Calcutta High Court Declines To Quash Case Against Owner Of Nursing Home Over Death Of COVID Patient Due To Treatment By 'Fake Doctor'

The Calcutta High Court has declined to quash a case against the owner of a nursing home filed by the father of a lady suffering from COVID-19, who allegedly passed away due to treatment by a "fake doctor."

A single bench of Justice Ajoy Kumar Mukherjee held:

"It is true that the petitioner in this application has made a conscious effort to distance herself from the other accused Sudipto Sardar by saying that due to Government notification and also due to an unprecedented situation resulted out of COVID 19 pandemic, she was not in a position to verify the genuineness of the documents produced by the other accused but such plea is certainly a disputed question of fact, specially when the fake doctor has signed in the death certificate of the victim disclosing himself as a resident medical officer. All these issues are to be considered and decided during trial."

The opposite party no. 2 lodged a complaint alleging that his daughter was affected by Coronavirus during May 2021, for which the complainant and his son-in-law admitted her at M.F.C. Women and Child Care Nursing Home, Bally on 26th May, 2021.

It is further alleged that in the said Nursing Home said patient was treated by another accused namely Sudipto Sardar. However, on June, 1 2021, complainants said their daughter died in the said hospital, and it is alleged that she did not have very complex difficulty.

It is further stated that the complainant came to know from that the other accused namely Sudipta Sardar, who treated her daughter is a fake doctor. Thus the complainant claimed that the said fake doctor treated her daughter resulting in her death and the owner of the said Nursing Home namely the present petitioner is responsible for the same.

Counsel appearing for the petitioner submitted that there was not any material to the effect that the present petitioner had a guilty mind or any intention of causing death and it did not appear that the present petitioner admitted the victim under Sudipto Sardar's care, knowing that he is a fake doctor.

It was submitted that due to the pandemic, the petitioner did not get enough time to enquire about the said fake doctor or to verify his identification as a doctor. He had only submitted to the nursing home authorities his PAN Number and his Registration number of the West Bengal Medical Council.

In fact, it was stated that the petitioner had checked the Registration number supplied by the said accused and found that he was a registered doctor, thereby allowing him to treat his patients at his Nursing Home.

It was submitted that on the sole ground of mere belief that the opposite party no. 2's daughter could have survived COVID, the instant complaint has been lodged and the petitioner who is merely a partner or director of the said Nursing Home has been held liable for the criminal offence related to medical negligence.

It was submitted that the petitioner being the owner of the Nursing Home could not verify the authenticity of the other accused namely Sudipto Sardar whom she has engaged as doctor during the COVID pandamic.

He further submitted that it appears from the medical document with respect to the admission, treatment, medicine tickets etc of the deceased daughter of opposite party no.2 that the due standard protocol guided by the Department of Health related to COVID-19 patients which was prevailing at the time of treatment of the victim were duly followed.

It was claimed that the fake doctor i.e. other accused spelled his name as 'Sudipto Sardar' whereas the genuine doctor under that Registration number spelled his name as 'Sudipta Sardar'.

It was added that for a charge under Section 304A IPC to be sustained, the alleged negligence must be in close proximity with the cause of death to attract offence under section 304A of IPC and in absence of such proximity the criminal proceeding against the petitioner is liable to be quashed.

Counsel for the complainant stated that specific charge has been attributed against the petitioner which forms the essential ingredients of the offence, punishable under section 304A of the Indian Penal Code.

It was argued that the conduct of the petitioner in allowing a fake doctor to continue in her Nursing Home as a Resident Medical Officer (in short RMO) makes up the essential ingredient of the offence punishable under section 304A of the Indian Penal Code and there is every chance that the said conduct of the petitioner would lead to her conviction.

He further submitted that it was clear from the sequence of events as well as the conduct of the petitioner that had the petitioner not allowed the fake doctor Sudipto Sardar, the facility to practice in her Nursing Home, the innocent victim would not have lost her life due to medical negligence.

The conduct of the owner of the Nursing Home is the immediate cause of death and is often termed as 'causa causans' under the Indian Penal Code which forms the basic ingredients of the offence punishable under section 304A of the IPC, it was argued.

Accordingly, in hearing both sides, the court noted that a prima facie case had been established, which had to be investigated.

It added that the charge sheet against the petitioner under section 304A/120B of the IPC has already been filed and as such accused has always had the remedy at the time of framing of the charge to pray for discharge if the material on the basis of which charge sheet has been filed can be said to be insufficient to frame a charge, but the High Court would not be justified in quashing the proceeding by appreciating the materials collected during the investigation.

Thus, it declined to quash the case.

Case: Dr. Shiuli Mukherjee Vs. The State of West Bengal & Anr

Case No: CRR 1711 of 2022

Citation: 2024 LiveLaw (Cal) 245

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