Dr. Pabitra @ Pabitra Kumar Biswas vs The State Of West Bengal & Anr
2023 Latest Caselaw 3226 Cal

                          IN THE HIGH COURT AT CALCUTTA
                        CRIMINAL REVISIONAL JURISDICTION
                                 (APPELLATE SIDE)


     Present:
     The Hon'ble Justice Rai Chattopadhyay


                           C.R.R No. 3649 of 2016

                  Dr. Pabitra @ Pabitra Kumar Biswas
                                  Vs.
                   The State of West Bengal & Anr.


     For the Petitioners                            : Mr. Milon Mukherjee,
                                                              Ld. Senior Adv.

                                                    : Mr. Biswajit Manna.


     For the State                                 : Mr. Madhusudan Sur,
                                                                   Ld.APP


                                                   : Mr. Dipankar Pramanick.


     Hearing concluded on: 23/03/2023

     Judgment on: 08/05/2023


     Rai Chattopadhyay, J.

1)                Assailed      in   this   case    are    two   orders   of   the

     Magistrate   and     the    Sessions    Judge,       Dakshin   Dinajpur    at

     Balurghat dated 15.02.2016 and 20.07.2016 respectively.                   The

Magistrate, 2nd Court, Balurghat, Dakshin Dinajpur in G.R. Case

No.107 of 1997 has delivered the impugned order dated

15.02.2016 thereby rejecting the petitioner's prayer under

section 258 of the Cr.P.C. The same order has been affirmed in

a revision by the Sessions Judge, by dint of his judgment dated

20.07.2016.

2) The petitioner is a doctor by profession. Against

him the de facto complainant alleges the culpable act of being

negligent in treatment of his minor son, resulting into death

of the said minor. The de facto complainant has lodged FIR in

Balurghat Police Station, being registered as Balurghat Police

Station Case N0. 38/1997 dated 25.01.1997 under section 304 of

the IPC. Chargesheet was submitted on 31.5.2003, under section

304A of the IPC.

3)                 The     FIR     has    enumerated     inter      alia   that      on

     20.04.1997    the     thirteen      months    old   son   of   the    de    facto

complainant was indisposed being suffered with diarrhoea and

vomiting. Initially the child was treated by a doctor in the

locality, who however, prescribed for providing the child with

the saline treatment. The de facto complainant has stated that

immediately thereafter at about 10:25 p.m. in the night the

child was admitted at Balurghat Hospital. The de facto

complainant has stated further that since after admission the

physical condition of the child was continuously deteriorating,

call was recorded in the 'call book' for the petitioner. The

de facto complainant has also stated that they, as the family

members of the patient, insisted severely for calling the

petitioner to attend, and treat the ailing child, but to no

avail. Allegedly in spite of calling him for several times, no

response was received. According to the de facto complainant,

they have even inquired for any other doctor, if available, to

attend the child in the emergency, but allegedly was declined

by the attending nurse in the hospital on the plea that only

the petitioner was assigned with the duty at the relevant point

of time. The de facto complainant stated further that

ultimately the petitioner attended the patient at the early

morning but by that time the child was only in a grasping

condition. Ultimately the child died at 6:55 a.m. in the

morning on 21.04.1997. On these facts and circumstances the de

facto complainant has alleged that in spite of calling the

petitioner for several times in emergency, as he did not attend

the patient and did not offer him the appropriate treatment and

medication, thus acted negligently and intentionally avoiding

his responsibilities. Allegations have been made against him

of culpable negligence resulting into death of the child. On

these allegations the FIR was lodged, a case was registered

under section 304 of the IPC and the investigation proceeded.

4) After initiation of the prosecution against him as

mentioned above, the petitioner challenged the proceedings in

this Court, and prayed for quashing of the same in case no.CRR

2659 of 2003. The same was disposed of by dint of an order

dated 10.01.2005, in which the Co-ordinate Bench of this Court

disposed of the same with the observation that objection as to

the continuation of the prosecution may be raised by the

present petitioner before the Magistrate by espousing provision

under Section 258 of the Cr.P.C. Further facts relevant to be

discussed would be that in the said proceeding before the

Magistrate the petitioner preferred an application under

Section 258 of the Cr.P.C which was, however, dismissed by the

Court, vide the impugned order. For better understanding the

provision is extracted, as herein bellow :-

"258. Power to stop proceedings in certain cases.

In any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge."

5) Therefore, as per the design of the statute, an

order of the Magistrate recorded under Section 258 of the

Cr.P.C, shall have the effect of discharge of the accused

person, in this case the petitioner, from the proceedings.

