Calcutta High Court (Appellete Side)
Maya Majumder vs The State Of West Bengal And Others on 12 July, 2022
Author: Prakash Shrivastava
Bench: Prakash Shrivastava
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(Appellate Side)
W.P.A. No. 5366 of 2021
Reserved on: 14.06.2022
Pronounced on:12.07.2022
Maya Majumder
...Petitioner
-Vs-
The State of West Bengal and Others
...Respondents
Present:-
Mr. Arunangshu Chakrabarty, Mr. Yasraj Roy, Advocates ... for the petitioner Mr. Amitesh Banerjee, Sr. Advocate Mr. Tarak Karan, Advocate ... for the State Mr. Soumik Ganguli, Mr. Dilip Kr. Sadhu, Ms. Chandana Chakraborty, Advocates ... for the respondent No. 7 Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE Prakash Shrivastava, CJ:
1. It is an unfortunate case where dead body of a lady namely, Smt. Rama Banerjee is lying in the mortuary of Katwa Hospital since 14.02.2021 and even after one year and four months, her last rites have not been performed on account of the continuous resistance by the petitioner.2 W.P.A. No. 5366 of 2021
2. This writ petition has been filed by the petitioner with a plea that she is co-owner of a dwelling house situated at Paltia Road, Katwa Station Bazar, P.O. Katwa, P.S. Katwa, Dist. Purba Burdwan. Deceased Smt. Rama Banerjee is stated to be the aunt of the petitioner and the allegation is that private respondent No. 7 Nur Haque Mallick by practicing fraud got the sale deed executed from Smt. Rama Banerjee for which the petitioner had lodged FIR dated 19.09.2018 and had filed the Title Suit No. 150 of 2018 challenging the sale deed. In the criminal case the private respondent was granted bail on 21.03.2019. Further allegation is that Smt. Rama Banerjee was kept in illegal confinement for which a police report was made but no action was taken. So far as criminal case registered on the basis of allegation of fraudulent purchase of property, the investigating officer has concluded the investigation and had filed the final report on 18.07.2019 which was accepted by the Additional Chief Judicial Magistrate, Katwa by order dated 20.07.2019. The petitioner was aggrieved with the acceptance of the final report, therefore, she had challenged the order of the Additional Chief Judicial Magistrate, Katwa in a petition under Article 227 read with Section 482 and 483 of the Cr.P.C. Further allegation of the petitioner is that on 12.02.2021 private respondent through SMS had informed the petitioner that Smt. Rama Banerjee was admitted in the hospital and by SMS dated 14.02.2021 private respondent had informed the petitioner that Smt. Rama Banerjee had died in the Katwa Hospital. It is further alleged that the police on 15.02.2021 had informed the petitioner that dead body of Rama Banerjee was lying in the hospital morgue and asked the petitioner to take the dead body from the hospital. An allegation has been made that death certificate was wrongly issued 3 W.P.A. No. 5366 of 2021 by the hospital authorities to the private respondent and that the police and hospital authorities should have informed the petitioner and that it is not clear as to who had identified the patient as Smt. Rama Banerjee.
3. In the aforesaid factual background, a prayer has been made in the writ petition for CBI investigation and further to investigate the role of the authorities and also to take disciplinary action against the police officers and to prosecute the private respondent for illegally detaining Smt. Rama Banerjee.
4. Learned Counsel for the petitioner submits that death Smt. Rama Banerjee is suspicious and that police has not taken any action on the report of the petitioner and that Katwa P.S. Case No. 498 of 2018 was registered but its outcome is not known and that the relatives of Smt. Rama Banerjee were not informed as to why she was admitted in the hospital. He has submitted that the dead body of the deceased should not be allowed to be cremated till the issues are settled.
5. Opposing the prayer, learned Counsel for the State has submitted that due action on the complaint of the petitioner has already been taken and the report of the hospital indicates that Smt. Rama Banerjee had died a natural death and that the petitioner never went to the hospital to meet or take care of her deceased aunt and that the petitioner is not ready to perform the last rites and the body of the deceased cannot be kept indefinitely in the mortuary.
