DISTRICT: SOUTH 24-PARGANAS

IN THE HIGH COURT AT CALCUTTA

CRIMINAL MISCELLANEOUS JURISDICTION
---------------

In the matter of:

An application for cancellation for bail
under Section 439(2) of the Code of
Criminal Procedure, 1973;
-AndIn the matter of:
Order dated 11.3.2011 passed by the
Learned

Additional

Chief

Judicial

Magistrate, Alipore, South 24-Parganas

in B.G.R Case No. 1233 of 2011,
thereby allowing the prayer for bail
made on behalf of the accused/opposite
party nos.2 to 4 in connection with Purba
Jadavpur

Police

Station

Case

No.

44/2011 dated 25.2.2011 under Sections

451/ 427/ 324/ 326/ 307/ 380/382 read

with Sections 34/120B/188 of the Indian
Penal Code;
-AndIn the matter of:
Smt. Kajal Das
Wife of Brojo Gopal Das
Of 140, Lake East 3rd Road, Santoshpur,
Police Station Purba Jadavpur, Kolkata
700075.
Complainant/Petitioner
-Vs1. The State of West Bengal
.. Opposite Party
2.

Sanjoy Sen

3.

Mrityunjoy Sen
Both sons of Guruprosad Sen
Of EB- 180, Sector-1, Saltlake city,
Police

Station-

Bidhannagar

(North), Kolkata- 700064

4.

Mita Das (nee Sen)

Daughter of Guruprosad Sen
Of EB- 180, Sector-1, Saltlake City,
Police

Station-

Bidhannagar

(North), Kolkata- 700064 presently

residing at 140, Lake East 3rd Road,
Santoshpur, Police Station Purba
Jadavpur, Kolkata 700075.
..Accused/Opposite Parties
To
The Honble Mr. Jainarayan Patel, Chief Justice
And His Companion Justices of the said Honble Court

The humble petition of the

Petitioner above named

Most Respectfully Sheweth:-

1.

That your petitioner is a law abiding citizen of India and a resident of the place

mentioned in the cause title hereinabove. Your petitioner is a housewife aged about 60
years and she is the defacto complainant of the instant case.

2.

That the petitioner filed a petition of complaint before the Court of the Learned

Additional Chief Judicial Magistrate, Alipore inter alia disclosing commission of offences
by

the

accused/opposite

party

nos.

to

punishable

under

Sections

451/427/324/326/307/380/382 read with Sections 34/120B/188 of the Indian Penal Code.

In the said petition of complaint the complainant/petitioner prayed for a direction from
the Learned Magistrate in terms of the provisions of Section 156(3) of the Code of
Criminal Procedure upon the Officer-in-Charge of Purba Jadavpur Police Station to treat
the said petition of complaint as First Information Report and cause investigation therein.
The averments made in the said petition of complaint are inter alia to the effect
that
a)

That the petitioner is a house wife, aged about 60 years and she is
residing with her ailing bed ridden husband.

b)

The son of the petitioner namely Kaushik Das got married to the
opposite party no. 4 on 4.6.2009 according to Hindu rites and customs.
The opposite party nos. 2 and 3 are brothers of the opposite party no. 4.

c)

Since after marriage the opposite party no. 4 started to reside along with
the petitioners family. However, after a few days it was noticed by the
petitioner that the opposite party no. 4 used to inflict torture upon the
petitioner and her other family members on flimsy pretexts. It was

gradually noticed by the petitioner that the opposite party nos. 2 and 3
continuously used to aid and abet the opposite party no. 4 to inflict
torture upon the petitioner, her husband and her son The opposite party
nos. 2 to 4 used to threaten the petitioner and her son that if they even
dared to protest against the opposite party nos. 2 to 4 then they would
send them behind the bars in false cases.
d)

During the subsistence of the conjugal life of the opposite party no.4 the
petitioner came to know that the opposite party no. 4 was previously
married to some other person and this fact was completely suppressed by
the opposite party nos. 2 to 4 at the time of negotiation of marriage with
the petitioners son. On being enquired the opposite party nos. 2 to 4
were not been able to give any satisfactory explanation about such
suppression of material facts and on being embarrassed in such situation
the opposite party no. 4 left the house of the petitioner on 13.1.2010
along with all her belongings after issuing a receipt of her stridhan
articles.

e)

