- (1.) THE petitioner in this CRM under s.439(2) CrPC dated February 27, 2012 is seeking the following relief:- "In the circumstances stated above, it is most humbly prayed that Your Lordships may graciously be pleased to cancel the bail of the Opposite Party No.2 under Section 439 (2) of the Code of Criminal Procedure, 1973 and/or to pass such further or other order or orders as to Your Lordships may deem fit and proper." On the basis of a complaint of the petitioner that the second opposite party committed offences under ss.408/420/ 467/468/471 IPC, the Additional Chief Judicial Magistrate, Alipore passed an order dated April 21, 2011 directing the officer in charge of Thakurpukur police station to register an FIR. Accordingly, an FIR No.256 dated May 27, 2011 was registered.
(2.) THE second opposite party apprehending arrest filed an application under s.438 CrPC before the Sessions Judge, South 24-Parganas on January 16, 2012. Hearing of the application was fixed for February 6, 2012, when advocate for the second opposite party prayed for adjournment, which was allowed and hearing of the application was fixed for February 16, 2012. On February 14, 2012 the second opposite party filed an application before the Chief Judicial Magistrate, Alipore for bail. In paras.2 and 3 of the application he stated as follows:- "2.That no bail u/s 438 Cr.P.C. has been rejected nor has been filed by the ld.Advocate. 3.That the present petitioner hereby suffered detention for long 55 days in connection with the same complainant arising out of same case of action vide Bidhanagar PS. 183/09 which is still under investigation." By an order dated February 14, 2012 the Chief Judicial Magistrate granted the second opposite party bail. The Chief Judicial Magistrate recorded as follows:- "Accd. Is taken into custody. Ld.lawyer for the accd.moved the bail petition. Ld.APP opposed. It is mention in bail petition. No petition u/s 438 Cr.P.C. has rejected or filed before heigher forum. It is found from the xerox copy of certified copy of order sheet that the accd. person on CB.ld. ACJM Court of Bidhannagar 24 Parganas (N) that S. Bidhannagar PS Case No.183/09. The accd. person are in custody for a period of about 2 months and thereafter he was enlarged on bail."
(3.) ON February 15, 2012 the second opposite party filed an application before the Sessions Judge in connection with his s.438 application. Paragraphs 1 and 2 of the application are quoted below:- "1.That your petitioner is not inclined to proceed with the instant application and so has given the instruction to his Ld. Advocate for getting this application rejected as "not passed." 2.That in view of above your petitioner begs to "not passed" the instant application with the permission of the Ld. Court." ;