- (1.)THE petitioners before me are sixteen medical practitioners, who at the material point of time were members of the West Bengal Medical Council (Council) constituted under the Bengal Medical Act, 1914. They have been arraigned as accused in a complaint relating to allegations of offence under Sections 201/120B of the Indian Penal Code by the opposite party, who is the complainant before the Court of the learned 8th Metropolitan Magistrate Kolkata. The said case has been registered as C/20678/11. The learned Magistrate on 19th August, 2011, upon examining the complainant found sufficient reason to raise strong and reasonable complicity against the accused persons in relation to the said alleged offences and issued process against them directing them to appear before the Court. In this revisional petition, prayer is made for quashing the said proceeding. The complaint of the petitioners before the learned Magistrate has its genesis in several actions brought by the complainant/opposite party, Dr. Kunal Saha, alleging negligence on the part of certain medical practitioners who had treated his wife Anuradha, in the year 1998. Anurudha passed away eventually in the same year.
(2.)AS it appears from the petition of complaint, a copy of which has been annexed to a supplementary affidavit filed by the petitioners in relation to the present application, Dr. Saha had lodged a written complaint with the Council in the year 1999. In the complaint, he alleged negligence and maltreatment of his wife by three medical practitioners. The complaint was referred to the penal and ethical cases committee no. 1 to conduct enquiry into the allegations Dr. Saha. It appears that the said committee had chosen to obtain opinion of certain medical experts, and initially opinion was obtained from a dermatologist based in Kolkata, Professor Ranjit Kumar Panja. Contention of Dr. Saha is that Professor Panja found the treatment given by the three medical practitioners to Anurudha to be not proper. Opinion of two other experts in the field of medicine, Prof. (Dr.) Panchanan Moulik and Prof. (Dr.) Sujit Sengupta were also obtained and their opinions also appear to have supported the claim of Dr. Saha that the treatment provided by the medical practitioners against whom he complained was wrong. Opinion of a fourth expert, Prof. (Dr.) Santanu Kumar Triparti, a Professor of pharmacology also appears to have had gone against the said doctors. All these background facts, however, have not been specifically pleaded in the Revisional Application or in the petition of complaint. These facts have been brought to my notice from a judgment of the Hon'ble Supreme Court in a case reported in [(2009)9 SCC 221], to which I shall refer to in the later part of this judgment, and also forms part of records of certain other proceedings pending before this Court to which reference has been made in course of hearing. I am reproducing these facts in this judgment, as in my opinion, for proper appreciation of the factual context in which this proceeding has been instituted, disclosure of broad outline of the background of this proceeding is necessary.
(3.)THE Council had exonerated two of the three doctors at the initial stage, being Dr. Baidyanath Halder and Dr. Abani Roy Choudhury (since deceased). Against the third doctor, Sukumar Mukherjee charge was framed on 8th November, 2001, on the allegation of administering certain injection much above the recommended dose. Subsequently, Dr. Mukherjee was also exonerated by the Council by an order dated 18th June, 2002. Two parallel proceedings were instituted against the medical practitioners who treated Anurudha, one in the form of a criminal complaint, and the other in the National Consumer Disputes Redressal Commission (NCDRC), seeking compensation for deficiency in service.
Before the NCDRC, Dr. Saha alleged deficiency in service against several medical practitioners including the three doctors against whom complaint was lodged before the Council. The hospital in which she was treated was also impleaded as respondents in that proceeding. The NCDRC had rejected the case of Dr. Saha, who appears before me in person in this prceeding. He submitted that one of the grounds for rejection of his complaint before the NCDRC was finding of the Council in respect of the three medical practitioners, who were exonerated of the charges brought against them.

As regards the criminal complaint instituted before the learned Chief Judicial Magistrate at Alipore lodged by a relative of Dr. Saha, by a judgment and order dated 29th May, 2001 the Court had found the two doctors guilty of criminal negligence and they were convicted under the provisions of Section 304A of the Indian Penal Code, sentenced to undergo simple imprisonment for three months and pay a fine of Rs. 3000/ - each, in default of which they were further directed to undergo simple imprisonment for fifteen days. Dr. Abani Roy Choudhury, since deceased, was acquitted. The two doctors who were convicted, being Dr. Sukumar Mukherjee and Dr. Baidyanath Halder preferred appeals against the judgment and order of their conviction before the learned Sessions Judge, Alipore. The complainant filed a revision application against the judgment of acquittal of Dr. Abani Roy Choudhury (since deceased) before this Court. The appeals filed by the two doctors were withdrawn by the Hon'ble single Judge of this Court before whom the application of the complainant was heard. An Hon'ble Single Judge of this Court by a judgment delivered on 19th March, 2004 allowed the appeals against conviction and dismissed the application against the order of acquittal. Appeal was preferred against the judgment of this Court as well as the judgment of the NCDRC before the Hon'ble Supreme Court. In the case of Molay Kumar Ganguly Vs. Sukumar Mukherjee, 2009 9 SCC 221, the judgment of this Court in the criminal appeals and revision application was sustained. On the issue of deficiency in service, the Supreme Court found that the judgment of the NCDRC was wrong so far the said forum had opined that there was no negligence on the part of the hospitals or doctors and the case was remitted to the NCDRC for the purpose of determination of the quantum of compensation. Subsequently, Dr. Saha has also filed an appeal before the Medical Council of India against the order of the Council exonerating the doctors, and the MCI had directed the Council to cancel the registration of the two doctors, Dr. Sukumar Mukherjee and Dr. Abani Roy Chowdhury for a specified period of time. Two writ petitions have been filed by the said two doctors challenging the order of the Medical Council of India. In the said two writ petitions, interim orders have been granted staying the operation of the order of the MCI. These two writ petitions are pending for final adjudication before this Court.