Calcutta High Court (Appellete Side)
Tribhanga Giri vs Sujit Dutta & Ors on 12 August, 2016
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present :
THE HON'BLE JUSTICE SANKAR ACHARYYA
C.R.R. No. 3368 of 2014
In the matter of :
Tribhanga Giri
Vs.
Sujit Dutta & Ors.
For the petitioners : Mr. Swapan Kumar Mullick, advocate.
Mr. Avijit Chakraborty, advocate.
For the opposite : Mr. Debasis Roy, advocate.
Party no. 1 Mr. Soumik Ganguly, advocate.
For the State : Mr. Pawan Kumar Gupta, advocate.
Heard on : 01.04.2016, 08.04.2016, 04.07.2016,
05.07.2016, 13.07.2016, 15.07.2016,
22.07.2016, 25.07.2016, 26.07.2016.
Judgment on : 12.08.2016
SANKAR ACHARYYA, J.
De facto complainant Tribhanga Giri in Sessions Case No. 12 (7) 2009 arising out of Bankura P.S. Case No. 256/07 dated 22.11.2007 has challenged the legality, propriety and correctness of the order no. 41 dated 02.08.2014 passed by learned Additional Sessions Judge, 1st Court, Bankura. In the impugned order learned Additional Sessions Judge discharged the opposite party no. 1 of the charge under Section 304 of the Indian Penal Code (in short I.P.C.) under Section 227 of the Code of Criminal Procedure (in short Cr.P.C.) and framed charge against opposite party no. 2 under Section 304 A, I.P.C. instead of Section 304 of the I.P.C. and transferred the case to the 6th Court of Judicial Magistrate, Bankura. On prayer of the petitioner an interim order of stay of further proceedings relating to Sessions Case No. 12 (7) of 2009 was passed in this revision case.
As per revisional application, the petitioner lodged FIR at Bankura Police Station (in short P.S.) on 22.11.2009 informing that his brother Sailesh Giri had gone to Little Heart Hospital at Bankura for a T.M.T. examination on 21.11.2009 and it was done by technician opposite party no. 2 in the absence of any cardiologist/doctor and in course of conducting such test Sailesh Giri felt unwell and died ultimately in that hospital. The opposite party no. 1 is proprietor of that hospital and opposite party no. 2 conducted the T.M.T. examination as technician. Both of them were made accused in the case. Police investigated the case and after completion of investigation submitted charge-sheet against both of them levelling charge under Section 304 of the Indian Penal Code. Learned Chief Judicial Magistrate, Bankura took cognizance of that offence. Subsequently the case was committed for sessions trial. Thereafter the impugned order was passed by the learned Additional Sessions Judge.
At the time of hearing learned counsel for the petitioner, opposite party no. 1 Sujit Dutta and opposite party no. 3 State of West Bengal participated. Mr. Pawan Kumar Gupta, learned counsel for the State opposite party no. 3 produced copy of case diary and advanced his arguments in support of the petitioner for setting aside the impugned order. Mr. Swapan Kumar Mullick, learned counsel for the petitioner submitted that in the impugned order learned Additional Sessions Judge failed to follow the legal principles for framing of charge and passed the order as if he held a mini trial of the case which has caused miscarriage of justice. He cited three decisions of the Hon'ble Supreme Court in the cases of Soma Chakravarty Vs. State through C.B.I. reported in (2007) 2 SCC (Cri) 514, State of Orissa Vs. Debendra Nath Padhi reported in (2005) 1 C Cr LR (SC) 487 and Indu Jain Vs. State of Madhya Pradesh and Others reported in (2009) 3 SCC (Cri) 996. Mr. Debasis Roy. Learned counsel appearing for the contesting opposite party no. 1 supported the impugned order claiming it lawful and no miscarriage of justice was caused thereby. He relied upon five decisions of the Supreme Court of India in the cases of Maksud Saiyed Vs. State of Gujarat and Others reported in (2008) 2 SCC (Cri) 692; S.K. Alagh Vs. State of Uttar Pradesh and Others reported in (2008) 2 SCC (Cri) 686; Keki Hormusji Gharda and Others Vs. Mehervan Rustom Irani and Another reported in (2009) 2 SCC (Cri) 1113; M/s Thermax Ltd. & Ors. Vs. K.M. Johny & ors. reported in (2012) 1 C Cr LR (SC) 37; Dr. Suresh Gupta Vs. Govt. of NCT of Delhi and Another reported in 2004 SCC (Cri) 1785 and Jacob Mathew Vs. State of Punjab and Another reported in 2005 SCC (Cri) 1369. No one appeared on behalf of opposite party no. 2.
