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2017 DIGILAW 906 (CAL)

Seema Begum v. State of West Bengal

2017-11-22

DEBI PROSAD DEY, DIPANKAR DATTA

body2017
JUDGMENT : Debi Prosad Dey, J. 1. CRM 3569 of 2017 is an application under section 439(2) read with section 482 of the Code of Criminal Procedure (hereafter the Cr.P.C.) in respect of Tiljala Police Station F.I.R. No. 241 dated 21st July, 2016 under sections 498-A/313/406/506/34 of the Indian Penal Code (hereafter the IPC) read with sections 3 and 4 of the Dowry Prohibition Act, 1961 (hereafter the DP Act) for cancellation of order No. 2 dated 10th November, 2016 in Criminal Misc. Case No. 8101 of 2016 passed by the learned Sessions Judge, South 24 Parganas at Alipore (hereafter the sessions judge) whereby and whereunder the husband of the de facto complainant/petitioner, the opposite party No. 2 (hereafter the husband) was granted bail under section 438 of the Cr.P.C. The de facto complainant/petitioner (hereafter the wife) has filed this application under section 439(2) of the Cr.P.C. on the ground that the husband suppressed material facts in his application under section 438 of the Cr.P.C. and in fact the order impugned was passed by the sessions judge on the second application of the husband. The husband had moved an application being Criminal Misc. Case No. 7114 of 2016 before the vacation bench of the sessions judge under section 438 of the Cr.P.C. but surprisingly on 21st October, 2016 "not pressed" the said application and the same was, accordingly, rejected. He once again filed an application before the sessions judge under section 438 of the Cr.P.C. suppressing such material fact, which was ultimately allowed on 10th November, 2016. 2. It is, therefore, submitted that the order passed by the sessions judge in favour of the husband under section 438 of the Cr.P.C. ought to be cancelled on the ground that the sessions judge did not consider that he had obtained such order suppressing material facts and that the sessions judge also did not consider the materials collected during investigation. Learned advocate further contended that the order passed by the sessions judge is perverse per se and only on that ground, such order ought to be cancelled. 3. Learned advocate further contended that the order passed by the sessions judge is perverse per se and only on that ground, such order ought to be cancelled. 3. The other specific grievance of the wife is that, apart from the investigation being conducted in a questionable manner by the investigating officer, the family members of the husband (hereafter the in-laws) also surrendered themselves before the learned Additional Chief Judicial Magistrate, Alipore (hereafter the ACJM) on 26th September, 2016 for obtaining bail under section 437 of the Cr.P.C. but the said surrender application was "not pressed" on the self-same day and the ACJM illegally allowed it to be "not pressed". 4. Learned advocate appearing on behalf of the petitioner contended that once the in-laws surrendered before the ACJM, in that event, they should have been taken in custody and thereafter the bail application under section 437 of the Cr.P.C. could have been disposed of. It is further submitted that the ACJM had no jurisdiction to allow the in-laws to "not press" the application and the said order of the ACJM is not only contrary to the provision of law but also illegal. 5. On the self-same ground, the petitioner has also filed another application being CRM 3568 of 2017 for cancellation of order No. 2 dated 19th October, 2016 passed by the sessions judge in Criminal Misc Case No. 7108 of 2016 granting anticipatory bail in favour of the in-laws of the wife. 6. The petitioner also appears to have challenged the order dated 26th September, 2016 passed by the ACJM in the criminal revisional jurisdiction (CRR 4023 of 2016). A learned single Judge of this Court in seisin of such application on being apprised on 3rd May, 2017 that an application for cancellation of bail had been filed by the petitioner, released CRR 4023 of 2016 for being heard with CRM 3568-69 of 2017 and directed its placement before the Hon'ble the Acting Chief Justice for appropriate order. Pursuant thereto, CRR 4023 of 2016 was assigned to us for disposal along with the aforesaid criminal miscellaneous applications. 7. Learned advocate appearing on behalf of the petitioner contended that the in-laws were taken into custody by the ACJM and accordingly, it was incumbent upon such magistrate to dispose of the bail application. Pursuant thereto, CRR 4023 of 2016 was assigned to us for disposal along with the aforesaid criminal miscellaneous applications. 