( 1 ) BEING aggrieved by the order dated 17. 10. 06 passed by the learned additional Chief Judicial Magistrate (in short the ACJM), Siliguri in G. R. Case No. 1018 of 2006 arising out of Siliguri P. S. Case No. 283 of 2006 dated 16. 10. 2006 under section 406/420 of the Indian Penal Code (in short the ipc) granting bail to the accused O. P. No. 2, the petitioner, who is the dc facto complainant, has moved this Court by filing this application under section 439 (2) of the Cr. PC praying for cancellation of bail of O. P. No. 2 and to set aside the order passed by the learned ACJM dated 17. 10. 2006. Pursuant to earlier direction for serving copy of the application for cancellation of bail upon the O. P. No. 2, the O. P. No. 2 entered appearance and filed affidavit-in-opposition against the application praying for cancellation of bail and the petitioner has also filed affidavit-in-reply. ( 2 ) MR. Tapas Kumar Ghosh, the learned Advocate for the petitioner submitted that the Siliguri P. S. Case No. 283 dated 16. 10. 06 was registered on the basis of written complaint/fir filed by the petitioner. Her husband late Mihir Kumar Choudhury was Superintendent Engineer of the West bengal State Electricity Board and he opted for voluntary retirement scheme (in short the VRS ). The husband of the petitioner used to maintain bank accounts in different banks of Siligur. After demise of her husband on 15. 03. 06, the petitioner on enquiry from the Centurion Bank, Siliguri Branch came to learn that even after death of her husband several withdrawals were made from the savings bank account standing in the name of her husband in the said branch by presenting self-cheques and in that process the accused withdrew more than Rs. 19 lakhs from the bank which was accumulated in the account of her husband. As the petitioner is an assistant teacher of Bolpur Girls High School she used to stay at Bolpur, and during vacation she used to go to her husband's residence at Siliguri and during 'pous mela' in the month of December each year her husband used to come to her at Bolpur. She took all steps for the medical treatment of her husband at Calcutta when he became ill. She took all steps for the medical treatment of her husband at Calcutta when he became ill. The accused O. P. No. 2, though brother of her husband, never looked after her husband. ( 3 ) MR. Ghosh further submitted that after performing 'sradh' ceremony of her husband at Siliguri she came back to Bolpur handing over key to the -accused on good faith expecting that the accused O. P. No. 2 would look after the properties of her husband including the residential flat of her husband. On 12. 6. 2006 she came to Siliguri and when she tried to enter into the residence of her husband she found a new lock and she was not allowed to enter into the house and, the accused O. P. No. 2 disclosed that she and her son have no right of entry into the said house. On the basis of the FIR dated 16. 10. 2006 the accused O. P. No. 2 was brought under arrest before the learned ACJM on 17. 10. 2006 but, the learned Magistrate enlarged the accused on bail on the very same date observing that ingredients of sections 406 and 420 of the IPC have not been established. The learned Magistrate also observed that apprehension of theft of cheques do not attract such sections but, the learned Magistrate did not consider that money cannot be withdrawn from bank by presenting self-cheques in respect of a person who had already expired. The accused O. P. No. 2 did not inform the Manager of the bank or the other employees of the bank that the husband of the petitioner expired on 15. 3. 2006. Concealing the fact of death of her husband the accused o. P. No. 2 withdrew money from the account of husband of petitioner presenting self-cheques after death of husband of petitioner. ( 4 ) MR. Ghosh next contended that the learned Magistrate failed to appreciate the gravity of offence and while considering bail application the learned Magistrate had no jurisdiction to observe that ingredients of sections 406 and 420 of the IPC were not established. Due to the enlargement of the accused on bail on the very first day of production in Court, the investigating authority could not collect materials and in that process the investigation was hampered. Due to the enlargement of the accused on bail on the very first day of production in Court, the investigating authority could not collect materials and in that process the investigation was hampered. Pendency of a probate case cannot be a ground for granting bail in a case of such nature where more than Rs. 19 lakhs were withdrawn from bank in respect of account of a dead person without informing the bank officers relating to death of husband of petitioner. The very base of the order of the learned Magistrate dated 17. 10. 2006 was erroneous and a product of non-consideration of material facts and exercise of improper judicial discretion. The said order cannot be allowed to remain in existence and the said order should be set aside and the bail granted to the accused O. P. No. 2 should be cancelled. In support of his contention Mr. Ghosh referred to the decisions in Puran vs. Rambilas, reported in 2001 C Cr. LR (SC) 391, state of West Bengal vs. Noor Ahmad, reported in 2002 (1) CHN 727 , Ram govind Upadhyay vs. Sudarshan Singh, reported in 2002 C Cr. LR (SC) 533 and Sudeshna Bhattacharjee vs. State of West Bengal, reported in 2005 (1) chn 334 . ( 5 ) MS. Piyali Chatterjee, the learned Advocate for the accused O. P. No. 2 on the contrary raised objection against the prayer for cancellation of bail. She submitted that there is nothing before this Court to show that after obtaining bail the petitioner has misused the liberty that was granted to him. There was no jurisdictional error on the part of the learned Magistrate and granting bail or refusing bail is a matter of