Calcutta High Court (Appellete Side)
Dr. Kunal Sanyal vs The State Of West Bengal on 16 September, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION (APPELLATE SIDE) PRESENT :
The Hon'ble Justice Kanchan Chakraborty C.R.R No. 2948 of 2001 Dr. Kunal Sanyal Versus The State of West Bengal For the Petitioners : Mr. Sekhar Basu Mr. Koushik Chatterjee Mr. Anasuya Sinha For the O.P./State : Ms. Rituparna De For the O.P. No. 2 : Mr. Pushpal Satpathi Mr. Pranab Kr. Jana Mr. Suman Das Adhikari Heard On : 8.9.2011 Judgement On :16.9.2011 Kanchan Chakraborty, J:
1) This application under Section 482 of 2001 of Code of Criminal Procedure has been taken out by Dr. Kunal Sanyal an accused in G.R. Case no. 912 of 1998 arising out of Kharagpur (T) P.S. Case No. 136 of 1998 dated 3.6.1998 under Sections 304A/34 of the Indian Penal Code praying for quashing of the proceeding against him, mainly, on the grounds that : 2
a) that no case is made out against him showing rush and negligent act or omission on his part resulting in death of Dipak Das;
b) that the provision of Section 167 (5) of the code was not complied with and ;
c) that the cognizance was taken beyond the period of limitation as envisaged in Section 468 of the Code;
2) On 28.5.1998 at about 11.30 p.m. Dipak das had been to the Courtyard of his house to response nature's call and a snake bite his left leg. Around 11.15 p.m. he was taken to emergency department of Kharagpur State General Hospital. Dr. Kunal Sanyal who was attending Doctor of emergency patient at that particular time attended him then and there and had provided him with medical treatment. He tied up the left leg of Dipak at three places with bandages and directed the nurse Rachana Pathak not to remove the bandage so tied up by him. He left the Emergency room thereafter as the condition the patient was improving. One Nilima Ghosh and Rachana Pathak, Nurse, however, removed the bandages and left the room. The condition of the patient, Dipak Das deteriorated. The patient party had been to the Dr. Sanyal and the Nurse Rachana Pathak and requested them to attend the patient then and there. But none of them paid any heed to their request. On 29.5.1998 at 01.25 a.m. Dipak Das died. It was alleged that death of Dipak Das was caused due to rush and negligent act or omission of Dr. Sanyal, the Nurse Rachana Pathak and one 3 Nilima Ghosh. The case was investigated into and ended in a charge-sheet against Dr. Sanyal, Nilima Ghosh and the Nurse Rachana Pathak under Section 304 A/34 of the I.P.C. The accused Dr. Sanyal has come up with this application praying for quashing of the proceeding on the grounds already mentioned.
3) Mr. Sekhar Basu, the learned Counsel appearing on behalf of the petitioner Dr. Sanyal contended that there was no rush and negligent act on the part of Dr. Sanyal, the petitioner which caused death of Dipak Das as alleged. He contended further that there is no medical negligence also on his part as it appears from the F.I.R. He has drawn attention of the Court to the F.I.R. and contended that it is stated clearly in the F.I.R. that Dr. Sanyal while in Emergency duty had not only taken proper care of Dipak Das but also provided necessary medical treatment and issued specific directions to the attending Nurse i.e. Rachana Pathak. He also contended that the bandages tied up by Dr. Sanyal on the left leg of Dipak Das were not supposed to be removed as per direction given by him. But, according to the F.I.R., one Nilima Ghosh and the Nurse Rachana Pathak removed those bandages. Therefore, he contended, all the aspersions and allegations relating to the death of Dipak Das are directed against Nilima Ghosh and Nurse Rachana Pathak and not attributed to the petitioner Dr. Sanyal. Mr. Bose has taken this Court to the annexures to the petition i.e. the Bed Head Tickets of Dipak Das. He contended that the Bed Head Tickets and entries therein altogether unquestionably establishes that 4 Dipak Das was attended by Dr. Sanyal on 29.5.1998 at different point of times before he died. According to the entries in the Bed Head Tickets the patient was admitted at 11.25 p.m. on 28.5.1998 and he was provided with medical treatment then and there by Dr. Sanyal. On the next date i.e. 29.5.1998 he was attended by Dr. Sanyal at 12.15 a.m., 12.20 a.m., 12.35 a.m. 12.55 a.m. and 1.10 a.m. Therefore, Dr. Sanyal is no way can be held, even prima facie on the charge of medical negligence and thereby causing death of human being attracting the provisions of Section 304 A of I.P.C.
4) Mr. Satpathi, learned Counsel for the private opposite party and Ms. Rituparna De, the learned Counsel appearing for the opposite party/State contended that what Mr. Basu submitted is related to first episode of the incident. The second episode discloses that Dr. Sanyal, being a Medical Practitioner attached to Kharagapur State General Hospital, refused and negligent to attend a patient during the period of his official duties. Had the Dr. Sanyal visited the patient as soon as he was reported about the condition, the patient Dipak Das would not have died. But, unfortunately, Dr. Sanyal did not pay any heed to the request of the patient party and attended the patient at crisis period and, thereby, committed the offence of willful negligent/omission act causing death of the Dipak Das.
5) True it is that the F.I.R. story is comprising of two episode. In the first episode, Dr. Sanyal being the attending Medical Officer of Emergency department on 28.5.1998, acted diligently, seriously and promptly in the 5 matter of attending Dipak Das. He had taken proper care of him and provided him with medical facilities then and there without delay. He also issued necessary directions to the Nurse Rachana Pathak and cautioned her that the bandages he tied up on the left leg of Dipak Das should not be removed. This part of activities of Dr. Sanyal shows clearly that he wanted the patient Dipak Das to be treated properly and, in fact, there was no negligency on his part.
