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2009 DIGILAW 587 (CAL)

Rupali Mondal v. STATE OF WEST BENGAL

2009-08-05

ASHIM KUMAR ROY

body2009
Judgment :- (1) Heard Mr. Saibal Bapuli appearing with Mr. Suranjan Mondal, the Learned Counsel appearing for the petitioner, Mr. Rabi Sankar Chatterjee with Mr. Uday Sankar Chatterjee, the Learned Counsel appearing for the opposite party nos. 2 to 6 as well as Mr. Aloke Roy Chowdhury, the Learned Counsel appearing for the State. Perused the Case Diary produced by Mr. Roy Chowdhury. (2) The background facts of this case in a nutshell are as follows; The accused opposite party nos. 2 to 6 apprehending arrest in connection with Berhampore Police Station Case No. 256 of 2006 under Section 498A of the Indian Penal Code moved the Learned Sessions Judge, Murshidabad, for anticipatory bail. The Learned Sessions Judge, Murshidabad, by his order dated June 30, 2006, allowed the petitioners prayer for anticipatory bail on the ground that a talk of compromise was going on between the parties and pursuant to that, it was agreed that the couple will file a divorce suit in Lok Adalat for dissolution of that marriage and a sum of Rs. 2,00,000/- (Rupees two lakhs) be paid to the defacto-complainant and all the jewelleries be returned to her. Following the said order on 18.7.2006 the accuseds/opposite parties surrendered before the Learned Chief Judicial Magistrate, Berhampore and were released on regular bail. (3) Now, this application for cancellation of bail has been moved at the instance of the defacto-complainant on the ground that after being enlarged on anticipatory bail and then on regular bail, the accused persons have not taken any step for filing divorce suit and also did not pay Rs. 2,00,000/-(Rupees two lakhs) as compensation as well as has not returned the gold ornaments. Mr. Bapuli vehemently urged since the undertaking on which the anticipatory bail was granted was not finally fulfilled by the accused persons and they have violated the condition, their bail must be cancelled. On the other hand, Mr. Rabi Sankar Chatterjee, Learned Counsel for the accused/opposite parties, vehemently urged that no bail can be cancelled on the ground of failure to keep the undertaking. He relied on a decision of the Honble Supreme Court in the case of Biman Chatterjee Vs. Sanchita Chatterjee and Anr., reported in 2004 SCC (Cri) 814. On the other hand, Mr. Rabi Sankar Chatterjee, Learned Counsel for the accused/opposite parties, vehemently urged that no bail can be cancelled on the ground of failure to keep the undertaking. He relied on a decision of the Honble Supreme Court in the case of Biman Chatterjee Vs. Sanchita Chatterjee and Anr., reported in 2004 SCC (Cri) 814. On the other hand, Mr. Aloke Roy Chowdhury, Learned Counsel for the State, submitted in view of the decision relied upon by the Learned Counsel of the accuseds/opposite parties there is no scope to cancel the bail. (4) Now, having considered the rival submission of the parties, I am unable to uphold the contention of Mr. Bapuli. It is true that in the original order of granting anticipatory bail there is a reference about a talk of compromise going on between the parties and in terms of such compromise, the accused/husband shall pay a sum of Rs. 2,00,000/-(Rupees two lakhs) to the wife/opposite party as well as return her ornaments, thus, at that time only a negotiation was going on for compromise between the parties. There is nothing on record that the parties have come to any settlement, therefore the question of fulfilling of the terms of settlement or violation thereof does not at all arise. Before this Honble Court the petitioner could not produce anything to show that there was any terms of settlement in writing. In any event, even when bail was granted on the ground that a negotiation for compromise was going on between the parties, if such negotiation does not materialize may be due to the reason of the accused person that cannot be the ground of cancellation of bail. The provisions of Chapter XXXIII of the Code of Criminal Procedure does not contemplate either granting of bail on assurance of compromise or cancellation of bail when such compromise fails. In this connection the learned advocate of the accused/opposite party very rightly relied on the decision of the Honble Apex Court in the case of Biman Chatterjee Vs. Sanchita Chatterjee and Anr. (supra). This application has no merit and, accordingly, stands dismissed. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.