7. Learned advocate appearing on behalf of the petitioner contended that the in-laws were taken into custody by the ACJM and accordingly, it was incumbent upon such magistrate to dispose of the bail application. In support of his contention, he has referred to a decision reported in (1980) 2 SCC 559 (Niranjan Singh v. Prabhakar Rajaram Kharote and Ors). 8. The Apex Court defined the term "custody" to the effect that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody of that Court or of that officer. In a different context, the Apex Court while describing the jurisdiction of a Sessions Judge under section 439 of the Cr.P.C. defined the meaning of the word "custody" in the aforesaid decision. In the context of section 439 of the Cr.P.C., custody has been explained by the Apex Court as the physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court. 9. Learned advocate appearing on behalf of the State fairly contended that the in-laws were never taken into custody by the ACJM and at the outset, the application for surrender was "not pressed" at the behest of the in-laws. In view thereof, there was absolutely no illegality on the part of the ACJM to reject the said application of the in-laws as "not pressed", as prayed for. 10. We have heard the parties and perused the orders impugned together with the materials on record. 11. Section 437 of the Cr.P.C. contemplates that the bail application of a person who is brought before the Court under arrest or who has appeared before the Court can only be considered by the learned Court. The sine qua non for consideration of the application for bail under section 437 of the Cr.P.C. is that the person must be in custody or the person must have been taken into custody by the court concerned. 12. In the case under reference, as it transpires from the order impugned, the ACJM did not take the in-laws in custody; a "surrender and bail petition" was filed and the "surrender petition" was "not pressed" by the learned advocate for the in-laws. 12. In the case under reference, as it transpires from the order impugned, the ACJM did not take the in-laws in custody; a "surrender and bail petition" was filed and the "surrender petition" was "not pressed" by the learned advocate for the in-laws. The ACJM had no occasion to take them in custody so as to consider their prayer for bail under section 437 of the Cr.P.C. The in-laws were at liberty to "not press" the "surrender petition" for very many reasons and since they were not taken in custody by the ACJM, it was within the jurisdiction of the ACJM to reject the "surrender petition" by not considering the application for bail of the in-laws. Therefore, the decision in Niranjan Singh (supra) is not applicable in the context of the given facts and circumstances since the in-laws never submitted to the jurisdiction of the Court for entertaining their bail application under section 437 of the Cr.P.C.; on the contrary, the application for surrender before being considered by the ACJM was "not pressed" by the learned advocate and the same was accordingly rejected as "not pressed". 13. In that view of the matter, we do not find any illegality in the order passed by the ACJM whereby the application was "not pressed" by the learned advocate for the in-laws. The criminal revisional application (CRR 4023 of 2016) being devoid of merit is, thus, dismissed. 14. However, it appears from the separate counter affidavits of the in-laws and the husband that they did not disclose in their respective applications for pre-arrest bail before the sessions judge the facts that the "surrender petition" was not pressed before the ACJM and that the first application for pre-arrest bail of the husband was dismissed on the ground of absence of his learned advocate. Suppression of material facts has, thus, been urged as the major ground for cancellation of bail granted in favour of the husband and the in-laws. 15. We shall take up CRM 3569 of 2017 for decision prior to CRM 3568 of 2017. The first application for pre-arrest bail of the husband was moved before the sessions judge-in-charge on 27th September, 2016 when the case diary was called for and it was fixed for hearing on 21st October, 2016. 