Calcutta High Court (Appellete Side)
Prem Chand Dutta & Ors vs The State Of West Bengal& Ors on 20 May, 2016
Author: Sudip Ahluwalia
Bench: Sudip Ahluwalia
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Sudip Ahluwalia
C.R.R. 3517 of 2012
Prem Chand Dutta & Ors.
Vs.
The State of West Bengal& Ors.
For the Petitioners : Mr. Debasish Chattopadhyay,
Mr.Gobinda Chandra Baidya,
Mr. Bikramjit Dutta
Mr. Anupam Gupta,
For the State : Mrs. Rituparna De (Ghose),
For the O.P. Nos. 2 & 3 : Mr. D.N Chatterjee,
CAV On : 13-05-2016
Judgment On : 20-05-2016
SUDIP AHLUWALIA, J.-
The Petitioner No. 1, who is a resident of Kalimpong in the
District of Darjeeling is the husband of deceased Mridula Dutta,
while the other two petitioners are his widowed mother and
brother, both residents of 143/1, R.N. Guha Road, P.S. Dum
Dum, Kolkata-74.
2. The FIR being Dum Dum P.S. Case No. 596 dated 06.09.2012
was drawn against them on the basis of a complaint filed by the
Opposite Party No. 2 Abhijit Boral, brother of the deceased
Mridula Dutta.
3. The gist of the allegations made in the FIR is that the deceased
Mridula Dutta (Nee Boral) was married to the petitioner No. 1 on
the 12th of August, 1991. She thereafter shifted to her
matrimonial house at Kalimpong in the District of Darjeeling.
According to the complaint, she was subjected to physical and
mental torture by the members of her in-laws family including
her husband, and some demands of dowry were made to the
complainant. It is also mentioned in the petition of complaint
that the deceased Mridula Dutta was suffering from a prolonged
backbone illness, but that the petitioners particularly her
husband exhibited a callous and casual attitude, and appeared
not to be willing to take up her treatment seriously. They are
also alleged to have demanded money from the complainant's
side for bearing her medical expenses. The complainant allegedly
paid an amount of Rs. 10,000/- to the petitioner No. 1 to meet
the incidental expenses, but the petitioners abused him for
giving such paltry amount. His wife i.e., deceased Mridula Dutta
was released from "Saviour Clinic" where she had undergone an
operation, on the 21st of July, 2012, after having been admitted
there earlier on the 5th of July. In this connection the allegation
of the complainant is that after being released from the Nursing
Home the deceased was taken to the residence of the Petitioner
Nos. 2 and 3 at 143/1, R.N. Guha Road, P.S. Dum Dum,
Kolkata 74. The complainant with his younger sister visited her
in that house and found that an attendant had been kept to look
after her, but she was not being attended property. The
Petitioners are thereafter alleged to have used rough and filthy
language towards the complainant and his younger sister.
Thereafter it has been alleged that on 30.07.2012 the deceased
was admitted to one 'Jeevan Sathi Old Age Home' under Kalyani
P.S. without informing the complainant or his family. The
petitioner No. 1 is thereafter alleged to have left for his
permanent residence at Kalimpong. On 08.08.2012 the
complainant learnt that his sister has expired in the Old-age-
Home. He has therefore alleged that the petitioners family had
acted callously by sending the victim to an Old-age-Home
instead of a Hospital. He therefore filed the complaint
subsequently which was drawn upon U/Ss. 498A/304A/406
and 34 of the IPC.
4. The petitioners have prayed for quashing the FIR by contending
that it is a false and motivated complaint to create illegal
pressure upon them to extract money by threatening the
petitioner and his family members, since the complainant's
family had even earlier allegedly demanded an amount of Rs. 10
Lakhs from the petitioner for purchasing an Ownership Flat.