6) Mr. Mukherjee, Ld. Senior Advocate, appearing for

the petitioner has raised the initial point of argument

regarding no negligence, much less of any culpable negligence

to be attributed to his client, while discharging duty in a

government hospital. He points out to the relevant 'call book'

and submits further that the petitioner has duly prescribed

medicine and measures as per protocol, at 10:25 p.m. in the

night, upon receiving the notification regarding the child

being in serious condition. Later on, it has been pointed out

too, that receiving emergency call in the early morning at 5:00

a.m. requesting him to attend the patient immediately, the

petitioner rushed to attend the patient at 5:05 a.m. According

to Mr. Mukherjee it is only that the child succumbed in spite

of having been treated with appropriate medical care and no

negligence, as alleged, is attributable to the petitioner for

the death of the child. Mr. Mukherjee has further relied on

the internal inquiry committee report to submit that the

internal inquiry committee has also taken note of the fact as

above and come to the finding that there is no reason to

attribute cause of death of the child to any negligent act of

the petitioner as alleged and that the internal inquiry

committee has exonerated the petitioner from any charge as

afore stated. Later Mr. Mukherjee has relied on the following

two celebrated judgments in advancement of his arguments that

to assess any culpable negligence on part of a doctor, the

Hon'ble Supreme Court has set a different standard all

together, to be applicable in recording a finding of

negligence. Mr. Mukherjee has taken this Court through the

concerned judicial pronouncements thoroughly and has also

emphasized that the law laid down in the said verdicts are the

prevalent law as on the date regarding the standard of proof of

an act of negligence by the professional, like a doctor. The

said two judgments are

(i) Jacob Mathew vs. State of Punjab & Anr. reported in

(2005) 2 C Cr. LR (SC) 472, and

(ii) Martin F. D'Souza vs. Mohd. Ishfaq reported in

(2009) 1 SCC (Cri) 958.

7) The contention and prayer of the petitioner has

however been strongly opposed on behalf of the State. Mr. Sur,

Ld. APP, by referring to the materials available in the case

diary has submitted that those are categorical and unambiguous

enough to prima facie find out the causal connection between

the negligent act of the petitioner, to the unfortunate death

of a minor. It is submitted that the petitioner being 'in

charge' on the fateful night, has not acted with appropriate

promptitude or desired sensitivity, to attend the child in an

emergency, in spite of having knowledge of deteriorating

physical condition of the child. He elaborates that the

petitioner should be considered to have adequate knowledge

about the probable result and outcome in not attending the

child in a serious condition. Thus according to Mr. Sur

petitioner's alleged acts shall definitely come within the four

corners of the provisions under Section 304A of the IPC and

obviously the FIR and other materials on record are prima facie

sufficient and strong enough to make out cognizable offence and

a prosecutable case against the petitioner. He has stated that

the orders as above delivered by the Magistrate as well as the

Sessions Judge, suffer with no impropriety, on the basis of the

records so available. It is stated that the said Courts have

come to a just and proper finding regarding existence of strong

prima facie material against the petitioner and has in due

consideration thereof rejected petitioner's prayer under

section 258 of the Cr.P.C, which may not warrant any

interference of this Court in exercise of its power under

Section 482 of the Cr.P.C. Mr. Sur has insisted that

petitioner's case may be dismissed and immediate and

expeditious trial may be ensured by an order of this Court.

8) Upon lodging the FIR by the de facto complainant on

25.01.1997, police registered Balurghat Police Station Case

No.38/1997 dated 25.01.1997 under Section 304 IPC, against the

present petitioner. Investigation of the case has ultimately

resulted into filing of a chargesheet by the police under

section 304A of the IPC. Therefore, at the outset it would be

beneficial if the said provision is remembered once again,

which is as follows:

"304A. Causing death by negligence

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

9) Thus, section 304A of the IPC has provided for an

offence of rash and negligent act of the perpetrator, not

amounting to culpable homicide and also the punishment for such

an offence. Necessary ingredients of an offence under this

provision may be listed to be, that (i) there must be death of

the person in question, (ii) the accused must have caused such

death and (iii) that such act of the accused was rash and

negligent and that it did not amount to culpable homicide.

Needless to mention that an 'act' of culpability, or the

'omission' resulting into occurrence of a crime with the

intention to cause the same and/or the knowledge of the

probability of the occurrence of a crime due to such 'act' or

'omission', would form the necessary ingredient/component of an

offence, under the afore stated provision of law.

