Subhas Chandra Saha vs The State of West Bengal and Others

Sudip Ahluwalia, J.—In this Revisional application, the petitioner has prayed for quashing of the criminal proceedings arising out of the Charge Sheet submitted in Coochbehar P.S. Case No. 19 of 2013 dated 09.01.2013, corresponding to G.R. Case No. 25 of 2013 pending in the Court of the Ld. Additional Chief Judicial Magistrate Coochbehar, U/S 304-A of the IPC.

The FIR against the petitioner was lodged by one Smt. Priyanka Dasgupta in which she had alleged that her father Late Sandip Dasgupta had died on account of the callous and negligent conduct of the petitioner who is a practicing Doctor in Coochbehar and runs a Nursing Home there under the name and style of "Shila Nursing Home" The translated text of the original FIR on the basis of which the investigation was started and the charge sheet ultimately submitted happens to be -

"To The I.C. Kotwali P.S. Coochbehar

Dated: The 3rd December, 2012

Sir,

I humbly submit that I Priyanka Dasgupta, daughter of late Sandip Dasgupta (Nayan), resident of Magazine Road, Extension, Coochbehar on this day being present in Kotwali Police Station and making statement to the effect that on 26th September, at about 7.30 p.m. my father Sandip Dasgupta having fallen ill suddenly, my mother Bandana Dasgupta, and my elder brother Prasanjit Dasgupta immediately took my ailing father to Shila Nursing Home at Coochbehar owned by Dr. Subhas Chandra Saha. After reaching, there being no R.M.O. or Doctor and the Nurse who were there being requested a Doctor came after sometime. When the Doctor was told about the patient the doctor wanted to know what was the name of the patient what was he? Then my father told his name and told him that he was an employee of Coochbehar Municipality. Hearing this the Doctor told that the owner of the said Nursing Home Subhas Chandra Saha had told that without his permission no employee of Coochbehar Municipality could be treated in this Nursing home. Then we said that the patient was having breathing trouble and requested him to call Dr. Subhas Babu but the said Doctor told us that Sir was at his chamber in Guriahati Road and he would not come before 11-11.30 p.m. My elder brother requested Subhas Babu to come over phone and told him that the patient was having severe breathing trouble. In reply Subhas babu said whatever my happen to the patient he would not visit nursing home before 11/11.30 p.m. and he would not be able to come. Then on the advice of the Nursing Home staff we took the patient to the chamber of Subhas babu in that condition. After seeing the patient he said that the condition of the patient was very serious and asked us to take him to the Nursing Home immediately and he told that he would recommend for admission and he also would go. Immediately we brought our father to Shila Nursing Home again and requested to start treatment and the patient himself said that he was having severe breathing trouble and the patient further said that he be given oxygen. Dr. Subhas babu did not come to the nursing home and the R.M.O. who was present also started dillydallying and killing time for treatment to the patient. After spending sometime in this way at about 8.30 a.m. my father all on a sudden became silent after writhing in trouble. When the staff of the Nursing Home informed Subhas Babu, he came after 15/20 minutes and on examining the patient declared him dead and he issued a Death Certificate wherein the cause of death was stated, "Death probably due to myocardial fraction.

Dr. Subhas Saha intentionally had behaved in this way with the patient and after examining the patient in his chamber at Guriahati he had realized that the condition of the patient was very serious and delay in treatment may cause his death. Subhas Babu did not provide any treatment to him and the Doctor who was on duty in the Nursing Home refrained from providing any treatment and they have killed my father. As I and all the members of our family became mentally upset because of the death of father, so there has been delay in making the complaint.

Sir it is my request to you kindly take proper legal steps against Dr. Subhas Chandra Saha and the R.M.O. on duty for killing my father

Submission end Fini. Priyanka Dasgupta"

The contention raised on behalf of the petitioner in this regard is that there is no material to establish any act of criminal negligence on his part for sustaining the Charge Sheet, in view of the settled legal position on the basis of various earlier judicial pronouncements, and therefore the proceedings are liable to be quashed.

