Further investigation directed by the Court

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 )