[ typed script of the Court’s Order ]
Alipore Police Station Case no. 4 of 2010.
[ State of West Bengal – Versus – The Institute of Child Health Trust and Others ]
Defacto Complainant : Sri Jyoti Prokash Chakraborty.
Order dated 07-12-2010.
Case is fixed today for orders an application filed by the defacto complainant, on 11-02-2010. this is a lengthy petition praying for :
a) Proceeding uner Section 340 of Cr.P.C. against O.C. Alipore P.S. Sri Kalimuddin and I.O. S.I. Biswak Mukherjee for offence punishable under Section 217, 218 read with Section 34 of I.P.C.
b) Referring under Section 15(2) of the Contempt of Court Act 1971 to the Hon’ble High Court against the said officers.
c) Directing investigation of this case by D.C. Police, Detective Department.
This is a case under Section 304A / 336 / 337/ 338/ 166/ 167 / 168 / 34 of I.P.C. prayers a & b are pre-mature. 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) and (b) at this stage. The defacto perhaps has no confidence in the I/O of this Case. He has stated, iter 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 others than the present I.O. of this case. The Child of defacto unfortunately expired on 4th May 2009 at CMRI due to alleged forcible operations 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 (c) 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 shall make over C.D. and all evidence so far collected from him to the joint commissioner of police ( crime ) Detective Department of Kolkata Police. Let a copy of this order be sent to joint Commissioner of Police, ( Crime ) Detective Department of Kolkata Police and present I.O. at once to 24-02-2011 for Report.
Returned C.D. to I.O.
Sd/ - D.C. Kar.
C.J.M. Alipore,
South 24-Parganas.
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District : South 24-Parganas.
In the Court of the Learned Chief Judicial Magistrate at Alipore, South 24-Parganas.
Section V 1 case no. 04 of 2010.
Alipore Police Station Case no. 4 of 2010.
( C.G.R. no. 66 of 2010 ).
In the matter of :-
State of West Bengal _______Complainant.
Shri Jyoti Prokash Chakraborty.
______Defacto Complainant.
- Versus –
The Institute of Child Health Trust and anothers. ______________Accused.
The humble petition of the above named Defacto – Complainant Shri Jyoti Prokash Chakraborty, most respectfully;
Sheweth as under :
1 : 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.
2 : 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”.
“A” [ Xerox copy of the certified copy of the order dated 31.12.2009, is enclosing herewith and marked as Annexure – “A” ].
3 : 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 8th day of January’ 2010, which has been duly received and acknowledged by the Police Officials of the Alipore Police Station.
“B” [ Xerox copy of the letter being no. Legal / JPC / MEDI / 112 / 10 dated 8th day of January’ 2010, is enclosing herewith and marked as Annexure – “B” ]
4 : That on 10th 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.
“C’ [ Xerox copy of the said communication of the Alipore Police Station, is enclosing herewith and marked as Annexure – “C” ]
5 : That on 11th 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.
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.
6 : 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.
“D” [ Xerox copy of the FREE Copy of FIR along with separate sheet “A” and “B” are enclosing herewith and marked as Annexure – “D” ]
7 : 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
8 : 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 12th 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 12th January’ 2010, which has been duly received and acknowledged by the Police officials of the Alipore Police Station.
“E” [ 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 – “E” ]
9 : 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.
“F” [ Xerox copy of the Order dated 12.01.2010, passed by the Learned Magistrate, in Section V1 case no. 4 of 2010. ]
10 : 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.
11 : 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.
12 : 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.
13 : 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.
14 : That the defacto-complainant / petitioner state and submits that there is absolutely no ambiguity in this regard, vide para no. 40, of Babubhai Jamnadas Patel – Versus State of Gujarat & Ors. In Crminal Appeal Nos. 1678 – 1679 of 2009, ( arising out of S.L.P. ( crl. ) Nos. 1878 – 1879 of 2009 ), decided on 02.09.2009, by the Hon’ble Supreme Court of India, in the following manner :
“ There is, therefore, no doubt that in appropriate cases, the Courts may monitor an investigation into an offence when it is satisfied that either the investigation is not being proceeded with or is being influenced by interested persons”.
“G” [ Xerox copy of the Judgment dated 02.09.2009, is enclosing herewith and marked as Annexure – “G” ].
15 : That the defacto-complainant / petitioner seeks to get proceedings under Section 340 of the Criminal Procedure Code’ 1973, against the Officer-in-Charge of the Alipore Police Station and the Investigating Officer S.I. Biswak Mukherjee of the Aliporew Police Station, in order to prosecute them for the offences committed to be punishable under Section 217, 218 and 34 of the Indian Penal Code’ 1860, by this Learned Court.
16 : That the defacto-complainant / petitioner state and submits that there is absolutely no ambiguity in this regard as stated in the following manner :
340. Procedure in cases mentioned in section 195.
(1) When upon an application made to it in this behalf or otherwise any court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) Record a finding to that effect;
(b) Make a complaint thereof in writing;
(c) Send it to a Magistrate of the first class having jurisdiction;
(d) Take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the court thinks it necessary so to do send the accused in custody to such Magistrate; and
(e) Bind over any person to appear and give evidence before such Magistrate.
