. He further submitted that the conduct of the profession must be rash one, which no other professional will do in such a situation.
Mr. Dipankar Dandapath, learned Advocate appearing on behalf of the accused/petitioner Dr. D. Mukherjee, submitted in reply by reiterating what he argued earlier that this doctor prescribed medicine as noted in the prescription dated September 26, 2005 when the patient party came in the morning at his Chamber with complaint of fever. He further submitted that the patient party thereafter did not come to report on September 27, 2005 and that only at about 9.00 p.m. this de facto complainant made a call in his Cell Phone complaining that his daughter is vomiting and as such this doctor asked the de facto complainant to administer 'Domstal', which was already prescribed and unfortunately thereafter his Cell Phone gone 'out of order' and the de facto complainant could not contact with him thereafter. He submitted that only for this defect in the Cell Phone can a doctor be hauled up under Section 304-A of the Indian Penal Code for gross negligence and the entire conduct of this Dr. D. Mukherjee cannot be said to be within the purview of the word 'grossly negligent'.
Regarding the allegation against the accused Dr. Chatterjee learned Counsel reiterated that this Doctor being a family physician only diverge the name of Dr. K. Das with his Cell number and the victim was taken to Starling Hospital in the night on September 28, 2005 at about 10.30 p.m. and this Doctor being a family physician attended the patient there but he did not prescribe any medicine as he is not one child specialist and whatever medicines were prescribed by Dr. K. Das.
He further contended that in the report of West Bengal Medical Council this Doctor has been exonerated. He took me to paragraph 11 of the judgment of the Apex Court in the case of ASV Narayanan Rao (Supra) to say that in that case before the Apex Court, the Apex Court upheld the report of Medical Council of India and that was duly relied upon by the police while submitting report in final form. Thus, he submitted that the report of the Medical Council can very well be considered by this Court.
By this time the readers have come to know regarding the factual aspect of this case. I endorse the view of Mr. Kabir that a proceeding under Section 482 of the Cr.P.C. cannot be a stage for a minimum trial. The factual aspect of the case is to be appreciated before the learned trial court by adducing cogent documents in deciding one application under Section 482 of the Cr.P.C the court will consider only the FIR or the complaint and also the documents of unimpeachable character.
Here the defence counsel tried to rely upon the treatment sheet of the victim to submit that there was no negligence on the part of the accused doctors. The role of each doctor has been explained while I have noted the argument of the learned advocates. Here the treatment of the victim was administered by five doctors including the three petitioners before this court. The role of these three petitioners are so inter-linked that one doctor cannot be taken out of the list. The decisions of the Apex Court as pointed out by the learned advocates has initiated the principle that the doctors must be so grossly negligent to attract the provision of Section 304 A of the Indian Penal Code.
I do not like to ventilate my mind ascribing the role of each doctor as that may prejudice the learned trial court. The fact as revealed in the FIR shows that the victim girl was suffering from fever on 25.09.2005 and the de facto complainant took his child to one malaria clinic on the next day that is 26.09.2005 run by Kolkata Municipal Corporation and prior to that her platelet count was checked from one laboratory wherein platelet count was 2.35 lakh/cu.m.m on that very date at about 10 pm the de facto complainant took the girl to accused doctor Debashis Mukherjee that is the petitioner No.1 of CRR No.3962 of 2009 wherein the doctor prescribed some medicines including phexin (cephalexin group of drugs) the side effect of the said drug has been earlier mentioned by me as argued by Mr. Kabir and I do not like to repeat the same.
In the complaint it was further written that the fever does not subside and as such on 28.09.2005 the victim was taken to Calcutta School Of Topical Medicines where two doctors attended but they did not give any special attention and the de facto complainant returned back. The victim on the same day at about 8:45 PM started vomiting and accused doctor Debashis Mukherjee was conducted about which I have already discussed while noting the argument. Whether the cell phone of doctor Debashis Mukherjee developed any disorder or it was intentionally made switch off is to be decided by the learned trial court. If the cell phone was intentionally made switch off then the doctor cannot escape from negligence and such negligence may be treated as gross considering the fact that it was then already 10 PM.
There are two reports regarding the treatment given by these three doctors now before this court and this court cannot now say that the report of Prof. Dr. Gupta clearly depicted the treatment administered to the victim or whether the report of Prof. Dr. Chatterjee depicted the real story. It is to be appreciated by the trial court on appreciation of evidence and only after cross-examination which report can be accepted. This court prefers not to pass any comment as regards both the reports.
The treatment sheets appear no signature of the de facto complainant and as such the learned trial court will exercise its discretion while accepting or discrediting such treatment sheets at the time of trial. It may be noted that the victim died on 29.09.2005 and her body was exhumed on 28th of December, 2005 and the FIR was registered on 13.11.2005. Without making any inference this court can say that the doctors of starling nursing home got enough time to create all the treatment sheets to suit their purpose. The only check would have been the signatures of the de facto complainant on the treatment sheets but unfortunately no such signature was taken on the treatment sheets. It is also to gather as to whether Dr. Krishnendu Das attended the patient on 29.09.2005 at least till 5 or 6 PM all these are broad facts of this case which is to be assessed by the trial court when the prosecution and the defence will get opportunity to adduce evidence. The trial court would have to consider as to whether these three doctors took proper care to treat the patient particularly when 'Dengue fever' was prevalent at Calcutta at that point of time. It may be noted that in case of Dengue no anti-biotic can be administer and as such the doctors ought to have been careful regarding transfusion of platelet on the victim. The fact which has come up before this court will show that platelet count was in the lower side and the treatment sheet shows that the victim was suffering from Dengue.
The picture is hazy regarding the role of Dr. Krishnendu Das and Dr. Debashis Chatterjee in treating the patient and this Revisional Court cannot assess such role unless the trial court is given a free hand to appreciate the evidence which may be adduced by the parties. The learned trial court while deciding this case must take into consideration the decisions of the Apex Court as referred to above by the learned advocates of the parties wherein the Apex Court has set out a principle that the doctors must be grossly negligent to be roped under Section 304 A of the Indian Penal Code.
Considering the constraint of a Revisional Court I prefer not to speak further regarding the merit of the prosecution case. Section 482 of the Code of Criminal Procedure is one extraordinary power given to the superior court of the State and such power is to be exercised sparingly and only in rare of rarest cases. On scrutiny of the argument advanced by the parties and the factual aspect of this case this court is of the opinion that the case before the floor of this court cannot be said to be such a rare case to invoke the inherent jurisdiction of this court.
Thus, in view of discussion so long made this court is not inclined to quash the further proceeding of G.R. Case No.1387 of 2005 now pending before the learned Metropolitan Magistrate, 15th Court, Calcutta.
Let the trial court proceed with the trial with utmost expedient. Thus, this revisional application fails. There will be no order as to costs.
Interim order, if any, stands vacated.
Office is directed to communicate this order to the learned trial court at once.
Certified copy of this order, if applied for, be given to the parties after making all formalities.
(Indrajit Chatterjee, J.)