ASHIM KUMAR SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) HEARD, the learned Counsel appearing on behalf of the petitioner, as well as on behalf of the State and the de facto complainant.

(2.) IN the instant criminal revisional application the petitioner, an orthopaedic Surgeon challenged the legality and validity of an order whereby the learned Additional Sessions Judge, Tamluk rejected his application under section 227 of the Code of Criminal Procedure for discharge and held that there are prima facie materials for framing charge under section 304/34 of the Indian penal Code.

(3.) THE brief facts of the case in a nutshell are as follows: (a) The nephew of the complainant, Sk. Siraj Ali Khan aged about 6 years suffered a fracture of femur bone due to a fall from the lap of his grandfather. At first he was examined by a local doctor and according to his advise x-ray was done. Thereafter, the patient was taken to Subhalaksmi Nursing Home where Dr. Nakul Palui examined the patient and after going through the x-ray plate opined that it was a case of simple fracture which needed a surgical operation but not anything serious. The said Dr. Nakul Palui further proposed operation might be done on June 11, 1997 at 5. 00 p. m. by Dr. Ashim Kumar Sarkar, an Orthopaedic Surgeon under anaesthesia and a total sum of Rs. 4,500/- will be charged for such operation including the charge of operation, fees for doctors and medicines etc. Accordingly, on June 11,1997 at around 11. 00 a. m. in the morning the nephew of the complainant siraj Ali was admitted at Subhalaksmi Nursing Home and at around 7. 30 in the evening the patient was taken to the operation theatre when no anaesthetist was present. At that time Dr. Palui stated to them that everything has been arranged and at his nursing home many other critical operations have been done under anaesthesia and there is nothing to be worried. Till 11. 00 p. m. there was no news about the condition of the patient and only at around 11. 30 p. m. they were called inside the O. T. Room and in presence of Dr. Ashim Kumar Sarkar, other Doctor Nakul Palui informed them that during the operation his nephew had expired. (b) During investigation Dr. Nakul Palui was arrested and was released on bail after expiry of statutory period whereas the present petitioner Dr. Ashim kumar Sarkar was granted anticipatory bail by this Hon'ble Court.