Learned Additional Sessions Judge took up the case for consideration of charge as the case was committed after taking cognizance of the Sessions triable offence punishable under section 304 of the Indian Penal Code. Considering the materials on record and the documents submitted on behalf of the prosecution learned Judge passed the impugned order for discharge of accused Sujit Dutta (opposite party no. 1 herein) and for framing of charge under Section 304 A of the Indian Penal Code for trial in the 6th Court of learned Judicial Magistrate, Bankura. In this revisional application it is to be considered as to whether the impugned order is sustainable in law.
At the very outset I like to mention that the impugned order is not an interlocutory order.
In Soma Chakravarty Vs. State through C.B.I. (Supra) it has been held, -
"At the time of framing of the charge the probative value of the material brought on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial".
In the impugned order learned Judge mentioned, "Undisputedly accused Sujit Kumar Dutta is the proprietor of Little Heart Nursing Home and as per C.M.O.H. Bankura it appears that the said Nursing Home had no valid licence to operate T.M.T. machine but a Writ petition bearing no. WP 27360 (W) of 07 is pending before the Hon'ble High Court, Calcutta.
Admitted fact that during investigation I.O. seized the T.M.T. machine but the said machine was not examined by any expert to establish that the said machine was used on the fateful date and time as alleged in the FIR. In course of investigation I.O. failed to seize the T.M.T. report of the deceased. The uncontroverted allegation in the charge-sheet against accused Sujit Kumar Dutta particularly in view of the attending circumstance of non seizing of T.M.T. Report during investigation give rise a dispute and does not disclose any offence for culpable homicide not amounting to murder".
Drawing my attention to such observation in the impugned order learned counsel for the petitioner and the learned counsel for the State argued that as if the learned Judge passed the impugned order holding a mini trial which has been deprecated by the Hon'ble Apex Court time and again. Mr. Gupta, learned counsel for the State submitted that there is sufficient prima facie material in FIR, and statements recorded under Section 161, Cr.P.C. of witnesses Tribhanga Mohan Giri (page- 4 of the C.D.), Satya Banerjee (page- 20 of the C.D.), Dr. Subrata Biswas (page - 29 of the C.D.), Partha Pratim Bandyopadhyay (page- 31 of the C.D.), Smt. Hanifa Bibi (page- 32 of the C.D.) and Amiya Patra (page- 33 of the C.D.) to establish that on the fateful date and time the T.M.T. machine was operated by opposite party no. 2 at Little Heart Hospital at Bankura in the absence of any cardiologist or any doctor there but learned Additional Sessions Judge ignored to consider such valuable materials. Having gone through the materials of case diary (C.D.) I am satisfied with the arguments of Mr. Gupta as there are prima facie materials in C.D. as pointed out and in the impugned order there is no reflection of those materials. In paragraph- 39 of (2009) 3 SCC (cri) 996 at page- 1005 referring to the decisions of the Hon'ble Apex Court in Kewal Krishan case reported in (2008) 10 SCC 109 : (2008) 3 SCC (Cri) 609 : (2008) 10 Scale 86, Debendra Nath Padhi case (Supra) and Bharat Parikh Vs. CBI it was held, "As has been observed in Kewal Krishan case, at the stage of framing of charge, the court is not required to go into details of the investigation but to only arrive at a prima facie finding on the materials available as to whether a charge could be sustained as recommended in the charge sheet. The same view has been subsequently reiterated in Debendra Padhi case and in Bharat Parikh V. CBI wherein the holding of a mini trial at the time of framing charge has been deprecated".
Section 304 of the I.P.C. relates to punishment for culpable homicide not amounting to murder. There are two parts suggesting different punishment. In first part punishment has been prescribed for causing death with intention to cause death or of such bodily injury as is likely to cause death. In the second part punishment has been prescribed for the act done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. However, factum of death of a person is essential to attract either of the two parts.
