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IN THE COURT OF CHIEF METROPOLITIAN MAGISTRATE

C A L C U T T A

CASE NO. C/ OF 2011

KUNAL SAHA ( DR. )

Resident of 3937 Kul Circle South, Hilliard,

Ohio-43026, USA and also of, Subol

Apartment (Flat- E1), 1st Floor, 7 Nilgunge

Road, Kolkata – 700056

…COMPLAINANT

-: VERSUS :-

MR. GORA CHAND DEY, JUSTICE

(RETIRED)

Residing at CK-260, Sech Bhawan, Kolkata

700091

… ACCUSED PERSON

CHARGE UNDER SECTION 500 OF THE INDIAN PENAL CODE, 1860.

The humble petition of complaint of the

Complainant / petitioner above-named

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Most Respectfully Sheweth :

1. The Petitioner is a bona fide “overseas citizen of India” (OCI) having a

permanent residence at 3937 Kul Circle S., Hilliard, OH 43026, USA and a local

residence at Subol Apartment (Flat- E1), 7 Nilgunge Road, P.O. Belghoria, Kolkata –

700056.

2. After graduating from the NRS Medical College in Kolkata, India, the

petitioner migrated to the USA in 1985 and settled there as an internationally

recognized HIV/AIDS researcher who has given numerous scientific presentations on

HIV/AIDS in national and international conventions including India.

3. The Petitioner is also well known in India through his humanitarian work on

public health. In fact, the Petitioner is the founder-president of “People for Better

Treatment” (PBT), a registered society dedicated to humanitarian work for promotion of

better healthcare and prevention of medical negligence in India. Numerous people from

all parts of India have come to the PBT seeking justice against medical negligence.

PBT has also brought major changes in the functioning of the medical councils in India

through public interest litigation (PIL) in the Supreme Court and the Hon’ble High

Courts.

4. Apart from publishing many scientific articles in medical journals, the

Petitioner has also written numerous articles on healthcare issues in major newspapers

and journals in India and worldwide. The Petitioner has also appeared in numerous TV
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shows in India for his work on medical negligence and his role as a scientific expert on

HIV/AIDS.

5. That the Petitioner’s wife and a US-based child psychologist, Anuradha Saha,

since deceased, had passed away during a social visit to India in 1998 due to gross

medical negligence by several doctors practicing in the city of Kolkata. The Petitioner

filed criminal as well as civil cases against the said doctors and hospital (AMRI) in

Kolkata in 1998 and 1999, respectively. The trial court (Chief Judicial Magistrate) at

Alipore held inter alia, vide its judgment dated.29th May, 2001 two senior doctors (Dr.

Sukumar Mukherjee and Dr. Baidyanath Halder) guilty for criminal negligence on May

29, 2001, convicted them under Section 304A of the Indian Penal Code and sentenced

them each for three months imprisonment and also fine of Rs. 3000/-but one of the

accused, Dr. Abani Roy Chowdhury was acquitted.

6. That the said two convicted accused doctors being aggrieved by the said order

of conviction and sentence preferred two separate appeals before the Learned Sessions

Judge, Alipore. On the other side, the complainant preferred appeal against acquittal

against the said order in respect of order of acquittal of the said other accused doctor in

the Hon’ble High at Calcutta being C.R.A. No. 295 of 2002. The Hon’ble Court also got

the said two appeals transferred to the Hon’ble Court to be heard along with the appeal

No. 295 of 2002 being renumbered as C.R.A. No. 83 of 2003 and 84 of 2003.
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7. The said appeals were heard at length by the Hon’ble Justice G. C. De.

Finally vide Order dated. 19th March, 2004 the Hon’ble Court allowed the said two

appeals against conviction and dismissed the appeal against acquittal.

8. That it is submitted by the petitioner that the Hon’ble Justice G. C. De vide

the said Order not only acquitted the two accused doctors from all charges of medical

negligence but also made scathing and overtly defamatory observations against the

petitioner.

9. The petitioner states that the said trial got regular high publicity in various

media and daily news papers regularly warmly catching the attention and interest of

public at large.

10. The said Judgment passed by the Hon’ble Court was published apart from

media, in various law journals . The national print and electronic media including the

media in West Bengal highly publicized the High Court judgment in all major

newspapers and TV channels. In fact, Anandabazar Patrika, the leading daily in West

Bengal, had reported the news by directly referring that the High Court had found that

the Petitioner was actually responsible for the wrongful death of his wife, Anuradha.

The news report had further asserted that according to the High Court judgment,

Anuradha’s death might have resulted from a homicidal or suicidal act, seemingly at the

behest of the Petitioner and that the Petitioner might have brought the lawsuits against

the Kolkata doctors/hospital with a sinister motive to make financial gain by bringing in

the American medical insurance system to India. These highly abhorrent and
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defamatory comments were made in the judgment by the single-bench Judge of the

Calcutta High Court (Respondent no. 1) which was reproduced in the Anandabazar

Patrika (Respondent no. 2) and other local and national media. A copy of the said news

report published in the 20th March, 2004 issue of the Anandabazar Patrika is attached

herewith and marked as Annexure- P1.

11. That it is needless to say that the wide-spread circulation of news reports on

the High Court’s observation that the Petitioner was responsible for the death of his wife

and that he was conducting litigations against the Kolkata doctors/hospital with a

sinister motive brought endless pain and anguish for the Petitioner. The Petitioner was

greatly harmed as his reputation was badly damaged before the society at large.

12. That the petitioner cherished serious grievance moved Criminal Appeal Nos.

1191-94 of 2005 before the Hon’ble Supreme Court against the High Court judgment.

The Petitioner also filed Civil Appeal No. 1727 of 2007 in the Apex Court against the

National Consumers Forum (NCDRC) that also dismissed the complaint of medical

negligence.

