Narayana Health And Others vs The State Of West Bengal And ...
2023 Latest Caselaw 3392 Cal

Form No.J(1)

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION

Present:

The Hon'ble Justice Tirthankar Ghosh

C.R.R.967 of 2021 With CRAN 1 of 2021

Narayana Health and others versus The State of West Bengal and another

For the Petitioners : Mr. Sandipan Ganguly, Mr. Krishnendu Bhattacharyya, Mr. Avishek Guha, Mr. Priyankar Ganguly, Ms. Debarati Das, Ms. Akansha Chopra.

For the Opposite Party No.2 : Mr. Angshuman Chakraborty.

Heard On              :     16.05.2023 and 11.05.2023.

Judgement On          :     16.05.2023



Tirthankar Ghosh, J. :

The present revisional application has been preferred challenging the

proceedings relating to Complaint Case No.C-533 of 2021 alleging offences

under Sections 406/420/120B of the Indian Penal Code read with Section 34

of the West Bengal Clinical Establishment (Registration, Regulation and

Transparency) Act, 2017 including the orders passed therein which is

presently pending before the learned Judicial Magistrate, 2nd Court, Barasat,

District-North 24 Parganas.

The relevant paragraphs in respect of the allegations made in the

petition of complaint are as follows:

(1) "That the above named complainant is a law abiding citizen having

recommendation and reputation in the society.

(2) That the accused No.1 is the Medicine Organization having its

negotiated office at 261/A, 2nd floor, Bommasandra, Karnataka,

560099 and accused No.2 is the Branch of accused No.1 and

accused No.2 runs under the control, guidance and management

of the accused No.1 and Accused No.3, 4 and 5 are acting for or on

behalf of the accused No.1 & 2 for gain.

(3) That the mother of the complainant namely Smt. Bina Sen is a

senior citizen and due to emergent affairs relating to fracture in the

right femur bone of the said Smt. Bina Sen, she was admitted to

Narayana Multispecialty Hospital, Barasat and she was medically

treated as an indoor patient from 13.02.2021 to 19.02.2021.

(4) That during treatment the relevant medical

papers/documents/test reports relating to such treatment of Smt.

Bina Sen were not supplied to the complainant/patient

party/service recipient despite repeated requests to the concerned

authority of the said Hospital, though it is incumbent on the

concerned authority to supply such papers, documents, medical

reports, test reports to the complainant/patient party yet. The

concerned authority of the Hospital kept the complainant/patient

party in the dark about the real scenario of the treatment of the

said indoor patient Smt. Bina Sen.

(5) That though the said Smt. Bina Sen was discharged from the said

Hospital on 19.02.2021 after making payment of the total amount

of Rs.1,71,130/- by the complainant as demanded by the Hospital

Authority yet, at the relevant point of time also the Hospital

Authority did not supply all the relevant

papers/documents/treatment sheets/medical reports/test reports

relating to such patient Smt. Bina Sen and such conduct on the

part of the Hospital authority raised a reasonable doubt about the

veracity of the Hospital Authority in the mind of the

complainant/patient party.

(6) That finding no other alternative on 20.02.2021 the complainant

went to the said Hospital and met the concerned authority and

asked for the relevant documents, copies of the reports, copies of

the test reports/medical papers/treatment sheets which were

urgently needed for further proceeding with the affairs of the

treatment of the said Smt. Bina Sen. But curiously enough that

firstly the Hospital Authority tried to evade the responsibility of

discharging such scheduled duties and being failure in their

attempts the concerned persons turned violent without having

earthly reasons, some persons started to using some

unparliamentary languages but as the complainant was very much

stick to the legitimate claim for getting all such above mentioned

papers relating to the treatment of Smt. Bina Sen, so ultimately

the concerned authority of the Hospital supplied some

papers/documents relating to such medical treatment of Smt.

Bina Sen. Wherefrom it is evident that an endorsement was made

by a concerned official on the back page of the 'pending diagnostic

reports' dated 19.02.2021 bearing patient Id. No.-27952, Ward

No.-1233 in the name of Smt. Bina Sen (Patient) that 'HRCT Test

not done', but knowing it fully well the concerned Hospital

Authority impressed upon the complainant to deposit all the

charges for tests including such charge of Rs.2500/- for HRCT test

and accordingly on good faith the complainant deposited all such

money including the HRCT test charge and entrusted the

concerned authority with such money. But from such relevant

documents it is transparently clear that in false pretext and also in

clear violation the statutory conditions laid down in West Bengal

Clinical establishment (Registration Regulation & Transparency)

Act, 2017. The concerned authority of the Hospital induced the

complainant/patient party to deliver all such money including the

HRCT charge of Rs.2500/- to the concerned authority with some

mens-rea from the zygotic stage of the treatment of said Smt. Bina

Sen and consequently they succeeded to cheat the

complaint/patient party.