10) In the light of the statutory provision as above,

this Court is now to assess as to whether the impugned

confirmatory order of the Sessions Judge, dated 20.7.2016,

rejecting petitioner's prayer under section 258 of the CrPC has

been proper or not, vis-a-vis the materials available against

the petitioner.

11) Before that, it would be prudent to look into the

precedents as relied on behalf of the petitioner in this case.

Jacob Mathew's case of 2005 (supra) of the Supreme Court is the

path breaking judicial pronouncement, a compendium as to what

would be the standard regarding assessing culpability of the

action of a professional, a doctor in particular. On the said

occasion, the Supreme Court was dealing with a case where the

accused persons, who were doctors by profession, were charged

with the offence under section 304A of the IPC. The Court has

set in place the law regarding the standard of assessing

culpability of action and negligence of professionals, a doctor

in particular, while discharging his duties. The matter related

to prosecution of the medical practitioners for rashness and

negligence while offering medical treatment. The Sessions Judge

as well as the High Court, dismissed doctor's plea that charge

could not be framed against them under sections 304A and 34 of

the IPC, as was done by the Magistrate. Hence, the accused

doctors moved the Supreme Court. The Court was pleased to hold

that

"25. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure."

12) The Court took into consideration various other

previous judicial pronouncements and confirmed that tests as

were laid down in 'Bolam's case' should be held good and govern

the field. The following portions of the said judgment may be

quoted:

"19. An Oft quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair J. in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586 in the following words:

"Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill... It is well- established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."

20. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and well- condensed one. After a review of various authorities Bingham L.J. in his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1, 79 summarised the Bolam test in the following words:-

"From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be

alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet."

21. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):-

"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.

Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."

13) In the other case of Martin F. D'Souza (supra) the

Court has propounded the law, so settled by it earlier. The

following may be quoted for emphasis.

"67. The basic principle relating to the law of medical negligence is the Bolam Rule which has been quoted above. The test in fixing negligence is the standard of the ordinary skilled doctor exercising and professing to have that special skill, but a doctor need not possess the highest expert skill. Considering the facts of the case we cannot hold that the appellant was guilty of medical negligence."

14) Now, coming back to the facts of the present case

vis-à-vis the charges levelled against the petitioner, an one

liner expositor would be that the petitioner has been alleged

of negligence by not attending the minor in serious condition,

resultantly causing his death. It is necessary that the

impugned orders of the Courts of first instance may be glanced

for once.

15) The Magistrate, in his order dated 15.02.2016, has

held that, for an accused to get protection from conviction

under section 304A, there should neither be intention nor

knowledge to cause death. It was held that in this case, prima

facie it comes out that the doctor did not have intention to

cause death. But whether he had knowledge is a different thing.

It was further found that in this case, the very fact that, the

patient was admitted in the emergency ward, suggests some

gravity in his sickness. Moreover, the doctor was "call booked"

when the condition of the patient deteriorated. But, the doctor

prescribed medicine without even examining him in person.

Whether the medicines prescribed and the medical amenities

administered to the patient were sufficient for that situation,

is indeed a matter for trial. It was further held that there

must be both knowledge and intention to such act of negligence.

In this case, the victim was a minor and the doctor had full

knowledge that he was "call booked" for attending the patient

when his condition deteriorated. The Magistrate rejected

petitioner's prayer under section 258 of the CrPC.

16) While confirming the order of the Magistrate as

above, the Sessions Judge found in his judgment dated

20.7.2016, that "the profession of doctor is supposed to have

requisite knowledge and skill needed for the purpose of and has

a duty to exercise reasonable due care while dealing with the

patient. But at the same time if the doctor or specialist does

not act in the patient admitted in emergency or under the

supervision and the patient dies or becomes victim of

consequences, which could have been avoided with due care from

the doctor. In such a case doctor can be held liable under

medical negligence." He has further found that "from the case

in hand, it appears that the doctor failed to discharge his

duties as casted upon him by the government hospital. In this

case, the victim was a minor and the doctor has a full

knowledge that his condition was deteriorating and the nurses

calling him on several occasions, but with full knowledge of

that he did not attend in a proper time, so that the health of

the victim was deteriorated and finally succumb to death."

17) Medical negligence is the misconduct by medical

practitioners or doctors by not providing enough care and

taking proper safeguards or measures resulting in the breach of

their duties harming the patients. In the case of the medical

practitioner, negligence way failure to act through the

standards of moderately ready clinical men on the time. There

may be one or more perfectly proper or reasonable standards of

care, and if he conforms to one of these standards, then he is

not negligent. Medical negligence occurs because of improper,

unskilled or negligent treatment provided to the patients.

