Calcutta High Court (Appellete Side)
Debabrata Ray Choudhuri vs The State Of West Bengal & Anr on 17 June, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
PRESENT :
The Hon'ble Justice Kanchan Chakraborty
C.R.M No. 1793 of 2011
Debabrata Ray Choudhuri
Versus
The State of West Bengal & Anr.
For the Petitioner : Mr. Debabrata Ray Chowdhury
Mr. Jayanta Dutta
For the O.P. : Mr. Sudipta Moitra
Mr. Shyamal Kanti Banerjee
Mr. Ratan Pathak
Mr. Ashok Das
For the State : Mr. Krishna Ghosh
Mr. Abhijit Adhya
Heard On : 20.5.2011
Judgement On :17.6.2011
Kanchan Chakraborty, J:
1) This application under Section 439(2) read with Section 401 of the Code of
Criminal Procedure praying for cancellation of bail granted to Aninda Ray
on 12.11.2009, the opposite party no. 2, has been filed by Debabrata Ray
Choudhuri, the complainant in Jadavpur Police Station Case no. 791 of
2008 dated 12.12. 2008 under Sections 406/408/120B/34 of I.P.C., on
the following grounds :
2
i) that the accused has indulged and has been indulging in
tampering with the investigation of the case;
ii) that the accused has threatened the witness Chayanika
Chakraborty;
iii) that the accused has indulged in subverting the process
of investigation in collusion with the erstwhile I.O.;
iv) that the accused has been threatening the victim girl to
withdraw the criminal cases under threat and coercion
as stated hereinabove;
v) that the accused has delayed the process of recovery of
the ornaments from the date of filing of FIR i.e.
December, 2008 to 4th May, 2010 by various ways and
making misleading statements;
vi) that the accused has abused the privilege granted by the
Court and violated all the directions of the Learned
Court specially directions of the Learned Sessions Judge
dated 20.11.2009, the direction of Learned ACJM dated
21.11.2009 by instructing his advocate and handing
over some documents allegedly written by the IO and
obtained endorsement of IO for the purpose of
misleading the Court of Learned Additional Chief
Judicial Magistrate, 24 Parganas Alipore, by instructing
his lawyer to mislead the Learned Court that the
3
ornaments were recovered but the de-facto complainant
was not taking the ornaments though admittedly not a
single piece of ornament was seized till 4th May, 2010;
vii) that there are other evidence which shows that the
accused has misused the privilege and violated all orders
of the Learned Court and the directions of IO who has to
communicate such directions apart from other means
through sureties also;
viii) that the accused has been leading an immoral life;
2. To appreciate the matter it would be expedient and appropriate to refer to
the factual background, in short :
3. The marriage between Debjani Chowdhury and Aninda Ray (hereinafter
referred to as the O.P. No. 2) had taken place long 13 years ago according
to Hindu rites and Customs. In their marriage, ornaments and Jewellary
worth Rs. 15,00,000/- were given to Debjani by her parents. After
marriage, they settled in Dublin, Ireland. The matrimonial bliss evaporated
soon for various reasons and, ultimately, Debjani had to start living
seperately. They also indulged themselves in various litigations. Debabrata
Ray Choudhuri, father of Debjani initiated a Criminal case against the
opposite party no. 2 and his parents which was registered as Jadavpur
Police Station case no. 719(12) of 2008 under Sections 406/408/120B and
34 IPC. Debjani wanted to get her ornaments and Jewellary which was
entrusted with the opposite party no. 2 but remained unsuccessful. She
4
was allegedly threatened of dire consequences, humiliated and tortured by
the opposite party no. 2 during her stay in Dublin as well as after her stay
elsewhere. The parents of opposite party no. 2 appeared in the Court and
obtained bail. The opposite party no. 2 while living in Dublin, filed an
application under Section 438 IPC in this Court and obtained anticipatory
bail, valid for a period of four weeks on 9.10.2009. On 26.10.2009, he
appeared in the Court of learned Additional Chief Judicial Magistrate, 24
Parganas (South) and prayed for regular bail. The learned Magistrate
allowed ad interim bail of Rs. 10,000/- with two sureties of Rs. 5000/-
each with conditions under Section 438(2) (I),(II) and (III) of the Cr.P.C. On
12.11.2009, the learned Magistrate, upon hearing of learned Counsels
appearing for both the parties, confirmed the ad interim bail dated
26.10.2009 as no adverse materials could be detected against the opposite
party no. 2. On 28.1.2011, this Criminal revision being no. CRR 1793 of
2011 has been filed by the de facto complainant Debabrata Ray Choudhuri
praying for cancellation of bail dated 12.11.2009 in respect of opposite
party no. 2 on the grounds mentioned earlier.