6. Learned Counsel for the private respondent has also submitted that the petitioner's aunt Smt. Rama Banerjee was suffering from ailments and nobody was taking care of her except the private respondent who had taken her to the hospital where she had died a natural death. 4 W.P.A. No. 5366 of 2021
7. Having heard the learned Counsel for the parties and on perusal of the record, it becomes apparent that on account of the property dispute petitioner has prevented cremation of the body of Smt. Rama Banerjee. In the affidavit dated 23rd of April, 2021 filed in pursuance to the direction of this Court, petitioner has refused to perform the last rites or funeral of Smt. Rama Banerjee. The affidavit in opposition filed by the State authorities clearly mentions that an inquiry was conducted earlier in point of time on the petitioner's complaint wherein it was revealed that Smt. Rama Banerjee was living alone in her house. She was unmarried. Her father Haripada Banerjee and mother Namita Banerjee had passed away long ago. Her two brothers Pranab Kumar Banerjee and Aloke Kumar Banerjee had also died. Wife of Aloke Kumar Banerjee namely, Sukla Banerjee is living in Nabadwip Poramatala and her other relative Maya Majumder, daughter of late Sanjoy Majumder is the petitioner. In the inquiry it was also found that Smt. Rama Banerjee was suffering from geriatric decease for some time and was bed ridden and none of her relatives took care of her in spite of having full knowledge of her illness. There was no one to look after her during her ailing period at her house at Katwa Palita Road. In the inquiry it was also revealed that respondent No. 7 with his family was staying with Smt. Rama Banerjee for nine years and she had sold her share of property to him in the year 2018 by a registered sale deed.
8. It is worth mentioning that when the petitioner had filed the complaint dated 19.08.2018 at Katwa Police Station, Purba Bardhaman alleging that the respondent No. 7 had cheated Smt. Rama Banerjee in getting the sale deed executed in his favour, the police had registered FIR being Katwa P.S. Case No. 498 of 2018 dated 19.08.2018 under 5 W.P.A. No. 5366 of 2021 Section 420, 406, 34 of the IPC and had arrested the FIR named accused respondent No. 7 and forwarded him to the concerned Judicial Magistrate with a prayer for 5 days police remand. On 18.12.2018, Smt. Rama Banerjee had appeared before the concerned Judicial Magistrate and submitted a declaration supported by an affidavit stating that she had sold her portion of land by her own will and volition. In the affidavit, she had made it clear that she was neither induced by the respondent No. 7 nor any kind of influence or fraud was practiced by him and she had received the entire consideration amount. These deeds of declaration, deed of admission and affidavit executed by Smt. Rama Banerjee have duly been placed on record by the State authorities along with the affidavit dated 15th of November, 2021. They were filed before the concerned Additional Chief Judicial Magistrate by Smt. Rama Banerjee appearing in person before him and considering the same Additional Chief Judicial Magistrate had released respondent No. 7 on bail on 18.12.2018.
9. Record further reveals that on 06.02.2021 Smt. Rama Banerjee had fallen critically ill at her house and respondent No. 7 had admitted her to Katwa Sub-Divisional Hospital and had sent the information to the petitioner. She was treated in the hospital and had died a natural death. The relevant extract of the report of the superintendent Katwa Sub- divisional Hospital, Purba Bardhaman is as under:
"Smt. Rama Banerjee was admitted again in the FMW of Katwa sub-divisional hospital on 06.02.2021 at 10.42 am by Mr. Nur Haque Mallick. As mentioned in the BHJTs and statement made by the treating doctor the patient presented with complaint suggestive of Cerebrovascular accident for which she was put on conservation management and was advised again for transferring 6 W.P.A. No. 5366 of 2021 her to BMCH. The patient party did not transfer the patient as per advice of the treating doctor. The patient was given all possible measures under conservative management, but unfortunately, she died on 14.02.2021 at 8.35 pm. patient party was informed accordingly and her body was shifted to Hospital Morgue on 14.02.2021 at 10.30 pm for safety and security reason.
As per available records, on 15.02.2021, the detachable part of the Medical Certificate of cause of death (Form No.4) was handed over to Nur Haque Mallick where the manner of death has been mentioned as "Natural", which he has submitted in original with a letter dated 20.02.2021. No death certificate is in Form No. 6 has been generated in respect of Smt. Rama Banerjee. Mr. Nur Haque Mallick has submitted the photocopies of Voter Card issued by the Election Commission of India (WB/40/280/114423) and Aadhaar Card issued by UDAI (No. 587454267410) of Smt. Rama Banerjee. On both occasions of hospital admission and subsequent hospital stay of Smt. Rama Banerjee as mentioned above, no one presented as her relative, except Mr. Nur Haque Mallick, visited, met with or looked after Smt. Rama Banerjee.
The hospital authority of Katwa Sub-Divisional Hospital, communicated the incident to the I.C Katwa PS vide memo no. KSDH/FM/-71 dated 15.02.2021 followed by communication letter vide memo no. Katwa SDH/OC/591 dated 18.03.2021, vide memo no. Katwa SDH/OC/709 dated 03.04.2021 with copies forwarded for information and necessary action to concerned Sub-Divisional District level officer in this regard.
