Syamal Kanti Chakrabarti, J. - (1.) THE present revisional application under Section 482 Cr.P.C. has been preferred for quashing of the proceeding being GR Case No. 417 of 2009 arising out of Siliguri PS Case No. 115 of 2009 dated 29.03.2009 under Section 304A/203/109 IPC now pending before the Court of learned Additional Chief Judicial Magistrate, Siliguri, Darjeeling.
(2.) THE two petitioners namely, Dr. Tapas Bhattacharjee and Dr. Pradip Sarkar have claimed that the petitioner no. 1 is a doctor and the petitioner no. 2 is a superintendent now attached to Siliguri District Hospital, Darjeeling. On 17.03.2009 the opposite party no. 2 filed a complaint under Section 156(3) Cr.P.C. alleging, inter alia, that on 21.07.2007 he brought his wife Smt. Laxmi Singh to Siliguri District Hospital in her advanced stage of pregnancy for delivery. She was admitted under the supervision of petitioner no. 1 and on the same day at about 6:50 p.m. she gave birth to a male baby. Neither the petitioner no. 1 nor any member of his team informed the petitioner no. 2 that his wife gave birth to a still born baby. On the following day i.e., on 22.07.2007 the dead body of the said baby was delivered to the opposite party no. 2 while he suspected that the cause of death might not be the same as it was written in the death certificate. THEreafter, the opposite party no. 2 along with members of Siliguri Welfare Association demanded for an autopsy of the dead body and from the postmortem report it was revealed that the cause of death was the act of violence caused by the petitioner no. 1 to effect the delivery. On receipt of such complaint the learned Court below directed the IC, Siliguri PS to investigate into the matter which is now being assailed. Mr. Sekhar Basu, learned lawyer for the petitioner has contended that in the relevant postmortem report the cause of death of the baby was shown as "Intracrenial Haemorrhage". It is disputed in paragraph 7 of the petition of complaint that such report given by witness nos. 6 and 7 cannot but essentially and irresistibly suggest that the death of the live born baby was caused by the act of violence by the accused no. 1 and/or is the result of such act of the accused no. 1 who effected the delivery. It is alleged in paragraph 11 of the petition of complaint that the accused no. 1 has given false information as to the cause of death of the baby and for issuing the death certificate having knowledge about its material part and accused petitioner no. 2 abetted the offence committed by the accused no. 1. In this connection one U.D. case no. 138 of 2007 was also started on 22.07.2007. The mother of the deceased baby was discharged on 24.07.2007. In this connection a panel of three doctors submitted their report on 31.07.2007. On 31.08.2007 CMOH, Darjeeling also submitted his report and the Director of Health Services also submitted a report on 01.12.2007. Mr. Basu has further referred to and relied upon the principles laid down in Martin F. D"Souza"s case [(2009) 1 SCC (Cri) 958] and Jacob Mathew"s case [2005 SCC (Cri) 1369]. In the latter case the Hon"ble Apex Court has formulated certain guidelines for prosecuting medical practitioners but the instant complaint has been lodged not in conformity with such guidelines and as such the instant proceeding is not sustainable in law. It has been held, inter alia, in the case of Jacob Mathew that a private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of credible opinion given by another competent doctor to support the charge of rash or negligence on the part of the accused doctor. The investigating officer should before proceeding against the doctor accused of rash or negligent act or omission obtain an independent medical evidence preferably from a doctor of government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test from the facts collected in the investigation. In Martin F. D"Souza"s case Bolam test as approved in Jecob Martin"s case was reiterated. It was further held that a medical practitioner could be liable only where his conduct falls below that of the standards of a reasonably competent doctor. Harm resulting from mischance or mis-adventure or during an error of judgement would not necessarily attract such liability. Mere existence of a body of competent professional opinion considering decision of the medical practitioner to be wrong is not be decisive if there exists a equally competent body of professional opinion supporting his decision as reasonable in the circumstances of the case. It is further laid down by the Hon"ble Apex Court that standard of care has to be judged in the light of knowledge and equipment available at the relevant point of time. Referring to the provision of Section 304A IPC, Mr. Basu, learned lawyer representing the petitioners, has further contended that the said provision relates to cause of death for any rash or negligent act not amounting to culpable homicide. But by judicial precedent such act cannot be treated as merely rash or negligent but "a very high degree of negligence" or "gross negligence" is to be prima facie shown in order to prosecute a doctor and his associates under the aforesaid provision. In fact, from the facts and surrounding circumstances it will appear that in the death certificate by administrative lapse the still living child was referred to which has given rise to a reasonable suspicion in the mind of the complainant party that the said document proved that the baby was born alive. But it is apparent from the evidence on record that due to negligent conduct of the doctor and his associates the baby died and to suppress this the petitioner no. 1, in collusion with the petitioner no. 2, has manipulated all documents to conceal their guilt for which they should be prosecuted. But from the four-corners of the petition of complaint there is no whisper as to how the present petitioners were responsible for such negligence or administrative lapses without any expert medical opinion. Therefore, continuation of the instant proceeding will be treated as an abuse of the process of law for which the same should be quashed.
(3.) I have perused the petition of complaint. It is alleged in paragraph 3 of the petition of complaint that though his wife delivered a still born male baby, except such information the petitioner no. 1 either by himself or any member of his delivery team had shown the alleged still born baby either to the of the complainant"s wife or to anybody else even after lapse of four hours from the time of delivery. In paragraph 4 of the petition he has also claimed that being subject of plight and being not respondent to his appeal for the delivery of dead body of his alleged still born baby neither the accused no. 1 nor the doctors nor any nursing staff then on duty had met the accused no. 2, who, had the knowledge of all about the alleged incident. Besides informing him further about the cause of death of the baby the accused no. 1 had asked him to stay calm and accept the delay. Along with such complaint under Section 156(3) Cr.P.C. the complainant did not furnish any opinion of any other medical professional showing the negligence or rashness on the part of the petitioner no. 1 at the time of delivery of his wife which might be treated as an act of violence caused by petitioner no. 1 at the time of delivery. Yet, on 17.03.2009 the learned Additional Chief Judicial Magistrate, Siliguri allowed the prayer of the complainant and directed the IC, Siliguri to investigate into the case treating the complaint as FIR. Therefore, prima facie, the mandatory directions given in the case of Jacob Mathew and Martin F. D"Souza by the Hon"ble Apex Court have not been followed by the learned Court below in prosecuting the doctor and his associates. From the relevant case diary it will appear from pages 18 21, 26, 27, 42, 79 and 65 onwards that it is alleged by some witnesses that wife of the complainant gave birth to a living baby who died due to negligent conduct of the petitioner no. 1 herein and they also found one mark of injury on the skull of the baby which gives rise to reasonable suspicion in their mind that the petitioner herein i.e., accused no. 1 and his associates were responsible for such death and tried to conceal the truth. It further appears that on the basis of complaint of Siliguri Welfare Association the Chief Medical Officer of Health, Darjeeling took steps for causing investigation into the allegation by a committee and all relevant documents were sent for consideration of the State Directorate on 07.09.2007. From the report of the enquiry committee submitted before the Chief Medical Officer of Health, Darjeeling it will appear that on the basis of death declaration by Dr. Ranjan Pal, the petitioner no. 1 issued the death certificate at 7:30 p.m. on that day showing the cause of death as "Still Living". Immediately after birth of the baby the attending doctor did not find any symptom of respiration after examination of cord pulsation and according to the opinion of these doctors the death of the baby occurred immediately after his birth and before disposal of umbilical cord.;