4. Mr. Debabrata Ray Choudhuri, the learned Counsel who happens to be the
de facto complainant of the Jadavpur Police Station case no. 791 of 2008
dated 12.12.2008 dated 12.12.2008 contended that the opposite party no.
2 obtained anticipatory bail by practicing fraud upon this Court. He
contended that the opposite party no. 2 admittedly was a resident of
Dublin at the relevant period of time when the application under Section
5
438 Cr.P.C. was filed. He suppressed the fact that he had been residing in
Dublin on that particular date when the application for anticipatory bail
was filed. This apart, Mr. Debabrata Ray Choudhuri contended that the
opposite party no. 2 had no reason to apprehend that he would be arrested
in connection with this case. Therefore, he by practicing fraud upon the
Court obtained anticipatory bail.
5. Although within four corners of the petition by Mr. Debabrata Ray
Choudhuri no such point i.e., practicing fraud upon Court, has been
taken, Mr. Debabrata Ray Choudhuri put much trace on this point. Since
this point is raised, this Court is saddled with the obligation to discuss this
point.
6. Mr. Ray Choudhuri contended that the opposite party no. 2 violated the
conditions imposed by the High Court while granting the anticipatory bail
on 9.10.2009. He also violated the condition to the bail order passed on
26.10.2009 by the learned Additional Chief Judicial Magistrate. He left
India before 26.10.2009. He also violated the order of the learned Sessions
Judge dated 20.11.2009 by not attending Court.
7. Mr. Ray Choudhuri contended that the learned Magistrate erred in
changing the conditions imposed by this Court while confirming ad-interim
bail.
8. Mr. Ray Choudhuri had taken me of page nos. 68,69,70,71 and 72 of his
petition and contended that despite the specific order of the Court, Sridhan
articles were not returned by the opposite party no. 2 and his parents. The
6
opposite party no. 2 and his parents in connivance with the I.O. of the case
kept the de facto complainant in dark about notices issued to the opposite
party no. 2 and his parent on the matter of returning Sridhan articles. Mr.
Ray Choudhuri had to send one letter to the officer-in-charge Jadavpur
police station on 10.10.2009 and requested him to make a search for the
ornaments as per list given in the FIR because the I.O. was supposed to
search and seize the disputed articles from the possession of opposite party
no. 2 and his parents and not to request them to hand over those
ornaments to the de facto complainant. Only a few Sridhan articles was
produced and handed over to the de facto complainant.
9. Mr. Ray Choudhuri contended further that by sending E mail to one
Chayanika Chakraborty, the opposite party no. 2 threatened Debjani and
thereby violated the order of Court. He also sent letter of lawyer which can
well be said to be a threatening letter. The opposite party no. 2 wanted to
temper with the evidence by asking Chayanika Chakraborty not to give
evidence. The opposite party no. 2 and his parents although assured at the
time bail was prayed for on their behalf, returning of Sridhan articles, the
same has not yet been returned in connivance with the I.O. who had taken
a pivotal role in concealing the actual state of affairs by sending request
letters to the opposite parties without any information to the de facto
complainant. For the reasons aforesaid, the bail so granted to the opposite
party no. 2 is liable to be cancelled.