discretion of the learned magistrate. The deceased late Mihir Kumar Choudhury executed a Will before his death and made the O. P. No. 2 as executor of the Will. In terms of the Will the petitioner and her son are not entitled to any of the properties left by late Mihir Kumar Choudhury. In the Will it was specifically mentioned that all the movables including the bank accounts of different branches would go in favour of O. P. No. 2 on the strength of such Will. The O. P. No. 2 has already filed an application for probate which is pending in competent civil Court. In the Will it was specifically mentioned that all the movables including the bank accounts of different branches would go in favour of O. P. No. 2 on the strength of such Will. The O. P. No. 2 has already filed an application for probate which is pending in competent civil Court. The petitioner never looked after the deceased and the O. P. used to look after the deceased Mihir Kumar Choudhury and they took all steps for treatment when Mihir Kumar Choudhury was ill. The O. P. No. 2 has also filed a title suit being T. S. No. 102 of 2006 before the Civil Court praying for injunction and consequential relief against the petitioner and the Civil Court has already passed an order of injunction on 19. 6. 2006 against the petitioner. Thereafter, the petitioner lodged a false FIR against the o. P. No. 2 and others only for harassment. ( 6 ) MS. Chatterjee further contended that the learned Magistrate on consideration of all these matters and circumstances granted bail to the o. P. No. 2. There is no illegality in the said order. After bail the petitioner did not hamper progress of investigation nor threatened the witnesses. The bail was granted more than four months back and at present there is no ground at all to cancel the bail. In support of her contention she placed the decisions in Dolat Ram vs. State of Haryana, reported in 1995 (1) SCC 349 and Samarendra Nath Bhattacharjee vs. State of West Bengal, reported in 2004 (11) SCC 165 and referring these decisions she contended that granting bail and cancellation of bail are two different factors and cancellation of bail must be considered on different basis. As there is no merit to cancel the bail the application for cancellation of bail should be dismissed. ( 7 ) MRS. Krishna Ghosh, the learned Advocate appearing for the State submitted that there were sufficient materials in the case diary. The statement of the Manager of the bank and the xerox copy of the cheques lying in the case diary clearly reveals that even after death of late Mihir kumar Choudhury on 15. 3. 2006 the accused presented those self-cheques and withdrew more than Rs. 19 lakhs within a very short span of time and the accused did not disclose to the bank that Mihir Kumar Choudhury had already expired. 3. 2006 the accused presented those self-cheques and withdrew more than Rs. 19 lakhs within a very short span of time and the accused did not disclose to the bank that Mihir Kumar Choudhury had already expired. The statements of the neighbours make it clear that the petitioner used to visit her husband's house at Siliguri during vacation. The learned Magistrate did not apply proper judicial mind and there was no ground for enlarging the petitioner on bail on the very first date of production and such an erroneous order should not be sustained. ( 8 ) AFTER hearing the submissions of the learned Advocates for the parties i find that the petitioner lodged the FIR on 16. 10. 2006 before the. C. , Siliguri p. S. stating clearly therein that after death of her husband several withdrawals were made from his savings bank account No. 00311-DF 4433- 051 by self cheques on different dates from April to June, 2006 amounting to Rs. 19,21,000/ -. It was also disclosed in the FIR that after hearing the news of death of her husband she came to Siliguri and after observing 'sradh' ceremony and other formalities she and her son kept their flat under lock and key and handed over a key to the accused O. P. No. 2, her brother-in- law, reposing confidence on him that in their absence the accused would look after their flat. When in June, 2006 she went to Siliguri she found that her lock was removed and a new lock was put in there and she was not allowed to enter into the flat and the accused refused to give her key. On the basis of such FIR the Siliguri P. S. Case No. 283 dated 16. 10. 2006 was started against Sunil Choudhury, the accused O. P. No. 2. It is evident from the certified copy of the order of the Court of the learned ACJM, Siliguri that the accused was brought under arrest on 17. 10. 2006 and on the very same date the learned Magistrate granted him bail without imposing any condition observing that ingredients of sections 406 and 420 of the IPC have not been established. ( 9 ) I fail to understand how a Magistrate holding the remand file in the rank of ACJM on the very first date of production of accused on 17. 10. ( 9 ) I fail to understand how a Magistrate holding the remand file in the rank of ACJM on the very first date of production of accused on 17. 10. 2006 can make such observation in the ordersheet when the FIR itself was registered on 16. 10. 