Back
2003 Supreme(Cal) 474
High Court Of Calcutta
Amit Talukdar, P. N. Sinha
DEEPIKA SAMANTA - Appellant
Versus
STATE - Respondent
C. R. M. 3418 Of 2003
Decided On : 09/12/2003
ARUP CHATTERJEE, DEBASIS ROY, PARUL BANERJI, Piush Chaturvedi, SHYAMAL ROY, Sujata Das, SYED SAMSHER ALI
The High Court has the power to cancel an anticipatory bail order granted by a Coordinate Jurisdiction if the order was obtained improperly or without considering the overwhelming materials against the respondent in the Case Diary.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 438 - ANTICIPATORY BAIL - CANCELLATION - POWER OF HIGH COURT - COORDINATE JURISDICTION.
Fact of the Case:
The petitioner, a distraught daughter-in-law, sought to cancel an anticipatory bail order granted to the respondent, Swapan Ganguly, under section 438 of the Code of Criminal Procedure (CrPC) by the learned Sessions Judge, Alipore. The petitioner alleged that the respondent, though not a member of her in-laws' family, was the principal architect of her miseries and the reason for her jinxed matrimony due to his sinister advice and role. The respondent had obtained the anticipatory bail order on the ground that he was not a member of the in-laws' family and, therefore, could not be booked under section 498A of the Indian Penal Code (IPC).
Finding of the Court:
The High Court found that the learned Sessions Judge had erred in granting anticipatory bail to the respondent without considering the overwhelming materials against him in the Case Diary. The Court held that the respondent, even if not a member of the in-laws' family, could be booked under section 498A of the IPC as an abettor. The Court also found that the learned Sessions Judge had failed to consider the offence under section 406 of the IPC and section 344 of the Dowry Prohibition Act, which were also alleged against the respondent.
Issues: 1. Whether the High Court had the power to cancel the anticipatory bail order granted by the learned Sessions Judge, Alipore, who exercised coordinate jurisdiction with the High Court. 2. Whether the respondent, even if not a member of the in-laws' family, could be booked under section 498A of the IPC as an abettor. 3. Whether the learned Sessions Judge had erred in granting anticipatory bail to the respondent without considering the overwhelming materials against him in the Case Diary.
Ratio Decidendi: 1. The High Court held that it had the power to cancel the anticipatory bail order granted by the learned Sessions Judge, Alipore, as the order was obtained improperly and without considering the overwhelming materials against the respondent in the Case Diary. The Court held that the learned Sessions Judge had committed a legal error by coming to the conclusion that the respondent, not being a member of the in-laws' family, could not be booked under section 498A of the IPC. 2. The Court held that the respondent, even if not a member of the in-laws' family, could be booked under section 498A of the IPC as an abettor. The Court relied on the provisions of sections 109 and 34 of the IPC, which provide that a person who abets the commission of an offence is punishable as if he had committed the offence himself. 3. The Court held that the learned Sessions Judge had erred in granting anticipatory bail to the respondent without considering the overwhelming materials against him in the Case Diary. The Court held that the materials in the Case Diary clearly showed that the respondent was involved in the crime and that there was a strong case against him.
Final Decision: The High Court allowed the petitioner's application and set aside the anticipatory bail order granted to the respondent by the learned Sessions Judge, Alipore. The Court also set aside the order of bail obtained by the respondent before the learned Magistrate and cancelled the bail bond furnished by him.
( 1 ) A distraught daughter-in-law, battered and tortured in the hands of her in-laws, seeks to countermand the order No. 2 dated 24. 7. 2003 passed by the learned Sessions Judge, Alipore in Criminal Misc. Case No. 4728 of 2003 obtained by the respondent (Swapan Ganguly), who although fictionally was not a member of her in-laws' family in the grammatical sense yet was the principal architect of all her miseries and reason of her jinxed matrimony by his sinister advice and role which cast a ominus influence on her in-laws' family.
( 2 ) TAKING out the present application she has sought to cancel the impugned order obtained by the respondent under section 438 of the Code of Criminal procedure (for short, the said Code) from the learned Sessions Judge on the premises that the finding of the learned Sessions Judge that since the petitioner (Swapan Ganguly) being a family friend could not come within the provisions of section 498a of the Indian Penal Code was wholly untenable and the averments made in the First Information Report was sufficient to constitute a case under section 307 of the Indian Penal Code and since the same discloses sufficient materials against the respondent, it was not incumbent upon the learned Sessions Judge to have allowed the prayer of the respondent made under section 438 of the said Code.
( 3 ) SHRI Debasish Roy, learned Counsel representing her being assisted by shri Syed Samsher AH and Shri Shyamal Roy submitted that apart from section 498a of the Indian Penal Code section 406 read with section 120b of the Indian penal Code was incorporated in the complaint lodged by the present petitioner which was treated as the First Information Report giving rise to Beliaghata police Station Case No. 125 dated 21. 6. 2003 under sections 120b, 498a and 406 of the Indian Penal Code and although there were materials in the Case diary the learned Public Prosecutor did not opposed the prayer of the respondent; but, the learned Sessions Judge should have consider the Case diary properly and refused the anticipatory bail of the respondent.
( 4 ) HE further submitted that even if the respondent is not a member of the in-laws' family of the petitioner he could be impleaded under section 498a of the Indian Penal Code as an abettor. He further prayed that the order, in question, obtained by the respondent ought to be set aside since the same was granted by the learned Sessions Judge in improper exercise of its powers; and the materials and the legal position were not taken care of, the order itself became void.
( 5 ) SHRI Arup C. Chatterjee, learned Counsel appearing with Shri Piush Chatrubedi and Smt. Sujata Das opposed Shri Roy's submission. Shri Chatterjee relied on a return denying all the contentions raised by Shri Roy; counter thereof also used by Shri Roy.
( 6 ) SHRI Chatterjee submitted that since the order which has been sought to be set aside, was passed by a Coordinate Jurisdiction - the learned Sessions Judge, Alipore, prayer should be made before the said Forum for cancellation, instead the petitioner has come to this Court for cancelling the said order passed by a Coordinate Jurisdiction which was not proper. He referred to the decision of Harjeet Singh @seeta vs. State of Punjab, 2002 C Cr LR (SC) 165, in support of his aforesaid contention.
( 7 ) NEXT, he submitted that the respondent having obtained an order of regular bail from the Court of the learned Additional Chief Judicial Magistrate, Sealdah after the learned Sessions Judge, Alipore has granted him the anticipatory bail, the order of the learned Sessions Judge cannot be interfered with. He referred to the decision of Quality-Inn-Resort and Travels Put. Ltd. vs. State of West Bengal and Ors. , 2002 (1) CLT 146 (HC), in this context.
( 8 ) HE further submitted that since the respondent was an outsider and not a member of the in-laws' family of the petitioner he could not be covered by the offence of section 498a of the I
