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IN THE HIGH COURT OF CALCUTTA
DIPANKAR DATTA, DEBI PROSAD DEY, JJ.
Seema Begum - Appellant
Versus
State of West Bengal and Ors. - Respondents
C.R.M. Nos. 3568, 3569 of 2017 and C.R.R. No. 4023 of 2016
Decided On : 22-11-2017
Criminal Procedure Code (Cr.P.C.) - Section 439(2), Section 482; Indian Penal Code (IPC) - Sections 498-A, 313, 406, 506, 34; Dowry Prohibition Act, 1961 - Sections 3, 4 The court analyzed the relevant provisions of the Cr.P.C., IPC, and Dowry Prohibition Act, 1961. The court considered the requirements for cancellation of bail under section 439(2) of the Cr.P.C. The court also referred to the Supreme Court's decision in Rajesh Sharma v. State of U.P. and Anr. and observed that the arrest of the husband and his relatives in cases under section 498A of the IPC should be avoided.
Fact of the Case:
The wife filed an application for cancellation of bail granted to her husband under section 438 of the Cr.P.C. The husband had suppressed material facts in his application and obtained bail. The wife also challenged the bail granted to the in-laws. The ACJM had allowed the in-laws' surrender application to be 'not pressed'. The wife contended that the in-laws should have been taken into custody and their bail application disposed of. The court held that the ACJM had the jurisdiction to reject the 'surrender petition' as 'not pressed' since the in-laws were not taken into custody. The court also found that the husband had obtained bail by making false statements and suppressing the earlier rejection of his bail application. The court cancelled the bail granted to the husband. The court also considered the validity of the affidavit filed by the in-laws and held that it was properly sworn before a notary. The court dismissed the wife's application for cancellation of bail granted to the in-laws. The court referred to the Supreme Court's decision in Rajesh Sharma v. State of U.P. and Anr. and observed that the arrest of the husband and his relatives in cases under section 498A of the IPC should be avoided and efforts should be made for a genuine settlement. The court found no illegality or perversity in the order granting bail to the in-laws. The wife's application for cancellation of bail was allowed, while the application for cancellation of bail granted to the in-laws was rejected.
Finding of the Court:
The court analyzed the facts of the case, the arguments made by the wife, and the relevant provisions of the Cr.P.C. and IPC. The court considered the jurisdiction of the ACJM to reject the 'surrender petition' as 'not pressed' and found no illegality in the ACJM's order. The court also examined the validity of the affidavit filed by the in-laws and held that it was properly sworn before a notary. The court referred to the Supreme Court's decision in Rajesh Sharma v. State of U.P. and Anr. and observed that the arrest of the husband and his relatives in cases under section 498A of the IPC should be avoided. The court found that the husband had obtained bail by making false statements and suppressing the earlier rejection of his bail application. The court cancelled the bail granted to the husband. The court found no illegality or perversity in the order granting bail to the in-laws and dismissed the wife's application for cancellation of their bail.
Ratio Decidendi: The court held that the ACJM had the jurisdiction to reject the 'surrender petition' as 'not pressed' since the in-laws were not taken into custody. The court also held that the affidavit filed by the in-laws was properly sworn before a notary. The court referred to the Supreme Court's decision in Rajesh Sharma v. State of U.P. and Anr. and observed that the arrest of the husband and his relatives in cases under section 498A of the IPC should be avoided. The court found that the husband had obtained bail by making false statements and suppressing the earlier rejection of his bail application. The court cancelled the bail granted to the husband. The court found no illegality or perversity in the order granting bail to the in-laws and dismissed the wife's application for cancellation of their bail.
Result: The court allowed the wife's application for cancellation of bail granted to her husband. The bail granted to the husband was cancelled. The court dismissed the wife's application for cancellation of bail granted to the in-laws. The court referred to the Supreme Court's decision in Rajesh Sharma v. State of U.P. and Anr. and observed that the arrest of the husband and his relatives in cases under section 498A of the IPC should be avoided. The court found no illegality or perversity in the order granting bail to the in-laws and dismissed the wife's application for cancellation of their bail.
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. 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 miscellane
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