J.N.Hore, J. - (1.) This is an application under Section 897/401 read, with Section 482 of the Code of Criminal Procedure 1973 for quashing the proceeding in case No C/206/81 under Section 304A/114 of the Indian Penal Code pending before the learned Metropolitan Magistrate, 16th Court, Calcutta.
(2.) Pradeep Kr. Rampuria, the only son of opposite party No. 1 Shri Manak Chand Rampuria, who was suffering from tooth-ache was submitted into Bellevue Clinic on 15-5-77 for a minor operation. Some time after operation Pradeep unfortunately died due to cardiac arrest as a result of tracheal aspiration. On October 15, 1977 about 5 months after the occurrence, opposite party No. 1 Manak Chand filed a petition of complaint under Section 304A/114, Indian Penal Code against the petitioners alleging that on, May 15 1977 the petitioner caused the death of Pradeep Kr. Rampuria by rash and negligent act in the operation theatre of Bellevue Clinic and aided and abetted each other in the compensation of the said offence. The materials allegation may be stated as follows :- Pradeep Kumar Rampuria, the only son of O.P. No. 2 Shri Manak Chand Rampuria, was complaining of tooth-ache prior to his operation. Petitioner No. 2 Dr. Sobha Chand Bengani, the family physician of the Rampuria, was called and after extracting Pradeep Dr. Bengani opted that a minor incision by an expert dental surgeon would relieve him of the pain completely. No. 1 being a man of means and Pradeep being his only son suggested to Dr Bengani to consult the best Dental Surgeon and if necessary to arrange for the proposed minor operation. Dr. Bengani mentioned the name of petitioner No. 1 Dr. A. K. Mitra as the best Dental Surgeon to deal with the case and accordingly arrangement was made with Dr A. K Mitra for examination of Pradeep. After examination of Pradeep, Dr Mitra agreed with Dr. Bengani that a. minor operation would give complete relief to Pradeep. The parents and the newly married wife of Pradeep agreed to the said operation by Dr Mitra and arrangements were accordingly made by Dr Bengani for operation at Bellevue Clinic on May 15, 1977. X-Ray of the affected part was taken. Pradeep was further pathologically examined by Dr. R. S. Saxena on 10-5-77. Dr. Bengani assured O.P. No. 1 that the best and the most qualified anaesthetist would be selected for ensuring safe operation on Pradeep. The details of the anaesthetist were not disclosed to opposite party No. 1 till the end but he came to know the name of the anaesthetist as Dr. G. C. Gulgulia, petitioner No. 3 when he found him in the team of the doctors at the time of operation. Dr. Gulgulia is attached to the dispensary of Dr. Bengani and to the knowledge of O.P. No. 2 he was not an expert or experienced anaesthetist Pradeep reported at Bellevue on 15-5-77 at 5-45 A.M. for his operation at 7-00 A.M. Pradeep was removed to the operation theatre and after an unusual long time the doctors came out of the operation theatre and the patient was removed to his cabin after operation. O.P. No. l found Dr. Kamal Mukherjee, petitioner No. 4, an eminent anesthetist practicing in Calcutta going inside the operation theatre. After some time, Dr. Mukherjee came out of the operation theatre with a grim face and left the place saying nothing to the O.P. No. 1 and the other members of his family. Pradeep, however, was taken back to the operation theatre once more and all the doctors slipped out of the operation theatre avoiding O.P. No. l and Pradeep was declared dead and the death certificate was handed over to O.P No 1. Dr Kamal Mukherjee, a well-known anaesthetist did not administer anaesthesia but was called only the case became helpless and the recovery was impossible, Dr. Gulgulia administered anaesthesia. It is alleged that due to negligence and culpable rashness of petitioner No 3 Dr. Gulgulia in administering anaesthetic, there was accumulation of air or fluid in a body where unusual collection took place. It was further alleged that there was culpable negligence on the part of Dr. Mitra or failure to guide and direct the anaesthetist and he was guilty of abetment of an offence under Section 304A Indian Penal Code. Dr. Bengani was also guilty of abetment of an offence under Section 304A Indian Penal Code and so was Dr. Kamal Mukherjee who allowed his name to be used as the doctor-in-charge of anaesthesia in the medical certificate and in the record of treatment knowing fully well that it was not true.
(3.) On receipt of the said petition of complaint on October 15, learned Chief Metropolitan Magistrate directed the Deputy Commissioner, detective Department to take cognizance and. to investigate treating the said complaint as the First Information Report in Case No. C/2604 of 1977 under Section 56(3) of the Code of Criminal Procedure. During investigation police seized the documents relating to the treatment and death of Pradeep Kumar Rampuria and sent them to Dr. J. B. Mukherjee, Professor and Head of the Department of Forensic and State Medicine, Medical College, Calcutta for his opinion. Dr. J. B. Mukherjee opined that in the absence of autopsy examination there was no scope to contradict the opinion of the operating surgeon as on record to the effect that the patient died due to Cardiac Arrest following tracheal aspiration after surgical operation. It was further stated by the expert that "cases are on record where patients have died from cardiac arrest from tracheal aspiration after surgical operation. As per typed copy of the report adequate medical measures were taken towards the revival of the patient which as the report shows came of no avail.";