Narazi Petition

District : South 24 Parganas.

In the Court of the Learned Chief Judicial Magistrate, at Alipore, South 24 Parganas.

Ref. : Alipore Police Station Case no. 4 of 2010.

{ Under Section 304, 336, 337, 338, 352, 166, 167, 168, and 34 of the Indian Penal Code’ 1860 }

In the matter of :

State of West Bengal.

 _____________Complainant.

Shri Jyoti Prokash Chakraborty.

_____Defacto Complainant.

-          Versus –

NARAZI PETITION

The Institute of Child Health Trust and others.

                   ______________Accused.

The humble petition of the above named Defacto Complainant Shri Jyoti Prokash Chakraborty, most respectfully;

Sheweth as under :

1.   That in the above referred case matter, investigating Agency, submitted its report in Final form as FINAL REPORT, being no. 130/11, dated 01-12-2011, and whereas the type of final report is Mistake of Fact ( M / F ).

“A”          ( Xerox of Certified copy of the Final Report being no. 130 / 11, dated 01-12-2011, is enclosing herewith, and marked as Annexure – “A” ).

2.   That the defacto complainant is not agree with the Final report, as such the investigation has not been properly conducted by the investigating agency, and submitted final report by doing desk work, which cannot be said to be an investigation of a case matter.

3.   Under the Code ‘investigation‟ consists, generally, of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence, which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the ‘investigation’ and to be produced at the trial, and (5) information of the opinion as to whether, on the material collected, there is a case to place the accused before a Magistrate for  trial and if so, taking the necessary steps for the same by the filing of charge-sheet under Section 173, of the code.

4.   That one Complaint has been lodged by Shri Jyoti Prokash Chakraborty, Son of Late Chandi Charan Chakraborty, residing at Village – Sahebpara, Post Office – Sonarpur, Police Station – Sonarpur, District – South 24-Parganas, against the accused persons named therein, for their alleged offences committed to be punishable under Section 304, 336, 337, 338, 352, 166, 167, 168, and 34 of the Indian Penal Code’ 1860, before this Learned Court vide Complaint Case being number 8181 of 2009, with a prayer under Section 156(3) of the Criminal Procedure Code’ 1973.

5.   That the said application was taken up for hearing as on 31.12.2009, by this Learned Court, and whereas on hearing the said application, the Learned Court was pleased to pass necessary order with a direction upon the Officer – in – Charge of the Alipore Police Station,  in the following manner as quoted from the order dated 31.12.2009.

 “ The O/C, Alipore P.S. is directed to cause an investigation of the allegations leveled against the accused persons, who are in medical profession, after complying with the requisite formalities as envisaged in the case law of  Jacob Mathew – Vs. – State of Punjab, under section 156(3) of Cr. P. C. treating the petition of complaint as an FIR”.

“B”              [ Xerox copy of the certified copy of the order dated 31.12.2009, is enclosing herewith and marked as Annexure – “B” ].

6.     That the Defacto-Complainant / Petitioner, communicated about the order dated 31.12.2009, passed by this Learned Court in Complaint Case being number 8181 of 2009, to the Officer-in-Charge of the Alipore Police Station, through his Learned Advocate with a prayer to get a FREE copy of the FIR, vide letter being no. Legal / JPC / MEDI / 112 / 10 dated  8^th day of January’ 2010, which has been duly received and acknowledged by the Police Officials of the Alipore Police Station.

“C”              [ Xerox copy of the letter being no. Legal / JPC / MEDI / 112 / 10 dated 8^th day of January’ 2010, is enclosing herewith and marked as Annexure – “C” ]

7.    That on 10^th day of January’ 2010, the defacto complainant / petitioner, received one message through the Police personnel of the Sonarpur Police Station. Which was issued by the Constable Swarup Duibey of Alipore Police Station, wherein he asked the petitioner to collect the copy of FIR on 11.01.2010, during office hour, and contact S.I. Biswak Mukherjee in c / w case no. C- 8181 of 2009, and interrogation in  c / w Sec V 1 case no. 04 dated 06.01.2010.

“D’               [ Xerox copy of the said communication of the Alipore Police Station, is enclosing herewith and marked as Annexure – “D” ]

8.    That  on 11^th day of January’ 2010, the defacto-complainant / petitioner visited the Alipore Police Station, as per communication as stated herein above, and whereas a copy of FIR has been provided to him, wherein he found that the FIR has been initiated by the
Officer-in-Charge of Police, for the offences under Section 304A, 336,337,338,352,166,167,168, and 34 of the Indian Penal Code’ 1860, and whereas two more sheets has been provided to your petitioner as “A” and “B”, wnereas “A” contain list of the accused person and “B” contain the following “ on the basis of court petition under Section 156 (3) filed by Shri Jyoti Prokash Ch S/o. Lt. Chandi Charan Chakraborty of Village – Sahebpara, P.O. + P.S. Sonarpur, District 24-Pgs (S). the case has been recorded against the above noted accused person on the allegation that his son Joydipto Chakraborty was admitted in the Institute of Child Health Trust at 11, Dr. Biresh Guha Street, Kolkata – 17, on 19.04.09, with a history of cold cough and fever. The accused no. (2) to (8) treated him recklessely and negligently and also performed operastion on him forcefully without the concern of the guardian due to which the condition of the patient detrirated he became serious. Thereafter the accused persons transfer the patient to CMRI on  25.04.09, whereas the accused no. 10) Dr. Sougata Acharya also treated him recklessly and negligently due to which the patient expired and was declared dead on 04.05.2009.

It was further alleged that the accused no 11) Dr. U.P. Ghoshal being the ACMOH framed in correct  P.M. report over the dead body of the child.”

The contents of “B” has been stated against the Serial no. 12 of FIR as FIR contents.

9.    That the defacto- Complainant / petitioner, got astonished to get the copy of FIR, from the Investigating Officer S.I. Biswak Mukherjee, of the Alipore Police Station, since the copy of FIR failed to recorded in accordance with the order dated 31.12.2009, passed by the Learned Chief Judicial Magistrate, at Alipore, South 24-Parganas, in complaint case buncer 8181 of 2009, and whereas the content of FIR has been manipulated by the Officer-in-Charge of the Alipore Police Station and / or by the Investigating Officer S.I. Biswak Mukherjee of the Alipore Police Station, and they also manipulated the Section of offences as 304 A, instead of Section 304 against the accused persons. The manipulation and disobeyance of the Learned Court’s order has been done in order to save the accused persons from the punishment under the Law.

“E”               [ Xerox copy of the FREE Copy of FIR along with separate sheet “A” and “B” are enclosing herewith and marked as Annexure – “E” ]

10.                 That thus the Officer-in-Charge Shri S.K.Mahinuddin, of the Alipore Police Station and the Investigating Officer S.I. Biswak Mukherjee, disobeying a direction of law with intent to save accused persons from punishment and framing an incorrect record and writing as stated herein above with intent to save accused persons from punishment and thereby committed offences punishable under Section 217, 218, and 34 of the Indian Penal Code’ 1860

11.                 That in view of such a circumstances, the defacto – complainant / petitioner communicated to the Commissioner of Police, Kolkata Police, HQ, Lalbazar, Kolkata – 700 001, through his Learned Advocate, vide Letter of Communication being number Legal / JPC / MEDI  / 113 / 10 dated 12^th day of January’ 2010, seeking permission / sanction in order to prosecute the said Officer-in-Charge of Police of the Alipore Police Station, and the Investigation officer S.I. Biswak Mukherjee, under Section 217, 218, & 34 of the Indian Penal Code’ 1860, and accordingly a copy of the said communication has been given to the Officer-in-Charge of Police, of the Alipore Police Station, Kolkata – 700 027,  as on 12^th January’ 2010, which has been duly received and acknowledged by the Police officials of the Alipore Police Station.