Medical negligence also known as medical malpractice occurs

when the medical practitioners fail to perform their duty with

the necessary amount of standard of care.

18) Medical negligence is caused by lack of proper care

or carelessness of the medical professionals during diagnosis,

medication, operations and alike. The most common causes for

medical negligence include lack of procedural safeguards,

incorrect dosages, surgical errors, operation theatre

contamination, blood transfusion contamination, mistreatment,

wrong diagnosis, etc., which can be potentially prevented by

taking a proper standard of care which is required. Every

medical professional or doctor has a duty of care towards their

patients and when they commit a breach of this duty of care it

causes injury to the patients and gives the patient's right to

bring an action against negligence. In the case of State of

Haryana v. Smt Santra (reported in 2000 5 SCC 182), the Supreme

Court stated that each and every health practitioner has a

responsibility to act with an affordable amount of care and

skill. The Court has held that in criminal law, the degree of

negligence is a factor in determining the liability. However,

the elements like the motive or the intention behind the

offense, the magnitude or degree of the offense and the

character of the offender must be established to determine the

criminal liability.

19) In Poonam Verma v. Ashwin Patel (reported in 1996 4 SCC

332), the Supreme court has distinguished between negligence,

recklessness, and rashness, and also defined what amounts to

criminal liability. It stated that a person is said to be acted

in a negligent manner when he/she unintentionally commits an

act or omission that causes a breach of his/her legal duty. A

person who acted in a rash manner when he/she knows the

consequences but foolishly thinks that they won't occur as a

result of his/her act. A reckless person knows the consequences

but doesn't care whether or not they result from his/her act.

The Court has stated that 'any conduct falling short of

recklessness and deliberate wrongdoing should not be the

subject of criminal liability.'

20) Medical malpractice occurs when a healthcare

professional or provider neglects to provide appropriate

treatment, omits to take an appropriate action or gives

substandard treatment that causes harm, injury or death to a

patient. The law acknowledges that there are certain medical

standards that are recognised by the profession as being

acceptable medical treatment by reasonably prudent healthcare

professionals under like or similar circumstances. This is

known as the standard of care. A patient has the right to

expect that healthcare professionals will deliver care that is

consistent with these standards. If it is determined that the

standard of care has not been met, then negligence may be

established.

21) "Bolam test" is the classical test, a touchstone

against which existence of the element of negligence by a

doctor may be assessed. In the case of Dr. Laxman Balkrishna

Joshi reported in AIR 1969 SC 128, the Supreme Court held in the

following words:

"In the context of criminal liability, classic statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap (1902) 4 Bom LR 679 made in reference to Section 304A IPC approved by the Supreme Court subsequently and followed by the High Courts in general may also be quoted: "To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non." This is known as Bolam test propounded by McNair J in Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 in the UK. It has been approved and followed by the courts in India."

"Bolam test" states that when the doctors accept standard

practice then he is not doing breach of duty. A doctor is not

guilty of negligence if he has acted in accordance with the

practice accepted as proper by a responsible body of medical men

skilled in that particular act. In the words of McNair L.J. in

the judgment, "... where you get a situation which involves the use of

some special skill or competence, then the test as to whether there has

been negligence or not is not the test of the man on the top of a

Clapham omnibus, because he has not got this special skill. The test is

the standard of the ordinary skilled man exercising and professing to

have that special skill" and also that "... I myself would prefer to put

it this way, : A doctor is not guilty of negligence if he has acted in

accordance with a practice accepted as proper by a responsible body of

medical men skilled in that particular art."

Applicability of this classical test so as to assess if

negligence, as propounded by the criminal law exists, has also

been appreciated by the Apex Court, in the case of Jacob Mathew

(supra), as discussed above.

22) For best understanding of the principles governing

the field which, as a matter of fact shall be followed by this

court while assessing the merits of this case, the ratio of the

decision of the Supreme Court in the judgment of Kusum Sharma v.

Batra Hospital, (reported in 2010 3 SCC 480) may also be referred

to, where the Court found

"62. We are here concerned with criminal negligence. We have to find out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences."

