1 28.3.2017
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Disposed of
md.
CRM No. 5897 of 2016
In Re:- An application for cancellation of anticipatory bail under
Section 439 (2) of the Code of Criminal Procedure, 1973.
And
In the matter of:-
Shabnam Ali
-Vs-
The State of West Bengal and Another
Mr. Deep Chaim Kabir,
Mr. Ali Ahsan Alamgir,
Ms. Jonaki Saha
..for the Petitioner
Mr. Tirthankar Ghosh,
Mr. Shatadru Lahiri
.. for the Opposite Party No.2
Mrs. Debjani Sahu
.. for the State
By this application, the de facto complainant seeks to cancel
the anticipatory bail granted to the opposite party no.2 by order
dated 21st June, 2016. By the said order, the opposite party no.2
was granted anticipatory bail and while granting such anticipatory
bail, besides the condition imposed under Section 438 (2) Cr.P.C.,
a further condition was imposed. By the said condition, the
petitioner was to meet the I.O. and hand over the stridhan articles
within a week from date.
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It was submitted by counsel for the de facto complainant that
on 29th June, 2016, the opposite party no.2 and some of his
relatives visited the parental house of the de facto complainant
and assaulted her. A G.D. Entry was also filed on that date and
subsequently on 15th July, 2016, a complaint was filed and
registered. Immediately thereafter, on 25th July, 2016, this
application for cancellation was filed. The application, for the first
time, appeared on 4th August, 2016, when none appeared. It was
only thereafter on 20th August, 2016, that the opposite party no.2
got bail as per the order dated 21st June, 2016. From the track
record of India Post, it will appear that the application for
cancellation was served on the opposite party no.2 on 27th July,
2016. Therefore, it is only after knowledge of cancellation
application filed that the opposite party no.2 surrendered and got
bail. The post-bail conduct and the otherwise conduct of the
opposite party no.2 ought to be considered, as by a further
condition, the opposite party no.2 was to return the stridhan
within a week. On 26th June, 2016, the I.O. seized certain articles,
but these are not the stridhan listed at page-80 of the application.
The post-bail conduct of the opposite party no.2 be also
considered. The visit of the opposite party no.2 to the parental
house of the de facto complainant on 29th June, 2016, resulted in
Sonarpur Police Station Case No.1670 of 2016 under Sections
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448/325/506 (II)/195A of the Indian Penal Code. Prior thereto, a
General Diary had also been filed. Incorrect statement has been
made in the opposition filed by the opposite party no.2. One of the
points urged in the opposition by the opposite party no.2 is that
while cancellation of the order granting anticipatory bail is sought,
cancellation of the order granting bail has not been sought. The
post-bail conduct and violation of the further condition imposed on
the opposite party no.2 for grant of anticipatory bail, calls for
cancellation of the bail granted pursuant to order dated 21st June,
2016.
Counsel for the opposite party no.2 submits that no
undertaking was given by the opposite party no.2 to Court on 21st
June, 2016. Stridhan has been returned on 26th June, 2016. Even
prior to the grant of anticipatory bail, the opposite party no.2 had
applied before the Delhi High Court for restitution of conjugal
right. In fact, in February, 2015, a complaint under Section 498A
I.P.C. was filed in Delhi which subsequently was withdrawn in
May, 2015 and in July, 2015, Sonarpur Police Station Case
No.1218 of 2015 was filed. In the said proceeding for restitution of
conjugal right, 21st July, 2016 was fixed for framing of issues. If
the bail granted pursuant to order dated 21st June, 2016 is
cancelled and the only reason for cancellation being the further
condition imposed, will amount to review of the said order.
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Reliance is placed on (2010) 1 SCC (Cri.) 1199. The further
condition is not a part of the conditions imposed under Section
438 (2) Cr.P.C. and in the event is unreasonable, will be impossible
to comply and if not possible to comply, then it can be said that
the order was obtained by fraud and cannot also be reviewed.
‘Stridhan’ to be returned has not been defined. Therefore, it was
not known to the opposite party no.2 as to what articles had to be
returned.