6) The second episode started when the condition of Dipak Das deteriorated because of peculiar activities of the Nurse Rachana Pathak and one Nilima Ghosh who in violation of specific direction of Dr. Sanyal removed the bandages tied up tightly at three places on the leg of Dipak Das by Dr. Sanyal. The allegation and aspersion against De. Sanyal found place in the second episode is to the extent that he did not attended Dipak Das when his condition was deteriorated as reported by the patient party. The entries to the. Bed Head Tickets, however, give a picture altogether different than what has been alleged in the F.I.R. against Dr. Sanyal. The Bed Head Tickets and entries therein unequivocally show that Dr. Sanyal attended the patient as many as five times on 29.8.1998 at 12.15 a.m., 12.20 a.m., 12.35 a.m. 12.55 a.m. and 1.10 a.m. the patient Dipak Das died at 1.20 a.m. According to the F.I.R., Dipak Das was taken to the Emergency department at 11.55 p.m. on 28.5.1998. he was then and there attended. Thereafter, the alleged incident of untying the bandages by Nilima Ghosh and Nurse Rachana Pathak had taken place. Thereafter, the condition of 6 the patient gradually deteriorated. All these incidents obviously had taken sometimes or a view minutes. It appears from the Bed Head Tickets that within 20 minutes thereafter Dr. Sanyal attended him. He also attended him at 12.15 a.m., 12.20 a.m., 12.35 a.m. 12.55 a.m. and 1.10 a.m. Therefore, what has been alleged in the second episode against Dr. Sanyal does not appear to be factually correct.
7) On perusal of the charge-sheet filed by the Investigating Officer on completion of investigation it appears that the Bed Head Tickets were sized by the Investigating Officer which are available on the case docket produced by Ms. Dey, learned Counsel appearing on behalf of the opposite party/State. It is not understood when the Bed Head Tickets made it clear that the patient was attended within 15 minutes for the second time by Dr. Sanyal himself and thereafter attended times by him, how could allegations and aspersions against him mentioned in the second episode found established to the I.O.
8) In the totality of the facts and circumstances as reflected in the materials available on the case docket, the allegations and aspersions against Dr. Sanyal can not be said to have established, prima facie, an offence under Section 304 A of I.P.C. There was no willful omission or negligency on his part rather he acted promptly and attended the patient at the interval of five minutes on 29.5.1988 till the patient died. Therefore, I find substance in the submission of Mr. Basu.
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9) It is trite proposition of law that if the allegations and aspersions in the F.I.R. are accepted uncontroverted on their face value, do not make out any prima facie case, High Court can quash a proceeding against the accused by exercising its extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure. I must say that the material in the C.D. altogether indicates the prompt action on the part of Dr. Sanyal who attended the patient more than five times before the patient expired. There was no negligency on his part. In this context, the decision of the Hon'ble Apex Court in Rakesh Ranjan Gupta Vs. State of U.P. Anr., reported in 1999 SCC (Cri) 1976 can well be referred to. It was held by the Hon'ble Court that delay on the part of the Doctor to attend on the patient may be at the worst be a case of civil negligence and not one of culpable negligence. When there is no case against the Doctor that he treated the patient wrongly or negligently or administered poison, no prima facie case of rush and negligent at on the part of the Doctor is made out. As such, the proceeding is liable to be quashed on that count.
10) As regard the second point raised by Mr. Basu is concerned, it appears from the case diary that the case was initiated on the basis of the F.I.R. dated 3.6.1998, i.e., four days after death of Dipak Das. Be that as it may, the offence was committed on 29.5.1998. It was an offence punishable with imprisonment for a term not exceeding two years and squarely comes within sub Section (2) of Section 468 of the Code in the matter of Limitation to take cognizance after laps of the period of three years from 8 the date of commission of the offence. Admittedly, the charge-sheet was filed on 4.10.2011, i.e., after laps of three years from the date of commission of offence. However, it appears from the orders dated 7.7.2001 and 14.9.2001 that the I.O. prayed for extension of time to complete investigation and file the report in final form under Section 173 of the Code and the learned Magistrate was pleased to allow his prayer. The charge- sheet was filed within the time so extended by the learned Magistrate. This apart, investigation could not be concluded and the report in final form could not be placed within the period of three years only for the reason that the chemical examination report could not be collected by the I.O. despite the fact that the investigation was otherwise completed. That being the fact, I think that there was no illegality on the part of the Court to accept the charge-sheet and take cognizance of the offence on a belated charge- sheet.
11) As far as the next question is concerned, in view of the decision in Nirmal Kanti Ray Vs. State of West Bengal reported in (1998) 4 SCC 590 the provision was held not mandatory because Magistrate was not supposed to pass an order of discharge on expiry of the prescribed period automatically or routinewise. Stopage of investigation on expiry of the prescribed period can be ordered only considering the factors available. It is true that in the instant case, the learned Magistrate did not consider the factors which caused delay in complete in the investigation on expiry of the statutory period. But, on perusal of the C.D. it appears to me that everything was 9 complete but the delay was caused only because the report of chemical examination could not be collected by the Investigation agency. The learned Magistrate fixed the time for filing the charge-sheet after expiry of the statutory period. That being the fact, I think that the learned Magistrate has rightly taken cognizance on the basis of such a charge-sheet submitted under Section 173 of the Code of Criminal Procedure and the proceeding is not liable to be quashed on that ground.
12) In view of the discussion above, it appears that no prima facie case under Section 304 A IPC is made out against Dr. Sanyal, the petitioner. Accordingly, I allow the application and quash the proceeding as far as Dr. Sanyal, the petitioner is concerned.
13) Accordingly, the revision application is disposed of.
14) Interim order, if any, stands vacated.
(Kanchan Chakraborty,J)