7
10. Mr. Ray Choudhuri referred to the following decisions in support of his
prayer :
a) Masook Ali Vs. State of Punjab reported in 1996 CRL J 784
b) Manjit Prakash and Ors. Vs. Sobha Devi & Anr. reported in
(2001) 1 SCC (Criminal) 1260
c) Sboodh Kumar Yadav Vs. State of Bihar (2010) 2 SCC (Cri)
2000
d) Rajiv Bhatia Vs. Abdulla Md. Gani reported in 1992 CRL J
2092
e) Meghmala & Ors. Vs. G. Narasimha Reddy and Ors. reported
in (2010) 8 SCC 383
f) Dharmesh Bhai Basudevbhai & Ors. Vs. State of Gujrat and
Ors reported in (2009) 3 SCC Criminal 76
g) Savitri Agarwal Vs. State of Maharastra and Ors. (2009) 3 SCC
(Criminal) 683
h) Ram babu Tiwari Vs. State of M.P and Anr. reported in J.T.
2009 (14) SC 69
i) GuruCharan Singh & Ors. Vs. State ( Delhi Administration)
reported in 1978 SCC (Cri) 41
j) Sudha Verma Vs. State of U.P. and Anr. reported in 2007(6)
Supreme 433.
k) P. K. Shaji Vs. State of Kerela reported in 2005(7) Supreme
265
8
l) Mehboob Dawood Shaikh Vs. State of Maharastra reported in
2009(1) Supreme 526.
11. Mr. Sudipto Moitra, learned Counsel appearing for the opposite party no. 2
contended that the ground that the opposite party no. 2 practiced fraud in
getting anticipatory bail suppressing the fact that he had been living in
Dublin at the relevant point of time, has not been taken by the petitioner in
the application under Section 439(2) of the Cr.P.C. However, he contended
that the application for anticipatory bail filed by the opposite party no. 2
clearly indicates that he narrated that fact in that petition distinctly and
clearly. The submission of Mr. Ray Choudhuri to that effect, according to
Mr. Moitra, is factually and substantially wrong. Mr. Moitra contended
further that there is nothing in the Code of Criminal Procedure which
comes in the way in praying for anticipatory bail by a person apprehending
arrest while residing out side the country. Therefore, he contended that the
proposition of law raised by Mr. Ray Choudhuri is absolutely incorrect.
12. Mr. Moitra contended further that the anticipatory bail was prayed for by
the opposite party no. 2 because warrant of arrest was issued by the
learned Additional Chief Judicial Magistrate 24 Parganas (South). That
being the fact, it can not be said that the opposite party no. 2 had no
reason to apprehend that he would be arrested in connection with case.
13. Mr. Moitra contended further that the particular E Mail and letter of the
lawyer from Ireland altogether does not show or indicate in whatsoever
manner that the opposite party no. 2 either has threatened Chayanika for
9
not deposing in the case nor the de facto complainant to withdraw the
Criminal case if any, initiated by him.
14. The particular E Mail containing the words " -------- in that case I will not
treat you as a friend", can not be possibly be categorized as threatening.
This apart Mr. Moitra contended that Chayanika is not a charge-sheeted
witness atall. Therefore, the E mail in question is having no impact in the
trial.
15. Mr. Moitra contended again that no condition to the effect that bail is
granted on assurance of returning Sridhan property was imposed by this
Court or by the learned Magistrate. If so, there is no breach of condition to
the bail. Again, the learned Magistrate had taken the Opposite party no. 2
in custody when he surrendered in Court after having anticipatory bail as
directed by this Court. Thereafter, the learned Magistrate granted him bail
by invoking its power under Section 437 of the Code of Criminal Procedure.
It is free to fix the terms and condition of bail. In the instant case, the
learned Magistrate released the opposite party no. 2 on interim bail on
terms and condition imposed by this Court while granting anticipatory bail.
