P. N. SINHA, J. ( 1 ) BEING aggrieved with the order dated 27. 11. 03 and 11. 12. 03 passed by the learned Sub-Divisional Judicial Magistrate (hereinafter called the SDJM), barrackpore in connection with East Bidhannagar P. S. Case No. 170 dated 23. 11. 03 under Section 498a of I. P. C. granting bail to opposite party No. 2 only 3 days after his production, the petitioner, who is the de facto complainant wife and on the basis of her complaint the aforesaid P. S. case was started, has moved this Court by filing an application under Section 439 (2) of the Code of criminal Procedure (hereinafter called the Code) for cancellation of the said bail order. Pursuant to direction to serve copy of the application upon the opposite party the opposite party husband appeared and filed the affidavit in opposition along with annexures against the application for cancellation of bail and the petitioner de facto complainant also filed affidavit in reply. ( 2 ) LEARNED senior Advocate appearing for the de facto complainant wife petitioner contended that the opposite party No. 2 husband was produced before thg learned Magistrate on 24. 11. 03 on the basis of FIR lodged by the petitioner on 23. 11. 03 under Section 498a of I. P. C. The learned Magistrate by order dated 27. 11. 03 granted interim bail in the opposite party and by order dated 11. 12. 03 affirmed the interim bail and also waved condition imposed earlier on the husband to report to Investigating Officer (hereinafter called the I. O.) twice a week. The learned Magistrate in his bail order did not assign any reason for granting bail within three days at the very early stage of investigation. Learned magistrate was in error by observing that there was only mal-adjustment between the couple which is the root cause of the case. The observation that there was no allegation of dowry demand itself cannot be a ground for granting bail at such early stage of investigation. Both in the FIR and in Section 164 statement under the Code there was vivid description of physical and mental torture. Section 498a of I. P. C. has two parts and the learned Magistrate at the earliest stage of investigation cannot ignore wife's statement of inhuman physical and mental torture on her. Both in the FIR and in Section 164 statement under the Code there was vivid description of physical and mental torture. Section 498a of I. P. C. has two parts and the learned Magistrate at the earliest stage of investigation cannot ignore wife's statement of inhuman physical and mental torture on her. Even it appears that the husband questioned paternity of the child born to the couple and this allegation is a serious mental torture on the wife. At the very early stage of investigation the learned Magistrate cannot overlook the physical and mental torture suffered by the wife from her husband. The medical report establishes the fact that she was assaulted by the husband. In spite of all the relevant facts and circumstances granting of bail to the opposite party husband is bad in law. Learned Magistrate failed to apply judicial mind and there was no ground for granting bail. The said bail order being not in accordance with law should be set aside and the bail granted to the husband opposite party should be cancelled. ( 3 ) LEARNED senior Advocate appearing for the husband O. P. No. 2 contended that before marriage the petitioner and opposite party were in love with each other and their love ended in marriage. After marriage, the wife petitioner lived in husband's house for 8 years and thereafter all on a sudden at the instance of her father left husband's house when the husband was outside the house. So long the couple lived in their house for 8 years there was no allegation against the husband of drunken condition and after going back to her father's house this allegation has been introduced. The husband is ill and he went to United States for treatment and after treatment he has returned back to india. The allegation that the husband is trying to leave India forever is false and baseless The grounds of cancellation of bail has been described in paragraphs 11,12 and 13 of the application and these are not at all sufficient grounds to cancel the bail. The allegation that the husband made an attempt to kidnap the child from St. Joan School at Salt Lake cannot be a ground for cancellation of bail. The allegation that the husband made an attempt to kidnap the child from St. Joan School at Salt Lake cannot be a ground for cancellation of bail. The ground that the husband threatened over telephone to withdraw the case also cannot be a ground for cancellation of bail when there is nothing to show that the husband is trying to hamper course of investigation or that would hamper trial. Allegation that the O. P. wants to leave India is baseless. It is true that he went to U. S. A, but, for his treatment and after treatment he has returned back to India and the papers concerning his treatment has been annexed with the affidavit in opposition. The story of not returning of stridhan articles cannot be relied upon as no stridhan articles was given in marriage as the parents of the parties did not attend the marriage. Rejection of bail in non bailable offence and cancellation of bail already granted must be considered and dealt with on different basis. In the instant case there is no ground at all to cancel the bail already granted to opposite party. In support of his contention he placed two decisions namely 1999 Cr LJ 4063 and 1995 SCC (Cr) 237 for consideration of court. ( 4 ) LEARNED Advocate for the State contended that the bail was granted at the very early stage of investigation. Materials in case diary indicate physical and mental torture on the petitioner wife and the allegations were justified. ( 5 ) I have duly considered the submissions made by the learned advocates for the parties and I have carefully perused the application and the affidavits filed by the parties along with annexures. It appears that on the basis of complamt/fir lodged by the petitioner East Bidhannagar P. S. Case No. 170 dated 23. 11. 