BHUPEN BISWAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) The unfortunate son of an under-trial prisoner, Kanak Biswas, who was in judicial custody in Guwahati Central Jail as an accused in connection with Khetri P.S. Case No. 127/06 registered u/s 302/34 IPC, by the present petition is praying for compensating the family of the under trial prisoner alleging negligence on the part of the respondents in extending the proper medical treatment.

(2.) The father of the petitioner, namely Kanak Biswas, aged about 60 years, was arrested in connection with Khetri P. S. Case No. 127/06 registered u/s 302/34 IPC, on the basis of the FIR lodged by one Dipak Paul on 23.7.06, alleging killing of his daughter by her husband, father-in-law (Kanak Biswas), mother-in-law, sister-in-law and the brother-in-law. During investigation, the police arrested Kanak Biswas on 26.7.06 and under the order of the Court, when produced before the learned Magistrate, he was lodged in Central Jail at Guwahati under judicial custody. During his custodial detention in jail, he complained about his illness and within a span of two months from the date of his arrest, he was attended to by the jail doctors on 16.8.06, 14.9.06, 18.9.06, 20.9.06, 21.9.06, 23.9.06 and 24.9.06. On the last day of his examination by the jail doctor i.e. on 24.9.06, he was referred to the Guwahati Medical College & Hospital for better treatment, but unfortunately he died on the way to the said hospital and was declared brought dead by the doctors in the Guwahati Medical College & Hospital. The inquest was done by an Executive Magistrate on 24.9.06 and on the next day i.e. on 25.9.06, the post mortem examination was carried out at the Guwahati Medical College & Hospital. The dead body was, thereafter, handed over to the relatives of the deceased on the same day. The report of the post mortem examination reveals the cause of death as-death due to bilateral pulmonary tuberculosis. A magisterial enquiry on the death of Kanak Biswas was ordered by the District Magistrate, Kamrup with an Executive Magistrate as the enquiry officer. Upon enquiry, the enquiry officer submitted his report on 23.4.07 with the finding that "diagnosis in the Central Jail was perhaps not exhaustive and accordingly the treatment was not given in the proper direction. Treatment of pulmonary tuberculosis was not given during the confinement of the deceased in the Central Jail which proves failure on the part of the doctors."

(3.) The Inspector General of Prison, thereafter, called for an explanation from the two attending jail doctors and forwarded the explanations submitted by them to the appointing/disciplinary authority of the said two doctors, namely Dr. B. N. Sarma and Dr. Zahid Hussain. Show cause notices were thereafter issued to the medical officers concerned asking them to explain as to why the pulmonary tuberculosis with which the UTP Kanak Biswas was reported to have been suffering from, could not be detected and as to why the disciplinary proceedings should not be initiated against them for their negligence in duties, pursuant to which the concerned medical officers submitted their show cause reply. The authority thereafter decided to seek the opinion and the views of the Professor and Head of the Department of Tuberculosis and Chest diseases, GMCH in the matter, who accordingly submitted his report to the effect that as at no point of time the UTP complained of any of the symptoms of the pulmonary tuberculosis and it was quite natural on the part of the medical officers not to make any investigation in the line of tuberculosis and that many a times it is not possible even for the experts to diagnose pulmonary tuberculosis by clinical examination, the concerned medical officers could not be held responsible for not suspecting and investigating the UTP for pulmonary tuberculosis. The authority thereafter did not proceed further against those medical officers who examined the UTP Kanak Biswas while he was in jail custody.