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2007 DIGILAW 158 (GAU)

Krishnapada Das v. State of Tripura

2007-02-26

U.B.SAHA

body2007
1. This is an application under section 4.39 Cr. PC for granting bail filed by the accused-petitioner, Shri Krishnapada Das, in connection with Womens P.S. Case No. 09 of 2007 under sections 498(A)/307/347 120(B) I.P.C. 2. The prosecution case, in short, is that the wife of the accused-petitioner, Smt. Anju Paul (Das), filed a complaint petition before the court of the CJM, Agartala, West Tripura on 16.1.2007 with an allegation of mental and physical torture upon her, with demand of dowry and, also other allegations against her husband, i.e. the present accused-petitioner and two others who are her elder brother-in-law, namely, Narayan Chandra Das and her maid servant, Smt. Gita Debnath. The wife of the accused-petitioner also alleged in her complaint petition that her husband used to maintain illicit relation with the said maid servant, Smt. Debnath, and while she raised objection, she was mentally and physically harassed and subsequently on several occasions, the accused-petitioner and his elder brother, demanded money to be brought from her father's house and ultimately on 28.12.2006 her husband and elder brother-in-law and the said maid servant tried to commit murder her with the help of gas oven. She also alleges that the elder brother in-law of her, who was in Judicial Service and presently retired from service, took the advantage of his official position and used to instigate to do such activities by the present petitioner, i.e., the husband of the complainant wife. Narrating the aforesaid facts, the wife of the accused-petitioner, Smt. Anju Paul (Das), lodged a written complaint before the CJM, West Tripura, who, in exercise of his power under section 156(3) of Cr.PC, sent the same to the Womens Police Station, Agartala, for registering the said complaint as a Police Case and to investigate it. Accordingly, the authority of women's police station registered the same as Women's Case No. 09/07 under section 498(A)/307/34/120(B) of I.P.C. 3. In connection with the aforesaid P.S. Case, the present accused-petitioner was arrested by the police on 20.1.2007 and produced before the CJM's Court and the said court remanded the accused-petitioner to the judicial custody till 3.2.2007 and again he was remanded to the jail custody till 17.2.2007, after rejecting the bail applications filed by the petitioner and since then the accused-petitioner has been in judicial custody. 4. Heard Mr. M. Kar Bhowmik, learned senior counsel assisted by Mr. 4. Heard Mr. M. Kar Bhowmik, learned senior counsel assisted by Mr. A.C. Bhowmik, advocate appearing for the accused-petitioner as well as Mr. D. Sarkar, learned P.P. of the State. 5. Mr. M. Kar Bhowmik, learned senior counsel appearing for the accused-petitioner, before making any submission on merit, submits that the accused-petitioner suffered from cardiac arrest and he was sent to G.B.P.M.C. & Hospital at Ward No. M.M.II (hereinafter refers to as GB hospital) at Agartala by the jail authority and he was under treatment at the said hospital on and from 8.2.2007 to 20.2.2007 and thereafter he was again sent to the Central Jail, Agartala, being he was under judicial custody. With the above contention, Mr. Bhowmik, learned senior counsel, mainly tried to make out a case that even if on merit the accused-petitioner is, not entitled to bail, then also his case is covered by the exceptional clause of section 437 Cr.PC, i.e., proviso to sub-clause (i) of section 437 of Cr.PC and on that count alone the accused-petitioner is entitled to get an order of bail. He, further, submits that the FIR does not disclose any offence punishable under section 498(A)/307/34/120(B) I.P.C. against the accused-petitioner, as there is no allegation in the FIR with regard to the alleged demand of money so far marriage is concerned or any subsequent agreement relating to marriage. Mr, Bhowmik, learned senior counsel also submits that if the and-petitioner is released on bail, there is no possibility of his absconding as the accused-petitioner is a Government servant (serving as U.D.C.) and also there is no allegation from prosecution that if he be enlarged on bail, he would temper with evidence. In support of his contention regarding cardiac ailment of the accused petitioner and admission in GB Hospital, he refers to the W.T. Message by the Superintendent, Central Jail to the Officer-in-charge, West, Agartala Police Station. The said message is quoted here in under for better appreciation. "Annexure-B (IN LIEW OF MESSAGE FORM) To : O/C West Agt. Police Station, Agt.(.) (by hand) Info-: 1.1.G. of Prisons, TPA,Agt. (by hand) 2. Supdt. G.B.P.M.C. & Hospital, Agt. (byhand) 3. M.O. I/C, M.M.II ward of G.B.P.M.C & Hospital, Agt. (by hand). 4. M.O. I/C, Central Hospital, Agt. (by hand) 5. O/C, G.B. Bazar Police Out Post, Agt. "Annexure-B (IN LIEW OF MESSAGE FORM) To : O/C West Agt. Police Station, Agt.(.) (by hand) Info-: 1.1.G. of Prisons, TPA,Agt. (by hand) 2. Supdt. G.B.P.M.C. & Hospital, Agt. (byhand) 3. M.O. I/C, M.M.II ward of G.B.P.M.C & Hospital, Agt. (by hand). 4. M.O. I/C, Central Hospital, Agt. (by hand) 5. O/C, G.B. Bazar Police Out Post, Agt. (by handX.) From : Supdt, Central Jail, Agartala (.) - Originators No. F.II-3/CJ/07/1386 dated 8.2.2007 One U.T. Prisoner Sri Krishna Pada Das S/o-Lt. Debendra Ch. Das of Natun Nagar, Madhya Bhuban Ban PS. West Agartala, Tripura in C/W Agt. Women PS. Case No. 09/07 under section 498(A)/307/34/120(B) I.P.C has been admitted into G.B.P.M.C. & Hospital, at Ward No. M.M.II from Central Jail, Act. On 3.2.2007 at 11,00 A.M. for his better Medical Treatment and Investigation as per advise of Medical Officer, Central, Agt. It is requested please to arrange to inform the Family Members/Nearest Relatives of the above noted U.T. Prisoner to attend in G.B.P.M.C & Hospital, Agt. and to contact with Central Jail Authority Immediately (.) matter most urgent. SdA (S. Sarkar) Superintendent, Central Jail, Agartala, West Tripura." 