(b) Make a complaint thereof in writing;
(c) Send it to a Magistrate of the first class having jurisdiction;
(d) Take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the court thinks it necessary so to do send the accused in custody to such Magistrate; and
(e) Bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a court by sub-section (1) in respect of an offence may, in any case where that court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the court to which such former court is subordinate within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed, -
(3) A complaint made under this section shall be signed, -
(a) Where the court making the complaint is a High Court, by such officer of the court as the court may appoint;
(b) In any other case, by the presiding officer of the court.
(b) In any other case, by the presiding officer of the court.
(4) In this section, "court" has the same meaning as in section 195.
17 : That the defacto – complainant / petitioner state and submits that the disobeyance and non-compliance of the Learned Court’s order dated 31.12.2009, has been done by the Officer-in-Charge of the Alipore Police Station, and the Investigating Officer S.I. Biswak Mukherjee, in order 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, can be described as Criminal Contempt as defined under Section 2 (c ) of the Contempt of Courts Act’ 1971, as in the following manner :
“Criminal Contempt” means the publication ( whether by words, spoken or written, or by signs, or by visible representation, or otherwise ) of any matter or the doing of any other act whatsoever which –
(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any other manner;”.
18 : That the defacto – complainant / petitioner seeks references under Section 15 ( 2 ) of the Contempt of Courts Act’ 1971, against the Officer-in-Charge of the Alipore Police Station, and the Investigating Officer S.I. Biswak Mukherjee of the Alipore Police Station, by this Learned Court to the Hon’ble High Court at Calcutta. The Section 15(2) of the Contempt of Courts Act’ 1971, enumerated in the following manner :
Section 15(2) of the Contempt of Courts Act’ 1971.
“ In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Ce4ntral Government may, by notification in the official Gazette, specify in this behalf.”
19 : That the defacto-complainant / petitioner state and submits that there is absolutely no ambiguity in this regard since the position was made very clear by the Hon’ble Supreme Court in Tapan Kumar Mukherjee – Versus – Heromoni Mondal, AIR 1991 SC 281 / Cr. L. J. 1991 390. The Court said : “ …….. We should like to emphasise that officers of Government Should exercise utmost vigilance in compliance of court’s order, particularly where they deal with vital issues ………….we should like to put out a warning that where a case of willful disobedience is made out, the court will not hesitate and will convict the delinquent officer and that no lenience in the court’s attitude should be expected from the court as a matter of course merely on the ground that an order of conviction would damage the service career of the concerned officer”.
“H” [ Xerox Copy of the Judgment published in AIR 1991 SC 281 / 1991 Cr. L. J. 390 , is enclosing herewith and marked as Annexure – “H” ].
20 : That the defacto-complainant / petitioner state and submits that unless the Learned Court grant the relief as prayed for by the defacto-complainant / petitioner, the defacto-complainant / petitioner will be highly prejudice to get justice.
21 : That the defacto-complainant / petitioner made this application bonafide before this Learned Court to get justice.
In the above mentioned circumstances, it is prayed before your Honour would be graciously pleased to allow this application in followings;
a) to take the proceeding under Section 340 of the Criminal Procedure Code’ 1973, against the Officer-in-Charge of the Alipore Police Station Sri S.K. Mahinuddin, and the Investigating Officer S.I. Biswak Mukherjee, to prosecute them for the offences committed to be punishable under Section 217, 218 and 34 of the Indian Penal Code’ 1860;
b) to make references under Section 15(2) of the Contempt of Courts Act’ 1971, to the Hon’ble High Court at Calcutta, against the Officer-in-Charge of the Alipore Police Station Sri S.K. Mahinuddin, and the Investigating Officer S.I. Biswak Mukherjee, to punish them for Criminal Contempt as defined under Section 2 (c ) of the Contempt of Courts Act’ 1971;
c) to direct the investigation of the Alipore Police Station Case no. 04 of 2010 dated 06.01.2010, by the Deputy Commissioner of Police, Detective Department ( DD ) of the Kolkata Police, being DC. DD I, HQ of the Kolkata Police, at premises no. 18, Lal Bazar, Kolkata – 700 001, and / or by the Higher Rank Police Officer in the cadre of Kolkata Police, not below the Rank of Deputy Commissioner of Police, other than Officer-in-Charge of the Alipore Police Station Sri S.K. Mahinuddin, and the Investigating Officer S.I. Biswak Mukherjee of the Alipore Police Station, to provide the fair investigation to your petitioner in the interest of administration of justice;
d) to monitor the investigation of the case matter of the Alipore Police Station Case no. 04 of 2010 dated 06.01.2010, and / or to set forth the guide lines of investigations in terms of the Criminal Procedure Code’ 1973, or in terms of the Hon’ble Supreme Court’s various rulings;
e) 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.
For the urgent attention of this Learned Court, the defacto-complainant / petitioner will be highly obliged.
Verification
I, Sri Jyoti Prokash Chakraborty, Son of Late Chandi Charan Chakraborty, aged about 41 years, by faith Hindu, by occupation Business, residing at Village – Sahebpara, Post Office – Sonarpur, Police Station – Sonarpur, District South 24-Parganas, being the defacto-complainant in the above referred proceedings, hereby declare and affirm that the particulars furnished above are true to the best of my knowledge, I duly verify this application as on ______________2010, in the Alipore Criminal Court.
Signature of the defacto-complainant.
Identified by me,
Ashok Kumar Singh.
Advocate.
Prepared in my Chamber,
Ashok Kumar Singh.
Advocate.
Dated : _____________2010.
Place : Alipore Criminal Court.
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