Joymalya Bagchi, J. - (1.) The petition is directed against judgment and order dated 19th March, 2016, passed by learned Additional Sessions Judge, 3rd Court, Alipore, South 24 Parganas in S.C. 26(11)/2013 rejecting the prayer of the petitioner to discharge him from the instant case and framing charges under Sections 304 Part II, 308 read with Section 36 of the Indian Penal Code and under Section 11C read with Sections 11J, 11L of the West Bengal Fire and Emergency Services Act.
(2.) The petitioner along with fifteen other accused persons were prosecuted on the allegations of commission of offences punishable under Sections 304 Part II/308 read with Section 36 of I.P.C. and under Section 11C read with Sections 11J and 11L of West Bengal Fire Services Act on the allegations reflected in the charge-sheet is as follows:- In the early hours of December 9, 2011 a big tragedy took place as the wintry morning was rend asunder by the helpless cries of patients trapped inside a premium hospital namely AMRI Hospitals Ltd situated at 15, Panchanantala Road. In the midst of the night, a fire suddenly broke out in the basement of the Annexe-I building, a G+5 storied structure. As the basement area remained ablaze, toxic smoke began to accumulate inside the building. This contributed to poor visibility and induced suffocation amongst those present on the premises, thus greatly restricting the movements of those trapped inside. Additionally, rescuers were prevented from having direct access to the hospital premises as the security staff stood guard at the main gates. The incident was initially dealt with in a casual manner by the ill trained and poorly equipped staff of the hospital. Once the situation reached an aggravated stage, the Fire Brigade and the Police were informed. As news of the fire spread, locals began to assemble and assist the fire brigade and police in the ongoing rescue operation. The Fire Brigade personnel used sky ladders and broke several glass windows in the building in the course of the rescue. While some patients were brought out alive, dozens of dead bodies were also recovered. As per reports, 92 patients admitted in the Annexe-I building succumbed to death on the night of the fire. The patients who were successfully rescued were shifted to other hospitals. Following the incident, an official filed a formal complaint on behalf of the Fire Brigade. Subsequent to the General Diary Entry No 765 of Lake Police Station dated 09.12.11, a case vide Lake PS Case No 293 dated 09.12.11 u/s 304/308/285/34 I.P.C. and 11C/11J/11L of West Bengal Fire Services Act was registered. The control of the investigation of the case was taken up by a Special Investigation Team of Detective Department, Lalbazar, Kolkata. The dead bodies recovered were subjected to inquest followed by post mortem examination. The autopsy surgeon opined in his report that the cause of death was asphyxia followed by suffocation. In the course of the investigation, a number of witnesses were examined and their statements were recorded. The surviving patients and the relatives of deceased patients narrated the incidents of the unfortunate night in their statements. The patients who managed to escape provided detailed accounts about how the smoke circulating in the building had caused irritation in their eyes. They also related how the lack of support from the AMRI staff and overall absence of an evacuation team worsened the situation. Several patients were infirm and/or bed-ridden and thereby compelled to inhale noxious smoke in their feeble condition. Even those who were mobile had to overcome various hurdles in order to escape the smoke. Kolkata Police and the Fire Brigade worked tirelessly to rescue those trapped inside the building. Local youths assisted them during the continuance of the rescue operation. The patients who survived mentioned that most doctors, nurses and other staffs had fled the premises and they did not receive assistance from the AMRI staff, albeit a few, during this predicament. Both patients and their relatives unanimously condemned the absence of an evacuation system. The lackadaisical attitude of the hospital authorities towards fire safety and the reluctance of the staff to help the patients in the time of need, paints a negative image of what is claimed to be an elite medical institution. Investigation revealed that the fire had broken out in the intervening night of December 8, 2012 and December 9, 2012 in the basement of the Annexe-I building of AMRI Hospital. The fire was detected by some members of the staff of Frank Ross Pharmaceuticals and the mechanical store housed in the building, at about 3.25 am, after noticing smoke emanating from the surrounding areas. From the statements of these individuals, it is evident that the inferno had been observed on some inflammable materials stocked in the Frank Ross Pharmaceuticals store. Items including but not limited to cotton, gauge, rubber and plywood present in the area aggravated the fire resulting in the emission of dark fumes. These persons promptly informed the security staff about the fire. However, despite fervent efforts by the security personnel (under the supervision of the Night Administration) to control the situation by utilising the available fire extinguishers, they were unable to douse the flames. It is noteworthy that both the security personnel and the Night Administrator were ill equipped and untrained with reference to fire safety. The investigation also revealed that a similar incident of fire had taken place on October 9, 2011 in the AMRI Diabetic Centre located at 38/1 Gariahat Road. During that incident, a security guard namely Haradhan Chakraborty had informed the Fire Brigade upon detecting the fire. For this prudent act, he was punished with temporary suspension for violation of Code Brown. Code Brown was the policy measure adopted by the AMRI management with regard to fire safety, wherein the staff had to endeavour to fight the fire by utilising the hospital's resources and contact the Fire Brigade and Police only upon failure to contain the fire. An