JAYA GUPTA NEE JAISWAL Vs. STATE

JUDGEMENT

(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.

(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.