As regards the post-bail conduct, the allegations made in
Sonarpur P.S. Case No.1670 of 2016 dated 15.07.2016, does not
constitute post-bail conduct, as it involves two other persons and
the veracity of the allegations made in the complaint is
questionable. On 30th August, 2016, there was no allegation of
any incident on 29th June, 2016. The opposite party no.2 stands
on the same footing as three other accused persons, and no overt
act can be alleged to them. In fact, a document has been annexed
at page-101 of the opposition wherefrom it will appear that
between 28th June, 2016 till 31st July, 2016 the opposite party
no.2 was at his workplace. From the seizure list dated 26th June,
2016, it will be apparent that articles, which formed a part of the
stridhan had been returned.
Counsel for the State produces the Case Diary and report
dated 28th March, 2017.
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Having considered the submission of the parties, the de facto
complainant seeks cancellation of the bail granted to the opposite
party no.2 pursuant to order dated 21st June, 2016. By the said
order, while granting anticipatory bail to the opposite party no.2,
the condition under Section 438 (2) Cr.P.C. was made applicable.
Besides the said condition, further condition was imposed which
reads as follows :
” further condition that the petitioner shall meet the Investigating
Officer and hand over the ‘stridhan articles’ to the Investigating
Officer within one week from date.”
This condition was imposed despite the submission made by
the opposite party no.2 on 21st June, 2016 that the de facto
complainant had taken all stridhan articles at the time of leaving
her matrimonial home and the only reason for doing so, was that
in the complaint filed under Section 156 (3) Cr.P.C., the de facto
complainant had stated that her jewellery was lying in the locker
of the mother of the opposite party no.2, details of such locker had
also been given.
It now transpires that under the garb of returning stridhan
seizure was made on 26th June, 2016 and on a reading of the
seizure list of such date, the articles returned were not of any
substance but were – mugs, shoes, suit cases, pant pieces and
clothings. This, to what extent, would constitute ‘stridhan’, is
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questionable. The word, ‘stridhan’, would mean, valuables of the
lady and to say that buckets, shoes, suitcases would constitute
valuables of the lady, would be to encourage a wrong, as the said
articles would hardly be of any value. Therefore, while passing the
order dated 21st June, 2016, and directing the opposite party no.2
to meet the I.O. and hand over the stridhan articles to him what
was meant was that articles of substance and value be handed by
the opposite party no.2 to the I.O., but in the instant case, the
said is lacking. Besides the articles seized and handed on 26th
June, 2016, no further articles have been handed by the opposite
party no.2 or seized by the I.O. and this is in violation of the
condition imposed.
Post-bail conduct is another ground pursued by the de facto
complainant but a report dated 28th March, 2017 has been filed by
A.S.I. Sonarpur P.S. and this report does not support the case of
post-bail conduct. Certain documents have also been handed to
Court by the I.O. received from the workplace of the Opposite
party no.2, which also does not support the case of post-bail
conduct. Therefore, the ground of post-bail conduct does not come
to the aid of the de facto complainant.
As noted above, there has been violation of the further
condition imposed. The said further condition imposed has not
been challenged by the opposite party no.2. In fact the said
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condition was accepted and acting on the said order, the opposite
party no.2 on 20th August, 2016 surrendered. At the time of
granting bail pursuant to order dated 21st July, 2016, the court
below also did not consider whether there has been compliance
with the further condition and by compliance, substantial
compliance is meant.
It is true that no undertaking was given but to have accepted
an order and having acted on it, the opposite party no.2 was
under an obligation to fulfil the further condition in true term and
spirit which, in the instant case, is found, has not been done.
Therefore, the anticipatory bail granted to the opposite party
no.2 stands cancelled.
While cancelling bail, no further condition can be imposed nor
can the I.O. be directed to conduct investigation in a particular
manner. To conduct investigation is in the sole domain of the I.O.
and no interference of Court is warranted.
(2010) 1 SCC (Cri.) 1199 will not aid the opposite party no.2,
as the same is distinguishable on facts.
Similarly, (2009) 4 SCC 45 is a case of maintenance and will
not come to the aid of the opposite party no.2.
In view of the aforesaid, this application is disposed of.
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Certified copy of this order, if applied for, be given to the
parties on priority basis upon compliance of all formalities.
(Patherya,J.)
(Debi Prosad Dey,J.)
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