13. The Apex Court passed a final judgment on August 7, 2009 disposing both

the criminal and civil appeals together in which the Supreme Court has categorically

held the four Accused doctors (including the doctors accused in the criminal case) and

AMRI hospital guilty for medical negligence and responsible for the death of Anuradha.

The said Judgment has been reported in 2009 (9) S.C.C. 221.
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14. That although the Apex Court acquitted the accused doctors from charges of

criminal negligence solely on the ground of “cumulative negligence”, the Supreme

Court severely criticized the observations made by the Calcutta High Court judge. In

fact, the Supreme Court has made numerous categorical observations between para 190

and 194 of the said judgment [2009 SCC (9) 221] with scathing comments against the

specific aspersions raised against the Petitioner by the Accused Judge of the Hon’ble

High Court at Calcutta.

15. For example, the Apex Court has unequivocally stated that the observations

made by the Calcutta High Court judge (Respondent no. 1) that Anuradha’s death could

have been a homicide/suicide or that the Petitioner actually caused her death are “not

borne out from the records” and are “highly undesirable” (para 190-192) or that the

allegation made against the Petitioner that he has forged a transfer certificate is

“absolutely erroneous” (para 194). The Apex Court has further condemned and

expressed “great dissatisfaction” to the assertion made by the High Court judge that the

Petitioner might have brought the lawsuits with an intention to bring USA medical

insurance system to India (para 193). In fact, the Apex Court has summarized the

overall observations made by the High Court judge (Respondent no. 1) in this manner

(para 194):

“In a case of this nature, Kunal (Petitioner) would have

expected sympathy and not a spate of irresponsible

accusations from the High Court” (emphasis added)

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Supreme Court’s unequivocal and scathing criticism of the High Court’s observations

(Respondent no. 1) as discussed above leaves no doubt that highly caustic and

defamatory comments made by the Calcutta High Court judge (Respondent no. 1) were

clearly wrong and made deliberately without any evidence whatsoever.

16. That Section 77 of the Indian Penal Code that provides immunity to a judge

reads:

“Nothing is an offence which is done by a Judge when acting

judicially in the exercise of any power which is, or which in good

faith he believes to be, given to him by law.” (emphasis added)

17. That Section 52 of the said Code also defines “good faith” as:

"Nothing is said to be done or believed in 'good faith' which is

done or believed without the due care and attention” (emphasis

added)

18. In regard to “good faith” and “defamation” under IPC Section 499, the

Supreme Court has observed, “Before a person proposes to make an imputation on

another the author must first make an enquiry into the factum of the imputation which

he proposes to make. It is not enough that he does just a make-believe show for an

enquiry. The enquiry expected of him is of such a depth as a reasonable and prudent

man would make with the genuine intention in knowing the real truth of the imputation

which is up in his sleeves. If he does not do so he cannot claim that what he did was
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bona fide i.e. done in good faith. Dealing with the expression "good faith" in relation to

the exceptions enumerated under Section 499 of the Indian Penal Code……”[2001 SCC

(2) 171].

19. While dealing with an allegation for criminal defamation under IPC Section

500 in Rajendra kumar Pande vs. Sittaram & Anr. [1999 SCR (1) 580], the Supreme

Court has observed:

14. Allegations made in the said complaint petition, thus, in our

opinion, make out a case for proceeding against the appellant

under Section 500 of the Indian Penal Code, 1860 as thereby

imputation concerning the respondent had been made intending to

harm or knowing or having reason to believe that such imputation

would harm his reputation.

15. For the purpose of bringing his case within the purview of the

Eight and the Ninth Exception appended to Section 499 of the

Indian Penal Code, 1860, it would be necessary for the appellant to

prove good faith for the protection of the interests of the person

making it or of any other person or for the public good.

16. It is now a well-settled principle of law that those who plead

exception must prove it. The burden of proof that his action was

bonafide would, thus, be on the appellant alone.

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20. That in view of the discussion about, there can be no doubt that the deliberate

aspersions that have been cast upon the Petitioner by the Respondent no. 1 through its

judgment dated March 19, 2004 cannot be said to have been done in “good faith”.

Needless to say that what has been viewed by the Apex Court as an “irresponsible

accusations” and assertions that does not “borne out from the records” cannot be

deemed to have been done in “good faith”. Therefore, the Respondent no. 1 cannot

claim any immunity under IPC Section 77. As discussed above and also evident from

the news report in Annexure- P1, there is no argument that the Petitioner has lost

reputation and has been greatly defamed by the said judgment passed by the Respondent

no. 1 on March 19, 2004.

21. That on the backdrop of what has been canvassed in the foregoing paragraphs

it is quite palpable and glaring that the accused named above has committed an offence

publishable under Section 500 of the said Code.

22. That this Learned Court has ample jurisdiction to entertain this complaint and

proceed against the accused as the cause of action arose inter alia in the High Court

premises situated within the jurisdiction of Hare Street Police Station.

23. That petition is made bona fide and in the interest of justice.

It is therefore most humbly prayed that this

Learned Court may graciously be pleased to

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take cognizance of the offence alleged and

issue process against the accused under

Section 500 of the I.P.Code and in the event of

appearance of the accused try, convict and

sentence the accused as per law and justice

and further be pleased to pass further orders

of adequate compensation under Section 357

and of Costs of the litigation under Section

359 of the Code of Criminal Procedure against

the accused and in favour of the petitioner

company and further be pleased to pass such

other order or orders that Your Honour may

think fit and proper in the interest of justice.

And for this act of kindness your petitioner, as in duty bound, shall ever pray.

Filed by :

Dated. This 3rd Day of August, 2011