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2010 DIGILAW 1157 (CAL)

Suprakash Basu v. STATE OF WEST BENGAL

2010-09-07

B.BHATTACHARYA, J.N.PATEL

body2010
JUDGMENT 1. WE have heard learned Counsel for the applicant. This application has been made for review/modification of the order dated 6/8/2010. Though notice was given to the public prosecutor, due to Bharat Bandh he could not appear in the matter. Considering the urgency, as insisted upon by the learned Counsel for the applicant, we have taken up this matter and heard the learned Counsel at great length for about 2.30 hours. We may also like to mention that the bail application was also heard at length with the assistance of the learned Counsel, who has also tendered English translation of the vernaculars. This application was mentioned out of list on 3/9/2010 when Ms. Sunita Banerjee, learned Advocate appeared in the matter and sought permission to withdraw the application with liberty to file afresh. 2. MR. Adhikary, learned Counsel pointed out to the Court that correction of certain clerical mistakes would tilt the balance in his favour and entitle him for bail. Therefore, we have recalled the order dated 3.9.2010 and proceeded to hear it. Mr. Adhikary, learned Counsel, wanted to address us on the merits of the matter which we have restricted. We are considering this application under Section 362 of the Criminal Procedure Code in order to correct the clerical mistakes that crept in the order. 3. IT has been pointed out to us that due to incorrect translation probably certain mistakes crept in like in the second last line of the first paragraph the words "in her bedroom" was written instead of "house". Similarly, in the first paragraph of the second page in the last sentence it has been stated "On the same day, at about 2.00 to 2.30 p.m. all the accused quarreled with Debasree and thereafter, she was set ablaze in the bedroom and later came to be confined in the bathroom which was locked from outside". We find that the word "bathroom" should be substituted with the word "house" and the words "which was" to be replaced with "and" and the words "the house" should be inserted after the word "locked". Thus the above sentence would read as "On the same day, at about 2.00 to 2.30 p.m. all the accused quarreled with Debasree and thereafter, she was set ablaze in the house and later came to be confined in the bathroom and locked the house from outside". 4. Thus the above sentence would read as "On the same day, at about 2.00 to 2.30 p.m. all the accused quarreled with Debasree and thereafter, she was set ablaze in the house and later came to be confined in the bathroom and locked the house from outside". 4. IN the following paragraph of page two the sentence which reads "On seeing the smoke, the neighbours entered the house and saw that the door of the bedroom was locked from outside. They questioned the co-accused and husband, Arba of Debasree who then reluctantly opened the door of the bathroom and they saw Debasree in burnt condition" the word "bathroom" will have to be substituted with the word "house" and the words "in the bathroom" should be added at the end of the sentence and the sentence should be read as "On seeing the smoke, the neighbours entered the house and saw that the door of the house was locked from outside. They questioned the co-accused and husband, Arba of Debasree who then reluctantly opened the door of the house and they saw Debasree in burnt condition in the bathroom." Mr. Adhikary specifically pointed out that we have mentioned the word "eye witness" in the last paragraph of page four as well as at page 5. We appreciate the effort of Mr. Adhikary to point out the errors. We direct that the word "eye" is to be deleted and it has to be read as "statement of witnesses" and in the 5th page the word "eye" appearing in the pen ultimate sentence has to be deleted. 5. MR. Adhikary, learned Counsel failed to point out another mistake that has crept in the aforesaid order, is that, the "Dowry Prohibition Act" has been spelt as "Dowry Provision Act". The words "Dowry Provision" shall be replaced by "Dowry Prohibition" wherever it appears in the order. 6. MR. Adhikary took us to various decisions of the High Courts as well as Supreme Court in order to impress upon us on the merit of the matter particularly on the aspect of the application of Sections 3 and 4 of Dowry Prohibition Act. 6. MR. Adhikary took us to various decisions of the High Courts as well as Supreme Court in order to impress upon us on the merit of the matter particularly on the aspect of the application of Sections 3 and 4 of Dowry Prohibition Act. It is submitted by him, as he contended while arguing the bail application, that no offence under Section 304B of the Indian Penal Code is made out as there is no immediate demand of dowry before the victim died or from her parents when she was brought back to the matrimonial home. We refrain from dwelling on the issue as to whether offences under Sections 3 and 4 of Dowry Prohibition Act needs to be deleted from the charge or not. Mr. Adhikary has specifically pleaded that as this Court has made an observation, though prima facie, the trial Court will not consider the application made by the applicant/accused for discharge and particularly; for offences under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act. We find that this apprehension on the part of the learned Counsel appearing for the applicant is misplaced as it is well settled that observations made by the Court while disposing of an application for bail cannot be considered as finding of the Court and that the trial Court while framing charge or conducting the trial should not be influenced by such observation. In so far as the contention of Mr. Adhikary, that this Court by way of review can re-examine the case in order to grant bail cannot be accepted. Therefore, the application for reconsideration of bail is rejected. The application is allowed to the extent of correcting the clerical errors which crept in due to inadvertence as referred to above. Therefore, the order dated 6/8/2010 be corrected accordingly and the certified copy of the order be issued to be parties. Needless to say that the applicants are not precluded from making fresh application for bail on the ground of substantial change in the facts and circumstances of the case.