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2009 Supreme(Cal) 404
High Court of Judicature at Calcutta
ASHIM KUMAR ROY
Mrs. Sonia Bhattacharjee
Versus
The State of West Bengal & Others
CRM NO. 5010 OF 2009
Decided On : 22-05-2009
Mr. Swapan Kumar Mallick, Mr. Shiladitya Sanyal, Mr. Suman Decided on :, Mr. Sumanta Gupta, Mr. Navanil Decided on :, Mr. Joyishnu Basu, Mr. Dipten Konal, Mr. Sirsendu Sinha Roy For State Mr. Asimes Goswami Mr. Prabir Mitra Mr. Debobrata Roy For O.P. Nos. 2 & 3 : Mr. Sudipta Moitra, Mr. Rajdeep Majumdar, Mr. Abhro Mukherjee For O.P. No. 4 : Mr. Joy Sengupta, Mr. Angshuman Chakraborty … for O.P. No. 4.
In considering an application for cancellation of bail, the court must examine the nature of the accusations, the severity of punishment in case of conviction, the nature of supporting evidence, reasonable apprehension of tampering with witnesses or threat to the complainant, and prima facie satisfaction of the court in support of the charge.
Headnote:
BAIL - SECTION 439(2) OF THE CODE OF CRIMINAL PROCEDURE - CANCELLATION OF BAIL - GROUNDS - NON-CONSIDERATION OF CASE DIARY - IRRELEVANT CONSIDERATION - LACK OF REASONS - SERIOUSNESS OF OFFENCE - SECTION 498A/406 OF THE INDIAN PENAL CODE - OFFENCES PUNISHABLE WITH IMPRISONMENT UP TO THREE YEARS - NO CRIMINAL ANTECEDENTS - NO ATTEMPT TO POLLUTE THE COURSE OF JUSTICE - BAIL GRANTED WITHOUT CONSIDERING CASE DIARY - CANCELLATION OF BAIL NOT WARRANTED.
Fact of the Case:
The petitioner, the defacto-complainant, sought the cancellation of the bail granted to the accused/opposite parties in a case under Sections 498A/406 of the Indian Penal Code, alleging that the bail was granted without considering the Case Diary and on the concession shown by the Learned Chief Public Prosecutor.
Finding of the Court:
The court found that the approach of the Learned Magistrate in granting bail without considering the Case Diary on the concession shown by the Learned Chief Public Prosecutor was clearly erroneous and improper. However, the court also found that the allegations against the accused/opposite parties were not serious in nature and that they had no criminal antecedents. The court further noted that the accused/opposite parties had been on bail for a considerable period and there was no allegation that they had made any attempt to pollute the course of justice.
Issues: 1. Whether the order granting bail was passed without considering the Case Diary and on the concession shown by the Learned Chief Public Prosecutor? 2. Whether the bail granted to the accused/opposite parties should be cancelled?
Ratio Decidendi: 1. The court held that the order granting bail was indeed passed without considering the Case Diary and on the concession shown by the Learned Chief Public Prosecutor. 2. The court held that, despite the infirmities in the order granting bail, it would not be appropriate to interfere with the same and cancel the bail of the accused/opposite parties, considering the nature of the offences, the lack of criminal antecedents, and the absence of any attempt to pollute the course of justice.
Final Decision: The court dismissed the application seeking cancellation of bail.
Against an order passed by the Learned Chief Judicial Magistrate, Alipore granting bail to the accused/opposite party nos. 2, 3 and 4 in connection with Bhowanipur Police Station Case No. 91, dated April 6, 2009 under Sections 498A/406 of the Indian Penal Code, the defacto-complainant moved this application seeking annulment of the said order and for cancellation of their bail.
2. Mr. Swapan Kumar Mallick, the learned Counsel appearing on behalf of the petitioner at the very outset submitted that although this application has been moved invoking Section 439 (2) of the Code of Criminal Procedure, nevertheless, cancellation of bail is not sought for on the mere ground of misuse of liberty by the accuseds, but on the ground the very order of granting bail is not in accordance with law. He further submitted that on April 4, 2009, the FIR of the case was recorded against the accused/opposite party nos. 2 to 4 and others and on the self-same day the said accused/opposite parties surrendered before the Learned Additional Chief Judicial Magistrate, Alipore and prayed for bail, and the Learned Magistrate without considering the Case Diary and on the concession shown by the Learned Chief Public Prosecutor allowed their prayer for bail, although there was specific allegations against them. He further submitted no reason has been assigned for granting bail and according to him when there is specific allegation against the accused/opposite parties it was not at all justified for the Learned Court below to allow their prayer for bail on the very first day of their surrender in Court without considering the Case Diary. Mr. Mallick in support of his submissions relied on the following decisions of the Apex Court; (a) Puran Vs. Rambilas & Anr., reported in 2001 SCC (Cri) 1124, (b) Dinesh M.N. (S.P.) Vs. State of Gujarat, reported in (2008) 2 SCC (Cri) 508, (c) Lokesh Singh Vs. State of U.P. & Anr., reported in 2009 Cri. L. J. 369, (d) Kumari Suman Pandey Vs. State of U.P. & Anr., reported in (2008) 1 SCC (Cri) 394, (e) Deepak Singchi Vs. State of Rajasthan & Anr., reported in (2009) 1 SCC (Cri) 904. Mr. Mallick also relied on a decision of this Hon’ble Court in the case of Pankaj Lall Roy Vs. State of West Bengal & Anr., reported in 2001 (1) CHN 239.
On the other hand, Mr. Sudipto Moitra, the learned Counsel appearing on behalf of the accused/opposite party no. 2 and 3 strongly repudiated the submissions of Mr. Mallick and submitted that the order of granting bail is wholly justified and no interference is called for. He further submitted that the aforesaid FIR was lodged by the petitioner nearly four months after she was allegedly driven out from her matrimonial home and that too after receipt of the summon of the divorce suit instituted by her husband. Mr. Moitra submitted that all the members of the family of her husband have been implicated in this case by making false allegations. Mr. Moitra vehemently urged since there is no iota of allegations that after being released on bail the accused/opposite parties have misused their liberty the question of cancellation of bail does not at all arise. In support of his submission Mr. Moitra relied on the following decisions;
(a) Dolat Ram & Ors. Vs. State of Haryana, reported in 1995 SCC (Cri) 237, (b) Mehboob Dawood Shaikh Vs. State of Maharashtra, reported in 2004 SCC (Cri) 551, (c) Ashok Kumar Vs. State of U.P. & Anr., reported in JT 2009 (2) SC 211.
3. Initially in this matter Mr. Prabir Mitra, advocate was appearing on behalf of the State and subsequently as Mr. Mitra was not attending Court due to some personal reasons, Mr. Asimes Goswami, the Learned Public Prosecutor with Mr. Debobrata Roy, advocate appeared and finally argued this matter. According to the Learned Public Prosecutor the order impugned is absolutely illegal and ought to be set aside. Mr. Goswami contended no Court should allow the prayer for bail of any accused on the very first day of his surrender in Court withou
