A K MITRA Vs. NANAK CHAND RAMPURIA

JUDGEMENT

(1.) This is an application sections 397/401 read with section 482 Code of Criminal Procedure, 1973, for quashing the proceeding in Case No. C/206/81 under sections 304A/114 of the Indian Penal code pending before the learned Metropolitan Magistrate 16th Court Calcutta.

(2.) Pradeep Kr. Rampuria the only son of opposite party No 1 Shri Manak Chand Rampuria, who was suffering from dental trouble was admitted to the Bellevue Clinic on 15/5/1977 for a minor operation. Unfortunately shortly after the operation Pradeep died due to cardiac arrest as a result of tracheal aspiration. On October 15, 1977 that is, about 5 months after the occurrence, opposite party No.1 Manak Chand Rampuria filed a petition of complaint before the learned Chief Metropolitan. Magistrate, Calcutta, under sections 304-A/114, Indian Penal Code, against the petitioners alleging that on May 15, 1977 the petitioners caused the death of Pradeep Kumar Rampuria by rash and negligent act in the matter of his operation at the operation theatre of the Bellevue Clinic by aiding and abetting each, other in the commission of the said offence. The material allegations were as follows:

(3.) Pradeep Kumar Rampuria, the only son of O.P. No.2 Shri Manak Chand Rampuria, was complaining of toothache prior to his operation. Petitioner No.2 Dr. Sobha Chand Bengani, the family physician of the Rampurias was called and after examining Pradeep Dr. Bengani opined that a minor incision by an expert dental surgeon would relieve him completely of the pain. O.P. No.1 being a man of means and Pradeep being his only son, suggested to Dr. Bengani to consult the best Dental Surgeon and if necessary, to arrange for the proposed minor operation Dr. Bengani mentioned the name or petitioner No.1 Dr. NK. Mitra as the best Dental Surgeon to deal with the case and accordingly, arrangement was made with Dr. A.K. Mitra for examination of Pradeep. After examination of Pradeep Dr. Mitra agreed with Dr. Bengani that a minor operation would give complete relief to Pradeep. The parents and the newly married wife of Pradeep agreed to the said operation by Dr. Mitra and arrangements were accordingly made- by. Dr. Bengani for the operation at the Bellevue Clinic on May, 15 1977, X-ray of the affected part was taken. Pradeep was further pathologically examined by Dr. R.S. Saxena on 10.5.77. Dr. Bengani assured O.P. No.1 that the best and the most qualified anaesthetist would be selected for ensuring safe operation on Pradeep. The particulars of the anaesthetist were not, however, disclosed to opposite party No.1 till the end but he came to know the name of the anaesthetist as Dr. G.C. Gulgulia, petitioner No.3 when he found him in the team of doctor at time of operation Dr. Gulgalia is attached to the dispensary of Dr. Bengani and to the knowledge of O.P. No.2, is not an experienced anaesthetist. Pradeep reported at the Bellevue Clinic on 15-5-77 at 545 a.m. for his operation which was to be held at 700 a.m. Pradeep was removed to the operation theatre and after an unusually long time, the doctors came out of the operation theatre and the patient was removed to his cabin after the operation O.P. No. 1 found Dr. Kamal Mukherjee, petitioner No. 4 an eminent anaesthetist practicing in Calcutta, going inside the operation theatre. After some time, Dr. Mukherjee came out of the operation theatre with a grim face and left the place saying nothing to the O.P. No.1 and the other members of his family. Pradeep however, was taken back to the operation theatre once more and all the doctors slipped out of the operation theatre avoiding O.P. No. 1 and Pradeep was declared dead and the death certificate was handed over to O.P. No 1. Dr. Kamal Mukherjee, a well-known anaesthetist did not administer anesthetic but was called only when the case became hopeless and the recovery seemed to be impossible. Dr. Gulgulia administered anesthetic. It is alleged that due to negligence and culpable rashness of petitioner No.3 Dr. Gulgulia in administer inganaesthetic, there was accumulation of air or fluid in a body cavity where unusual collections took place. It was further alleged that there was culpable negligence on the part of Dr. Mitra or failure to guide and direct the anaesthetist and he was guilty of abetment of an offence under section 304-A, Indian Penal Code. Dr. Bengani was also guilty of abetment of an offence under section 304-A, Indian Penal Code and so was Dr. Kamal Mukherjee who allowed his name to be used as the doctor in-charge of anesthesia in the medical certificate and in the record of treatment knowing fully well that it was not true.