23) The degree of skill and care required by a medical

practitioner is so stated in Halsbury's Laws of England (4th

Edn., Vol. 30, Para 35):

"35. Degree of skill and care required.--The practitioner must

bring to his task a reasonable degree of skill and knowledge,

and must exercise a reasonable degree of care. Neither the very

highest nor a very low degree of care and competence, judged in

the light of the particular circumstances of each case, is what

the law requires, and a person is not liable in negligence

because someone else of greater skill and knowledge would have

prescribed different treatment or operated in a different way;

nor is he guilty of negligence if he has acted in accordance

with a practice accepted as proper by a responsible body of

medical men skilled in that particular art, even though a body

of adverse opinion also existed among medical men.

Deviation from normal practice is not necessarily evidence of

negligence. To establish liability on that basis it must be

shown (1) that there is a usual and normal practice; (2) that

the defendant has not adopted it; and (3) that the course in

fact adopted is one no professional man of ordinary skill would

have taken had he been acting with ordinary care."

24) It is worth noting in this case, that the

principles settled as above and still governing the field, have

not been considered by the two initial Courts, in their

respective orders, while considering petitioner's prayer. The

result is an error occurring in the decision making process,

rendering both the orders as erroneous and devoid of being

backed by the settled laws. Prima facie material emerging from

the FIR is that a child was admitted in the hospital at 10:25

PM, in a serious condition having been suffered from diarrhoea.

It is not the case of the prosecution that the child was not

put to the medication as per the settled and accepted medical

protocol. Fact remains that in spite of administration of due

medication, the condition of the child deteriorated. At this

stage, the petitioner was notified by way of generally accepted

procedure, that is by sending note in a call book. The time has

been stated to be at 10:25 p.m. It is the case of the

prosecution that in response to such information, the

petitioner suggested further proper medication but did not

personally attend the child. The prosecution has not made up

any case that such prescription of the petitioner was not

adequate or appropriate or that the child was not provided with

the medical support in terms of such prescription, in absence

of the petitioner. Prosecution's case is based on the sole fact

that after being notified, the petitioner did not attend the

ailing child. Of course, the petitioner could have attended the

ailing child at that point of time. However having not attended

the child at that point of time and prescribing medicines and

treatment for him, due administration of which has not been

denied in this case, the petitioner has complied with the

standard of care of an ordinary prudent medical practitioner.

It is needless to reiterate that the standard of care necessary

to be undertaken by a doctor is propounded to be that of an

ordinary prudent practitioner following the due process and

protocol prevalent in the field. Highest degree of care may not

be imparted, to indicate that no negligence was exercised in

caring and treating the patient. This being the settled law,

governing the field, as elaborately discussed above, in this

case so far as the petitioner is concerned it can be held that

the petitioner has maintained the ordinary degree of care,

while treating the patient. It is worth noting that the

prosecution has not brought forward a case that the treatment

extended to the child was not adequate and petitioner's

presence to attend the patient at that very moment, would have

ensured any better, adequate or appropriate treatment for the

child. It is not the case of the prosecution, that the course

adopted was one of such kind that no professional man of

ordinary skill would have taken, had he been acting with

ordinary care. The "Bolam's test" is satisfied in this case,

that the procedure adopted has to be in terms of the practice

accepted as proper. The plight of parents who have lost their

child can always be understood, though the liability cannot be

thrashed blindly on the doctor, who prima facie is seen to have

exercised reasonable care, undertaken appropriate procedure and

extended adequate treatment to the patient.

25) Therefore, in this case, in view of the settled

laws, the ingredients of offence under section 304A of the IPC,

i.e, the accused has caused death of the victim, due to

rashness and negligent performance of his duties, are not

fructified, even if the allegations in the FIR are taken at

their face value and the other materials on the case diary are

taken into consideration. There is no prima facie material to

show the higher standard or degree of breach of duty by the

petitioner, so much so that it can be characterised as gross

negligence by him, to be covered within the four fold of the

provision of law as afore stated. The law settled as above has

not found place in the two impugned orders of the Courts of

first instance. Thus both the said orders are liable to be set

aside being illegal.

26) Hence, this revision succeeds. The order of the

Sessions Judge dated 20.07.2016 in Criminal Revision No.10 of

2016 and that of the Ld. Judicial Magistrate, 2 nd Court,

Balurghat, Dakshin Dinajpur dated 15.02.2016 in G.R. Case

No.107 of 1997 are set aside. Prosecution started against the

petitioner, pursuant to the Balurghat Police Station Case N0.

38/1997 dated 25.01.1997, is hereby quashed and set aside. CRR

3649 of 2016 is allowed. Connected application/s, if any,

is/are disposed of. The case diary be immediately returned.

27) Urgent certified copies of this judgment, if

applied for be supplied to the parties subject to compliance

with all the requisite formalities.

(Rai Chattopadhyay)