“F”               [ Xerox copy of the Letter of Communication being number Legal / JPC / MEDI / 113 / 10 dated 12.01.2010, is enclosing herewith and marked as Annexure – “F” ]

12.                 That the defacto – complainant / petitioner state and submits that  on and after the receipt of the said letter of communication on 12.01.20010, the Investigating Officer S.I. Biswak Mukherjee, in a very dramatical manner run before the Learned Court with his vague petition praying for amendment of sections in the said FIR, stating inter alia in his petition dated 12.01.2010, that on examination of complainant, the section should be amended, and accordingly procured the order of the Learned Magistrate and he got amended of Section 304A to 304, vide order dated 12.01.2010.

“G”              [ Xerox copy of the Order dated 12.01.2010, passed by the Learned Magistrate, in  Section V1 case no. 4 of 2010. ]

13.                 That the defacto – complainant / petitioner state and submits that  the Investigating Officer Biswak Mukherjee, did not state the material facts and reasons thereof as to why and under what legal authority the said FIR no. 4 of 2010 has been drawn up under Section 304A, and from where he got the contents of FIR under its serial no.12 on separate sheet which state about recklessly and negligent act of the accused persons, though he prayed on 12.01.2010 the amendment of section , which clearly established the non-action and disobeyance  of the Learned Court’s Order dated 31.12.2009.

14.                 That the defacto – complainant / petitioner state and submits that  the Officer-in-Charge of the Alipore Police Station intentionally filled up the requisite form under Section 154 of Cr.P.C. in a very purposive manner, diversifying the direction of the Learned Court, to save the accused persons from the punishment and framing an incorrect record and writing as stated herein above with intent to save accused persons from punishment.

15.                 That the defacto – complainant / petitioner seeks to get an impartial investigation from the Police Officer of Higher Rank or from the Deputy Commissioner of Police, Detective Department of the Kolkata Police, other than the Officer-in-Charge of the Alipore Police Station, and the Investigating Officer S.I. Biswak Mukherjee, only in view to get justice in accordance with the Law and in accordance with the Order dated 31.12.2009, passed by this Learned Court.

16.                 That the defacto – complainant / petitioner seeks to get monitoring of the investigation into an alleged offences of the medical professionals, by the Learned Court, since the investigation has not been proceeded with in accordance with the order dated 31.12.2009, and the said investigation has been influenced by the accused persons, who are in medical profession, and whereas the Investigating Officer S.I. Biswak Mukherjee, and the Officer –in-Charge of the Alipore Police Station purportedly disobeying the Learned Court’s Order.

17.                That the defacto complainant / petitioner placed his petition before the Learned Court on 11-02-2010,  praying inter alia therein for the investigation of the case matter by another agency i.e. Deputy Commissioner of Police, Detective Department, of the Kolkata Police.

“H”     ( Xerox copy of the said petition dated 11-02-2010, is enclosing herewith and marked as Annexure – “H” )

18.                That during pendency of such application of the defacto complainant / petitioner, for hearing, before the Learned Court. On 09-03-2010, the I.O. of the Case matter, of the Alipore Police Station, filed an application praying for an order for amalgamation of this case with Kareya P.S. Case no. 142 of 2009, dated 04-05-2009, alleged to be the cases are on same self cause of action, and whereas the Learned Court was pleased to hear such application of Police first, and whereas the hearing has been conducted on several occasions and finally the Learned Court was pleased to pass necessary order as on 28-07-2010, observing as “ I find that the defacto complainant cannot be forced to move his case to Karaya P.S. according to him, the death of the child by negligent treatment occurred at C.M.R.I., which is within the jurisdiction of Alipore P.S., for the forgoing reasons it is ordered as follows : The Kareya P.S. Case no. 142, dated 04-05-2009, be tagged with this case. The I.O. of this case shall continue with the investigation of this case. Even though if he finds that a part of cause of action before death of the victim child took place at the institute of child health trust, within the jurisdiction of Karaya P.S. The Cause of action was continuing one and can very well be investigated by the I.O. of this case. Investigation of Karaya P.S. case be stopped. I.O. of this case shall collect the C.D. from I.O. of Karaya P.S. case. All evidence collected in investigation of Karaya P.S. case shall be taken on record by I.O. of this case in the C.D. and be treated as evidence collected in connection with the investigation of this case. The application is disposed of accordingly”.

“I”                ( Xerox of the certified copy of the Order dated 28-07-2010, passed by this Learned Court, is enclosing herewith and marked as Annexure – “I” ).

19.                That thereafter the application of the defacto complainant / petitioner, dated 11-02-2010, has been taken up for hearing by the Learned Court and accordingly passed the necessary order as on 07-12-2010, with the observation as “ This is a case Under Section 304, 336, 337, 338, 166, 167, 168, and 34 of the Indian Penal Code, payer a & b are premature. This Court can not allow the said prayers when the case is at the stage of investigation. No comment can be made on the allegations made in support of the prayer a & b, at this stage. The defacto complainant perhaps has no confidence in the I.O. of this case. He has stated, inter alia that the defacto seeks to get an impartial investigation from police officer of higher rank or from deputy Commissioner of Police, Detective Department of Kolkata Police and in any case other than the present I.O. of this case. The Child of the defacto unfortunately expired on 4^th May 2009 at CMRI due to alleged forcible operation on the minor child of the complainant. The Complainant as alleged that the accused doctors knowingly performed without consent an operation which he know could resulted in the death of his child. The Complainant has no confidence in the I.O. It would not be proper for the present I.O. to continue the investigation of this case in order to inspire confidence in the applicant who is suffered death of his only child, the prayer © may be allowed in the interest of justice, Hence , Ordered, The application is allowed in part. The joint Commissioner of Police ( Crime Detective Department ) of Kolkata Police is directed to take up further investigation of this case in the interest of justice and fair investigation. Present I.O. of this case make over C.D. and all evidence so far collected from him to the joint commissioner of Police ( Crime ) Detective Department of Kolkata Police”.

“J”     ( Xerox copy of the Certified copy of the Order dated 07-12-2010, is enclosing herewith and marked as Annexure – “J” ).