15. We shall take up CRM 3569 of 2017 for decision prior to CRM 3568 of 2017. The first application for pre-arrest bail of the husband was moved before the sessions judge-in-charge on 27th September, 2016 when the case diary was called for and it was fixed for hearing on 21st October, 2016. On that day, the investigating officer was present before the vacation judge but on the prayer of the husband hearing was adjourned till 2nd November, 2016. Admittedly, the first application stood rejected for nonappearance of the husband's advocate on 2nd November, 2016. Immediately on the following day, the second application for pre-arrest bail was filed. The first sentence of such application is that the husband had neither moved the High Court nor the Sessions Court for similar relief. It is, therefore, clear that the husband had approached the sessions judge-in-charge with unclean hands by making a false statement on oath and was successful in obtaining the order for pre-arrest bail. Irrespective of the fact that the first application was not decided on merits, the husband ought to have disclosed the fate thereof. The pleading in the counter affidavit that non-disclosure of the earlier rejection is inconsequential, has not impressed us. Owing to suppression of such rejection, we hold that the husband is not entitled to retain the benefit of the order dated 10th November, 2016 passed by the sessions judge. 16. CRM 3569 of 2017 stands allowed with the result that the order dated 10th November, 2016 shall be of no effect and the bail granted in favour of the husband stands cancelled. 17. It is now time to consider CRM 3568 of 2017. 18. Learned advocate for the wife drew our attention to the application under section 438 of the Cr.P.C. filed by the in-laws to show that the affidavit was sworn in by one of them before a notary and that it had been affirmed on behalf of all other applicants. He submitted that the affidavit was not properly sworn and the sessions judge not having considered the said matter, it resulted in miscarriage of justice. It is further submitted by him that the affidavit in support of the application under section 438 of the Cr.P.C. ought to have been sworn in terms of the Oaths Act before an officer of the Court and could not have been affirmed before a notary. It is further submitted by him that the affidavit in support of the application under section 438 of the Cr.P.C. ought to have been sworn in terms of the Oaths Act before an officer of the Court and could not have been affirmed before a notary. Reference was made to a decision reported in (1998)1 Cal LT 74 (In the matter of Bonneswar Dutta and Others). A Division Bench of this Court held that a tadbirkar or an agent cannot affirm an affidavit in support of an application for anticipatory bail and in each and every case the applicant has to affirm it either before the oath commissioner of this Court or before any learned magistrate who is competent to administer an oath and in case of genuine difficulty the same could be affirmed by an agent duly authorized by the applicant in accordance with law as provided in the Civil Procedure Code. 19. Affidavit has been defined in sub-clause 3 of section 3 of the General Clauses Act, 1897 as follows: "Affirmation and declaration in the case of person by law allowed to affirm or declare instead of swearing". 20. Section 297 of the Cr.P.C. clearly provides the authorities before whom affidavits may be sworn and may be used before any Court exercising jurisdiction under the Cr.P.C. It is apparent from section 297 that an affidavit may be sworn before a notary appointed under the Notaries Act, 1952. On scrutiny of the application under section 438 of the Cr.P.C, filed by the in-laws, it is evident that the affidavit was sworn before a notary appointed under the Notaries Act and accordingly, we do not find any illegality in using such affidavit in the court of sessions judge. 21. The decision in Bonneswar Dutta (supra) did not deal with section 297 of the Cr.P.C. and accordingly, we are of the considered view that the affidavit was properly sworn in by the opposite party No. 2 for himself and on behalf of the other opposite parties, who are near relatives of the opposite party No. 2. 22. Moreover, it may be mentioned that section 139(aa) of the Code of Civil Procedure also authorises any notary appointed under the Notaries Act to administer oath to the deponent. 22. Moreover, it may be mentioned that section 139(aa) of the Code of Civil Procedure also authorises any notary appointed under the Notaries Act to administer oath to the deponent. In that view of the matter, it may safely be said that the mandate of law has been duly complied with by the opposite party No. 2. 