5. Of course, the above allegations have been denied on behalf of
the complainants/Respondents. Nevertheless the petitioners
have highlighted certain aspects of the matter to assert that the FIR lodged against them is untenable. The substance of the contentions in this regard raised on behalf of the petitioner are as follows:-
a) ".........The marriage of the petitioner No. 1 was solemnized on 12.08.1991 with Smt. Mridula the wife of the petitioner No. 1 was a patient and she was treated properly at the expense of her husband being the petitioner no. 1 and there were no such allegations levelled against the petitioners for any sorts of mental or physical torture upon of Smt. Mridula Dutta, and no complaint was lodged before the death of Smt. Dutta, either by herself or by the in-laws family at the petitioner No. 1.
b) There is no such proof of threat harassment of cruelty upon Smt. Mridula Dutta before her tragic death due to massive heart attack, so therefore any prima-facie case cannot stand against the petitioners.
c) On the other hand the relationship between petitioner no. 1 and Smt. Mridula Dutta was a perfect sweet and healthy husband-wife relation and being a physically disabled person himself the petitioner no. 1 tried his level best to save the life of his wife and to provide everything which was required for early recovery.
d) It was, however not in his hands to prevent the tragic death of his wife and there was no such latches and/or negligence on his part in providing better treatment of his wife and as because the petitioner no.
1 use to stay at Kalimpong where he used to run his own Nursery business for which after the surgical operation of LUMBO SACRAL SPINE of his wife at the Calcutta based nursing home he preferred keep his wife at an Old Age Home at Kalyani not for avoiding the responsibility of his wife, but for providing her with healthy surroundings with proper Medical Care which was not possible at Kalimpong.
e) It is also a fact that the petitioner no. 1 before admitting of his wife in a Old Age Home had asked for accommodation in the house of opposite party no. 2 and 3 and also elaborated that if he takes his wife to Kalimpong she may not get the post-operative Medical checkup and care, but there was no response came from Opposite Party nos. 2 and 3 so admitting his wife in the Old Age Home was not a choice for petitioner no. 1, but the only option for him at that point of time.
f) Further contention of the petitioners is that after release from the Nursing Home, the petitioner no. 1 took his wife to his family's residence at Dum Dum, wherein the petitioners No. 2 & 3 reside but as the flat was too small to occupy a room by the ailing wife of the petitioner No. 1, he requested his brother in laws for a few days accommodation as that was the paternal residence of his wife, since deceased. Having been refused by the brother-in-laws, the opposite parties No. 2 & 3, the petitioner became in a deep trouble and in mental agony for his wife's post operative rest and medical check-up, when he was advised by one of his friend and well-wisher regarding some days stay at a good Old Age Home, wherein all facilities would be available and from him he came to know about the Old Age Home at Kalyani and on one occasion the petitioner No. 1 personally visited the said Home at Kalyani namely "Jeevan Sathi".
g) The petitioner No. 1 and his relatives, friends after being fully satisfied decided to keep his wife therein for at least one or two months so she might be recover as early as possible after taking rest and proper medical attention. The petitioner No. 1 even booked one double bedded room as he decided that after returning from Kalimpong on or about the first week of August 2012, he would also stay with his wife. But unfortunately the fatal was occurred on 08.08.2012, when the wife of the petitioner No. 1 was seriously attacked by Cardiac arrest, though she was under proper care for the last seven days of her life.
h) It is also contended that the allegations against the petitioner no. 2 and 3 are totally false and baseless because the petitioner no.2 is an aged lady of 83 years and suffering for various ailments due to which she is practically bed ridden for a long time before and under the supervision and care of her younger son being the petitioner no.3 herein. Both the petitioner no.2 and 3 used to reside at143/1 R.N. Guha road, Dum Dum, Kolkata while the petitioner no.1 and his wife Smt. Mridula Dutta used to reside at Kalimpong from and after their marriage. So the story of physical and mental torture by petitioner nos. 2 and 3 upon Smt. Mridula Dutta is just a false and motivated allegations made by the opposite parties.