20.                That thereafter very surprisingly this case has been taken up by one S.I. S.P. Ghosh of Bomb Squad D.D. of Kolkata Police, who time to time intimate to the Learned Court about his investigation, by making his petition before the Learned Court, in this case, which are as follows :

a)    On 24-02-2011 -       During the investigation I.O. of Alipore ( DCSD / SSD ), all the Medical related papers send to the Director of Medical Education & EO Secretary Govt. of W.B. on 27-10-2010, But the said authority authority returns on 28-01-2011, to signed I.O. of D.D. the advised to directly furnish before Committee. Thereafter on 31-01-2011, all the said medical papers along with victims X-Ray plate with yellow cover submitted hand to hand before Medical Committee’s member Convener Prof. S. Batabyal, HOD PSM, Medical College, Kolkata on 31-01-2011.

b)   On 18-04-2011 -       on 24-03-2011, further reminder has sent to the Director of Medical Education and Ex-Officio, Sec. Govt. of West Bengal for obtaining expert opinion has not been date received yet.

c)    On 24-05-2011 -       the Vicera and some medico legal items were sent for forensics examination, to FSL but report is still awaited.

d)   On 05-06-2011 -       Forensic examination report is still awaited.

e)    On 07-07-2011 -       Its mention that inspite of sever attempt the FSL report not yet been received. The report is awaited.

f)     On 08-08-2011 -       Inspite of several efforts the FSL report till not yet got.

g)    On 01-11-2011 -       During the investigation all the relevant reports with documents already received. Except some investigation is going on.

“K”              ( Xerox copy of the certified copy of the Orders and Petitions of the Police, dated 18-04-2011, 24-05-2011, 05-06-2011, 07-07-2011, 08-08-2011, and 01-11-2011, are enclosing herewith collectively and marked as Annexure – “K” ).

21.                That thereafter the said I.O. S.I. S.P. Ghosh of Bomb Squad D.D. of Kolkata Police, submitted Final Report showing as Mistake of Facts, being Final Report no. 130 / 2011, dated 01-12-2011, under Section 304, 336, 337, 338, 352, 166, 167, 168, and 34 of the Indian Penal Code’ 1860, and therein stated brief facts of the case as “ The instant case has been taken up on the basis of Court petition under Section 156 (3) Cr.P.C. before the Court of Ld. C.J.M. Alipore, South 24 Parganas, by Sri Jyoti Prokash Chakraborty, against (8) Doctors of All Indian Institute of Child Health Trust and CMRI Hospitals, and Dr. U.P. Ghosal, ACMOH, 24 Parganas South, causing death of his son Master Joydeepts Chakraborty of 7 years, for incdicaly treating him recklessly and negligently, and also operating without consent his guardian. Initially the case was recorded at Karaya P.S. that case was merged with this instant case under order of Ld. C.J.M. Alipore, South 24 Parganas, and further investigation taken by DD Bomb Squad in a course of investigation All relating paper seized by Karaya P.S. or Alipore P.S. that paper sent to Director of Medical Education for expert opinion taken by I.O. of BSDD, also collected FSL Report regarding Chemical analysis. Also collected regarding over writing in P.M. Report as per order from our superior for clarified from ADSMOH, Medicolegal, 24 Parganas South, also obtained valued opinion expert opinion. FSL Opinion thereby clearly established no negligence on the part of the Doctors. There is no material and evidence against the aforesaid persons. As  such AC (II) CellDD directed closed and declared M/F. Accused Doctors may be discharging from this case for want of Evidence.”

22.                That the defacto complainant / petitioner states that the I.O. states that under the brief facts of the Final Report as (i) further investigation taken by DD Bomb Squad in a course of investigation All relating paper seized by Karaya P.S. or Alipore P.S. that paper sent to Director of Medical Education for expert opinion taken by I.O. of BSDD, also collected FSL Report regarding Chemical analysis. Also collected regarding over writing in P.M. Report as per order from our superior for clarified from ADSMOH, Medicolegal, 24 Parganas South, (ii) also obtained valued opinion expert opinion. FSL Opinion thereby clearly established no negligence on the part of the Doctors. (iii) There is no material and evidence against the aforesaid persons. (iv) As such AC (II) CellDD directed closed and declared M/F. (v) Accused Doctors may be discharging from this case for want of Evidence.

23.                 That the defacto complainant / petitioner states that the said Final Report has never been communicated to the defacto complainant by the I.O. concern in any manner, whatsoever, the defacto complainant came to know about the said Final Report, while he appeared before the Learned Court, on the said occasions. The said final report has been submitted by the I.O. , on the said occasions, the defacto complainant placed his one petition praying therein for time to place his NARAZI Petition against such Final Report, and whereas the Learned Court was pleased to allow such prayer of the defacto complainant.

24.                That thereafter the defacto complainant / petitioner, taken endavour to obtain certified copy of the said Final Report and uncertified copy of the 161 statement and expert opinion and others few documents, which has taken substantial time in the process of the Learned Court proceedings, and whereas the defacto complainant received such those certified and uncertified copy of the documents from the concern department of the Learned Court, the defacto complainant gone through the contents of those documents and on bare reading of those documents, astonished to understand that how the I.O. has taken the endavour to close the case matter, without having all the necessary steps and or causing appropriate investigation in the case matter, and thus the act and or omission of the I.O. is not in accordance with the Law, more particularly, not in accordance with the procedure as laid down under the provisions related to the investigation of the case matter, under the Code of Criminal Procedure’ 1973.

25.                That the defacto complainant / petitioner states that this is very curious enough that how come FSL opinion established that there is no negligence on the part of the doctors, and further more accused doctors may be discharged from this case for want of evidence, proposed by the I.O. of this case matter, and whereas under such circumstances, questions arises that I.O. is not collecting evidence in accordance with the procedure as laid under the provisions related to investigation under the Code of Criminal Procedure’ 1973, and proposes to be discharge of the accused doctors from this case for want of evidence, is a purported acts and omission of the I.O. of this case violating the rights and opportunity as granted in the nature of fundamental to the Citizen of this Country under Article 14, 19, and 21 of the Constitution of India, and further more such an acts and omission of the I.O. of this case matter also effected in the entirety of the believes and faiths of the Society at large and a wrong and malign communication has been thrown out by the I.O. of this case matter, about causing injustice and not justice, at all.

26.                That the defacto complainant / petitioner states that the 161 statement of Dr. U.P. Ghoshal, dated 17-02-2010, shows as “ Death appears to be due to lack of Oxygenation of the brain tissue causing irreversible damage to the brain – Anti Mortem in nature”, “ I could not give the final opinion as some reports are still awaiting”, “ I did not receive the following documents 1) 1^st Chest Xray plate, 2) MRI Plate of the deceased made at CMRI, 3) EEG tracing – prepared at CMRI, and 4) FSL Report.”, “As the victim child was suffering from right side diaphragmatic Harnia but during P.M. Examination it has been noted that the operation was done on the Left Side”.

“L”     ( Xerox copy of uncertified copy of the statement of Dr. U.P. Ghoshal, dated 17-02-2010, is enclosing herewith and marked as Annexure – “L” ).

27.                That the defacto complainant / petitioner states that the further 161 statement of Dr. U.P. Ghoshal, dated 21-10-2011, shows as “ the case of death Lack of Oxygen tissue, causing irreversible damage to the brain. Anti mortem in nature . that the deceased was a patient of Downs Syndrome, these type of patients are more prone to infection in relation to a normal individual, further also mention that due to lack of transparency of writing on Post Mortem report a 2^nd time writing has been done by myself.”

“M”    ( Xerox copy of uncertified copy of the statement of Dr. U.P. Ghoshal, dated 21-10-2011, is enclosing herewith and marked as Annexure – “M” ).

