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Judgment
Madhumati Mitra, J
This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure 1973 filed by the petitioners challenging the order no.11, dated 30.11.2018 passed by the Learned Sessions Judge, South 24 Parganas at Alipore in Criminal Miscellaneous Case No.3607 of 2018 arising out of Bhowanipore Police Station Case No.128, dated 31.03.2018 corresponding to G.R.Case No.1352 of 2018 pending before the Learned Chief Judicial Magistrate, Alipore. By the impugned order Learned Sessions Judge cancelled the bail granted to the petitioners and directed the Learned Chief Judicial Magistrate, Alipore to issue non-bailable warrant of arrest against the petitioners.
In order to appreciate the stand taken by the parties, it is necessary to take note of the factual position. On 30.05.2018, the petitioners were granted interim bail of Rs.2,000/- with two sureties of Rs.1,000/- each with two registered sureties of like amount on condition to return all the stridhan properties to the de facto complainant within 15 days from the date of the order of the Learned Chief Judicial Magistrate, Alipore. On 14.06.2018, the petitioners prayed for relaxation of the conditions of bail.
In the meantime, the de facto complainant filed an application under Section 439(2) of the Code of Criminal Procedure before the Learned Sessions Judge, South 24 Parganas, at Alipore by preferring criminal Misc.Case No.3607 of 2018 praying for cancellation of interim bail granted to the petitioners by the Learned Magistrate on the ground that the petitioners did not comply with the condition of the order of interim bail.
Learned Sessions Judge on 30.11.2018 has cancelled the order of interim bail granted to the petitioners on the grounds that they violated the condition of bail by avoiding the return of stridhan articles to the de facto complainant and they attempted to evade the course of justice.
The order of cancellation of interim bail of the petitioners is under challenge.
Learned Counsel for the petitioners has submitted that the ground for cancellation of bail is that the stridhan articles have not been returned by the petitioners in terms of the order passed by the Learned Magistrate. Learned Counsel has invited the attention of the Court to the order of interim bail dated 30.05.2018, passed by the Learned Magistrate and the undertaking dated
30.05.2018 given by the accused before the Magistrate. He has contended that the petitioners agreed to co-operate with the Investigating Officer for the purpose of recovery of stridhan articles available in their house and they never undertook to return stridhan articles. Moreover, the application for relaxation of the conditions for bail is still pending before the Learned Magistrate and the order of cancellation of bail passed by the Learned Sessions Judge on the ground that stridhan articles have not been returned by the accused/petitioners in terms of the order is not justified.
On the other hand, the Learned Counsel for the opposite party has submitted that in the instant case, the petitioners obtained bail from the Learned Magistrate by giving an undertaking and after obtaining bail, they willfully violated that undertaking. He has further submitted that the said condition to return the stridhan articles was imposed on the basis of the undertaking of the petitioners and the petitioners were obliged to fulfill that undertaking given before the Learned Magistrate.
The de facto complainant moved before the Learned Session Judge for cancellation of bail on the ground that petitioners had violated the undertaking given before the Learned Magistrate at the time of obtaining bail.
Before proceeding further, it is necessary to have a look on the alleged undertaking. On 30.05.2018, the petitioners gave an undertaking that they would co-operate with the Investigating Officer for the purpose of recovery of stridhan articles available in the house of the accused.
From the order passed by the Learned Magistrate, it appeared that there was a condition to return all the stridhan articles within 15 days from the date of the order dated 30.05.2018. On 07.06.2018, the petitioners approached for modification of the condition regarding return of stridhan articles. In their application, the petitioners have stated that they do not have any stridhan articles in their possession. From the impugned order, it appears that the de facto complainant had received some of her stridhan articles from the accused persons on 02.08.2017 and she had received such articles in part in connection with Matrimonial Suit No.55 of 2016. Within the period of 15 days from the date of the interim of order of bail, the petitioners approached before the Learned Magistrate for modification of the condition of bail as no stridhan was available in their residence. The alleged undertaking as it appeared on a plain reading was regarding co-operation with the Investigating Officer, regarding recovery of stridhan articles available in their residence. It cannot be said that the accused undertook to return the stridhan articles. Moreover, the accused disputed the possession of stridhan articles. It is a matter of investigation. Cancellation of bail on the ground that the accused failed to return the stridhan articles within the stipulated time cannot be said to be justified.
Rejection of bail when bail is applied for is one thing and cancellation of bail is another. Cancellation involves the review of a decision already made. In the instant case, the non-compliance of the condition of bail is a disputed fact. Accordingly, the revisional application is allowed.
The impugned order passed by the Learned Sessions Judge is hereby set aside.
Let copies of this order be sent to the Learned Sessions Judge and Learned Magistrate immediately.
Learned Magistrate is directed to dispose of all the applications filed by the petitioners in connection with interim bail dated 30.05.2018 and to dispose of the application for regular bail as early as possible preferably within a period of three months from the date of communication of this order.
Urgent Photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.