The main legal point established in the judgment is the requirement of 'gross negligence' to establish an offence under Section 304A of the Indian Penal Code in cases of medical malpractice.

JUDGMENT :

Subhendu Samanta, J.

1. This is an application u/s 428 of the Code of Criminal Procedure for quashing the proceeding of a complaint case No. C-33 of 2015 corresponding to TOR 113 of 2015 u/s 304A of the IPC, pending before the Learned Judicial Magistrate, 6th Court Sealdah.

2. Factual Matrix:

The wife of the Opposite party Susmita Mitter was diagnosis with cancer in her ovaries in the year 2012. The patient was operated by Dr. Subhankar Deb, at Apollo Gleneagles Hospital, Calcutta on 24.02.2012. In the month of June, 2013 Cancerous growth recurred and the patient was again admitted to the said hospital under Dr. P.N. Mahapatra (medical oncologist)– chemo therapy was administered upon her. On 20.07.2014 the patient was finally admitted at surgical ICU Unit under Dr. P.N. Mahapatra and Dr. Subhankar Deb of Apollo Gleneagles Hospital her health held deteriorated from the end of April 2014. Thereafter echo screening was done and it was decided to remove Chemo part from the patient. Surgery held on 29.07.2014 (evening), Dr. Subhankar Deb performed operation at O.T. of Apollo Gleneagles Hospital. On 30.07.2014 at about 09.15.a.m. the patient suffered cardiac Arrest and CPR was administered to save her life. At about 9:35 am, on the same day, the patient had expired.

The opposite party herein lodged a complaint u/s 200 Cr.P.C. with the Learned ACJM Sealdah against the petitioner alleging criminal negligence and dereliction duties of the present petitioner u/s 304 IPC read with West Bengal Clinical Establishment........2010 and Indian Medical Council ....... 2002.

3. The specific allegation against the present petition has been mentioned in the paragraph 4 to Paragraph 9 for the said complaint as follows.

4. That the patient was finally admitted to Apollo Gleneagles Hospital, 58, Canal Circular Road, Kolkata – 700054 on 20th July, 2014, after health began to deteriorate from the end of April, 2014. She had to be admitted to the Surgical ICU under the above-mentioned doctors Dr. P.N. Mahaptra and Dr. Subhankar Deb who formally called and consulted a couple of specialists, the patient herself reported to be better. On 28th, the Eco Screening was done and it was decided to remove the ‘port’ through surgery. Accordingly on 29th Evening. Dr. Subhankar Deb, Onco Surgeon performed the operation at OT3 of Apollo Gleneagles Hospital Limited. The patient, in a stable condition, was shifted to Surgical ICU from the OT. At that moment, the person in charge of Surgical ICU where the patient was admitted was one Dr. Siddhartha S. Mukherjee who himself professed and was also corroborated by the nurses’ desk that he is on duty till 10 a.m. tomorrow i.e. 30th July, 2014.

5. That the petitioner visited the hospital to see his wife, the patient/victim on 30th July, 2014 at about 6.45 a.m. He received a rude shock when he was told by the attending nurses that the patient’s blood pressure had fallen drastically. The petitioner instantly looked for Dr. Siddhartha S. Mukherjee, the accused No. 1 but to he was flabbergasted upon being reported from the nurses’ desk that the said doctor had left.

recovering from his shock, the petitioner frantically began searching for a doctor who could attend his ailing wife. One of the doctors in an adjoining ICU and agreed to take a look into the matter, and came to the concerned ICU and instructed the Nurse present therein for certain treatment.

Unfortunately, at 9.15 a.m. the petitioner was intimated that the patient had suffered a cardiac arrest and CPR (Cardio-Pulmonary-Resuscitation) was being administered to save her life. The petitioner was aghast and upon having some idea of CPR and its probable implications, dashed in search of the said Dr. Mukherjee, but he was nowhere to be found, nor could any of the hospital staff disclose his whereabouts.

Ultimately at 9.45 a.m. the petitioner was informed by attending Nurse that the patient had expired.

6. That despite all the traumatic experiences the petitioner/complainant