28.                That the defacto complainant / petitioner states that Expert Opinion by Member Convenor Prof. S. Batabyal, Head of the Department FSM Medical College, Kolkata, vide Opinion dated 04-05-2011, shows as “ Further opinion from autopsy surgeon is pending and no laboratory reports have been furnished with the documents”, Inference : The Enquiry Committee went through all the documents thoroughly. The findings which were observed from the BHTs, DC, treatment protocols ( consent from time to time information to patient party and overall treatment, stay at both hospitals ) are of standard and are being maintained keeping to the protocols and guidelines. However it is preferable to take specific consent from for specific decease and circumstances. The members of the committee did not find out any gross deviations from the legal and treatment aspects. However the Enquiry Committee is not in a position to comment on the statements which were seen in the Court papers regarding some unpleasant circumstances as stated by the patient party ( Pg. 107, 108, 109 ). This can be ruled out by investigation by the investigating authority.”

“N”     ( Xerox copy of uncertified copy of the Expert Opinion, dated 04-05-2011,  is enclosing herewith and marked as Annexure – “N” ).

29.                That the defacto complainant / petitioner states that the Opinion derived from the Expert as well as from DR. U.P.Ghoshal, are not in a final conclusions and or final in nature, since all the papers and or documents related to treatment has never been handed over to them by the I.O. of this case, as its appears from their statements and report of the opinion. Now under such a circumstances, which has been on the papers and or documents relied upon by the I.O. of this case, without giving all the papers and or documents and or without collecting such evidence and or evidentiary valued papers and or documents, which the expert and or DR. U.P. Ghoshal required to ascertain the cause of death as well as about the act and omissions of the doctors in regards to cause the operations of the deceased child, can be ascertained as a reliable opinion, in the interest of fair investigation and or in the interest of administration of justice, the answer become in view of the prudent person is certainly “NO”. therefore the opinion of the expert and or opinion of Dr. U.P. Ghoshal are not in the conscious of medical professions and also not in conscious of medico legal jurisprudence, and cannot be take as granted in any manner whatsoever, more particularly cannot be taken as granted in accordance with the Law.

30.                That the defacto complainant / petitioner states that thus the opinion of the experts as well as of Dr. U.P. Ghoshal, are the credible opinion, and can considered, as to fixed up the criminal liability on the accused doctors, as the prima facie it’s evident from the Post Mortem Report and as well as from the statement of DR. U.P. Ghoshal, as  “As the victim child was suffering from right side diaphragmatic Harnia but during P.M. Examination it has been noted that the operation was done on the Left Side”, thus the operation firstly has been conducted without the consent of the patient party and secondly the said operation has wrongly been done at right side, insist of left side, and this aspects at the first instances are sufficient to fixed up the criminal liability upon the doctors, apart such a prima facie aspects, the I.O. of this case from the beginning of the investigations acted in such a purported and purposive manner to save the accused persons from the punishments for the offences committed to be punishable under 304, 336, 337, 338, 352, 166, 167, 168, and 34 of the Indian Penal Code’ 1860, as the accused persons are money men and having influences from four corners of the Government administrations and others.

31.                That the defacto complainant / petitioner states that it is not worthless to state under the present circumstances of the facts of this case that the I.O. of this case is nothing but a puppet to act in accordance with the wishes of the accused doctors to cause such an endavour to save them from the strong hands of the Law, and more particularly from the punishments.

32.                That the defacto complainant / petitioner furnished hereunder the facts and true story related to the death of his only one male child of aged about 6 (six years ), and or reproduced his contents of the petition of complaint, which has been made before the Learned Court, once again, for the sake of kind perusal by the Learned Court :

a)    That on 19th day of April’ 2009, the Petitioner along with his wife accompany his child master Joydipto Chakraborty, visited to the Institute of Child Health Trust, at premises no. 11, Dr. Biresh Guha Street, Kolkata – 700 017, at about 11.00 a.m. since the petitioner’s child suffering from cold, cough, & fever. He visited the Emergency cell of the said institution, since the day was Sunday and the O.P.D. was closed for the said day in that institution, and whereas on visit the emergency department of the said institution some of the doctors attending the child asking some of the questions related to the child’s suffering, and whereas the petitioner’s wife expressed about the suffering of her child to the said attending doctor’s that the child do not want to take food ( light or heavy ), and after having little water also, boamating tendency come out and kasi happening.

b)   That it was also stated to the said doctors of the said institution that the petitioner did visited on earlier occasions to the said institution with the problem of his child in the month of December’ 2008, but at that time the problems of the child and his sufferings are different, at that time the petitioner’s child suffering from about toilet problems and that time he was admitted for three days at the said institution and subsequently cured from the said sufferings, which causes good faith upon institution, become tends him to visit again with his child. Thereafter the doctor’s conducted X-Ray of chest and after gone through the report of the said X-Ray, the said doctor’s stated that the “Nemonia” causes to the child and advise for admission for further and better treatment in the said institution, accordingly the petitioner admitted his child in the said institution.

c)    That your petitioner pay the necessary charges for the visit of the doctor’s and X-Ray charges, and emergency Charges and admission Charges against the receipt issued by the said institution in the following manners : a) Receipt no. U 32294 dated 19.04.2009, for Rs. 50/- ( Rupees Fifty ) only for Doctor’s attending my child, b) Receipt no. U 32297 dated 19.04.2009, for Rs. 80/- ( Rupees Eighty ) only, for X-Ray, and c) Receipt no. U 32401 dated 19.04.2009, for Rs. 1,020/- ( Rupees One Thousand and Twenty ) only, for admission Charges.

d)   That on payment of all charges as the petitioner was asked for by the said Institution, the child was admitted at the Bed no. S-97 at First Floor of the said institution building at premises no. 11, Dr. Biresh Guha Street, Kolkata – 700 017, and whereas the said institution issued a Card ( Visitor’s Card ), whereby at reverse of the said card the office bearer of the said institution wrote the name of the three Doctors, i.e. a) Dr. Joydeep Roy, b) Dr. ( Miss ) Manjuri Mitra, and c) Dr. P.G. Khadelwal.

e)    That the said institution on admission of the petitioner’s child allowing his wife near the bed of his child in order to have care of child from his mother, and thereafter the nurses of the said institution provide saline water and oxygen through mask on face to the child, may be under the advise of the doctor’s but nothing has been communicated by the doctor’s in that behalf to the petitioner or to the petitioner’s wife. Thereafter at about 1.00 p.m. one doctor attended the child and prescribed some of the medicine, which the petitioner had purchased and provided to the staff nurses of the said institution, which has been administered by them on that even date.

f)     That on 20th day of April’2009, ( i.e. Monday ), Saline and oxygen continued, whereas at about between 11.00 a.m. to 12 .00 p.m. a) Dr. Joydeep Roy, b) Dr. ( Miss ) Manjuri Mitra, attending the child but did not say anything about the progress nor prescribe any medicine at that occasion and whispering between them so silently which did not reach to the ear of the petitioner’s wife. Thereafter at about 12.30 p.m. one another Doctor recognized himself Dr. A.K. Basu visited and attended the child and said that the child suffering from respiratory problems and need to be shifted in ventilation and asking your petitioner and petitioner’s wife to know about the previous treatment prescriptions and reports, whereas the petitioner expressed his inability to place before him those papers since, those papers were lying in house of your petitioner, then the said Doctor A.K. Basu, said that the child have hernia problems and require operation towards permanent solutions, and prescribed so many medicine and referred the child for X-Ray. The petitioner had purchased the prescribed medicine and provided to the staff nurses of the said institution.