In Rakesh Ranjan Gupta Vs. State of U.P. and Another, , the Supreme Court had quashed the criminal proceedings against a Doctor charged with causing death by negligence Under Section 304-A -of the IPC with the following observations -

"2. The appellant in this case is a medical practitioner. He stands charge-sheeted for offence under Section 304A of the Indian Penal Code on the basis of a complaint made by the second respondent. At the FIR stage the appellant moved the High Court for quashing the FIR on the premise that the offence under Section 304A has not been disclosed in the allegations. But the High Court instead of quashing the proceedings permitted the appellant to raise this question before the trial Court. In the meanwhile, the appellant was charge-sheeted. The allegations of the second respondent are that when her husband was in a serious condition, he was taken to the hospital wherein the appellant Doctor was working as a medical practitioner and that the appellant did not attend to the patient immediately. On being insisted by her, the appellant became angry and there was exchange of words between them. The gravamen of the case is that the appellant administered an injection to the patient and the patient was taken to another hospital where he was pronounced dead.

The above allegations do not disclose, prima facie, a case of rash or negligent act, on the part of the appellant so as to attract the penal provision under Section 304A , IPC. If there was delay on the part of the Doctor to attend on the patient that may at the worst be a case of civil negligence and not one of culpable negligence falling under the above section. That apart, the cause of death has now been disclosed, from the report of the Chemical Examiner, as one of consuming poison. The viscera examined in the chemical laboratory showed that result. It is no body''s case that the appellant has administered poison to the patient. It is now apparently clear that death was not on account of anything which the appellant did to the patient. It was primarily due to the poison being consumed by the deceased. Therefore, by no stretch of imagination, can it be said that death of the deceased was caused by any act done by the appellant."

In Sushil Ansal Vs. State, the Supreme Court after having considered certain earlier decisions had laid down that for an offence under Section 304-A to be proved it is not only necessary to establish that the accused was either rash or grossly negligent but also that such rashness or gross negligence was the cause causans that resulted in the death of the victim. The relevant observations of the Apex court in this case are as follows -

"V) Doctrine of Causa Causans:

We may now advert to the second and an equally, if not, more important dimension of the offence punishable under Section 304-A IPC, viz. that the act of the accused must be the proximate, immediate or efficient cause of the death of the victim without the intervention of any other person''s negligence. This aspect of the legal requirement is also settled by a long line of decisions of Courts in this country. We may at the outset refer to a Division Bench decision of the High Court of Bombay in Emperor v. Omkar Rampratap (1902) 4 Bom LR 679 where Sir Lawrence Page 110 Jenkins speaking for the Court summed up the legal position in the following words:

"...to impose criminal liability under Section 304-A , Indian Penal Code, it is necessary that the act should have been the direct result of a rash and negligent act of the accused and that act must be proximate and efficient cause without the intervention of another negligence. It must have been the cause causans; it is not enough that it may have been the cause sine qua non..."

The above statement of law was accepted by this Court in Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra, . We shall refer to the facts of this case a little later especially because Mr. Jethmalani, learned Counsel for the appellant-Sushil Ansal, placed heavy reliance upon the view this Court has taken in the fact situation of that case.

Suffice it to say that this Court has in Kurban Hussein''s case (supra) accepted in unequivocal terms the correctness of the proposition that criminal liability under Section 304-A of the IPC shall arise only if the prosecution proves that the death of the victim was the result of a rash or negligent act of the accused and that such act was the proximate and efficient cause without the intervention of another person''s negligence. A subsequent decision of this Court in Suleman Rehiman Mulani and Another Vs. State of Maharashtra, has once again approved the view taken in Omkar Rampratap''s case (supra) that the act of the accused must be proved to be the cause causans and not simply a cause sine qua non for the death of the victim in a case under Section 304-A of the IPC. To the same effect are the decisions of this Court in Rustom Sherior Irani Vs. The State of Mharashtra--> ; Bhalchandra alias Bapu and Another Vs. State of Maharashtra, ; Kishan Chand and Another Vs. The State of Haryana, ; S.N. Hussain Vs. The State of Andhra Pradesh, ; Ambalal D. Bhatt Vs. The State of Gujarat, and Jacob Mathew''s case (supra).