23. The decision reported in 1984 (Supp) SCC 571 (M. Veerabhadra Rao v. Tek Chand) relates to the professional misconduct of an advocate. The Apex Court while deciding the punishment and professional misconduct of an advocate has explained the meaning of affidavit in terms of the General Clauses Act, 1897. The aforesaid decision is also not applicable in the context of the given facts and circumstances of this case. 24. The specific allegation of the wife is that her husband and the in-laws are responsible in forcible termination of her pregnancy and, therefore, they should be prosecuted under section 313 of the Indian Penal Code, and the sessions judge did not consider such fact while allowing the application for bail under section 438 of the Cr.P.C. of the in-laws. 25. During investigation the investigating officer examined the doctor who terminated the pregnancy of the petitioner. According to the doctor, it was a case of "missed abortion" and the doctor could not say as to what was the cause of such miscarriage. It appears from the materials on record that on an earlier occasion, the petitioner had the history of miscarriage at least twice and the doctor has specifically stated that due to some defect in the foetus the pregnancy of the petitioner was terminated and that the petitioner was admitted with features of incomplete abortion. The doctor also did not find any mark of injury on the person of the petitioner and the petitioner also did not complain to the doctor about any such assault on her person either by the opposite party No. 2 or by any other person. 26. Having regard thereto, we do not find any illegality in the order of the sessions judge allowing the application under section 438 of the Cr.P.C. in favour of the in-laws. 27. Learned Advocate for the wife has only contended with regard to the perversity of the order passed by the sessions judge but did not submit with regard to any post bail conduct of the in-laws. 28. 27. Learned Advocate for the wife has only contended with regard to the perversity of the order passed by the sessions judge but did not submit with regard to any post bail conduct of the in-laws. 28. On careful consideration of the materials on record as well as the order passed by the sessions judge, we find that all the materials collected during the investigation were duly considered and thereafter a definite finding was arrived at that custodial interrogation of the in-laws was not required at the material point of time. Therefore in any view of the matter, we are not in a position to say that the order passed by the sessions judge is perverse per se. 29. Nothing has been agitated before us that the in-laws have interfered with the cause of investigation or that they have ever attempted to tamper with evidence or witnesses or that they threatened the witnesses or indulged in similar activities which would hamper the smooth investigation or that they had tried to flee away beyond the reach of the investigating agency or that they have in any way tried to disrupt the course of investigation. 30. Learned advocate for the petitioner has also referred the following decisions: 1. Gurucharan Singh v. State (1978)1 SCC 118 . 2. Puran v. Rambilas & Anr. (2001)6 SCC 338 . 3. Narendra K. Amin (Dr) v. State of Gujarat (2008)13 SCC 584 . 4. Subodh Kumar Yadav v. State of Bihar & Anr. (2009)14 SCC 638 . 5. Neeru Yadav v. State of Uttar Pradesh & Anr. (2014)16 SCC 508 . 31. On careful consideration of the aforesaid decisions, it may safely be stated that the principle of law enunciated by the Apex Court therein has no application in the context of the given facts and circumstances of the case under reference. 32. The offence under section 498A/406/506/34 of the Indian Penal Code read with sections 3 and 4 of the Dowry Prohibition Act, 1961 has recently been dealt with by the Supreme Court in its decision reported in 2017 (8) Scale 313 (Rajesh Sharma and Ors. 32. The offence under section 498A/406/506/34 of the Indian Penal Code read with sections 3 and 4 of the Dowry Prohibition Act, 1961 has recently been dealt with by the Supreme Court in its decision reported in 2017 (8) Scale 313 (Rajesh Sharma and Ors. v. State of U.P. and Anr.) The Supreme Court has specifically observed therein that instead of arrest of the husband and his relatives in such cases, it would be necessary to involve the civil society in the aid of administration of justice and even closure of the cases/proceedings where a genuine settlement has been reached was permitted. That goes to show that the Supreme Court has also not approved the arrest of the husband and his relatives in a case under section 498A of the Indian Penal Code. 33. On consideration thereof, we also do not find any illegality or perversity in the order passed by the sessions judge. Accordingly, CRM 3568 of 2017 stands rejected for the aforesaid reasons. CRR 4023 of 2016 is also dismissed. CRM 3569 of 2017, however, stands allowed. Let a Photostat copy of this order, duly countersigned by the Assistant Court Officer, be kept with the file of CRM 3569 of 2017 and CRR 4023 of 2016 for future reference. No order as to costs. Urgent Photostat copy of this order be supplied to the parties, if applied for, upon compliance with all requisite formalities. Dipankar Datta, J. I agree.