g)    That thereafter at the visiting hours of the said institution child had been transferred to the HDU-2 Bed at the first floor from the Bed no. S-97 at the first floor, the reasons not known to your petitioner, at night Saline continued, but oxygen had opened up and not continued. The petitioner’s child was suffering from high fever and the whole part of his body became very hot, which had been communicated to the staff nurses at night of the said institution, whereas they said that it’s nothing but the reaction of the medicine, which has been administered to the child. They also assure that the fever will go down by the next day morning.

h)   That on 21st day of April’2009, ( i.e. Tuesday ), The saline continued and oxygen again started on that day, at about 12.00 p.m. Dr. M. Mitra, and Dr. J.Roy, attended the child and advised for Harnia Operation and on asking about Harnia operation, they did not describe any thing about Harnia to your petitioner and subsequently they prescribed medicine, which your petitioner had purchased and provided to the staff nurses of the said institution, and at that time he also met with the Director of the said Institution Dr. Apurba Ghosh, who said that there is no Harnia case hence operation of any nature not require, the child case is of a medicine case and only medicine can cure.

i)     That at about 1.30 p.m. Dr. A.K. Basu ( Doctor Ashok Kumar Basu ), visited the child and shouting that “ I don’t have any time, and asking your petitioner’s wife to agree for operation by tomorrow, and suggested her wife to consult with your husband, immediately” on hearing such provocation by the said doctor your petitioner’s wife got depressed, since the said dialogue was not expected from the said doctor as such the said doctor’s name has been whispered by the staff nurses and other doctors of the said institution as a renowned pediatric doctor.

j)     That in the evening at the time of visiting Hours your petitioner came to know such things from his wife, and on knowledge of such purported saying of the said doctors He also got depressed and decided to discussed with other doctors of the said institution, and whereas at about 7.00 p.m. while He visited to the junior doctors available at the said time in the said institution, they without explaining anything to your petitioner about the operation and it’s necessity, forcibly against your petitioner’s will taken signature on some of the white papers, and said that the operation was necessary one to conduct on his child and thereafter the said junior doctors given the prescription rather list of medicine and requisition for blood in order to conduct operation.

k)   That whereas at that time your petitioner’s failed to understand about the operation of the child and its urgency and necessity, since nothing has been communicated to him or to his wife, became mysterious happening to both of them at the instances of the purported and unauthorized activities of the staff nurses, as well as of the doctors of the said institution hired for the services.

l)     That it is pertinent to mention that on the said date, your petitioner’s child condition was became very poor, his fever was very high, the saline water and oxygen continued along with all those medicine had been administered by the staff nurses of the said institution.

m)  That at night at about 9.30 p.m. one Dr. Birendra Rai, attended the child conditions medically, and prescribed medicine, which your petitioner had been purchased and provided to the staff nurses of the said institution.

n)   That on 22nd day of April’ 2009 ( i. e. Wednesday ), early in the morning one Junior Doctor Sarang Pradip, visited the child but did not provide any medicine, whereas the child fever was 102’ degree and more, the whole of his body was very hot. The nurses were coming and going attending little bit to the child, thus the care were not so good rather your petitioner can say there were no care by the staff nurses in appropriate manner. Your petitioner’s wife was too much worried about the conduct of the said institution and it’s staff nurses and doctors, since there was no development in the health of their child rather the health of child deteriorated since admission in the said institution.

o)    That at about 12.30 p.m. some of the attendant and staff nurses taken child for operation, while he was suffering from high fever, and while your petitioner’s wife objected thereto to conduct any operation of the child, however they taken the child for operation in a very forcible manner without heeding objection of your petitioner’s wife, towards the operation theater at the said institution.

p)   That at the operation theater, nearby your petitioner and his wife standing to see the activities related to the operation, whereas your petitioner had seen one Lady Doctor recognized herself as Purnima “Anesthetic” and some of the ward boy, and Doctor A.K. Basu, & other Junior doctors and O.T. Sister and nurses. During the operation at some periodical intervention the doctors and nurses given prescription to bring those medicine at the earliest to your petitioner, whereas while your petitioner got those prescriptions his other relatives and brothers were there to co-operate him and purchased those medicine and to provide them as per their requirement and asking.

q)    That while the Operation Theater door closed, your petitioner and his wife and others assuming that the operation was going to be carried out, but after an hour Dr. A.K. Basu leave the O.T., and whereas on asking he did not reply to your petitioner’s questions about the conditions of his child, which causes tense to him about his child. Thereafter fifteen minutes after the O.T. door open, and it has been seen that a ward boy has taken the child in his lap rushed here and there junior doctors also under some anxiety and rushed here and there and phoned continuously to someone, thereafter on expiry of twenty minutes about Dr. A.K. Basu entered again in O.T. and child also taken again in O.T. and the door became closed once again. Your petitioner’s failed to understand at that occasions that what and why these things were happening.

r)    That again after half an hour Dr. A.K. Basu exist from the O.T. while other junior doctors were requesting not to leave then, though he leaving the O.T. and at the outside of the O.T. your petitioner and others were watching all such things, asking the said Doctor A.K. Basu about the said child conditions, then he replied in very rough languages that the child conditions was not good.

s)    That thereafter a ward boy taken the child in his lap from the said O.T. Room at third floor to the first floor at Bed no. HDU-2, without saline and Oxygen to the child, and at about 4.30 p.m. ventilation system started to the child, the reasons not know to your petitioner.

t)     That at about 6.30 p.m. your petitioner’s wife only allowed to visit the child, while Dr. Mitra and others were using ice on head of the child.

u)   That your petitioner’s wife observed that the child did not move a little bit also by himself, nor open his eyes for a little moment, and the whole of his body under high temperature.

v)    That the doctors done X-ray once again reasons has not been stated by anyone to your petitioner or to your petitioner’s wife.

w)  That on 23rd April’ 2009 ( i.e. Thursday ), that early in the morning at about 5.30 a.m. it has been reported by the staff nurses of the said institution that the ventilation was not working and subsequently technical persons has been asked by them who reaches at 7.00 a.m. on the said date and repaired.

x)    That the child conditions deteriorated and temperature of body did not low by means used by the doctors and staff nurses of the said institution.

y)    That at about 10.00 a.m. Dr. Mitra and Dr. J. Roy, attended the child but did not say anything on asking also, thereafter at about 11.45 a.m. Dr. A. K. Basu, attended the child and said that your petitioner’s child was not in a good condition, and on asking as to why the child was not in a good condition, he did not say anything nor describe anything as to why the child’s condition was not good, and run away.

z)    That thereafter, your petitioner and his wife meet with Dr. J.Roy, to discuss with him about the saying of Dr. A.K. Basu, whereas the said Doctor said that this is the matter of DR. A.K. Basu, “I can’t say anything, since he done research job on your child and he should answer for all happening, not I”.

aa) That at about 3.00 p.m. the staff nurses of the said institution conducted X-Ray of the child under whose instruction, was not known to your petitioner, rather not acknowledged to your petitioner in that behalf.

bb)        That in evening at about 5.30 p.m. Smt. Purnima, recognized herself wife of Dr. A.K. Basu, attended the child and used ice on head and chilled water on whole of the body of the child and subsequently at about 7.30 p.m. she prescribe morphine and asked your petitioner to provide as soon as possible, thereafter your petitioner went to purchase the said morphine with the prescription, the medical store guys said that this quantity of morphine can not be administered on a child patient of 7 years old, however if you want to take even though on prescription, you should put your signature, and place a piece of paper wrote something about the prescription and the name of institution, on the said paper and thereafter on availing your petitioner’s signature he provided him.

