Ashim Kumar Roy, J. - (1.) 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 this 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 accused, 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 v. Rambilas & Anr. reported in, 2001 SCC (Cri) 1124, (b) Dinesh M.N. (S.P.) v. State of Gujarat, reported in, (2008) 2 SCC 508, (c) Lokesh Singh v. State of U.P. & Anr., reported in, 2009 Cri LJ 369, (d) Kumari Suman Pandey v. State of U.P. & Anr., reported in : (2008) 1 SCC (Cri) 394, (e) Deepak Singchi v. 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 v. 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. v. State of Haryana, reported in, 1995 SCC (Cri) 237, (b) Mehboob Dawood Shaikh v. State of Maharashtra, reported in, 2004 SCC (Cri) 551, (c) Ashok Kumar v. 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 without considering the Case Diary. According to him the impugned order of bail is to be cancelled for the simple reason, the same was granted without taking into consideration the Case Diary and merely on the concession shown by the Counsel of the State.;