The learned Magistrate, however, did not think it wise and proper to
continue said terms and conditions to the bail when the interim bail was
made absolute. There was no illegality and irregularity in doing so.
16. Mr. Moitra also submitted that since this High Court found no illegality in
the order passed by the learned Magistrate allowing the opposite party no.
2 to leave India, the stand taken by Mr. Ray Choudhuri to the effect that
10
the opposite party no. 2 violated the order of Court, goes automatically. Mr.
Moitra, also contended that there was no supervening circumstances
necessitating cancellation of bail.
17.
a) In Masook Ali Vs. State of Punjab (Supra), The Hon'ble
Court observed that fraud, contrivance or Cavine of any
description would vitiate the most solemn proceeding of
the Court of justice and nullifies all judicial acts.
b) In Manjit Prakash and Ors. (Supra), The Hon'ble Court
referring its decision in Puran Vs. Rambilash (2001) SCC
Criminal 1124 was pleased to observe that even though
the re-appreciation of the evidence in granting bail is to
avoided, the Court dealing with an application for
cancellation of bail under Section 439 (2) can consider
whether irrelevant materials were taken into
consideration. Hon'ble Court observed further that the
perversity as highlighted in Puran's case (Supra) can also
flow from the fact that irrelevant materials have been
taken into consideration adding vernable to the order
granting bail. The irrelevant material should be of a
substantial nature and not of a trivial nature.
c) In Shoodh Kumar Yadav Vs. State of Bihar( Supra),
Hon'ble Court observed that if a superior Court finds that
11
Court granting bail had acted on irrelevant material, or if
there is non application of mind or failure to take note of
any statutory bar to grand bail, or if there was manifest
impropriety e.g. failure to hear public
prosecutor/complaint where required, order for
cancellation of bail can be made.
d) In Rajiv Bhatia (Supra), Hon'ble Court was of view that
variation of terms and conditions of bail granted by High
Court, can only be made by High Court not by any
subordinate Court.
e) In Meghmala & Ors. (Supra), Hon'ble Court was pleased
to observe that in judicial proceeding, once a fraud is
proved, all advantages gained by playing fraud can be
taken away. In such an eventuality the question of non-
executing of the statutory remedies or statutory powers
like doctrine of res judicata are not attracted. Suppression
of any material fact/document amounts to practicing
fraud upon the Court. Every Court has an inherent power
to recall its own order obtained by fraud as the order so
obtained is non-est.
f) In Dharmesh Bhai (Supra), Hon'ble Court held that apart
from exercising its supervisory jurisdiction under Articles
227 and 235 of the Constitution, High Court has duty to
12
exercise continuous superintendents over Courts of
judicial Magistrate.
g) In Savitri Agarwal & Ors.(Supra), Hon'ble Court observed
that rejection of bail and cancellation of bail are different.
Very cogent and overwhelming circumstances are
necessary for an order directing cancellation of bail
already granted.
h) In Rambabu Tiwari (Supra), Hon'ble Court held that
even though the re-appreciation of evidence had done by
the Court granting bail is to be avoided, the Court deal in
with an application for cancellation of bail under Section
439 (2) can consider whether irrelevant materials were
taken into consideration. That is so because it is not
known as to what extent the irrelevant materials weighed
with the Court for accepting the prayer for bail.
i) In Gurucharan Singh & Ors. (Supra) - It was held that
the Court dealing with bail application is to give proper
weight to the serious apprehension of the prosecution
with regard to tampering with the eye witnesses as urged
before it in resisting the application for bail. It was further
observed by the Hon'ble Court that the matter would have
been different if there was absolutely no basis for the
13
apprehension of the prosecution with regard to tempering
of witnesses and the allegation rested on a bald statement.
j) In Sudha Verma (Supra), it was held that when an
accused threatens the complainant subsequent to his
release on bail, the bail would be liable to be cancelled.
k) In P. K. Shaji (Supra, It was held that cancellation of bail
by the Magistrate on report from police about non-
compliance of condition is legal and valid.
l) In Mehboob Dawood Shaikh (Supra), It was held that
when the allegations prima facie showing that the
witnesses have been threatened, bail can well be
cancelled. It was further held that at the same time the
party who makes grievance that the Court's direction has
not been followed has to indicate as to in what manner he
was in prejudice by the deviation. Hon'ble Court observed
that when the person to whom bail has been granted
either tries to interfere with the Courts of justice or
attempts to tamper with evidence or witnesses or
threatens witnesses or indulges in similar activities which
would hamper smooth investigation or trial, bail granted
can be cancelled.
