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2008 DIGILAW 602 (CAL)

Biswanath Singh v. STATE OF WEST BENGAL

2008-06-20

ASHIM KUMAR ROY

body2008
Judgment :- (1) HEARD Mr. Prabir Mitra, the learned Counsel, appearing with Ms. Ameena Kabir on behalf of the petitioner as well as Mr. Swapan Kumar Mullick, the learned Counsel, appearing on behalf of the State. (2) IN the instant criminal revisional application the petitioner challenged an order, whereby the learned Sessions Judge, Paschim Medinipur, granted Anticipatory Bail to the present petitioner in connection with Kotwali Police Station Case No. 74/08 under Section 498a/323 of the Indian Penal Code, on the limited ground that while granting such Anticipatory Bail, the learned Judge imposed a condition that the petitioner shall pay a sum of Rs. 1,5007- per month as maintenance to his wife, the defacto complainant, till the disposal of the MAT Suit under Seption 9 of the Hindu Marriage Act. (3) MR. Mitra, urged before this Court that the impugned order is wholly illegal and without jurisdiction. According to him, while granting anticipatory bail, a Court has no jurisdiction to impose such a condition of payment of maintenance. He further submitted that on the strength of the order of granting of anticipatory bail, the petitioner has surrendered before the regular Court and has been enlarged on bail on the self-same condition. (4) ON the other hand, Mr. Swapan Kumar Mullick appearing on behalf of the State also shared the same view as that of Mr. Mitra. He submitted, it is not at all permissible under the Code of Criminal Procedure to impose such a condition by a Court while granting anticipatory bail to any accused person. (5) I have given my anxious and thoughtful consideration to the submissions made at the Bar. A Court while granting anticipatory bail is always empowered to impose a condition as delineated in sub-section (2) of Section 438 of the Code of Criminal Procedure. A plain reading of the aforesaid provisions makes it abundantly clear the whole object behind the imposition of such. condition is to ensure that an accused must not misuse the liberty of Anticipatory Bail and to exclude the possibilities of hampering or affecting investigation and interference with the due process of law. It is always open to a Court either to grant or refuse the Anticipatory Bail but the Court is not empowered, while exercising its jurisdiction under Section 438 of the Code to record a finding as to the guilt or innocence of an accused or to determine his liability. It is always open to a Court either to grant or refuse the Anticipatory Bail but the Court is not empowered, while exercising its jurisdiction under Section 438 of the Code to record a finding as to the guilt or innocence of an accused or to determine his liability. In the instant case, the Court while granting Anticipatory Bail to the petitioner directed him to pay a monthly maintenance to the defacto-complainant/wife. The question of liability of the husband to pay maintenance to his wife is a matter to be determined by a competent Court in an appropriate proceeding under Section 125 of the Code of Criminal Procedure and a Court while granting Anticipatory Bail to the accused husband must not overstep its jurisdiction by making a direction for payment of maintenance, when the subject of maintenance is covered by the expressed provisions of the Code. The order for payment of maintenance as a condition of Anticipatory Bail is wholly unwarranted and illegal. (6) IN the case of Shyam Singh v. State through CBI, reported in (2006)2 SCC (Cr) 613, the Apex Court held it is of course open to a Court to grant or refuse bail, but to assume that an offence has been committed even at the stage of granting bail and to direct repayment of any amount is both onerous and unwarranted when the liability of the accused was yet to be determined in an appropriate proceeding. (7) SIMILARLY, in the case of Mahesh Chandra v. State of U. P. and Ors. , reported in (2006)3 SCC (Cr) 23, the Apex Court held as follows : "as a condition for grant of anticipatory bail, the High Court has recorded the undertaking of the petitioners to pay to the victim daughter-in-law a sum of Rs. 2000 per month and failure to do so would result in vacation of the order granting bail. We notice that the applicants before the High Court were the jeth and jethani of the victim. We fail to understand how they can be made liable to deposit Rs. 2000 per month for the maintenance of the victim. Moreover, while deciding a bail application, it is not the jurisdiction of the Court to decide civil disputes as between the parties. We fail to understand how they can be made liable to deposit Rs. 2000 per month for the maintenance of the victim. Moreover, while deciding a bail application, it is not the jurisdiction of the Court to decide civil disputes as between the parties. We, therefore, remit the matter to the High Court to consider the bail application afresh on merit and to pass an appropriate order without imposing any condition of the nature imposed by the impugned order. " (8) MOREOVER, it is a settled law that an order of anticipatory bail must always be for a limited duration and the question of bail must be left with the discretion of the regular Court who is to deal with the matter upon appreciation evidence placed before it. An order of Anticipatory Bail and the conditions subject to which such an order has been made comes to end as soon as the accused surrenders before the regular Court and is taken into custody. Thus, a Court granting Anticipatory Bail to an accused cannot direct the regular Court to release him on bail. However, in the instant case,. the learned Sessions Judge while allowing the petitioners prayer for anticipatory bail passed a mandatory order for granting bail by the regular Court amongst other on condition of payment of maintenance, such order being contrary to the law cannot be sustained. (9) I further found the learned Judge in the impugned order directed that in the event the petitioner fails to pay the maintenance, his bail shall stand cancelled. Since imposition of condition of payment of maintenance has not been contemplated in the relevant provisions for granting anticipatory bail the question of cancellation of bail for non-fulfilment of such a condition being wholly alien to the grounds for cancellation of bail, is not at all called for. (10) IN the case of Biman Chatterjee v. Sanchita Chatterjee and Anr, reported in 2004 SCC (Cr) 814 : 2004 C Cr LR (SC) 459, the Apex Court held that non-fulfilment of the terms of compromise cannot be the basis of cancelling a. bail the grant of bail under the Criminal Procedure is governed by the provisions of Chapter XXXIII of the Code and the provisions therein does not contemplated either grant of a bail on the basis of an assurance of compromise or cancellation of a bail for violation of the terms of such compromise. The Apex Court further held that having granted bail under the provisions of the Code it is not open to the trial Court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provisions of law. (11) ACCORDINGLY, the impugned order of granting anticipatory bail on the face of it being illegal and without jurisdiction the same is set aside. The matter is remanded back to the learned Sessions Judge, Medinipur and he is directed to dispose of the petitioners application for anticipatory bail afresh strictly in accordance with law and after giving necessary opportunity of hearing to the parties. The learned Judge is directed to dispose of such application within a period of fortnight from the date of communication of this order. (12) I make it clear that I have not gone into the merit of the case and it would be open to the learned Court below to consider the petitioners prayer for bail upon appreciation of the evidentiary materials placed before it. (13) THIS criminal revisional application is thus stands disposed of. The Criminal Section is directed to supply the urgent Xerox certified copy of this order, if applied for, on usual undertaking forthwith.