To sum up: for an offence under Section 304-A to be proved it is not only necessary to establish that the accused was either rash or grossly negligent but also that such rashness or gross negligence was the cause causans that resulted in the death of the victim."

Two decisions have been cited before this Court on behalf of the State. In SLP (Crl.) No. 1688 of 2007 "B. Jagdish v. State of A.P. & Anr" the Supreme Court sustained an order of the High Court dismissing a Revisional Application preferred by the appellant for quashing the summoning order against him in the aftermath of the death of a patient who was under his treatment with the following observations:

"..28. The Civil liability of the appellant having been determined, we are of the opinion that at this stage it may not be relevant to consider the charges of criminal negligence on the part of the appellant herein on the touchstone of standard of proof required for proving a case of criminal negligence as the same would fall for consideration at the hands of the Trial Court at an appropriate stage.

The question is as to whether the High Court should have interfered with the order summoning the appellant at this stage? It is now a well settled principle of law that at the stage of quashing of an order taking cognizance, and accused cannot be permitted to use the material which would be available to him only as his defence. In his defence, the court would be left to consider and weigh materials brought on record by the parties for the purpose of marshalling and appreciating the evidence. The jurisdiction of the Courts, at this stage, is limited as whether a case of reckless/gross negligence has been made out or not will depend upon the facts of each case.

Keeping in view the facts and circumstances of this case, we are of the opinion that it cannot be said that the materials brought on record by the complainant, even if given face value and taken to be correct in their entirety do not disclose an offence. We say so because there are two sets of opinions; one in favour of the complainant and another in favour of the appellants. Which opinion would ultimately prevail is essentially a question to be determined by the learned Trial Judge upon considering the evidence adduced by the parties hereto in their entirety."

The other decision cited on behalf of the state is Paschim Banga Khet Mazdoor Samity and others Vs. State of West Bengal and another, . However this is a pronouncement in the course of a civil writ petition under Article 21 of the Constitution of India wherein it was observed by the Apex Court that failure of the Government Hospitals to provide timely emergency medical treatment to a patient in need results in violation of his right to life. This decision is totally inapplicable to the facts and circumstances of the present case in which the petitioner is a private Doctor, and there was absolutely in consideration of any question of criminal liability of a Doctor in the relevant Judgment.

In the present case admittedly accordingly to the FIR the death of the victim had occurred in the Nursing Home when the petitioner was not even present there. So, there cannot be any question of any culpable negligence of his part in the light the decision in "Rakesh Ranjan Gupta" (supra). Again it is undisputed that death of the victim was not as a result of any negligent act of the petitioner which itself was the proximate and sufficient causes without intervention of any other person''s negligence, in view of the decision in "Kurban Hussain" already quoted in "Sushil Ansal"(supra).

At the most such culpable negligence can be attributed only to the particular Doctor who was actually present in the Nursing Home when the victim died. But clearly no such liability would arise in case of the present petitioner who was not even present, and therefore there was no scope of any proximate and efficient cause from any act attributable to him which could result in the victim''s death.

The decision in "B. Jagdish v. State of A.P. & Anr" cited on the half of the State is prominently distinguishable from the facts of the present case. In that matter the Supreme Court had held that since there were two conflicting sets of opinions in favour of the complainant and the charged Doctor, and which opinion was correct or appropriate could only be determined after a trial, so there was no scope to quash the proceedings. However in the present case, there is absolutely nothing in the nature of specialised opinions regarding the appropriate line of treatment which ought to have been administered. On the contrary, the petitioner in this case had merely seen the patient in his chamber and advised that he be rushed to the Nursing Home, and for all practical purposes had not administered any "negligent treatment". He can therefore not be faulted for causing the victim''s death by negligence.

For the aforesaid reason the Revisional Application is allowed. The charge-sheet submitted against the present petitioner is therefore quashed. The case shall however proceed against the other charge-sheet accused person who is also a Doctor, in accordance with the law. The Application being C.R.A.N. Double 4409 of 2014 thus becomes redundant and is treated as disposed off.