It may be relevant to mention that as per available Hospital Record Smt. Rama Banerjee was previously admitted at Katwa S.D hospital in FMW (Female Medicine Ward) on 02.04.2020 at 12.02 pm and further discharged on 08.04.2020 at 8.35 am, where the name and signature of Nur Haque Mallick is found in the BHT (Bed Head Ticket) as patient relative and the person brought her."
10. It would not be out of place to mention here the petitioner is contending before this Court that the death of Smt. Rama Banerjee is 7 W.P.A. No. 5366 of 2021 suspicious and disputing her identification but at no point of time petitioner had visited Smt. Rama Banerjee when she was admitted in the hospital or after she had died. The petitioner had not visited the hospital to see even the dead body of Smt. Rama Banerjee or to take any steps for performing her last rites. In these circumstances, allegation of the petitioner that the death of Smt. Rama Banerjee or her identification to be suspicious, is unfounded and not based upon any reliable material, hence it is rejected.
11. So far as the allegation of the petitioner, that the police authorities have not taken any action on the petitioner's complaint, it is found that on the complaint of the petitioner dated 19.08.2018 FIR being Katwa P.S. Case No. 498 of 2018 dated 19.08.2018 for offence under Section 420, 406, 34 of the IPC was registered against the respondent No. 7 and during the investigation, a copy of the registered sale deed was collected by the police. Another complaint of similar nature with the same allegation made by the petitioner was also merged with the earlier complaint and the matter was investigated where the investigating officer found no substance in the allegation, therefore, he had closed the case and submitted final report being FRMF before the concerned Judicial Magistrate, Katwa, vide Katwa P.S. FRMF No. 25 of 2019 dated 20th of July, 2019. Subsequently after one year and two months, petitioner had filed naraji petition on 18.09.2020 before the Judicial Magistrate, Katwa challenging the closure report and the same was also rejected on 16.12.2020. On the petitioner's report dated 16.12.2020 with the allegation that her aunt was missing, again inquiry was conducted wherein it was found that she was living alone in her house without any 8 W.P.A. No. 5366 of 2021 support from any of her relatives including the petitioner and she was having the support from the respondent No. 7 only.
12. The above chain of events clearly reveal that the petitioner was unhappy on account of execution of alleged sale deed by Smt. Rama Banerjee in favour of respondent No. 7, therefore, not only during her lifetime she did not take care of Smt. Rama Banerjee but even after her death she created all possible obstacles to ensure that her dead body is not cremated.
13. A perusal of the record also reveals that the petitioner has made all kinds of allegation not only against the police authorities, respondent No. 7, but even against the Judicial Magistrate. These allegations, after examination, are found to be baseless.
14. In the aforesaid circumstances, we are of the opinion that it is not one of those rare case where the investigation is required to be handed over to the CBI. The police has already investigated the matter. If any fresh complaint is filed by the petitioner, the same will also be investigated by the police in accordance with law. Hence, no substance in this petition is found.
15. The matter does not end here. The body of the deceased Smt. Rama Banerjee is lying in the mortuary of Katwa Hospital since 14.02.2021. In the report in the form of affidavit by the respondent Nos. 3 and 4 dated 15th of January, 2022 it has been stated that at this stage theoretical postmortem of the body is possible, but the practical problem can be ascertained after taking out the body from the morgue as the death had taken place on 4th February, 2021. It is submitted by learned Counsel for State that if nobody comes forward, then the State authorities are ready to dispose of the body in accordance with the 9 W.P.A. No. 5366 of 2021 applicable rules. It is also stated that the postmortem can be performed, if possible, after formation of medical board in this regard. Hence, we direct that the Superintendent, Katwa Medical Hospital to form a medical board which will take necessary steps for the postmortem of the body of Smt. Rama Banerjee, if possible, and also to preserve the vital organs viscera etc. and send the viscera to FSL for chemical examination or to record the reason if the same is not possible. The Superintendent of the hospital through the State authorities will duly send an intimation to the relatives of the deceased including the petitioner for performing her last rites and in case if no one comes forward, the State authorities will perform the last rites of deceased Smt. Rama Banerjee in accordance with the prescribed procedure. We make it clear that any observation made by us in this order will not affect the rights of the parties in the pending suit. The appeal is accordingly disposed of.
(PRAKASH SHRIVASTAVA) CHIEF JUSTICE (RAJARSHI BHARADWAJ) JUDGE Kolkata 12.07.2022 ________ PA(SS) (A.F.R. / N.A.F.R.)