- (1.) BOTH the applications for cancellation of bail under Section 439 (2) of the Code of Criminal Procedure are taken up together since the petitioner herein is the defacto complainant in both the applications and the bail orders which are sought to be cancelled passed in the same criminal prosecution against the opposite parties.
(2.) ON 8.8.2011, one F.I.R. was lodged against the opposite parties under Section 498A/406/506 (II)/34 of the I.P.C. read with Sections 3 / 4 of the Dowry Prohibition Act. The opposite parties surrendered in Court on 16.8.2011 and 17.8.2011. They were taken into custody but granted bail mainly on the ground that the criminal action was initiated three years after the alleged incident. The opposite party Rakesh Kumar Jaiswal was granted bail of Rs.5,000/- with one surety on condition to meet the I.O. of the case once in a week until further orders while the opposite parties, Hari Narayan Jaiswal, Amit Kumar Jaiswal and Sabitri Jaiswal were granted interim bail initially of Rs.1500/- with one surety of like amount which was confirmed on 30.8.2011. The defacto complainant has come up with these applications praying for cancellation of bail so granted to the opposite parties mainly on the ground that the learned Magistrate while granting bail did not consult the case diary and thereby committed gross error and misused the judicial discretion which is not only blameworthy but actionable. Mr. Chatterjee, learned Counsel appearing on behalf of the petitioner/defacto complainant contends that the learned Magistrate ought to have consulted the C.D. while confirming the interim bail on 30.8.2011. This omission of the Court resulting in confirmation of the interim bail encouraged the opposite parties to cause threat to the defacto complainant and take away the stridhan articles excepting the car which could be seized in course of investigation. He submits that in such a situation, while the order of bail is not in consonance with principles of law, it should be cancelled. Mr. Provash Bhattacharyya, learned Counsel appearing on behalf of the opposite parties contends that the criminal action was taken three years after the alleged incident. In course of investigation, only a car could be seized. The learned Magistrate exercised its discretion and there was no laches on the part of the opposite parties for which the liberty given to them has to be curtailed. Mr. Ghosh, learned Counsel appearing on behalf of the opposite party/State of West Bengal in C.R.M.9054 of 2011 contends that there is no reason whatsoever for which the order of bail is to b cancelled.
(3.) SIMILAR contention is made by Mr. De, learned Counsel appearing on behalf of the opposite party/State of West Bengal in C.R.M.8993 of 2011. Perused the orders whereby the bail was granted and confirmed. It is true that the learned Magistrate has made a mistake while confirming the interim bail of the opposite parties, Hari Narayan Jaiswal, Amit Jaiswal and Sabitri Jaiswal without consulting the C.D. But, if the order dated 30..2011 is read as a whole, it would show that there was serious effort on behalf of the learned Magistrate to procure the C.D. It is written clearly that despite orders, C.D. was not placed before it and no explanation was also assigned. Therefore, it cannot be said that the learned Magistrate acted arbitrarily and had no intention to leaf through the case diary before passing the order of confirmation of bail. The learned Magistrate confirmed the bail of the opposite parties on the ground that the husband has already been granted bail. The husband was granted bail on 17.8.2011 on the ground that the F.I.R. was filed long three years after the alleged incident of cruelty and breach of trust. The order so passed by the learned Magistrate cannot be said to be an order not supported by reason. It is a reasoned order and the learned Magistrate found it expedient to exercise its discretion in the matter of granting bail to the opposite parties. It is trite law that the cancellation of bail and rejection of bail are not guided by same principles. While bail is to be rejected, the Court is to say what is the gravity of the offence, severance of punishment, involvement of the accused and evidences procured by the I.O. The cancellation of bail mainly depends on post bail conduct of the accused. Although, in the applications it has been mentioned that the defacto complainant was threatened once by the husband, that fact alone is not sufficient to cancel the bail.;