ASOKE KUMAR CHAUDHURI Vs. KUNAL SAHA

JUDGEMENT

(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.