i) The whole case was made by the Opposite Party nos. 2 and 3. According to the petitioners was nothing but a cheap intention of extracting money from the petitioner no.1 by blackmailing him and his family for purchasing a flat in the name of the opposite parties for which they asked many times before to their sister Smt. Mridula Dutta and his husband/petitioner no.1. But the petitioner no.1 and his wife Smt. Mridula Dutta refused each and every time for which just after the death of their sister. The opposite parties started such cheap game by filing an FIR against the petitioners without knowing the exact reason for the death of their sister, and also keeping a long distance from their sister even after her death.
j) Therefore according to the petitioners, this case is strictly liable to adjudicate on basis of the instrument of proof and facts not on the basis of some story made by the opposite parties and the above mentioned FIR is also liable to be quashed for the ends of justice"
6. It has been asserted on behalf of the respondents that the Revisional Application is premature since admittedly the petitioners were earlier arrested and subsequently released on bail while the investigation is till on.
7. In the opinion of this Court however, no offence U/S 406 of the IPC would appear to be made out against the petitioners even assuming that they are in possession of the Gift/Dowry items of the deceased Mridula Dutta, which in any case they denied having received. Nevertheless even if they do retain possession of the same, those would have been returnable only to the deceased, and not necessarily to her parental family unless there were a specific claim or demand in that regard, which would have to be settled in accordance with law.
8. The application of Section 304A i.e., of causing death by any Rash or Negligent Act would also not appear to be very well founded, since it is admitted in the FIR that shortly before being admitted in the Old-Age-Home at Kalyani, the victim had undergone a Surgical Operation in the "Saviour Clinic". The petitioner No. 1 who is her husband and admittedly a permanent resident of Kalimpong claims that he is also a physically disabled person, as seen from his Disability Certificate issued by the concerned Medical Board of the S.D. Hospital, Kalimpong way back on 22.03.2003, which is admittedly more than 9 years before lodging of the FIR. In the given circumstances it would not appear that he would have been able to take care of his wife in his permanent residence at Kalimpong where he is obliged to work for a living. Similarly the other two petitioners including petitioner No. 2 who is a widowed old lady of 83 years would not have been in a position to look after her deceased daughter-in- law properly in their small residential house in Kolkata after the victim was released from the Hospital following her Surgery. Admittedly, the deceased herself was 55 years old at the relevant time as is verified from the available medical documents on record including her Death Certificate issued by a competent Doctor of Kalyani, which is a part of the composite set of medical documents being Annexure 'P-4' to the Revisional application. So, it cannot be said that the petitioners had caused the death of the victim rashly or negligently by admitting her in the Old-Age- Home following her discharge from the Hospital only a few days earlier. In any case, if the complainant found that his sister was not being properly looked after although an attended had admittedly been engaged for her in the house of the petitioners, he and his family members could as well as have taken appropriate steps to remove her to their own house situated not very far away, considering any exigency, if they so detected.
9. Furthermore, it is noteworthy that all allegations regarding physical or mental cruelty upon the victim have been made against the petitioners after her death which occurred 21 years after her marriage. There is no allegation in the petition of complaint to the effect that the deceased victim had ever told her brothers who are the complainants, of being subjected to any physical or mental torture in her matrimonial house, particularly in pursuance of any monetary or dowry demand. On the other hand, the basic thrust in the complaint is that the petitioners had treated the victim in a causal or callous manner, although, she was suffering from a prolonged backbone disease. This allegation in itself does not make out a sustainable case for implicating the petitioners for the alleged offence U/S 498A of the IPC, and the continuation of the criminal proceedings in the case would therefore certainly appear to be an abuse of the process of Court.
10. For the aforesaid reasons the Revisional Application is allowed and further proceedings arising out of Dum Dum P.S. Case No. 596 of 06.09.2012 are ordered to be quashed forthwith.
(Sudip Ahluwalia, J.)