cc)  That the said morphine has been administered on child, though nothing has been developed and temperature remain as it was.

dd)        That on 24th April’2009, ( i.e. Friday ), at about 12.00 p.m. Dr. Basu attended the child but did not say anything about him, thereafter at about 1.00 p.m. some Junior Doctors visited and attended the child and done some nosal therephy on child as it was described by them to your petitioner, thereafter they instructed to the staff nurses of the said institution for X – Ray of the child.

ee) That at about 5.30 p.m. the wife of Dr. A.K. Basu, visited and attended the child though nothing has been noticed about the development in child, he was as it was after operation, did not open eyes for a little one nor did he move his body a little bit, and temperature remain.

ff)   That at about 10.30 p.m. ( night ) Dr. A.K. Basu, while he was visiting other patient, and after his visit your petitioner asked him about his child but he did not answer to that and asking him for the arrangement of Rs. 4,00,000.00 ( Four Lakhs ) only, which your petitioner agree with the expression of his inability to provide the said sum of money at that moment and thereafter he said that for the transfer of the child to C.M.R.I. as soon as possible, and he phoned up to the C.M.R.I. for the admission of the child there, subsequently the staff nurses and ward boy were made arrangement for the transfer of the child from the said institution and that was about 11.15 p.m. at night of that day.

gg) That while they taken the child into vehicle for the departure to C.M.R.I. they asked for the payments to them, and whereas in the said situation, your petitioner did not have much money in his pocket, then your petitioner commit them to make payment to them on tomorrow, ( i.e. on the next day ), though they came with a white papers and taken your petitioner’s signature on the plea that the said paper became security of making payment on the next day. Though nothing has been provided to the child in the said vehicle, such as oxygen, saline water or any ventilation or any apparatuses, which may be required, in the said emergency.

hh)       That at about 12.15 a.m. the child reached at C.M.R.I., whereas Dr. Saugata Acharya, conducted inspection of the child and admitted in the said Hospital, though nothing has been expressed by him about the child’s conditions to your petitioner or to his wife.

ii)   That on 25th April’2009 ( i.e. Saturday ), the child’s conditions has not been acknowledged to your petitioner or to his wife, while what types of tests and others things has been complied by the said doctor or others in the said hospital, was not known to your petitioner, though the payments has been asked without any detail descriptions of tests and others and received by them on making your petitioner’s payments.

jj)   That on 26th April’ 2009 ( i.e. Sunday ), at the visiting Hours, Dr. Saugata Acharya, told that the child’s conditions was not good, and the same as it was at the said institution.

kk)        That on 27th April’2009 ( i.e. Monday ), at the morning visiting Hours Dr. Saugata Acharya, attended the child and asked for Brain MRI, for which your petitioner deposited money with Cash Counter of the said C.M.R.I. Hospital, thereafter, the staff nurses, at about 2.00 p.m. at after noon, asked your petitioner’s wife for the permission of hair cutting of the child, though without any description as to why hair cutting was necessary, however in the situation, your petitioner’s wife innocently permitted them for hair cutting of the child.

ll)   That at the evening in visiting hour Dr. Saugata Acharya told your petitioner that since there was a Blood Cloting at the back side of the head of the child his hair cutting was asked from your petitioner’s wife, thereafter your petitioner asked for M.R.I. Report, but he did not answer to that.

mm)     That in the circumstances, your petitioner started apprehended against the said doctors and both of hospital and institution and smell something knowingly wrong has been going on by the staff and doctors on the child since they did not describe nor express their clear views to your petitioner on any occasions.

nn)       That on 28th April’ 2009 ( i.e. Tuesday ), Dr. Saugata Acharya was not available to your petitioner, though the staff nurses communicated about no development in the conditions of the child.

oo)  That on 29th April’ 2009 ( i.e. Wednesday ), at about 12.30 p.m. very dramatically, Dr. A.K. Basu and Dr. Saugata Acharya, asked your petitioner to meet with them at conference room of the said C.M.R.I. Hospital, and on meeting, Dr. A.K. Basu Shows your petitioner one X-Ray Plate, which your petitioner did not understand what was in the said X-Ray Plate, and said that the Operation was success. Thereafter Dr. Saugata Acharya, said that M.R.I. report was about Blood Clotting at the back side of the child. Thereafter both of the Doctors said that the Brain Death has been occurred to the child and for that they advise for neurologist’s treatment and referred accordingly to one Dr. Avijit Chattopadhya, who subsequently cause EEG of brain, and said that there was no hope.

pp)         That on 30th April’2009 ( i.e. Thursday ), there was no report or information.

qq)  That on 1st May’ 2009 ( i.e. Friday ), “bed shole” problems has been reported by the staff nurses, and no Dr. visit has been occurred.

rr)  That on 2nd May’ 2009 (i.e. Saturday ), there was no report or information.

ss) That on 3rd May’ 2009 ( i.e. Sunday ), there was no report or information.

tt)   That on 4th May’ 2009 ( i.e. Monday ), at about 9.00 a.m. declared expired, by the C.M.R.I., and no Doctor came forward to said that how the death occurred to your petitioner’s child. Whereas your petitioner’s got very depressed.

uu)       That on 5th May’ 2009 ( i.e. Tuesday ), the Post Mortem of your petitioner’s child dead body, conducted, though no cause of death has been acknowledged to your petitioner.

vv) That the Post Mortem of the child’s dead body completed and handed over to your petitioner on 05.05.2009, with one DISPOSAL ORDER ACCOMPANYING CORPSES SENT FOR CREMATION OR BURIAL, wherein also the Police did not described any cause of death on and after holding Post Mortem of the child’s dead body.

ww)      That thereafter cremation has been done under Hindu rites and Customs on the said date.

xx) That on 17th, 18th June’2009, your petitioner visited the Alipore Police Station, for a copy of Post Mortem, whereas they advised your petitioner to visit at 32, Belveder Road, Kolkata – 700 027, whereas Medico Legal Department conducted P.M. and provided report, by which your petitioner can came to know about the actual cause of death of his child.

yy) That on 19th June’ 2009, your petitioner visited the said department as advised by the Alipore Police Station, whereas one staff of the said department advised to apply the Record Section of the Commissioner of Police in order to obtain the Post Mortem Report, accordingly your petitioner applied for to the Commissioner of Police.

zz) That on 2nd July’ 2009, your petitioner visited the record section of the commissioner of Police, in order to get the copy of Post Mortem Report, whereas the concerned Police Official said that still no report has been received from the A.C.M.O.H. ( Medico-Legal ) Alipore, and advise your petitioner to visit the A.C.M.O.H. ( Medico – Legal ) department at Alipore, Kolkata – 700 027.

aaa)      That on 6th July’ 2009, your petitioner and his wife visited the said A.C.M.O.H. ( Medico – Legal ) department at Alipore, Kolkata – 700 027, in order to know about the Post Mortem Report, whereas one Doctor Uma Prassna Ghosal, asked your petitioner to meet with him in his official chamber, where your petitioner went and meet with him, whereas he stated that the Post Mortem Report was still incomplete since he did not understand that why the operation was done and for what purposes the operation of the child was done, according to him the following description has been seen on the body of the child :

a)    Blood Clotting at the Back Side of the head.