Incident Report Register seized by the investigating officers reflects that there were 12 distinct incidents of fire in AMRI prior to the incident in question. Various official agencies including but not limited to the ROC, KMC, Directorate of Electricity, CESC, Fire Brigade, FSL and CFSL were contacted during the investigation to gain insight into the dynamics of the case. Information received from the Kolkata Municipal Corporation stated that the building plan of the Annexe-I building of AMRI received sanction in the year 1999. Construction of the building was completed in 2005, with the Completion Plan being sanctioned in 2006 with a fine being imposed for the deviations from the sanctioned plan. In the sanctioned plan, the upper basement was earmarked as the car parking space and hence it was not under the central air conditioning system of the hospital. Investigation indicated that the electrical shaft originated from the basement and circumvented the floors, reaching up to the top of the building. Investigation also brought to light that the basement had been converted to an area housing storerooms, a mechanical workshop, a pharmacy, the HR office, the security and CCTV office and a store for bio medicals. The stores in the basement area stocked various combustible materials. Additionally, the offices in the basement were constructed using plywood. The wooden walls and ceilings alongside vinyl floors of these offices acted as fuel to the fire. The F.I.R. indicated that the movement of the toxic smoke (which was the sole cause of death as per post mortem reports) to the wards was facilitated by the absence of fire stops in the electrical shafts. From the NOC of the West Bengal Fire and Essential Services seized during investigation, it is evident that the upper basement had been converted into office spaces in violation of repeated directives given by the Fire Brigade authorities on the point of fire safety, specifically the instructions pertaining to clearing the basement, alongside other suggested rectifications. In response, the representatives of AMRI Hospitals Ltd provided assurances of compliance by means of letters and affidavits several times. These affidavits formed the basis of the issuance of 4 NOCs dated June 30, 2005, March 12, 2008, January 11, 2010 and September 5, 2011. The FSL report indicated that the basement area stocked huge amounts of combustible materials of the nature of wood, plywood, PVC and cotton which caused the accumulation of black, powdery charcoal like substance on the building premises and the bodies of deceased patients. This version was corroborated by the statements of various witnesses. Non installation of fire stops continued in spite of directives recommending the same provided by the Fire Brigade in various NOCs. It has been argued that the deliberate violation of the KMC sanctioned building plan, disregard for direction of the Fire Brigade and submission of affidavits by AMRI officials when there was no intention to follow through, could only have been done at the clear and express instruction of the owners and/or directors who were the final decision makers in the management of the hospital. The seized documents exposed that the Board of Directors was aware of the upkeep measures suggested by the Fire Brigade and the directors also engaged in discussions about fire safety issues in the course of various board meetings. In spite of this, no directions were issued by the Board regarding the installation of fire stops which is one of the basic safety norms to be observed for curbing the effect of fires. This demonstrates that the owners and/or directors did not attribute much importance to observance of fire safety precautions. In 2007, the AMRI management contemplated acquiring NABH accreditation and the services of the Institute of Applied Quality Management were engaged to ensure that the hospital was in compliance with the directives and guidelines of NABH in all respects including but not limited to fire safety matters. With the assistance of IAQM, AMRI received accreditation from NABH in 2008. It has been noted that the enthusiasm about compliance with NABH standards began to falter in the post accreditation period during which the services of the compliance consultant and incumbent fire officer were terminated. In 2009, a part time fire officer was appointed, however the officer reported only twice a week for limited hours. Fire training and evacuation sessions, mandated under NABH guidelines were irregular and generally suffered from poor attendance. In 2011, to achieve reaccreditation from NABH, a professional was employed. In September 2011, however, the NABH did not provide accreditation to AMRI due to two noncompliance with respect to fire safety and evacuation. In order to salvage the situation, AMRI submitted an evacuation plan but did not sufficiently train the staff about the execution of the plan. The AMRI management neither employed a full time fire officer nor had a trained evacuation team in the hospital premises. The non-compliance in the aforementioned respects resulted in compromise with the safety of patients. Numerous documents and computer resources were seized by the investigating officers and some of the seized items were sent to CFSL and FSL, Kolkata for examination purposes. The minutes of various board meetings which had been taking place since 2004, vide CFSL report dated January 25, 2012 show that the minutes of all the Management Committee meetings in AMRI were sent to Board Members and further used as agenda for board meetings. This is indicative of awareness on the part of the directors about the internal management of the hospital. Mere absence of some directors from some meetings does not absolve them from their responsibilities since the minutes of such meetings were also forwarded to board members through email. The FSL report indicated that the fire started either from the illegally installed stand-alone ACs in the upper basement or from an external object. It is further indicated that the fire spread unnoticed for a considerable period