14
18. There is, however, no dispute as to the principles laid down by the Hon'ble
Apex Court in the decisions refer to above, In Daula Ram Vs. State of
Rajasthan reported in 1995 SCC (Cri) 237 the Hon'ble Court observed :
" Very cogent and overwhelming circumstances are necessary for
an order directing the cancellation of the bail, already granted.
Generally speaking, the grounds for cancellation of bail, broadly
(illustrative and not exhaustive) are interference or attempt to
interfere with the due course of justice or abuse of the concession
granted to the accused in any manner. The satisfaction of the
court, on the basis of material placed on the record of the
possibility of the accused absconding is yet another reason
justifying the cancellation of bail. However, bail once granted
should not be cancelled in a mechanical manner without
considering whether any supervening circumstances have
rendered it no longer conductive to a fair trial to allow the
accused to retain his freedom by enjoying the concession of bail
during the trial. These principles, it appears, were lost sight of by
the High Court when it decided to cancel the bail, already
granted. The High Court it appears to us overlooked the
distinction of the factors relevant for rejecting bail in a non-
bailable case in the first instance and the cancellation of bail
already granted."
15
19. The law in this respect has been fully crystallized by several decisions of
the Apex Court as to when and under what circumstances resort to Sub
Section (2) of Section 439 Cr.P.C. should be taken by the Court. It is by
now a settled principle of law that an order of bail once granted should not
be cancelled in a mechanical fashion in the absence of any extenuating
circumstances which has exposed the accused to a situation where it is no
longer prudent to permit him to retain his freedom. Liberty once granted by
the Court - unless the same is misused or there has been any palpable
valuation of either any statute or material- on- record, the same should not
be interfered with by a superior Court.
20. In view of the settled position of law, the prayer for cancellation of bail
sought for by the petitioner ( the de facto complainant) is to be considered
keeping in mind the factual matrix of the case. There are some salient
features which are also required to be noted, such as, -
a) the application for cancellation of bail has been filed on 28.1.2011
i.e. about 15 months after the ad interim bail was confirmed by
the learned Magistrate on 26.10.2009;
b) that the investigation into the case has already been concluded
and one charge-sheet has also been filed in the Court of learned
ACJM whereby the I.O. expressed his view to prosecute the
accused persons including the opposite party no. 2;
c) that the trial of the case is likely to be commenced within a short
period of time;
16
d) that the most effected person i.e. Debjani is not appearing in the
scene and involving herself in any matter.
21. There is no denial to the fact that after marriage, Aninda and Debjani
settled themselves in Dublin, Ireland. It is also not disputed that their
marriage was not a successful one and for various reasons they had to
start living separately. Father of Debjani i.e. Mr. Debbrata Ray Choudhuri
himself had set the criminal action into motion against the opposite party
no. 2 and his parents. There is no dispute as to the fact that the opposite
party no. 2 was in Dublin when his application for anticipatory bail was
filed in this Court.
22. According to Mr. Ray Choudhuri, the opposite party no. 2 practiced fraud
upon the Court in the matter of getting anticipatory bail. The petition for
anticipatory bail, paragraph 10 at page 7 indicates clearly that there was
no suppression of the fact that the petitioner was living in Dublin at the
relevant period of time. The application of anticipatory bail was filed on
5.10.2009. It was heard on 9.10.2009. The learned Magistrate vide order
dated 22.8.2009, 24.8.2009 and 19.9.2009 directed to issue warrant of
arrest against the opposite party no. 2. Extradition order was also passed.