b) Three Sharp cutting mark ( may be of the operation ), at the upper side of stomach, of which no cutting mark adjoined together.

c) One cutting spot at both the wrist.

d) Two cutting spot at back side of the spinal cord.

e) One cutting spot at both the leg mid joint.

bbb)     That thereafter the said Doctor Uma Prassna Ghosal, given his Mobile number 9831716823 and asked to phoned up him after two – three days, and then he again want to seat with your petitioner for further discussion.

ccc)        That on 8th July’ 2009, your petitioner phoned up the said Doctor Uma Prassna Ghosal, whereas he as ked your petitioner to visit him on 14th July’ 2009, at 11.30 a.m. at his office at Alipore, Kolkata – 700 027.

ddd)     That on 14th July’ 2009, your petitioner and his wife and one of his relative, visited the office of the said Doctor Uma Prassna.Ghosal, whereas he said that he asked the Alipore Police Station to provide all the medical papers and documents of the institution and C.M.R.I. Hospital, in order to see and ascertain that why the operation has been done. And again asked your petitioner to visit his office on 20th July’ 2009.

eee)       That on 20th July’ 2009, while your petitioner and his wife visited the office of the said Doctor Uma Prassna Ghosal, he said and acknowledge that some of the medical papers has been reached to him but some of the papers are still not traceable as per Alipore Police Station, conversation with him, and for the reasons again he was not able in the said circumstances to ascertain the actual cause of death. He also said that Dr. A.K. Basu and Saugata Acharya, are the big profile Doctors, and no case will be lies against them due to their money powers and advised your petitioner and his wife that proceeding against them by your petitioner will be loss of money, time, and everything, and also suggested that it’s better to take another child in your petitioner’s life by forgetting the incident, and he tried in some other manner also to convince your petitioner that not to proceed against those doctors or institution or hospital, however your petitioner cried before him to get justice from him on ascertainment of actual cause of death, then he said and asked again to phoned him on 3rd day of August’ 2009.

fff)   That on 3rd August’ 2009, your petitioner phoned up the said Dr. Uma Prassna Ghosal, the he asked your petitioner to visit his office at Alipore, on 10th August’ 2009, at 12.30 p.m.

ggg)      That on 10th August’ 2009, your petitioner and his wife visited the office of the said Dr. Uma Prassna Ghosal, whereas he was available to them, and your petitioner meet with him whereas he said that still he could not understand that why three cut marks has been done by the Doctors of the concern Hospital, and that’s why he was not able to submit the P.M. Report, and thereafter he said that he had talk with Dr. A.K.Basu, who asked him to talk with your petitioner about not to proceed with the case matter and Dr. A.K. Basu talk with a concern about an employment of your petitioner’s wife and also want to provide some sum of money in order to compensate monetary expenses during the treatment of the child, whereas on hearing such proposal your petitioner got astonished, however He and his wife expressed their view that they don’t want such things and services, rather they only seek to get actual reasons of death of their child through Post Mortem Report, and requested him to kindly provide the same in a very fair manner.

hhh)    That thereafter on 22nd August’ 2009, the said Dr. Uma Prassna Ghosal, phoned your petitioner and said that to think over the proposal made by the said Dr. A.K. Basu, as discussed on previous occasions, and that will be the only better way to resolve issues of the present context, and whereas your petitioner expressed his view to get fair justice and not to indulge into any immoral approaches, the he got aroused and threatened your petitioner that he will see that how your petitioner will get the fair P.M. Report, to fight against a doctor.

iii)   That on 24th August’ 2009, again your petitioner submitted his application at Lal Bazar Kolkata Police Head Quarter for Post Mortem Report and Inquest Report, which has been duly received and acknowledged by the concerned department.

jjj)  That thereafter on 9th September’ 2009, the said Dr. Uma Prassna Ghosal, phoned your petitioner on his mobile, and said that again you have approached for P.M. Report, “don’t worry I will submit P.M. Report very soon in such a manner by which you can’t move against a Doctor, and you will suffer for ever, and I can’t obtain any chemical report, because chemical report only can express and dig out the truth about the actual cause of death,” and subsequently disconnected the phone line without hearing your petitioner.

kkk)     Henceforth, at this juncture, your petitioner understand that from the beginning itself he is victim of the concerned Govt. Investigating agency as well as victim of the other concerned Govt. Agency ( i.e. A.C.M.O.H. ( Medico-Legal ) ), since they are hiding the truth about the cause of death and providing indulgence to Doctors and Hospital, who deliberately, intentionally, and knowingly cause the death of your petitioner’s child.

lll)   That your Petitioner lodged the above stated facts with the Alipore Police Station, and also acknowledge to the Commissioner of Police, but all in vain, and of no result reaches to your petitioner.

mmm)                 That your petitioner served several notices through his Learned Advocate, upon the Commissioner of Police, and the Alipore Police Station, but no reply or even responses has been given by them till date.

nnn)     That your petitioner served several notice upon A.C. M.O.H. ( Medico – Legal ) Alipore, Kolkata – 700 027, personally, and through his Learned Advocate, but of no result and no reply to your petitioner.

ooo)       That your Petitioner state and submits that since the Apex Court defined “informed Consent” in the context of doctor patient relationship, in a verdict delivered on the Samir Kohli – Versus – Dr. Prabha Manchanda case, it ruled that a doctor had to secure the consent of a patient before commencing a treatment, including surgery. Whereas your petitioner ward is minor and not even upto the age of 12 years, as per Section 90 of the Indian Penal Code to obtain consent from the ward of your petitioner, as such your petitioner can only give consent, which he did not given for the said purported operation of his ward, and the doctors of the said institution accused did not expressed and informed in details about the necessity of the operation of your petitioner ward. The said operation has been conducted forcibly and without the consent of your petitioner. Thus the accused persons committed offences punishable under Section 352 of the Indian Penal Code’ 1860.

ppp)     That your Petitioner state and submits that usually, hospitals takes a blanket consent when a patient is admitted, this form of consent is legally invalid and your petitioner is unaware of this fact.

qqq)      That your Petitioner state and submits that the said institution, hospitals and the Doctors engaged therein, can also be booked under Section 336, 337, and 338 of the Indian Penal Code’ 1860, for their act endangering life of the child, resulting in death.

rrr)          That your Petitioner state and submits that the act of Dr. Ashok Kumar Basu and Dr. Saugato Acharya, cause the death of the child, and the said act has been performed by them, very knowingly that the same will be resulted in death of the child. Henceforth, they can be booked under Section 304 of the Indian Penal Code’ 1860.

sss)        That your Petitioner state and submits that the accused no.11, Dr. Uma Prassna Ghosal, can be booked under Section 166, 167, and 168 of the Indian Penal Code’ 1860, since he is a public servant, disobeying the directions of Law and framing an incorrect documents with an intention to cause injury and having unlawfully engaging in trade with the other accused persons.

ttt)  That your Petitioner state and submits that the acts of the accused persons cannot be protected under Section 76,81,88,92, and 93 of the Indian Penal Code, as such their acts are in their full knowledge and intentions and contrary to the provisions of their protections as described in respective section of the Indian Penal Code’ 1860.