In the instant case, in substance, allegation of prosecution is that having no licence for operating T.M.T. machine in Little Heart Hospital and making no provision for presence of cardiologist or doctor at the time of T.M.T. machine operation for examination of patient the opposite party no. 1 installed T,M.T. machine in that hospital and allowed operation of the same receiving payment from patients by opposite party no. 2 for T.M.T. examination of the patients knowing that such act may cause death of a patient in case of faulty operation of the machine in the absence of supervision by qualified doctor and in consequence of such act death of Sailesh Giri occurred in that hospital on 21.11.2007 as he felt ill in course of operation of T.M.T. machine by opposite party no. 2 who is neither a cardiologist nor a doctor but a technician. At the stage of consideration of charge, on the basis of FIR and other materials of C.D. it cannot be held prima facie that either of the two accused persons committed no offence.
In State of Orissa Vs. Debendra Nath Padhi (Supra) it has been held, -
"......at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge that would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth".
In Maksud Saiyed Vs. State of Gujarat and Others (Supra) a question of vicarious liability of a Managing Director of a company was considered in connection with a case relating to offences punishable under Section 120 B, 177, 181, 191, 192, 425 and 500 of the Indian Penal Code. According to the prima facie case of prosecution under consideration in this revisional application it appears that question of vicarious liability of either of the two accused opposite parties is not complained of here. In substance, according to prima facie case of prosecution liability of each individual of the two accused appellants has been complained of. There are prima facie materials in C.D. for going into trial against both the accused opposite parties no. 1 and 2. The above cited decision does not fortify the claim of accused opposite party no. 1 for sustaining the impugned order.
According to the case under consideration in this revisional application it is not a case of civil nature nor it can be safely said that the accused opposite parties no. 1 and 2 have no criminal liability at this stage. In my opinion, the ratio of the judgment in M/s Thermax Ltd. and Ors. (Supra) is not applicable in the instant case.
The facts and circumstances of the instant case are dissimilar to that of the cited decisions reported in (2008) 2 SCC (Cri) 686 and (2009) 2 SCC (Cri) 1113. Therefore, ratio of said two decisions is also not applicable in this case.
In my opinion, in the instant case, the facts alleged by prosecution and materials incorporated in C.D. prima facie constitute the conscious acts of the accused opposite parties no. 1 and 2. Be it noted that no medical practitioner has been made accused for the death of Sailesh Giri alleging medical negligence of any doctor. In this case mere inadvertence of accused opposite parties no. 1 and 2 is not prima facie established from the materials available in C.D. On translation of the materials of C.D. into evidence in to to it cannot be said that no offence was committed by accused persons or either of them. It is in substance the case of prosecution that without having licence and without making arrangement of presence of a qualified doctor for supervision of operation of T.M.T. machine the opposite party no 1 deputed opposite party no. 2 for operating T.M.T. machine in his hospital and the opposite party no. 2, not being competent to operate T.M.T. machine independently without supervision of qualified doctor operated the T.M.T. machine in that hospital for commercial purpose. At this stage such alleged acts cannot be considered at par with allegation against a doctor who acts with requisite authority for medical treatment of patients. Therefore, at this stage the cited cases of Dr. Suresh Gupta (Supra) and Jacob Mathew (Supra) also do not become helpful to sustain the impugned order.
In summing up, I find and hold that the impugned order no. 41 dated 02.08.2014 passed in Sessions Case No. 12 (7) 2009 is liable to be set aside and learned Additional Sessions Judge, 1st Court, Bankura should be directed to rehear the case for consideration of charge and to pass necessary order in accordance with law.
Accordingly, this revisional application is allowed. Impugned order is set aside. Learned Additional Sessions Judge, 1st Court, Bankura is directed to hear the case afresh for consideration of charge and pass necessary order in accordance with law but not to be influenced by any discussion made in this judgment about merits of the case. Interim order passed earlier, stands vacated. Accused opposite parties no. 1 and 2 do remain in same position in the trial Court as they remained before passing the impugned order dated 02.08.2014. They are directed to appear in the 1st Court of learned Additional Sessions Judge, Bankura within three weeks from this date.
A copy of this judgment be communicated to the learned Additional Sessions Judge, 1st Court, Bankura forthwith from the department for information and compliance.
Urgent Photostat certified copy of this judgment, if applied for, be supplied expeditiously to the parties or their advocates on record in compliance of usual legal formalities.
(SANKAR ACHARYYA, J.,)