(7) That having a glance to the relevant papers and documents while

the complainant tried to enquire into the matter at that material

point of time one Mr. Anup Bhaduri and another Mr. Suvendu

Prakash pushed the complainant into their chamber and without

caring any system or law such persons blurted out threat by

saying that Narayana Hospital has got the organization throughout

the India and as they keep the local media and police

administration in their control, so they are list bothered of any

such offence committed by them, on the other hand they

threatened the complainant not to raise any question anywhere

about such wrongful activities of the Hospital authority; otherwise

they will put the complainant in some unwarranted troubles. Even

it may cause the safety and security of the life of the complainant.

(8) That though the complainant submitted written information to the

District Magistrate, North 24 Parganas, Superintendent of Police

Barasat Police District and Inspector-in-Charge Barasat Police

Station stating all such relevant facts with a request for taking

action against such offenders, yet till date no response to have

been received by the complainant from the end of such legal

authorities.

(9) That having no other alternative the complainant is constrained to

file such petition of complaint before the Ld. Court seeking legal

redress."

The petitioners before this Court are the accused persons who have

been implicated and against whom the learned Magistrate was pleased to issue

process being Narayana Health (Accused No.1), Narayana Multispecialy

Hospital (Accused No.2), Chairman, Narayana Health (Accused No.3), Anup

Bhaduri @ Anup Kumar Bhaduri (Accused No.4) and Suvendu Prakash

(Accused No.5).

Mr. Sandipan Ganguly, learned senior advocate appearing for the

petitioners submitted that the petitioner nos.1 and 3 are having its office

outside the territorial jurisdiction and in spite of the same, there were

substantive non-compliance of Section 202 of the Code of Criminal Procedure

and the learned Magistrate by mechanically examining two witnesses

(complainant and another) by a non-speaking order issued process under

Sections 406/420/120B of the Indian Penal Code and Section 34 of the West

Bengal Clinical Establishment (Registration, Regulation and Transparency)

Act, 2017.

It was also contended that the summons which were served upon the

accused/petitioners were kept in blank and to substantiate such contentions

learned senior advocate relied upon an unreported judgment of this Court in

the case of Greaves Cotton Limited and others vs. The State of West Bengal

and another (CRR 1979 of 2021) and Anand Mahindra vs. Saudan Singh

reported in 2008 Law Suit (SC) 2639.

Additionally, it was submitted on behalf of the petitioners that the

patient Bina Sen was admitted on 13th February, 2021, she undergone a

surgery on 15th February, 2021 and was discharged on 19th February, 2021.

Complainant paid a sum of Rs.1,71,130/- out of the total bill of

Rs.1,94,307.84/- , thereby a discount to the tune of Rs.23,177.91 was offered

to the complainant. The complainant had been to the petitioners' office on 20th

February, 2021 with regard to discrepancies in the bill, he was attended by the

billing desk and referred to the grievance redressal system, consequently, the

complainant issued a letter expressing his requirement for original bills and

indoor case sheets for reimbursement from insurance, the same were supplied

to him on 24th February, 2021. On 23rd February, 2021 the bills which was

issued reflected Rs.1,71,130/- for which payment was already accepted while

the final bill issued on 24th February, 2021 reflected total of Rs.1,68,630/-, the

same was because of HRCT test charges of Rs.2,500/- being deducted from the

earlier bill for which refund was also offered and subsequently e-mail was also

sent to the complainant. Learned advocate additionally submitted that there

was no complaint regarding the treatment as best possible efforts were offered

and the Hospital Authorities also requested for refund as the HRCT test was

not required. Petitioners submit that there is no element of cheating or

criminal breach of trust involved, to that extent reliance was placed upon S. N.

