TAPAS BHATTACHARJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE present revisional application under Section 482 Cr.P.C. has been preferred for quashing of the proceeding being GR Case No. 417 of 2009 arising out of Siliguri PS Case No. 115 of 2009 dated 29.03.2009 under Section 304A/203/109 IPC now pending before the Court of learned Additional Chief Judicial Magistrate, Siliguri, Darjeeling.

(2.) THE two petitioners namely, Dr. Tapas Bhattacharjee and Dr. Pradip Sarkar have claimed that the petitioner no. 1 is a doctor and the petitioner no. 2 is a superintendent now attached to Siliguri District Hospital, Darjeeling. On 17.03.2009 the opposite party no. 2 filed a complaint under Section 156(3) Cr.P.C. alleging, inter alia, that on 21.07.2007 he brought his wife Smt. Laxmi Singh to Siliguri District Hospital in her advanced stage of pregnancy for delivery. She was admitted under the supervision of petitioner no. 1 and on the same day at about 6:50 p.m. she gave birth to a male baby. Neither the petitioner no. 1 nor any member of his team informed the petitioner no. 2 that his wife gave birth to a still born baby. On the following day i.e., on 22.07.2007 the dead body of the said baby was delivered to the opposite party no. 2 while he suspected that the cause of death might not be the same as it was written in the death certificate. THEreafter, the opposite party no. 2 along with members of Siliguri Welfare Association demanded for an autopsy of the dead body and from the postmortem report it was revealed that the cause of death was the act of violence caused by the petitioner no. 1 to effect the delivery. On receipt of such complaint the learned Court below directed the IC, Siliguri PS to investigate into the matter which is now being assailed.

(3.) I have perused the petition of complaint. It is alleged in paragraph 3 of the petition of complaint that though his wife delivered a still born male baby, except such information the petitioner no. 1 either by himself or any member of his delivery team had shown the alleged still born baby either to the of the complainant"s wife or to anybody else even after lapse of four hours from the time of delivery. In paragraph 4 of the petition he has also claimed that being subject of plight and being not respondent to his appeal for the delivery of dead body of his alleged still born baby neither the accused no. 1 nor the doctors nor any nursing staff then on duty had met the accused no. 2, who, had the knowledge of all about the alleged incident. Besides informing him further about the cause of death of the baby the accused no. 1 had asked him to stay calm and accept the delay. Along with such complaint under Section 156(3) Cr.P.C. the complainant did not furnish any opinion of any other medical professional showing the negligence or rashness on the part of the petitioner no. 1 at the time of delivery of his wife which might be treated as an act of violence caused by petitioner no. 1 at the time of delivery. Yet, on 17.03.2009 the learned Additional Chief Judicial Magistrate, Siliguri allowed the prayer of the complainant and directed the IC, Siliguri to investigate into the case treating the complaint as FIR. Therefore, prima facie, the mandatory directions given in the case of Jacob Mathew and Martin F. D"Souza by the Hon"ble Apex Court have not been followed by the learned Court below in prosecuting the doctor and his associates.