03 was started against opposite party No. 2 and he was brought under arrest before the learned SDJM, Barrackpore on 24. 11. 03. On the day learned Magistrate rejected the bail prayer of the accused and called for case diary on 27. 11. 03. The accused opposite party reported to him about health problem and the learned Magistrate directed that medical aid be provided. Thereafter on 27. 11. 11. 03. On the day learned Magistrate rejected the bail prayer of the accused and called for case diary on 27. 11. 03. The accused opposite party reported to him about health problem and the learned Magistrate directed that medical aid be provided. Thereafter on 27. 11. 03 after going through materials in case diary learned magistrate granted interim bail to the opposite party and directed that he shall report to I. O. twice a week. On 11. 12. 03 learned Magistrate confirmed the bail and waved attendance at police station. It has been contended by the learned advocate for the petitioner that the learned Magistrate did not go through the section 164 statement of the wife. I am of opinion that this allegation is not acceptable as the copy of Section 164 statements of de facto complainant wife was there in the case diary which was recorded by the learned Judicial magistrate, 4th Court, Barrackpore on 24. 11. 03. Therefore, it is clear that on 27. 11. 03 the learned SDJM granted bail to the husband opposite party after going through materials in case diary including the statements recorded under section 164 of the Code. ( 6 ) THAT the husband had some heart problems is clear from series of medical documents annexed with the affidavit in opposition marked as P-2. It shows that he was examined at Calcutta, at Apollo Hospital, Chennai, Apollo hospital, Calcutta and also at U. S. A. Therefore, the order of the learned SDJM dated 24. 11. 03 giving direction for providing medical aid to the opposite party cannot be regarded as without foundation. From annexure P-3 it appears that the husband also informed the Additional Superintendent of Police, Bidhannagar for providing him with security as he was receiving threatening over telephone and he also lodged one general diary in this respect being East Bidhannagar P. S. G. D. Entry No. 1972 dated 24. 12. 03. It makes clear that both husband and the wife have lodged diary before the police station making allegation against each other about threat. ( 7 ) CANCELLATION of bail on the ground of threatening to withdraw the case is not acceptable. It is now a case under the control of the State and the wife has no power to withdraw the case. ( 7 ) CANCELLATION of bail on the ground of threatening to withdraw the case is not acceptable. It is now a case under the control of the State and the wife has no power to withdraw the case. Therefore, when State is the prosecution side bail cannot be cancelled on the allegation of wife that the husband threatened her to withdraw the case. Perusing the case diary I find that several witnesses have been examined and their statements have been recorded by the 1. 0. which include parents of the wife, their relatives and others and statement under section 164 of the Code of the de facto complainant has been recorded also. Question of tampering with evidence or hampering the progress of investigation does not arise at all. It is true that there is injury report as the wife was examined on 23. 11. 03 by the medical officer and her allegation was that she was assaulted by the husband. But the injury itself is not a ground for cancellation of bail when the husband was granted bail three days after detention in custody and not on the very first date of his production before the learned Magistrate. ( 8 ) IN the FIR there was not allegation of torture demanding dowry and even in her statement under Section 164 of the Code. She did not mention anything about torture on her demanding dowry. The entire story revealed by her hinges on physical and mental torture and when I find that so many witnesses have been examined and other steps of the investigation has been made there is no ground for cancellation of bail. ( 9 ) IN Dolat Ram v. State of Haryana reported in 1995 SCC (Cr) 237 : 1995 C Cr LR (SC) 124 the Supreme Court made it clear that rejection of bail in a non bailable case at initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. It was further observed that bail once granted should be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. It was further observed that bail once granted should be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. This view was subsequently followed by the Supreme Court in a later decision in Subhendu Mishra v. Subrat Kr. Mishra, reported in 1991 Cr LJ 4063 and in this decision the Supreme Court set aside the order of High Court cancelling bail observing that bail once granted cannot be cancelled in mechanical manner. ( 10 ) CONSIDERING the factual aspect as well as the legal proposition I am of opinion that there is no ground in the instant case to cancel the bail that has already been granted to the opposite party No. 2 by the learned SDJM. It has not yet been transpired that the accused opposite party is tampering with evidence or hampered the progress of the investigation. However, I make it clear that the order passed by the learned SDJM should be modified and some conditions should be imposed like reporting to I. O. and that the petitioner should not leave India without the permission of the learned Court below. Accordingly, the application for cancellation of bail stands dismissed. ( 11 ) THE order passed by the learned SDJM, Barrackpore granting bail to the accused opposite party No. 2 is modified and it is ordered that henceforth he shall report to the I. O. once in each week for three months or till the submission of the report in final form whichever is earlier and further that the petitioner shall not leave India without prior permission of the learned Court below. With this modification of the bail order passed by learned SDJM, Barrackpore, the CRM no. 6273 of 2003 is disposed of. ( 12 ) SEND a copy of this order to the learned SDJM, Barrackpore for information and necessary action.