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2010 DIGILAW 174 (CAL)

Anandadas v. STATE OF WEST BENGAL

2010-02-19

AMIT TALUKDAR, RAGHUNATH RAY

body2010
JUDGMENT 1. NON application of mind followed by popular prejudice, has resulted in the Order No. 3 dated 29/06/2009 before the learned Sessions Judge, Paschim Medinipur in Criminal Misc. Case No. 943 of 2009. As a fall out thereof, the Petitioner was refused an Order under Section 438 Cr.P.C. on the ground ".....if bail is granted under Section 438 Cr.P.C. to the husband that will give bad signal to the society", whereas the other In Laws were given the same relief as ".......they are in-laws........." 2. A plain reading of the Case Diary manifestly demonstrates that the bundle of allegations contained therein, are absolutely pari passu in nature, both against the present petitioner as well as the Parents-in-Law of the Deceased. In fact, the tenor of the allegations are so intertwined against all the petitioners, it passes beyond our comprehension as to how the case of the petitioner can be sifted from the others - simply, because he was a husband. It is unfortunate that the learned Sessions Judge suffers from the mindset that admitting the prayer of her husband in respect of Section 438, Cr.P.C. "will give bad signal to the society" even though while rejecting his prayer on the selfsame allegations, he allows it in respect of the in-laws. 3. THIS is not a correct approach. 4. AS a Court, it is the evidence and the materials that matter and not the repercussion that the Order may have. Learned Sessions Judge has abdicated his Judicial function and have been swayed away with societal sentiments. It is not apposite. 5. BEFORE him, neither there is any husband nor there is any in law. What it is, is a petitioner, who succeeds in the absence of any material. Conversely, he loses, if here are materials indicating his involvement. 6. SORTING out the marital status of a claimant for Justice, would not be Just Justice and it is high time that one sheds this attitude. As we have formed an opinion on the basis of our appreciation of the materials in the Case Diary, the present petitioner is similarly situated with the other persons, whose prayer under Section 438, Cr.P.C. has been entertained before the learned Sessions Judge we feel, on the ground of parity, his prayer cannot be distinguished. 7. IN hindsight, we would also like to harp on one issue. 7. IN hindsight, we would also like to harp on one issue. Had we found that there were materials singularly pointing against the petitioner, we would not have abided by the Order passed in favour of the other accused persons. 8. BUT the wholesome impact of the allegations which we have found, in our opinion, it would be appropriate to admit the petitioner with an Order under Section 438 of the Code of Criminal Procedure. Accordingly, we direct that in the event of arrest, the petitioner would be admitted on Bail upon furnishing sufficient sureties on the following conditions that; (i) The petitioner shall make himself available for interrogation by the investigating agency as and when required; (ii) No direct or indirect threat or any inducement would be made to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer. 9. THIS Order will remain operative for a period of four weeks. Within such time in the event he submits to the jurisdiction of the regular Court, the later will take a decision on the basis of the materials available on that date without being guided by the disposal of this application. Application allowed. 10. BEFORE parting, we would put on record that we are unable to see eye to eye with the penultimate finding of the learned Sessions Judge, Paschim Medinipur "..........in the circumstances in the event of arrest accused petitioners No.2 and 3 being the parents in-law, may find a bail of Rs. 3,000/- each with two sureties of Rs. 1,500/- each out of whom one must be the de facto complainant, subject to the usual conditions as laid down u/s. 438(2), Cr.P.C and on a further condition to surrender before the Id, C.J.M., Midnapore Sadar within 15 days from the date of this order." Not only the same militates against the ratio of the decision of the Supreme Court in Naresh Kr. Yadav v. Ravindra Kumar, (2008)1 SCC (Cr) 277 but the conditions with regard to the sureties and directions to surrender are inconsistent with the scheme of this section. 11. APPLICATION accordingly disposed of. 12. RETURN the Case Diary.