Calcutta High Court (Appellete Side)
Sri Subhadip Pal vs State Of West Bengal And Others on 13 May, 2016
Author: Patherya
Bench: Patherya
1 Sl No. 639 13.05.2016
C.R.M. 3175 of 2016 partly allowed pk In Re: An application for cancellation of bail In the matter of: Sri Subhadip Pal Versus State of West Bengal and others Mrs. Anusuya Sinha, Ms. A. Dey ... For the Petitioner Mr. Madhusudan Sur, Mr. Rudradipta Nandy ... For the State Mr. Abhijit Roy, Ms. Sadhana Roy ... for the opposite party nos. 2 and 3.
By this application the petitioner seeks to cancel the anticipatory bail granted to the opposite party nos. 2 and 3 by order dated 28.3.2016 in Criminal Misc. Case No. 184 of 2016. The de facto complainant is the husband while the opposite party no. 2 is the wife of the de facto complainant and the opposite party no. 3 is the cousin of opposite party no. 2. The complaint filed by the petitioner/de facto complainant is against the opposite party nos. 2 and 3 is under Sections 406/114 IPC. Section 406 IPC postulates criminal breach of trust. The de facto complainant is the husband while the opposite party no. 2 is his wife and a bond of trust exists between the two. This trust, which exists between the husband and the wife, has been breached by the opposite party no. 2 when she left her matrimonial home in 2013 by not only taking with her jewellery, some of which was ancestral, from her matrimonial to her paternal home but also taking with her personal diaries, five in number of the de facto complainant. Therefore criminal breach of trust was evident and also apparent from the materials in the case diary. While considering grant of anticipatory bail, the court below ought to have considered the said materials in the case diary and then either rejected the application or granted the application but without 2 considering the said materials in the case diary the court below granted anticipatory bail in favour of the opposite party nos. 2 and 3.
Counsel for the opposite party nos. 2 and 3 submits that the only reason for the diaries being taken by the wife was to produce them before the family court while dealing with the issue under Section 125 Cr. P. C. The relevant portion of the diaries has been exhibited in the court below. The said diaries can be taken from the court below by the de facto complainant. There is no criminal breach of trust as the diaries were not trusted to the opposite party no. 2 and it is only to prove the case under Section 125 that the same was taken so also to prove torture. The opposite party no. 2 is ready and willing to return the said diaries but as regards the jewellery she is not in possession of such jewellery.
Counsel for the State submits that the court below has not considered the material on record which was a part of the case diary and the grant of anticipatory bail to the opposite party nos. 2 and 3 was not warranted. Therefore, the anticipatory bail granted be cancelled.
Having considered the submissions of the parties and on scrutiny of the case diary so also on a reading of the order dated 28.3.2016 it appears that the court below has interpreted the term 'entrustment' in a very narrow sense. In a relationship between a husband and wife each of them trusts each other. If no element of trust exists between a husband and wife, there will be no bonding between them and it is this trust, which according to the de facto complainant's complaint, has been breached by the opposite party no. 2. One of the breach alleged is that the ancestral jewellery given to the opposite party no. 2, because she happened to be the wife of the son, was taken away and therefore breach committed. At page 17 a list of jewellery some of which taken away by the opposite party no. 2 finds mention. At this stage it is not possible for us to determine whether the jewelleries have been taken away by the opposite party no. 2 or not. It is an exercise which must be worked out by the I.O but as regards the diaries which definitely were kept by the de facto complainant in his home which happens to be matrimonial home of the opposite party no. 2, with the expectation that the same would remain in the safe custody of the opposite party 3 no. 2 but the opposite party no. 2 on the contrary when she left the matrimonial home in 2013 also walked away with the said diaries of the de facto complainant and this would never come to light unless the IO had seized them but in proceedings filed under Section 125 Cr. P. C. the said personal diaries of the de facto complainant has been produced by the opposite party no. 2 herself. These diaries and its extracts or contents would be of no relevance to proceedings under Section 125 Cr. P. C. At this stage evidence of criminal breach of trust exists between the husband and the wife. It will not be out of place to mention that this is not an ordinary case between two friends or between employer - employee or a commercial transaction of which breach is alleged, but it is breach of trust reposed by one's spouse in another and if this trust did not exist, the institution of marriage would have collapsed. In the order dated 28.3.2016 the court below has mentioned the existence of the diaries and also them being exhibited before the family court. It has also been recorded that the question of diaries cannot be denied. Therefore, in the light of the said fact so also the complaint filed under Section 406 to grant anticipatory bail to the opposite party no.2 was totally unjustified and being unjustified, the anticipatory bail granted to the opposite party no. 2 calls for interference and needs to be cancelled.
Accordingly the anticipatory bail granted to the opposite party no. 2, namely, Smt. Keya Pal Nee Ghosh, is cancelled.
The court below is directed to take steps in accordance with law in respect of opposite party no. 2.
The application for cancellation in respect of the opposite party no. 3 is, however, dismissed as no material can be found for cancelling his bail. It has been alleged that he participated in removing the diaries from the matrimonial home of the opposite party no. 2. Therefore, in the absence of sufficient material against the opposite party no. 3, the application for cancellation in respect of the opposite party no. 3 is dismissed.
It is made clear that the observation made is only restricted to this application filed under Section 439(2) Cr. P. C. and the court below, at trial, will remain uninfluenced by the observations made herein.
4In view of the aforesaid, this application is allowed in part and disposed of.
( Patherya, J.) ( Debi Prosad Dey, J. )