6. In response to the contentions advanced by Mr. M. Kar Bhowmik, learned senior counsel appearing for the accused-petitioner, learned P.P., Mr. D. Sarkar submits that by this time the investigating authority has already submitted the charge sheet against the accused-petitioner, hence, it would not be proper for this court to -enlarge the accused-petitioner on bail, rather he may be directed to appear before the trial court, so that, the trial can be commenced, as early as possible, as the offence is a heinous one, and, which is against the society and not against an individual, and also the provisions of section 498A is enacted for the betterment and safety of the women/wives from torture by their husbands and relatives. Initially he opposed the bail seriously, considering the nature of the offence, but subsequently when he was confronted with the document annexed as Annexure-B to the additional affidavit addressed to O.C. Agartala P.S. from Superintendent Central Jail, Agartala, wherein and whereunder it is mentioned that under trial prisoner, Shri Krishna Pada Das s/o late Debendra Chandra Das of Natun Nagar, Madhya Buban Ban P.S. West Agartala in connection with Agartala Women P.S. Case No. 09/07 under section 498(A)/307/34/120(B) I.P.C. has been admitted into GB Hospital at Ward No. M.M.II from Central Jail, Agartala on 3.2.2007 at 11.00 A.M., then Mr. D. Sarkar fairly conceded that this is a case where exceptional proviso to sub-clause (I) of section 437 Cr.PC can be applied as he was hospitalized for a long time and at present he is in the jail. The learned P.P. fails to show any reason why an under trial prisoner, like the accused-petitioner, should be detained in custody, when the charge sheet has already been filed and trial is going to be commenced, though he tried to make out a case that under section 309 of Cr.P.C the accused-petitioner can be detained in custody by the Magistrate till the trial of the case is over. 7. Mr. M. Kar Bhowmik, learned senior counsel, in reply to the submission of Mr. Sarkar, learned P.P., submits that even taking the aid of section 309 of the Cr.P.C. also the Magistrate cannot remand an accused person to custody for a term exceeding to 15 days at a time and the aforesaid provision of section 309 can only be applied against an accused person after the trial is commenced, and not before trial. He further submits that the prosecution or any court has no power to detain an accused of a case only for the purpose of punishment without any specific prayer from the investigating agency, as the punishment can only be imposed after completion of the trial and found the accused guilty by the court after completion of the trial. Order of remand cannot be passed mechanically as a routine, the court is supposed to see whether detention of the accused is further necessary for the purpose of investigation and/or trial, as question of personal liberty of a citizen is involved. 8. Order of remand cannot be passed mechanically as a routine, the court is supposed to see whether detention of the accused is further necessary for the purpose of investigation and/or trial, as question of personal liberty of a citizen is involved. 8. This court gave anxious thought to the facts as well as to the submission made by the learned counsel of the rival parties and has come to this conclusion that this is a fit case where court may grant bail, considering the facts of the accused-petitioner that he is a patient of cardiac ailment and is under treatment at G.B. Hospital for a lone-time. Normally court takes serious view in matters of bail applications, when due to cruelty of the husband and/or his relations, wives committed suicide or injured. As the said offence is not only against that woman/wife, but, against the society at large. At the same time. Court is also supposed to see that an innocent person shall not be harassed and suffered at the investigation and/or at the trial stage. Mere gravity of the offence cannot be a ground for allowing prosecution as well as the court to detain the person in the custody, unless his detention is so required for the purpose of investigation, a? well as for the trial. In the instant case, when the charge sheet already been filed and trial is going to be commenced, there is no reason for detention of the present accused-petitioner, who is suffering from cardiac ailment and when his appearance in the trial court can be assured as he is a Government employee. The learned P.P. fails to show how the prosecution will be affected and trial will be frustrated if the petitioner is released on bail, there is no material before the court that he will threat the prosecution witnesses in any manner. This court finds no reason to refuse the prayer for bail in view of the fact that the accused petitioner is presently under treatment for his cardiac ailment, though involved in an offence whatsoever heinous it may be, and as such in my considered opinion, the accused should be considered, as innocent as anything till he is proved to be guilty. It is also noticed by this court that in some cases these types of family disputes settled amicably between the parties, and after such settlement, the sufferings of a person, like the accused-petitioner, cannot be compensated either by prosecution or by the court. 9. Considering the facts and circumstances of the case noted hereinabove and the submissions of the learned counsel, particularly the submission made by the learned senior counsel Mr. M. Kar Bhowmik and the assurance to the effect that the accused-petitioner will not misuse the liberty which is going to be granted by this court and he will not tamper any evidence and also will not threaten any of the witnesses, the accused petitioner is enlarged on bail on his furnishing a P.R. bond of Rs. 15,000 (rupees fifteen thousand) with two sureties of the like amount to the satisfaction of the learned C.J.M., West Tripura. 10. Accordingly, this application for bail is disposed of. No order as to costs. Registry is directed to furnish a copy of this order to the trial court by tomorrow.