Palanitkar and others Vs State of Bihar and another reported in AIR 2001

SCC 2960; Vinod Natesan Vs. State of Kerala and others reported in (2019)

2 SCC 401; Dr Sharma's Nursing Home Vs. Delhi Admn. and others

reported in (1998) 8 SCC 745 and Binod Kumar and others Vs. State of

Bihar and another reported in (2014) 10 SCC 663. Challenging the issue

relating to vicarious liability, petitioners relied upon S.K. Alag Vs. State of

U.P. reported in AIR 2008 SC 1731, Maksud Saiyad Vs. State of Gujarat

2007 Law Suit (SC) 1039 and Sunil Bharti Mittal vs. Central Bureau of

Investigation reported in (2015) 4 SCC 609.

As the petitioners contend that further continuance of the proceedings

would be an abuse of the process of law, the same should be quashed.

Mr. Angshuman Chakraborty, learned advocate appearing for the

complainant/opposite party no.2 submitted that the very purpose of the

accused persons were to inflate the bills and accept the payment. In fact had

the complainant not demanded the requisite documents under no

circumstances the accused persons would have accepted the extra billing

which was charged and paid by the complainant. To substantiate his

contention learned advocate relied upon Sri Aurobinda Seva Kendra and

others Vs. State of West Bengal and another reported in 2017 SCC OnLine

Cal 9198 wherein paragraph 22 was relied upon which is as follows:

"22. It is true the petitioner No. 1, Sri Aurobinda Seva Kendra, a juristic person and both the offences involve presence of mens ria and the offence punishable under Section 420 IPC prescribes mandatory imprisonment. However, in the light of the decisions of the Apex Court in the case of Iridium India Telecom Limited v. Motorola Incorporated reported in (2011) 1 SCC 74 that would not operate as a bar in prosecuting the nursing home, Sri Aurobinda Seva Kendra, the petitioner No. 1 on the face of the allegation against it that the nursing home authority raised inflated bills for the medicines and realised payment against such bills without actually administering such medicines to the patient and unused medicines were not returned to the complainant. The question that those allegations are false, are pure questions of facts and essentially the defence of the accused, therefore, the same cannot be gone into. So far as the petitioner Nos. 4 and 5 are concerned, who are the Medical Director and Chief Executive Officer of the petitioner No. 1, from their designations itself it is apparent that they were the persons, who were managing, running and looking after the day-to-day affairs of Sri Aurobinda Seva Kendra, a juristic person, at that material point of time, when the offence allegedly committed. Thus, the question of quashing of the impugned criminal proceeding against them does not at all arise."

Mr. Ganguly, learned senior advocate distinguishes the factual

matrix of the cited case relied upon by the complainant on the ground that

there were allegations of negligence in treatment, deficiency of service along

with inflated bills being raised and as such the said case has no applicability

to the present case.

I have considered the allegations made in the petition of complaint as

also the evidence under Section 200 of the Code of Criminal Procedure (initial

deposition) of the complainant Kollol Kumar Sen and his witness Uttam Kumar

Basu. Both the witnesses apart from the issue relating to inflated bill of

Rs.2,500/- being charged for a test which was not done also specifically

alleged in respect of accused persons Suvendu Prakash and Anup Bhaduri

who pushed the complainant into the office and threatened him that they are

least bothered of such crimes and if the same is disclosed he may have to face

concern relating to safety of his life.

The aforesaid act of the two accused persons prima facie do make out

an offence under Section 504 of the Indian Penal Code. At this stage, the

concern of the Court is to see whether the allegations in the complaint do

make out an offence.

On an assessment of the whole complaint, I am of the view that offence

has been made out, however, the complicity of all the persons are to be

assessed. It is an admitted position that the petitioner nos.1 and 3 are having

their address at a separate territorial jurisdiction, although petitioner no.1 is

an artificial person but petitioner no.3 is a natural person, his complicity

relating to the offence is to be assessed on a different yardstick under Section

200 of the Code of Criminal Procedure prior to issuance of process.

Accordingly, the order dated 11.03.2021 issuing process is set aside.

Learned Judicial Magistrate, 2nd Court, Barasat, North 24 Parganas would

assess regarding the complicity of the petitioner no.3 as also petitioner no.1

before issuing process.

The revisional application being CRR 967 of 2021 is partly allowed.

Pending applications, if any, are consequently disposed of.

Interim order, if any, is hereby vacated.

All parties shall act on the server copy of this judgment duly

downloaded from the official website of this Court.

Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance of all requisite formalities.

(Tirthankar Ghosh, J.)