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2013 DIGILAW 314 (CAL)

Satyendra Nath Bose v. STATE OF WEST BENGAL

2013-06-03

JAYANTA KUMAR BISWAS, SUBAL BAIDYA

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Judgment : 1. The petitioner in this CRM under s.439(2) CrPC dated February 27, 2012 is seeking the following relief:- “In the circumstances stated above, it is most humbly prayed that Your Lordships may graciously be pleased to cancel the bail of the Opposite Party No.2 under Section 439 (2) of the Code of Criminal Procedure, 1973 and/or to pass such further or other order or orders as to Your Lordships may deem fit and proper.” On the basis of a complaint of the petitioner that the second opposite party committed offences under ss.408/420/ 467/468/471 IPC, the Additional Chief Judicial Magistrate, Alipore passed an order dated April 21, 2011 directing the officer in charge of Thakurpukur police station to register an FIR. Accordingly, an FIR No.256 dated May 27, 2011 was registered. The second opposite party apprehending arrest filed an application under s.438 CrPC before the Sessions Judge, South 24-Parganas on January 16, 2012. Hearing of the application was fixed for February 6, 2012, when advocate for the second opposite party prayed for adjournment, which was allowed and hearing of the application was fixed for February 16, 2012. On February 14, 2012 the second opposite party filed an application before the Chief Judicial Magistrate, Alipore for bail. In paras.2 and 3 of the application he stated as follows:- “2. That no bail u/s 438 Cr.P.C. has been rejected nor has been filed by the ld. Advocate. 3. That the present petitioner hereby suffered detention for long 55 days in connection with the same complainant arising out of same case of action vide Bidhanagar PS. 183/09 which is still under investigation.” By an order dated February 14, 2012 the Chief Judicial Magistrate granted the second opposite party bail. The Chief Judicial Magistrate recorded as follows:- “Accd. Is taken into custody. Ld.lawyer for the accd.moved the bail petition. Ld.APP opposed. It is mention in bail petition. No petition u/s 438 Cr.P.C. has rejected or filed before heigher forum. It is found from the Xerox copy of certified copy of order sheet that the accd. person on CB.ld. ACJM Court of Bidhannagar 24 Parganas (N) that S. Bidhannagar PS Case No.183/09. The accd. person are in custody for a period of about 2 months and thereafter he was enlarged on bail.” On February 15, 2012 the second opposite party filed an application before the Sessions Judge in connection with his s.438 application. person on CB.ld. ACJM Court of Bidhannagar 24 Parganas (N) that S. Bidhannagar PS Case No.183/09. The accd. person are in custody for a period of about 2 months and thereafter he was enlarged on bail.” On February 15, 2012 the second opposite party filed an application before the Sessions Judge in connection with his s.438 application. Paragraphs 1 and 2 of the application are quoted below:- “1.That your petitioner is not inclined to proceed with the instant application and so has given the instruction to his Ld. Advocate for getting this application rejected as “not passed.” 2.That in view of above your petitioner begs to “not passed” the instant application with the permission of the Ld. Court.” Considering the second opposite party’s application filed on February 15, 2012 the Sessions Judge passed an order dated February 15, 2012, which is quoted below:- “The record is put up by petition, Learned Advocate for the petitioner does not intend to press the petition u/s 438 Cr.P.C. Accordingly, the petition is rejected being not pressed.” The certified copy of the order of the Chief Judicial Magistrate dated February 14, 2012 produced with the CRM reveals that the petitioner obtained it on February 17, 2012. The CRM was filed on February 27, 2012. The specific case of the petitioner is that the second opposite party obtained the bail making false statement that he had not applied for anticipatory bail under s.438 CrPC. Advocate for the petitioner has submitted that in view of the false statement, the bail should be cancelled. Advocate for the State has submitted that the bail obtained by making a false statement is liable to be cancelled. Advocate for the second opposite party has submitted that it is incorrect to say that a false statement was made, because it was only a mis-statement. He has said that considering the small mistake and the period that has elapsed from the date the order granting bail was passed, this Court should not cancel the bail. We are unable to accept that the statement made in the application dated February 14, 2012 was a small mistake. The statement read with the second opposite party’s application filed before the Sessions Judge on February 15, 2012 lead to a conclusion that he deliberately made a false statement in the application for bail. We are unable to accept that the statement made in the application dated February 14, 2012 was a small mistake. The statement read with the second opposite party’s application filed before the Sessions Judge on February 15, 2012 lead to a conclusion that he deliberately made a false statement in the application for bail. As noted hereinbefore, the Chief Judicial Magistrate specifically noted the second opposite party’s case stated in his application dated February 14, 2012 that he had not filed any application for anticipatory bail. This was a significant fundament of the order granting the second opposite party bail. There is no doubt that the second opposite party obtained the bail by making a false statement before the court of law. The question is whether the bail was obtained making a false statement. We have already found that the application on the basis whereof the bail was granted contained a false statement. Hence the question whether there were good grounds to grant bail is irrelevant. Even if there were good grounds, the application for bail was to be rejected; for it contained a false statement. It is of no consequence that the second opposite party has been enjoying the benefit of the order granting him bail for more than a year. The petitioner on whose complaint the FIR was lodged took immediate steps for cancellation of the bail obtained by making a false statement. In our opinion, the second opposite party consciously committing the wrong cannot be permitted to enjoy the benefit of the wrong. For these reasons, we allow the CRM, set aside the order of the Chief Judicial Magistrate dated February 14, 2012, cancel the bail granted to the second opposite party, direct that he shall be arrested and commit him to jail custody. Nothing herein shall prevent the second opposite party from moving fresh bail application that, if filed, shall be decided by the court concerned on its merits.