Ref.: Alipore Police Station Case no.
04 of 2010 ( CGR no. 66 of 2010 ), in the matter of State of West Bengal –
Versus – The Institute of Child Health Trust and others ), for the offences
committed to be punishable under Section 304, 336, 337, 338, 352, 166, 167, 168,
& 34 of the Indian Penal Code’ 1860, pending before the Learned Chief
Judicial Magistrate, at Alipore, South 24 Parganas.
Extract of the Order dated 09-04-2015,
passed by the Learned Chief Judicial Magistrate, at Alipore, South 24 Parganas,
in Alipore Police Station Case no. 04 of
2010 ( CGR no. 66 of 2010 ).
{ in typed
English script from the certified copy of the order }
Case No. CGR – 66 of 2010
Order dated
09/04/15
Today
is fixed for hearing and passing order on the application dated 11/07/2013
filed on behalf of the defacto complainant praying for further investigation of
this case on the ground stated therein. Heard both sides in full today.
The
case of the complainant in brief is that a six year old male child named
Joydipta Chakraborty was admitted at the Institute of Child Health Trust ( ICH ), Kolkata on 19/04/2009. He was
admitted with the complaints of respiratory distress, fever, cough and cold. On
22/04/2009 he was operated for Hernia. Later he developed medical complications
and his condition deteriorated. He was referred to Calcutta Medical Research
Institute ( CMRI ) for better management. He was admitted there on 24/04/2009.
MRI and other medical investigations were done. He died on 04/05/2009 at
Pediatric ICU of CMRI. On 05/05/2009, post mortem was conducted and according
to the opinion of the Autopsy Surgeon, death was caused due to lack of
oxygenation to the brain tissues causing irreversible damage to the brain.
According to the defacto complainant who is the father of the deceased child,
no consent was taken for undertaking such risky operations and the unusual
conduct of the medical doctors and associates post surgery, clearly indicates
towards some fould play on the part of the medical institute, the surgeon and
his team. On the basis of petition of complaint lodged by the defacto
complainant before this court u/s 156 (3) of Cr.P.C., a specific Alipore PS
case no. 04/2010 was initiated. Investigation was undertaken which ended in
final report against the eleven (11) FIR named accused persons. So, this naraji
application is filed along with some annexures.
The
naraji application discloses some allegations of lapses on the part of the
Investigating Officer which according to the defacto complainant are not mere
lapses or ignorance in conducting investigation. But those facts jointly make
out a case of fould play and deliberate manipulation of investigation in order
to screen the accused persons. At the time of hearing Ld. Lawyer appearing for
the defacto complainant has pointed out that after admission of the boy at ICH,
the patient party did not have any choice of any doctor. They reposed full
faith on the institution. The attending medical officer Dr. A.K. Basu advised
for operation of Hernia. But despite the fact that no “consent” was given by
the guardian of the minor patient, the patient was surgically operated. That
apart, a curious fact is asserted that the operation was done on the left side
although the patient was detected with right side diaphragmatic Hernia. It is
also pointed out that although the operation was done at ICH, after two days
the patient was transferred to CMRI at midnight under Dr. Saugata Acharya, that too without the consent and knowledge of
the patient party. Although, MRI, and other diagnostic tests were done at CMRI
but the reports of the same were never made available either to the defacto
complainant or to the IO during investigation. Ld. Counsel has further
submitted that the opinion of the Autopsy Surgeon opined that further opinion
could be given only after receipt of chemical examination report made by the
FSL. Although, the chemical examination report was obtained by the IO, the same
was not placed before the Autopsy Surgeon for obtaining his “final opinion”.
Ld.
PP has submitted that the matters relates to the unfortunate death of a minor
boy, so for proper and complete investigation, the case may be referred for
further investigation. I have perused the case record as well as CD including
the materials collected by the IO. This case is investigated by some
Sub-inspector of Bomb Squad, Detective Department, Kolkata Police. From the
statement of Dr. U.P. Ghosal, the Autopsy Surgeon, it appears that he reserved
his final opinion in absence of certain documents. In the PM report he has
specifically opined that further can be given only after receipt of laboratory
reports. At the time of his examination by the I, he has further stated that he
did not receive the first chest X-ray plate, the MRI plate of the deceased boy
made at CMRI, the EEG report made at CMRI and FSL report. There is no
indication in the whole CD that those reports were collected by the present IO
from the concerned institute or that those were placed before the Autopsy
Surgeon for obtaining his final opinion in the light of those report. He has
also stated that the operating surgeon might have committed some mistake as the
operation was done on the left side although the child was suffering from right
side diaphragmatic Hernia. No investigation on this aspect of allegation is
made by the present IO. It is not clear whether the operation the operation was
actually performed at the right side or at the left side. I have gone through
the report given by the Board of Doctors who enquired the matter and gave such
opinion on the request of Director of Medical Education, Government of West
Bengal. In the opinion part it is stated preferable to take specific consent
form for specific disease and circumstances. It is not clear whether any such
“informed consent” was obtained by the operating surgeon before undertaking
such risky operation. It is also not revealed during investigation whether such
operation had to be undertaken under emergent circumstances without waiting for
the fulfillment of the formalities. Investigation is lacking on this point
also. The report further reveals about documents which were received by the
Medical Board Members for consideration and opinion. I find that MRI plates,
MRI report, EEG report etc. which were performed at CMRI were never placed
before the said Medical Board. I do not know why those relevant reports and
plates were not collected by the IO and why those relevant materials were not
placed before the Medical Board for obtaining a fair and impartial opinion. The
whole circumstances of the case and the investigation do indicate that it is
performed in perfunctory and slipshod manner. Under such circumstances, I find
sufficient merit in the naraji application filed on behalf of the defacto
complainant. It is prayed that further investigation be directed to be done by
Joint Commissioner of Police ( Crime ) Detective Department. Although I am in
agreement with the defacto complainant that further investigation on the
allegations made in the FIR is necessary in the light of the observation made
above. I do not find it necessary as well as lawfull to direct the Joint
Commissioner of Police ( Crime ) for undertaking the further investigation. At
the time of concluding this order I cannot resist myself from observing that the
investigation of this case was given to one S.I. of Bomb Squad (I) of Detective
Department, Kolkata Police. Why this choice was made incomprehensible to me. It
is expected that this case involving the allegations of medical negligence and
lapses requires specialized skills on the subject and the choice of the I.O.
would be made according to the demand of the case. So, I hope that the further
investigation of this case would be entrusted to a suitable police officer of
the Detective Department having sufficient knowledge and experience in dealing
such matters.
Hence it is
ORDERED
That the naraji petition dated
11-07-2013 is allowed. Joint Commissioner ( Crime ), Detective Department,
Kolkata Police is requested to entrust further investigation of this case to
any competent police officer under his disposal.
Fix
10/06/15 for I.O.’s report in final form.
Let
a copy of this order be sent to the Joint Commissioner of Police ( Crime ),
Detective Department, Kolkata Police.
D/C by me
( CJM ) (
CJM )
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