Jaydip Basu vs The State Of West Bengal & Anr
2023 Latest Caselaw 340 Cal

Form J(1)        IN THE HIGH COURT AT CALCUTTA
                    Criminal Revisional Jurisdiction
                              Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri

                        C.R.R. 4550 of 2022
                           Jaydip Basu
                               Vs.
                 The State of West Bengal & Anr.

For the petitioners     : Mr.Arka Pratim Chowdhury,Adv.
                          Mr. Sunny Nandy, Adv.
                          Mr. Subha Pathak, Adv.
                          Mr. Tamal Singha Roy, Adv.
                          Mr. Nurnobi Seikh, Adv.

Heard on                : 11.01.2023

Judgment On             : 11.01.2023.

Bibek Chaudhuri, J.

The petitioner is facing trial in S.T. Case No.5(4) of 2017 arising

out of Baguihati Police Station Case No.679 of 2012 dated 17 th

October, 2012 under Sections 304/304A of the Indian Penal Code

read with Section 7(c ) of the West Bengal Clinical Establishment Act,

1950 presently pending before the learned Additional Sessions Judge,

1st Court at Barasat.

In the said case, the petitioner filed an application under Section

227 of the Code of Criminal Procedure praying for discharge.

However, the said petition was rejected. Ascertaining the order of

rejection of the petition under Section 227 of the Code of Criminal

Procedure, the petitioner has moved the instant revision.

It is submitted on behalf of the petitioner that the petitioner is a

Medical Practitioner sometimes in the year 2012. The deceased wife

of the de-facto complainant was admitted to a Nursing Home under

the present petitioner and one Dr. Tapan Mukherjee for operation of

gallbladder and ovarian cyst. Two days after the operation, the

patient collapsed and died on 17th October, 2012.

On the basis of a complaint made by the husband of the de-

facto complainant, the matter was initially enquired into by the MCI.

MCI penalized the doctors, suspending their practicing licences. The

petitioner challenged the said penal action of the Indian Medical

Council before this Court in writ jurisdiction. This Court allowed the

writ petition filed by the petitioner by setting aside the order passed

by the Medical Council of India and directed the West Bengal Medical

Council to enquire into the matter afresh. The West Bengal Medical

Council accordingly enquired into the matter. The concerned Doctors,

Autopsy Surgeon, other Doctors and the administrative staff of the

Nursing Home were examined by the Ethics Committee of the Council.

It was specifically found that before the death of the patient, he was

under the supervision of an RMO named Dr. Abdur Rahaman. It was

also reported that by the side of the dead body of the deceased, an

empty ample of Midazolam injection was lying. It was also observed

by the West Bengal Medical Council that entire process of operation

was videographed and immediately after the operation a CD

contained photographs was handed over to the husband of the

deceased. But the Autopsy Surgeon did not consider the said CD at

the time of post mortem to ascertain as to whether there was any

lapse in conducting the operation or not.

Petitioner is about to face trial in a Sessions Case under

Sections 304/304A of the Indian Penal Code and other cognate

provisions.

It is pointed out by the learned Advocate for the petitioner that

the Investigating Officer did not consider that the patient was under

the supervision of an RMO who was not a registered Medical

Practitioner. However, he was appointed by the concerned Nursing

Home. Secondly, the Investigating Officer did not also consider as to

whether the PM report stands in view of the CD and the role of the

petitioner was confined only in respect of successful operation of the

patient.

It is submitted that patient was successfully operated and her

condition was stable after the operation.

It is ascertained from the submissions made by the learned

Advocate for the petitioner that police submitted charge-sheet in this

case in the year 2017. Charge was framed against the

accused/petitioner. Therefore, the learned Trial Judge rightly held

that the petitioner under Section 227 of the Code of Criminal

Procedure cannot be entertained after framing of charge.

However, this Court is not agreeable with the observation of the

learned Trial Judge that in the trial of the case pending before him,

the report of the West Bengal Medical Council is not required to be

looked into.

The case relates to medical negligence. A Trial Judge not being

an expert of Medical Practice, surgical procedure, management of

patient after surgery etc. He is bound to take recourse of expert

operation to decide the case. In the case before him expert opinion

contains in the form of postmortem report and the Investigating

Officer cited the Autopsy Surgeon as an witness.

Therefore, the learned Trial Judge is directed to take in to

account the report of the West Bengal Medical Council If required, he

is at liberty to examine the Doctors comprising the Panel and Ethics

Committee at the relevant point of time of the West Bengal Medical

Council as defence witness and finally, he shall take the decision as to

whether the accused persons are liable to be convicted under the

charge or not.

It is also found from the record that the instant matter is

pending for long. Therefore, learned Trial Judge is requested to

decide the case expeditiously. If during trial, the name of any person

or Nursing Home transpires as party to the negligence, the learned

Judge is at liberty to issue process against them.

With the above discussion, the instant revision is disposed of.

(Bibek Chaudhuri, J.)

Mithun De/ A.R. (Ct).

Sl No.12.

D/L.