- (1.) Being aggrieved with the order dated 27.11.03 and 11.12.03 passed by the learned Sub-Divisional Judicial Magistrate (hereinafter called the SDJM), Barrackpore in connection with East Bidhannagar P. S. Case No. 170 dated 23.11.03 under Section 498A of I. P. C. granting bail to opposite party No. 2 only 3 days after his production, the petitioner, who is the de facto complainant wife and on the basis of her complaint the aforesaid P. S. case was started, has moved this Court by filing an application under Section 439(2) of the Code of Criminal Procedure (hereinafter called the Code) for cancellation of the said bail order. Pursuant to direction to serve copy of the application upon the opposite party the opposite party husband appeared and filed the affidavit in opposition along with annexures against the application for cancellation of bail and the petitioner de facto complainant also filed affidavit in reply.
(2.) Learned senior Advocate appearing for the de facto complainant wife petitioner contended that the opposite party No. 2 husband was produced before thg learned Magistrate on 24.11.03 on the basis of FIR lodged by the petitioner on 23.11.03 under Section 498A of I. P. C. The learned Magistrate by order dated 27.11.03 granted interim bail in the opposite party and by order dated 11.12.03 affirmed the interim bail and also waved condition imposed earlier on the husband to report to Investigating Officer (hereinafter called the I.O.) twice a week. The learned Magistrate in his bail order did not assign any reason for granting bail within three days at the very early stage of investigation. Learned Magistrate was in error by observing that there was only mal-adjustment between the couple which is the root cause of the case. The observation that there was no allegation of dowry demand itself cannot be a ground for granting bail at such early stage of investigation. Both in the FIR and in Section 164 statement under the Code there was vivid description of physical and mental torture. Section 498A of I. P. C. has two parts and the learned Magistrate at the earliest stage of investigation cannot ignore wife's statement of inhuman physical and mental torture on her. Even it appears that the husband questioned paternity of the child born to the couple and this allegation is a serious mental torture on the wife. At the very early stage of investigation the learned Magistrate cannot overlook the physical and mental torture suffered by the wife from her husband. The medical report establishes the fact that she was assaulted by the husband. In spite of all the relevant facts and circumstances granting of bail to the opposite party husband is bad in law. Learned Magistrate failed to apply judicial mind and there was no ground for granting bail. The said bail order being not in accordance with law should be set aside and the bail granted to the husband opposite party should be cancelled.
(3.) Learned senior Advocate appearing for the husband O. P. No. 2 contended that before marriage the petitioner and opposite party were in love with each other and their love ended in marriage. After marriage, the wife petitioner lived in husband's house for 8 years and thereafter all on a sudden at the instance of her father left husband's house when the husband was outside the house. So long the couple lived in their house for 8 years there was no allegation against the husband of drunken condition and after going back to her father's house this allegation has been introduced. The husband is ill and he went to United States for treatment and after treatment he has returned back to India. The allegation that the husband is trying to leave India forever is false and baseless The grounds of cancellation of bail has been described in paragraphs 11,12 and 13 of the application and these are not at all sufficient grounds to cancel the bail. The allegation that the husband made an attempt to kidnap the child from St. Joan School at Salt Lake cannot be a ground for cancellation of bail. The ground that the husband threatened over telephone to withdraw the case also cannot be a ground for cancellation of bail when there is nothing to show that the husband is trying to hamper course of investigation or that would hamper trial. Allegation that the O. P. wants to leave India is baseless. It is true that he went to U. S. A, but, for his treatment and after treatment he has returned back to India and the papers concerning his treatment has been annexed with the affidavit in opposition. The story of not returning of stridhan articles cannot be relied upon as no stridhan articles was given in marriage as the parents of the parties did not attend the marriage. Rejection of bail in non bailable offence and cancellation of bail already granted must be considered and dealt with on different basis. In the instant case there is no ground at all to cancel the bail already granted to opposite party. In support of his contention he placed two decisions namely 1999 Cr LJ 4063 and 1995 SCC (Cr) 237 for consideration of Court.;