IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI (Criminal Revisional Jurisdiction)

APPELLATE SIDE Present:

The Hon’ble Justice Krishna Rao CRR No. 386 of 2024

1. Kezo Dorjee Bhutiya @ Dasho

2. Rahul Gupta -Versus-

1. State of West Bengal

2. Smt. Tashi Palmu Namgyal Bhutia Ms. Radhika Agarwal Mr. Dhiraj Lakhotia Ms. Meghna Joshi Ms. Khushi Kundu .....For the Petitioner.

Mr. Aditi Shankar Chakraborty, Ld. PP. In-Charge Mr. Nilay Chakraborty, Ld. APP Mr. Kallol Acharjee …..For the State.

Hearing Concluded On : 21.05.2025 Judgment on : 23.05.2025 Krishna Rao, J.:

1. The petitioner has filed the present application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 praying for quashing of entire proceedings of Pradhan Nagar Police Station Case No. 140 of 2023 dated 3rd March, 2023 under Section 306 of the Indian Penal Code, 1860, Charge Sheet No. 922 of 2023 dated 28th November, 2023 under Section 306 of the Indian Penal Code, 1860, corresponding to G.R. Case No. 683 of 2023 pending before the Learned Additional Chief Judicial Magistrate, Siliguri.

2. On 23rd February, 2023 at 09.05 hours, the Siliguri Police Station received an information from one Indrajit Chakraborty, Ward Master of Siliguri District Hospital that at about 04.15 hours one patient, namely, Tenzing Lhendup Kutsabpa brought at the hospital and on examination by Dr. A.K. Saha declared him as brought dead. On receipt of the said information, the Police of P.S. Siliguri registered an Un-natural Death case being FIR No. 73 of 2023. During investigation, the Investigating Officer came to know from family members and other witnesses that staff of Blue Mount Country Club and Restaurant brought the patient at the Hospital. The Investigating Officer has conducted inquest on the body of the deceased and sent the body for Post Mortem examination.

3. Pending investigation of U.D. Case, on 3rd March, 2023, the complainant Smt. Tashi Palmu Namgyal Bhutia has lodged a written complaint before the Officer In-charge, Pradhan Nagar Police Station stating that on 22nd February, 2023 her husband Tenzing Lhendup Kulsabpa had committed suicide inside the bed room of Blue Mountain Resort, Siliguri wherein the petitioners along with others running illegal poker game. She stated that on 22nd February, 2023, her husband went to play poker on the invitation of the petitioners. When she came to know, she called the petitioner no.1 but he did not answer to her call after which she had called petitioner no.2 and told to him that her husband is not well. The petitioner no.2 informed the complainant that her husband is there and he played poker on credit given by petitioner no.1 and lost Rs. 35 lakhs. She told to petitioner no.2 that they are not in a position to pay the money and the business run by the petitioners is illegal and if any untoward incident is happen, the petitioners will be responsible as her husband is suffering from depression.

4. On receipt of complaint from the wife of the deceased, the Police has registered FIR No. 140 of 2023 under Section 306 of the Indian Penal Code against the petitioners herein. On completion of investigation, Charge Sheet against the petitioner being Charge Sheet No. 922 of 2023 dated 28th November 2023 under Section 306 of the Indian Penal Code is submitted.

5. Ms. Radhika Agarwal, Learned Advocate representing the petitioners submits that on perusal of Charge Sheet, Post Mortem Report, statements recorded under Section 161 of the Code of Criminal Procedure and other evidences collected by the Investigating Officer does not discloses the commission of offense under Section 306 of the IPC against the petitioners.

6. Ms. Agarwal submits that the essential ingredients of the offence under Section 306 of the IPC is (i) abetment and (ii) the intention of the accused to aid, instigate or to abet the deceased to commit suicide. She submits that to sustain a conviction under Section 306 of the IPC, it is imperative that there be a clear, positive