Therefore, it can not be said that the opposite party no. 2 suppressed
material fact before the Court at the time he filed the application for
anticipatory bail and that he had no reason to apprehend arrest in
connection with the Jadavpur police station case no. 791 of 2008.
17
23. It is true that all the articles claimed to be Sridhan of Debjani, have not
been recovered by the I.O. It is also true that the parents of the opposite
party as well as the opposite party were directed by the I.O. to return the
Sridhan articles. Some of the articles ( a very few in no. according to the
list appended to the petition of complaint) were returned to the I.O. But
that fact can heardly be said to be the violation of bail order. No condition
is attached to the order of bail passed by this Court as well as the learned
Magistrate on 12.11.2009 to the effect that the bail so granted was subject
to returning of Sridhan articles as claimed to be by the de facto
complainant. Again, the subject valuables were kept in locker of Axis Bank.
Said locker could be operated by O.P. no. 2 as well as Debjani herself
because it was in their joint names. Debjani could have come forward and
helped the I.O. in seizing the valuables from the locker. That was not done.
I have carefully gone through the E mail and the lawyer's letter of Ireland.
The E mail in question goes to say "
" Chana,
Aasha kori tora bholo aachhish. I just wanted to check with
you, Debjani-r baba dekhlam toke witness hishebe naam
diyechhe for a 498 case against me and my parents. Tai
jodi shotyi hoye, taahole, I can't consider you as my friend!
24. The letter of Coffey and associates, solicitors Dublin dated 28th September,
2010 relates to the order of Circuit Family Court passed on 8th of June in
record no. 1958 of 2008. It shows that the advocate of Aninda Ray
apprehended breach of terms of order and undertaken given by Debjani in
record no. 1958 of 2008 in the Circuit Family Court at Dublin. It also
18
shows that Debjani had sworne an affidavit on 4.1.2010 which was
violative of the rule issued by the Hon'ble Judge Flanagan in record no.
1958 of 2008. The advocate of Aninda Ray in that case before the Circuit
Family Court cautioned Debjani Ray that in case of such violation of the
order passed by the Circuit Family Court he would be compeled to move
the Hon'ble Judge Falangan. This letter of Coffey and associates, solicitor
Dublin dated 28.9.2010 can not, in my estimate be categorised as a
threatening letter having any connection with the bail granted to Aninda
Ray in the Criminal proceeding pending in the Alipore Court. Again in CRR
no. 1697 of 2010 this High Court made it clear that the order passed by
the learned Magistrate allowing the opposite party no. 2 Aninda Ray to
leave India for Dublin, his working place was not illegal and arbitrary. That
being the fact, I find that Aninda Ray, the opposite party no. 2 has not at
all violated the terms and condition of the bail order as claimed by Mr. Ray
Choudhuri.
25. After having anticipatory bail, Aninda Ray surrendered himself before the
Court of law and he was granted interim bail initially and that ad interim
bail was confirmed subsequently on 12.11.2009 by the learned Magistrate
who observed that there was no adverse report against him from the
prosecution side. In fact no adverse report was also received by the I.O.
from any corner against Aninda. The record shows that Aninda Ray has
not disobeyed the order of Court . He left India after being permitted by
Court of law. The order permitting him to leave India was confirmed by this
19
Court. There was no condition, I reiterate, to the bail granted to him that
the same was subject to returning of Sridhan articles.
