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Shabnam Ali vs The State Of West Bengal And … on 28 March, 2017

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28.3.2017

203

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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