2006. The investigation was at its earliest stage and did not take any shape yet and during such early stage of investigation observation of the learned Magistrate was not only unfortunate but painful. It shows total non-application of mind by the learned Magistrate which resulted into miscarriage of justice. The very basis or the foundation of the order of the learned Magistrate granting bail to the accused O. P. No. 2 was erroneous and it was a product of failure to exercise proper judicial discretion. The learned Magistrate did not consider that self-cheques of a person who is already dead cannot be used for withdrawal of money from bank and that too to the extent of Rs. 19,21,000/ -. The materials lying in case diary includes statement of the Bank Manager as well as operating Manager of the centurion Bank and their statements clearly reveal that the accused did not inform the bank that the account holder Mihir Kumar Choudhury was dead. If a person withdraws money from bank on the strength of self cheques of the account holder who was dead when the cheques were presented for encasement and, does not disclose to the bank the fact of death of the account holder such an act of that person clearly discloses his fraudulent intention. Such a conduct definitely does not disclose bona fide intention of the person who withdrew money from bank on the strength of self-drawn cheques in respect of a person from his account who was already dead. Entire incident clearly reveals the dishonest and wrongful intention of the accused petitioner, and strange, the learned Magistrate observed that no materials have been established. ( 10 ) MATERIALS in case diary indicates that valuable articles of petitioner including her marriage articles are lying in her husband's flat at Siligur. She also took all steps for treatment of her husband at Calcutta before his death and accused did nothing. ( 10 ) MATERIALS in case diary indicates that valuable articles of petitioner including her marriage articles are lying in her husband's flat at Siligur. She also took all steps for treatment of her husband at Calcutta before his death and accused did nothing. She gave key of her husband's flat to accused for looking after the flat and when in June, 2006 she came to Siliguri to her flat she found that her lock was removed and new lock was there and she was not allowed entry into her own flat. Family pension has been released in her name by the concerned Government department after death of her husband. Will does not create any right unless probate is obtained. Learned magistrate did not consider all these essential facts and circumstances. ( 11 ) THE decisions cited by the learned Advocate for the accused namely, dolat Ram vs. State of Haryana (supra) and Samarendra Nath Bhattacharjee vs. State of West Bengal (supra) are not applicable in the present matter as the facts and circumstances of the present matter clearly establishes that the very foundation of the bail order was illegal, erroneous and was a product of non-application of judicial mind which resulted into exercise of illegal judicial discretion. The order of the learned Magistrate resulted into serious consequences and it also affected investigation. It is true that in those decisions the Supreme Court observed that rejection of bail in non-bailable offence and cancellation of bail already granted must be dealt with on different basis but, considering the facts and circumstances of the present matter I find that the very base or foundation of the bail order was wholly erroneous and in such a matter these two decisions are not properly applicable. ( 12 ) ON the other hand, the decisions cited by Mr. Ghosh on behalf of the petitioner are apposite. In Ram Govind Upadhyay vs. Sudarshan Singh (supra) the Supreme Court observed that grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Ghosh on behalf of the petitioner are apposite. In Ram Govind Upadhyay vs. Sudarshan Singh (supra) the Supreme Court observed that grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. In Puran vs. Rambilas (supra) the supreme Court relying upon Gurcharan Singh vs. State (Delhi administration), reported in AIR 1978 SC 179 , observed that it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. Considering the entire facts and circumstances and the manner in which the bail was granted I find that there was arbitrary and wrong exercise of discretion by the learned ACJM, Siliguri in granting bail to the accused O. P. No. 2. As the order granting bail was patently illegal this Court is fully empowered to interfere into the matter and to set aside or cancel the bail granted by the learned Magistrate. Such type of order as has been passed by the learned ACJM, Siliguri would tend to erode the confidence of the society in the rule of law. ( 13 ) IN the light of the discussion made above, I find that there are cogent and sufficient reasons for setting aside the order dated 17. 10. 2006 passed by the learned ACJM, Siliguri in G. R. Case No. 1018 of 2006 arising out of siliguri P. S. Case No. 283 dated 16. 10. 2006 and the said bail order stands cancelled. The bail bonds which were furnished for accused O. P. No. 2 also stands cancelled. ( 14 ) THE accused O. P. No. 2 is directed forthwith to surrender before the learned ACJM, Siliguri and the learned Magistrate thereafter shall remand him to custody. If the accused does not surrender before the learned ACJM, siliguri within five days from this date, the learned Magistrate shall issue appropriate process for apprehension of accused O. P. No. 2 and for his production before him and thereafter to remand him to custody. The application for cancellation of bail being CRM No. 9127 of 2006 is accordingly allowed. If the accused does not surrender before the learned ACJM, siliguri within five days from this date, the learned Magistrate shall issue appropriate process for apprehension of accused O. P. No. 2 and for his production before him and thereafter to remand him to custody. The application for cancellation of bail being CRM No. 9127 of 2006 is accordingly allowed. ( 15 ) LIBERTY is granted to the learned Advocate for the petitioner and the learned Advocate appearing for the State to communicate the gist of the order to the learned ACJM, Siligur. ( 16 ) THE learned Registrar (Administration) is directed to forward a copy of this order by fax to the learned ACJM, Siliguri for information and necessary action. ( 17 ) CRIMINAL Section is directed to forward a copy of this order to the learned ACJM, Siliguri for information and necessary action.