of time due to the presence of cotton or similarly combustible items in the vicinity. Investigation has revealed that the hospital store and the Frank Ross pharmacy in the upper basement both contained huge quantities of cotton, gauze and blankets. Owing to the location of the record room of the hospital within the confines of the basement area, rims of paper were also stored in the same area. From the pattern of decisions taken in board meetings, it is reasonable to proceed on the assumption that such decisions regarding the determination of the location of stores or maintenance of storage were outside the scope of authority of junior employees and were taken in board meetings and/or Managing Committee meetings attended by directors and senior officials. Witness statements illustrate that all board members were actively involved in the day-to-day decision making of the hospital. The board members communicated with each other and the staff by means of mails, personal meetings and verbal orders. The board of directors comprised of promoter groups, Srachi and Emami represented by the families of S.K. Todi, R.S. Agrawal, R.S. Goenka and doctors namely Dr. Mani Kumar Chhetri, Dr. Pranab Dasgupta and Dr. S. Tibriwal. It has also been pointed out that AMRI Hospitals Ltd had an ongoing agreement with the State Health Department. Under this agreement, as a Public Partnership Project, AMRI Hospitals Ltd was required to pay rent, provide free treatment to some sections of patients and include some Government nominees in the Board of Directors. With the passage of time however the presence of the Government nominated members in the Board was rendered redundant as they were made to be present in meetings only as a nominal member, with no real involvement in any decision making. The diminishing share of the Government in the share capital of AMRI and the lack of governmental guidelines regarding day-to-day management were noted as possible reasons for this restricted role of the nominees. Investigation further revealed that in spite of the West Bengal Fire Safety Act mandating the presence of a fire officer in the hospital throughout the day (24 hours), no full time officer was appointed. This decision is indicative of efforts by the owners/directors/senior officers towards minimising expenditure at the expense of safety of the patients. The decision to designate Preeta Banerjee as the person in-charge of overall administration and Sajid Hussain as the sole in-charge of the hospital buildings (accommodating not less than 300 patients at any point of time) has been brought into question. As per the statements of witnesses, both individuals lacked familiarity with fire safety norms and the hospital's evacuation plan submitted in pursuance of NABH accreditation. It has been mentioned that decisions regarding recruitment of qualified and suitable personnel and providing proper mandate to them were in the realm of the directors. The suspension of employee, namely, Haradhan Chakraborty for informing the Fire Brigade on October 9, 2011 by Preeta Banerjee due to non-adherence to the established Code Brown is an instance of the wrong messages that the directors were allowing to be conveyed to the employees. Despite accused person No. 09, Sanjib Pal (then Manager, Maintenance) submitting an undertaking by about AMRI taking effective measures to evacuate the basement within 90 days from the date of receiving NOC and informing the directors about such issues, no efforts were made to rectify the lapses. Investigation into the finances of AMRI Hospitals Ltd revealed that AMRI had an annual turnover worth several crores, much in excess of the amount required to undertake fire safety measures which could have prevented the loss of lives. The facts unravelled during investigation point towards the responsibility of the Board of Directors namely Shrawan Kumar Todi, Ravi Todi, Radheyshyam Goenka, Prashant Goenka, Manish Goenka, Dayanand Agarwal, Radheyshyam Agarwal, Dr. Mani Kumar Chhetri, Dr. Pranab Dasgupta, Rahul Todi, Preeti Surekha, Aditya Bardhan Agarwal in the administration and management of the AMRI Hospitals. As per the evidence collected by the investigators, both external authorities and internal officials had on several occasions alerted the AMRI management about the risk of fire in the hospital premises. Despite this, the accused persons (Board Members) along with Preeta Banerjee, Dr. S. Upadhaya, Sanjib Pal, and Sajjid Hussain had ignored all the suggestions and guidelines set forth, in favour of a cost cutting policy thereby compromising on the fire safety preparedness in the hospital. All the illegal omissions and conscious acts on the part of all the accused persons together ultimately culminated in the occurrence of a devastating fire which claimed the lives of 92 patients. In the above facts and circumstances, it has been argued that a prima facie case u/s 304/308/285/36 I.P.C., 11C/11J/11L W.B.F.S Act has been established against the accused persons namely (01) Shrawan Kr. Todi, (02) Ravi Todi, (03) Radheshyam Goenka, (04) Prasant Goenka, (05) Manish Goenka, (06) Dayanand Agarwal, (07) Radheshyam Agarwal, (12) Dr. Mani Kumar Chhetri and (13) Dr. Pranab Dasgupta and (14) Priti Surekha, (15) Rahul Todi to (16) Aditya Vardhan Agarwal and u/s 304/308/285/36 I.P.C. against accused Nos. (08) Satyabrata Upadhyay, (09) Sanjib Pal, (10) Preeta Banerjee, (11) Sajid Hussain, and they may be tried accordingly.
(3.) Upon completion of investigation, charge-sheet was filed and the case was committed to the Court of Sessions and transferred to learned Additional Sessions Judge, 3rd Court, Alipore, for trial and disposal. The petitioner and the other accused persons preferred applications for discharge and after extensive hearing the learned trial Judge by order dated 19th March, 2016, rejected their prayers and proceeded to frame charges against the petitioner and other accused persons under Sections 304 Part II/308 read with Section 36 of the Indian Penal Code and under Section 11C read with Sections 11J, 11L of the West Bengal Fire Services Act.;