uuu)    That the above named complainant moves this application with an urgent request to direct the present Officer-in-Charge of Police of the Alipore Police Station, Alipore, Kolkata – 700 027, under Section 156 (3) of the Criminal Procedure Code’ 1973 to register FIR against the accused persons.

vvv)       That since the Officer – in – Charge of Police of the Alipore Police Station, did not register FIR under Section 304, 336, 337, 338, 352, 116, 167, & 168 of the Indian Penal Code’ 1860 read with Section 34 of the Indian Penal Code’ 1860, since September’ 2009, your Petitioner constrained to move this application. They maintain that since the Judgment of the Hon’ble Supreme Court, no case can be registered against the Doctors and the Hospitals, which is not true. FIR can be registered against the Doctors and the Hospitals. First they are duty bound to register FIR under Section 154 (1) of the Criminal Procedure Code’ 1973, and whereas they need not immediately arrest the accused persons as per another Supreme Court Judgment vide Order dated 14th July 2008 in WP (Crl) no. 68 of 2008, the Hon’ble Supreme Court of India ( BN AGrawal and GS Singhvi, JJ ), passed the following order :

"It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were subject matter of theft or dacoity. In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the Disciplinary Authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same".

But they can not refuse to record a FIR. That is the position in law. If the Officer-in-Charge of Police or Senior Inspector-in-Charge of Police of the Police Station or Station House fails to record the FIR a written complaint can be made to the Commissioner of Police of the area, which too was made twice. Under Section 156 (3) of the Criminal Procedure Code’ 1973, even this Learned Court has jurisdiction to direct the said Officer-in-Charge of the Alipore Police Station, Alipore, Kolkata – 700 027.

www)   That there is now absolutely no ambiguity in this regard, vide para 52 of Jacob Mathew’s case and also in para 54 of Martin F D’Souza’s Case in Civil Appeal No. 3541 of 2002, decided on 17th day of February’2009, by the Hon’ble Supreme Court of India, in the following manner :

“ (i) A private complaint should not be entertained unless the complainant has produced prima facie evidence before the court in form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.

(ii) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion, preferably from a Doctor in government service, qualified in that branch of medical practice who can normally expected to give an impartial opinion applying the Bolam test.

(iii) A doctor accused of negligence should not be arrested in a routine manner simply because a charge has been leveled against him. Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest should be withheld.”

xxx)         That since, the Police have consistently failed to register your Petitioner’s FIR and take action against the accused persons, since the month of September’ 2009, for obvious reasons, this is a fit case for immediate intervention of this Learned Court.

33.                 That the defacto complainant / petitioner states and submits that a fair investigation would include a complete investigation. A complete investigation would mean an investigation, which looks into all aspects of an accusation, be it in favour of the accused or against him. Article 21, undoubtedly, would mean that every victim of offence has the right to demand a fair trial meaning thereby that him or he has the right to demand the state discharge its constitutional obligation to conduct a fair investigation that the investigation culminates into fair trial.

34.                That the defacto complainant / petitioner states and submits that The alleged violation of the above stated principles is at the heart of the controversy in the present application, wherein the defacto complainant is the un-fortunate father, whose son was put to death by the accused persons and claim to have helplessly witnessed his son being killed.

35.                That the defacto complainant / petitioner states and submits that the investigating officer was not acting impartially and in obedience to law is clear from the fact which has been brought up in this application, before the Learned Court.

36.                 That the defacto complainant / petitioner states and submits that It is, therefore, necessary for the Learned Court to determine as the facts brought on record necessitated direction for re-investigation or further investigation.

37.                 That the defacto complainant / petitioner states and submits that the present case is not a simple case of lapses committed by the investigating officer; rather, the accusations are of manipulation of investigation.

38.                 That the defacto complainant / petitioner states and submits that if an investigating officer is not faithful, honest or truthful, while recording the statement of witnesses, and conducting investigation in all aspects, then, such an investigation cannot give rise to a fair Investigation, which culminates to a fair trial.

39.                 That the defacto complainant / petitioner states and submits that the present application, clearly reveal that there are, at least, the contents and story which established mala fide and illegal investigation by the investigating officer.

40.                 That the defacto complainant / petitioner states and submits that these facts are not mere lapses or ignorance in conducting investigation; rather, these facts make out a case of foul play and deliberate manipulation of investigation and suppression of material facts, by the investigating officer.

41.                 That the defacto complainant / petitioner states and submits that since the present case is a clear case of unfair investigation, it could have been rectified by further investigation as well as by re-investigation. When further investigation is possible, re-investigation shall not be directed.

42.                 That the defacto complainant / petitioner states and submits that the above admitted facts, as indicated above, clearly made out a clear case of unfair and manipulated investigation, by the investigating officer of this case.

43.                That the defacto complainant / petitioner states and submits that the present I.O. submitted the Final Report in such a manner, so that he can save the accused persons from the punishment for the offences committed to be punishable under Section 304, 336, 337, 338, 352, 116, 167, & 168 of the Indian Penal Code’ 1860 read with Section 34 of the Indian Penal Code’ 1860.

44.                 That the defacto complainant / petitioner state and submits that in the facts and circumstances, petitioner’s seeking re-investigation and or fresh investigation of the above referred case matter, by the Joint Commissioner of Police, ( Crime ) Detective Department, of the Kolkata Police, and or by the Additional Director and Inspector General of Police, C.I.D.,  West Bengal,  in the interest of administration of justice.

45.                 That the defacto complainant  / Petitioner state and submits that unless the re-investigation directed by the Learned Court in the above referred case matter, the Petitioner will be highly prejudice to get faire justice and suffer with highly irreparable loss and injury.

46.                 That this application is made bonafide in the interest of administration of justice.

In the above mentioned facts and circumstances, it is prays that your Honour would be graciously pleased to pass  the following order or orders :

a)    To allow this application of the defacto complainant / petitioner, in the interest of fair administration of justice; and or ;

b)   to direct the re-investigation of the above referred Case being  Alipore Police Station Case no. 4 of 2010, by the higher rank Police Officer as the Joint Commissioner of Police, ( Crime ) Detective Department, of the Kolkata Police, and or by the Additional Director and Inspector General of Police, C.I.D.,  West Bengal;  and or,

c)    to direct the further fresh investigation of the above referred Case being  Alipore Police Station case no. 4 of 2010, by the higher rank Police Officer, as the Joint Commissioner of Police, ( Crime ) Detective Department, of the Kolkata Police, and or by the Additional Director and Inspector General of Police, C.I.D.,  West Bengal;

d)   and / or to pass such other necessary order or orders or further order or orders as your Honour may deem, fit, and proper, for the end of justice.

And for this act of kindness, the Petitioner as in duty bound shall ever pray.

Verification.

I, Sri Jyoti Prokash Chakraborty, Son of Late Chandi Charan Chakraborty, aged about _______years, by faith Hindu, by Occupation Business, residing at Village – Sahebpara, Post Office – Sonarpur, Police Station – Sonarpur, District – South 24-Parganas, hereby declare that the particulars furnished above are true to the best of my knowledge. I duly verify this application as on the _________day of _________2013, at the Alipore Criminal Court.

Sri Jyoti Prokash Chakraborty.

Identified by me,

Advocate.

Prepared in my Chamber,

Advocate.

Dated : _________________2013.

Place : Alipore Criminal Court.