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2009 DIGILAW 195 (CAL)

Priyam Dutta v. STATE OF WEST BENGAL

2009-03-06

PARTHA SAKHA DATTA

body2009
Judgment : PARTHA SAKHA DATTA, J. (1) The present petitioner filed an application under Section 156(3) of the Cr.P.C. against the opposite party no. 2, her husband and other in-laws alleging offences under Section 498A/406/34 IPC. (2) Just after her marriage with the opposite party no.2 which took place on 20th June, 2007 the said opposite party no. 2 and other in-laws would insult the and would torture upon her in various ways which included denial of food and clothing. An attempt was made to solve the problem at the intervention of the petitioners father and elder brother but in vain. The accused persons would abuse her and her father and on 16th of July, 2007 she was ousted from the matrimonial home by the opposite party no. 2 and the members of his house. All the stirdhan properties have been detained by the accused persons in the matrimonial home of the petitioner. She had been to the matrimonial home with her father and her elder brother on 4th of August, 2007 but the entry was denied. She lodged a complaint with the Tangra Police Station but no action was taken. She was subjected to mental torture. She also filed an application before the learned Magistrate at Alipore under Section 125 Cr.P.C. (3) This petition under Section 156(3) Cr.P.c. was sent to the O.C. Tangra P.S. who registered Tangra P.S. Case No. 95 dated 16th of July, 2008 against all the in-laws including the present petitioner-husband under Section 498A/406/34 IPC. On 31st of August, 2008 some stridhan properties were recovered and seized from the house of the opposite party no. 2 but allegedly majority of the ornaments are yet to be recovered. (4) Except the husband who is the opposite party no. 2, other members of the matrimonial home appeared before the learned Magistrate on 17th of July, 2008 and were granted bail. On 25th of September, 2008 the opposite party no. 2husband appeared before the learned Magistrate and prayed for bail. On that day the I.O. prayed for police custody of the opposite party no. 2 for the purpose Learned A.C.J.M., Sealdah observed in the order dated 25th of September, 2008 that since the opposite party no. 2 has a permanent residence and other accused persons are on bail the said opposite party no. On that day the I.O. prayed for police custody of the opposite party no. 2 for the purpose Learned A.C.J.M., Sealdah observed in the order dated 25th of September, 2008 that since the opposite party no. 2 has a permanent residence and other accused persons are on bail the said opposite party no. 2 could be granted interim bail and accordingly by the order dated 25th of September, 2008 interim bail was granted to the opposite party no. 2. and the prayer for police custody of the opposite party no. 2 was refused. (5) The learned Magistrate called for the C.D. and fixed 9th of October, 2008 for appearance of the accused- opposite party no. 2. On 17th of October, 2008 the defacto complainant wife filed the instant application under Section 439(2) Cr.P.C. praying for cancellation of bail. It has been submitted by Mr. Ranjit Roy, learned advocate appearing for the petitioner that on the very day when the petitioner appeared before the learned Court the learned Magistrate in unusual fashion granted interim bail which became detrimental to the investigation of the case and recovery of the rest of the stridhan articles. It has been submitted further that when the I.O. prayed for police custody of the accused opposite party no. 2 on the day when the opposite party no. 2 appeared before the learned Magistrate the learned Magistrate should not have rejected the prayer for bail at least so as to facilitate the I.O. to interrogate the accused for the purpose of investigation of the case and for recovery of the stridhan articles. The observation of the learned A.C.J.M. that the allegations were mechanical and general in nature can be taken exception to because the allegations, prima facie constitute an offence under Section 498A of no. 2 threatened and assaulted the petitioner mercilessly and in view of post bail conduct of the opposite party no. 2 justice demands that the interim bail granted in favour of the opposite party no. 2 should be cancelled under Section 439(2) of the Cr.P.C. Mr. Manjit Singh, learned counsel appearing for the opposite party no. 2 submitted in reply that it is only the post bail conduct of the opposite party no. 2 justice demands that the interim bail granted in favour of the opposite party no. 2 should be cancelled under Section 439(2) of the Cr.P.C. Mr. Manjit Singh, learned counsel appearing for the opposite party no. 2 submitted in reply that it is only the post bail conduct of the opposite party no. 2 that can alone be taken into consideration while considering an application under Section 439 (2) of the Cr.P.C. and while adjudicating an application under that Section this court is not called upon to consider and examine whether bail was rightly granted or not because the learned Magistrate has exercised its jurisdiction under Section 437 Cr.P.C. and in consideration of the fact that the petition of complaint lacked events and incidents and it presented a generalized allegation which the learned Magistrate did not miss to note and rightly granted interim bail to the opposite party no. 2. It has further been submitted by Mr. Singh that it would have been unwise on the part of the learned Magistrate if in a case under Section 498A IPC police remand was allowed; and it cannot be argued that the investigation suffered a lot or would suffer more by keeping the opposite party no. 2 on bail. It is argued that investigation will in no way be hampered by enlarging the petitioner on bail. (6) Mr. Sanat Chowdhury, learned advocate appearing for the State of West Bengal produced the C.D and submitted that no new development did transpire calling for cancellation of bail. that grant of bail and cancellation thereto are diametrical opposite propositions and they are not governed by one and the same guidelines. It is the conduct of the accused at the post bail stage that has to be taken into consideration while dealing with an application for cancellation of bail. (7) My attention has been drawn in this connection to a Division Bench decision of this court in Srikanta Datta vs. State of West Bengal and Ors., (2008) 2 C Cr LR (Cal) 563. where the principles governing cancellation of bail have been reiterated. From the said decision it appears that there was allegedly threatening of the petitioner by the accused and their Lordships of the Division Bench held that threatening the petitioner in one occasion is not sufficient ground for cancellation of bail. Why the learned Magistrate granted interim bail to the opposite party no. From the said decision it appears that there was allegedly threatening of the petitioner by the accused and their Lordships of the Division Bench held that threatening the petitioner in one occasion is not sufficient ground for cancellation of bail. Why the learned Magistrate granted interim bail to the opposite party no. 2 on 25th of September, 2008 does not call for reexamination here because the learned Magistrate assigned two reasons for grant of bail, first of which is that the allegations were generalized in nature and was mechanical. In fact, the facts alleged in the petition 156(3) Cr.P.C. were simply that just after marriage she was subjected to mental torture on the ground that the articles presented in the marriage were not of standard quality and that on a certain day she was driven out. The second ground behind grant of bail was that other co-accused persons were on bail. Unless it could be shown in this petition under Section 439 (2) Cr.P.C. that subsequent to the grant of bail the opposite party misused his liberty, or tampered with investigation, or did anything to threaten or gain over the witnesses, or to threaten the complainant or that he committed any certain act which was contrary to the condition of bail then bail could have been cancelled. Bail once granted by exercise of judicial discretion by the Magistrate should not be cancelled unless the order is manifestly perverse. At para 13 of the petition for cancellation of bail it has been alleged that after grant of bail the opposite party no. 2 threatened and assaulted the petitioner mercilessly. Learned counsel for the petitioner drew my attention to a copy of the complaint addressed to the O.C. Tangra P.S. and the learned Public Prosecutor produced the C.D. which shows that such complaint was enquired into by one S.I. of Police under the order of the O.C. but the allegation could not be substantiated. The C.D. disclosed that on this allegation a good number of people were interrogated but the allegation could not appear to have been prima facie substantiated. (8) In the circumstance, it is not deemed proper that the interim bail granted earlier should stand cancelled. (9) Application is dismissed. (10) A copy of this judgment shall be sent to the Additional Chief Judicial Magistrate, Sealdah, 24-Parganas (South) for information and necessary action.