Calcutta High Court Anuradha Khemka Nee Bansal-vs-Sudarshan Kumar Khemka And Anr. on 8 March, 2005
Equivalent citations:2005 (3) CHN 179
Author: A Talukdar
Bench: A Talukdar

JUDGMENT

Amit Talukdar, J.

1. This is an application for cancellation of bail filed under Section 439(2) of the Code of Criminal Procedure (hereinafter referred to as the said Code) by the complainant/petitioner. She feels aggrieved by the interim bail granted to the opposite party No. 1 by the learned Sub-Divisional Judicial Magistrate, Bidhannagar on 21.1.2005 in connection with G. R. Case No. 530 of 2005 arising out of Lake Town Police Station Case No. 320 dated 20.12.2004 under Sections 417, 420, 354, 498A, 406 and 120B of the Indian Penal Code + Sections 3 and 4 the Dowry Prohibition Act.

2. Learned Senior Counsel appearing on behalf of the petitioner submitted that the interim bail granted by the learned Magistrate was passed on a holiday remand on the ground that the health condition of the opposite party No. 1 was not good; but, however, without looking into any medical documents the said order was passed. He further submitted that how could the learned Magistrate determine in the absence of any medical certificate as to the nature of the illness and the very basis of the order found on the ground of illness was vitiated by the error of judgment. Learned Senior Counsel submitted that in stead of acceding to the prayer of interim bail on the very first day the learned Magistrate should have awaited for the learned Public Prosecutor to make his submission. He referred to the order of the Transit Court which did not grant him bail on health ground. As such, how could a fresh cause of action, so far as it health is caused, arise within such a short period ? Learned Senior Counsel submitted that there was absolutely non-application of mind by the learned Magistrate while granting the prayer for bail and the same has to be cancelled.

3. Learned Senior Counsel for the petitioner referred to the decision of the Supreme Court in Puran v. Rambilas and Anr., 2001 SCC (Cri) 1124 : 2001 C Cr. LR (SC) 391 and submitted that the order passed by the learned Magistrate was absolutely on the basis of ignoring the materials and without giving proper reasons which were perverse and contrary to the principles of law and as such, on that ground that bail should be cancelled as the learned Magistrate did not go into the merit but, only on the ground of illness for which there was no document before the Court and exercise of the powers of bail on such premises was a perverse order.

4. Learned Senior Counsel for the opposite party No. 1 supported the order impugned and felt that there was no cause for interference with the same. He submitted that the materials against the opposite party No. 1 did not justify detention. As such he was rightly enlarged on bail; more so when the Investigating Agency did not ask for police remand for this opposite party No. 1 although there was prayer for remand in respect of another accused (Bikash Khemka). Learned Senior Counsel for the opposite party No. 1 submitted that the cancellation was prayed not on merit but on the ground of legal sanctity and it would be an extreme step for the Court to exercise its powers for cancellation after the learned Magistrate has formed an opinion and enlarged said opposite party No. 1 on bail.

5. Learned Senior Counsel for the opposite party No. 1 submitted that it was never a perverse order as the learned Magistrate on the basis of proper application of mind came to its finding. He submitted that actually the petitioner was very ill and was undergoing sustained treatment for a quite a length of time and his health condition would have been seriously affected if he was interned.

6. Learned Senior Counsel for the opposite party No. 1 referred to the decision of Mehboob Dawood Shaikh v. State of Maharashtra, 2004 SCC (Cri) 551 : 2004 C Cr. LR (SC) 441. He submitted that once bail has been granted cancelling the same amounts to take away the liberty and should not generally be resorted to. He next referred to the decisions of State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Ors., 2003(8) SCC 50 :2003 C Cr. LR (SC) 952 and Dolat Ram and Ors. v. State of Haryana, 1995(1) SCC 349 : 1995 C Cr. LR (SC) 124 referring to the said decisions learned Senior Counsel for the opposite party No. 1 submitted that while examining the prayer for cancellation it should have to be taken into account whether the accused is trying to tamper with the evidence after his release on bail; or, whether he is threatening the witnesses and has committed any further offence etc. As all these circumstances are absent in the present case, he saw no interference with the order.

7. Affidavits have been exchanged between the petitioner and the opposite party No. 1.

8. The Case Diary has been produced by the learned Junior Government Advocate. She submits that the opposite party No. 1 was under treatment