SANKAR ACHARYYA,J. - (1.) 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.
(2.) 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.
(3.) 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.;