Death Of COVID Patient After Being Treated By Fake Doctor: Calcutta HC Declines Nursing Home Owner’s Plea To Quash Case Against Her

The Single-Judge Bench of Justice Ajoy Kumar Mukherjee said, “In the charge sheet it has been specifically stated by the investigating agency that the lacuna of verification of medical documents from concerned medical authority has been established during investigation which ultimately resulted the death of victim Moly Saha Halder and as such prima facie charges under section 304A /120B of the IPC has been well established against the present petitioner.”

Senior Advocate Bikash Ranjan Bhattacharya represented the Petitioner while Advocate Amarta Ghosh represented the Opposite Party.

It was alleged that the daughter of FIR maker was affected by Corona Virus during May 2021 and for which the complainant and his son-in-law admitted her at M.F.C. Women and child care Nursing Home. It was further alleged that the said patient was treated by another accused namely Sudipto Sardar. However she died in the said hospital even though she did not have very complex difficulty. The complaint was lodged almost five months after the alleged incident. Thereafter the complainant came to know from the newspaper reporting that the other accused, namely said Sudipta Sardar, who treated her daughter is fake. Thus the complainant claimed that the said fake doctor treated her daughter resulting in her death and the owner of the said Nursing Home, namely the present petitioner was squarely responsible for the same.

The opposite party no. 2 lodged a complaint against the petitioner herein and one Sudipta Sardar, (who is not the petitioner herein). The petitioner herein had prayed for quashing the said proceeding. The petitioner brought to the Court’s attention that she was enlarged on bail on an earlier occasion. On behalf of petitioner, Chatterjee further submitted that the said fake doctor/other accused was never attached with the petitioner’s Nursing Home nor he was a paid or empaneled doctor. It was also submitted that the alleged negligence must be in close proximity with the cause of death to attract offence under section 304 A of IPC and in absence of such proximity the criminal proceeding against the petitioner was liable to be quashed.

On the contrary, the opposite party argued that a specific charge had been attributed against the petitioner which formed the essential ingredients of the offence, punishable under section 304A of the Indian Penal Code. It was contended that the conduct of the petitioner in allowing a fake doctor to continue in her Nursing Home as a Resident Medical Officer squarely made up the essential ingredient of the offence punishable under section 304A.

The Bench noticed that specific allegations were attributed against the petitioner alleging that the petitioner had directed instigation in entrusting the other accused/fake doctor for the treatment of the victim, knowing fully well that the other accused was not a registered medical practitioner. Morever, in the examination section 161 and 164 of the Code, the witnesses had specifically alleged that the petitioner had entrusted the fake doctor knowing well that he had no right to practice and she had also insisted the patient party to remain under the treatment of the fake doctor describing him as a good doctor.

Moreover, the real registered doctor Sudipta Sardar, whose registration number was allegedly misused by the fake doctor/other accused, had directly accused the present petitioner stating that the petitioner was in collusion with the said fake doctor.

The Bench explained that the provisions of section 304A applies to cases where there is no intention to cause death and where there is no knowledge that the act done in all probability will cause death and that is why this provision is kept outside the range of section 299 and 300 IPC. This provision contemplates those cases into which neither intention nor knowledge enters. “This particular section is applicable to acts which are rash and/or negligent and has a direct nexus to the cause of death of the victim”, it added.

The Bench also reiterated the following cases where power under section 483 of CrPC could be exercised:

• If the allegations in complaint, if taken in its face value makes no case disclosing essential ingredients of the offence alleged
• Where the allegations are patently absurd and inherently improbable, so that no prudent person can ever reach a conclusion that there are sufficient ground for proceeding
• Where discretion exercised by the magistrate in issuing process is capricious and arbitrary having based on no evidence or those are wholly irrelevant and inadmissible
• Where it suffers from fundamental legal defects
• Where it is required to be exercised to prevent miscarriage of justice
• Where in order to prevent the abuse of process of law, exercise of inherent power has become inevitable
• Continuance of the proceeding would not sub-serve the cause of justice

“Since in the present case in my opinion the allegations made in the complaint and materials collected during investigation, clearly constitute a cognizable offence…”, the Bench said.

On the issue of enlargement on bail, the Bench observed that the earlier bail order was passed when the investigation was in progress. Thereafter the investigation was completed and the investigating agency submitted a charge sheet against the petitioner with sufficient materials. The Bench stated that stray observation of this court in an interlocutory proceeding may not have any binding force, while disposing the present application or while disposing the criminal proceeding itself. Since a prima facie case was made out disclosing cognizable offence alleged against the accused, the Bench refused to quash the proceedings.

Dismissing the Revision, the Bench held that the order of dismissal will not preclude the petitioner to agitate the grievances made herein at the time of framing of charge or at any subsequent stage during trial.

Cause Title: Dr. Shiuli Mukherjee Vs. The State of West Bengal & Anr. [Case No. CRR 1711 of 2022]

Appearance:

Petitioner: Senior Advocate Bikash Ranjan Bhattacharya, Advocates Uday Sankar Chattopadhyay, Pronoy Basak, Trisha Rakshit, Aishwarya Datta

Opposite Party & State: Advocates Amarta Ghosh, Samarjit Balial, Satyajit Senapati, Siddhartha Paul, Souradeep Ghosh, Rahul Nag, Smita Singh, Shibu Sikdar, APP Mr. Madhusudhan Sur, Advocate Dipankar Paramanick

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