26. In Masook Ali Case (Supra) all the eye witnesses were under real and
genuine appreciation on account of threat extended by the accused
persons. In the case in hand it has already been discussed that there is no
real and genuine threat to any of the witnesses, be it eye witness or not. I
also reiterate that Chayanika Chakraborty is not at all a charge-sheet
witness as it appears from the Annexure M(1). Again, in view of decisions of
the Apex Court in Manjit Prakash (Supra) and in Subod Kumar Jadav
(Supra) while considering a prayer for cancellation of bail under Section
439 (2) Cr.P.C. Court can taken into consideration irrelevant matter of
substantial nature, I find that Mr. Ray Choudhuri drawn attention of this
Court to some materials which can hardly be said " irrelevant matter of
substantial in nature". In this context, the order dated 21.11.2009 passed
by the learned Additional Chief Judicial Magistrate in BGR no. 5842 of
2008 can well be looked into. The learned Magistrate, in my estimate, had
not only gone deep into the matter but considered the entire materials
placed before it in proper and true perspective. It is clear from that order
that there was no violation of any terms and condition of the bail granted
to the opposite party Aninda Ray.
27. It also appears that the allegation and aspersion on the Court of learned
Magistrate that he did not apply his mind is not atall correct rather, the
order dated 21.11.2009 makes it abundantly clear that the Court applied
20
his judicial mind properly and effectively. The principle in Rajiv Bhatia's
case is not applicable in the instant case. The learned Magistrate granted
ad interim bail to respondent Aninda without changing the terms and
condition imposed by this Court while granting anticipatory bail. That does not necessarily mean that the condition so imposed or followed by the learned Magistrate can not be said to be the terms and condition imposed by the learned Magistrate. The learned Magistrate exercised its power under Section 437 of the Cr.P.C. which empowers it to impose any condition to the bail to his satisfaction. The proposition of law in this regard as stated by Mr. Ray Chowdhury does not appear to be correct. As far as the allegation of practicing fraud on Court by the O. P. Aninda Ray is concerned, I find that neither he suppressed any material fact nor he misled the Court while applied for anticipatory bail. The allegation to the effect that the opposite party no. 2 Aninda Ray tried to tamper with eye witnesses and threatened the witnesses to the case does not appear to be factually correct. The questioned E Mail and the letter of lawyer of Ireland, I have already observed,, can hardly be categorized as threatening letters. It has already been stated that Chayanika Chakraborty is not at all a witness in that case. The letter of lawyer from Ireland is connected with the matrimonial matter disposed by the Family Court at Ireland on consent of the parties to the case. That has got no connection with the present case which was initiated by father of Debjani. The factual aspects in Gurucharan (Supra) and Sudha Verma(Supra) are different than that of 21 this case. There is no dispute as to the legal position clarified by the Apex Court in P. K. Sajhi's case (Supra). There is no non-compliance of any condition to the bail as far as the opposite party no. 2 Aninda Ray is concerned. The Annexures - K,L,M and M(1) altogether indicates that such a seizure was made in presence of both the parties because the golden ornaments claimed to be Sridhan of Debjani, was seized from bank locker. The opposite party no. 2 was not in physical possession of the said ornaments. The bank locker could be operated by Debjani or Aninda because it was in their joint names. Debjani herself has never come forward to help the Investigating Officer in the matter of Seizing ornaments kept in the locker. The learned Magistrate while passing the order dated 21.11.2009 has observed this fact elaborately. The facts and circumstances of this case, does not indicate in what manner the de facto complainant has been prejudiced. The investigation has been ended in a charge-sheet against all the three accused persons including the O.P. no. 2 for prosecuting them under Section 406/408/120B/34 of IPC. There was no adverse report from any corner against the accused persons including the opposite party no. 2.
28. In view of facts and circumstances above, I find that there is no supervening circumstances necessitating cancellation of bail. This does not appear to be a fit and proper case to take away the liberty granted to the respondent no. 2 Aninda Ray who is to face the trial together with other accused persons. The trial of the case could not be commenced because of 22 the stay order passed by this Court in this revision. I think that trial should be expedited for the ends of justice.
29. In view of above, I reject the prayer for cancellation of bail under Section 439 (2) of Cr.P.C.
30. The CRM no. 1793 of 2011 is, thus, disposed of.
31. Interim order of stay, if any, stands vacated.
(Kanchan Chakraborty,J)