That under some compelling situation and finding no alternative the son
of the petitioner filed a matrimonial suit being Mat Suit No. 2026 of
2010 before the Court of the Learned District Judge, Alipore, praying for

a decree of divorce as provided under Section 13(1) (1a) of the Hindu

Marriage Act. The said suit is still pending before the Learned Judge.
f)

That after coming to know about the divorce suit filed by the son of the
petitioner, the opposite party nos. 2 to 4 along with other unknown
persons all of a sudden came to the house of the petitioner and started
threatening her and her husband and creating a pandemonium. On being
frightened by such act, the petitioner initiated a case under Section
144(2) of the Code of Criminal Procedure against the opposite party nos.
2 to 4 before the Court of the Learned Executive Magistrate, Alipore.
The Learned Magistrate upon perusal of the materials on record was
pleased to pass specific prohibitory order against the opposite party nos.
2 to 4.

g)

On 21.11.2010 when the order passed by the Learned Executive

Magistrate was still in force, the opposite party no. 2 to 4 being aided
and abetted with 40/50 unknown anti socials, stormed into the residence
of the petitioner after breaking the front entrance. Thereafter when the
petitioner protested to such act, the hooligan associates of the opposite
party nos. 2 to 4 got furious and started assaulting the petitioner with
fists, blows and kicks and when the husband of the petitioner came
forward to rescue her, the opposite party nos. 2 to 4 also assaulted him

mercilessly. The miscreants vandalized the residence of the petitioner,

causing mischief and damage to the furniture thereby causing loss to the
petitioner to the tune of Rs. 15,000/-. The miscreants also snatched away
the gold chain and wrist watch from the residence of the petitioner.
h)

After the incident the petitioner and her husband went to M.R. Bangur
Hospital for necessary treatment and finally on 22.11.2010 the physical
condition of the petitioners husband deteriorated to such level that he
was required to take admission to Medline Nursing Home. The petitioner
informed the entire incident to the Officer-in-Charge, Purba Jadavpur
Police Station as also the Superintendent of Police, South 24-Parganas
but to no avail.

i)

Finally your petitioner had approached the Learned Court below for
ventilating her grievances.

A copy of the aforesaid petition of complaint is annexed hereto and marked with
the letter P1.

3.

That the Learned Additional Chief Judicial Magistrate, Alipore upon receipt of

the aforesaid petition of complaint was pleased by his order dated 25.1.2011 to direct the
Officer-in-Charge, Purba Jadvpur Police Station to treat the said petition of complaint as
First Information Report and cause investigation thereon. On the basis of the direction

given by the Learned Magistrate, Purba Jadavpur Police Station Case No. 44/2011 dated
25.2.2011 under Sections 451/427/324/326/307/380/382 read with Sections 34/120B/188
of the Indian Penal Code was registered for investigation.

4.

That although the incident took place on 21.11.2010 and the same was

intimated to the local Police Station and other superior police authorities by the
petitioner, yet no fruitful steps were taken by the police personnel. As such, the petitioner
having left with no alternative approached the Learned Court below for a direction upon
the police authorities to investigate into the matter. However, inspite of the order passed
by the Learned Magistrate on 25.1.2011, the instant case was registered for investigation
by Purba Jadavpur Police Station on 25.2.2011 i.e. after a period of one month for
reasons best known to them.

5.

That after registration of the instant case, the opposite party nos. 2 to 4

appeared before the Court of the Learned Magistrate and prayed for bail. The Learned
Magistrate by his order dated 11.3.2011 was pleased to allow the prayer for bail of the
opposite party nos. 2 to 4 on certain terms and conditions. However, it is required to be
brought to the notice of this Honble Court that the grounds specified as a reason for
granting bail is not at all correct and the same has occurred due to misrepresentation and
suppression made by the opposite party nos. 2 to 4 upon the Learned Court below.

6.

That the petitioner humbly submits that the opposite party nos. 2 to 4

misrepresented the Learned Court below by placing some distorted facts. It was
represented before the Learned Court below that the instant case is similar to another case
filed by the petitioner against the opposite party nos. 2 to 4, pending before the Learned
Ist Judicial Magistrate, Alipore. It was further fraudulently represented by the opposite
party nos. 2 to 4 that both the cases filed by the petitioner are over the self-same
allegation. However, it is pertinent to mention herein that from a bare perusal of the First
Information Report of the instant case and the complaint of AC-208 of 2011 it would
transpire that both the cases are different in their issues as also in facts. The complaint
case was filed by the petitioner, as the petitioner was not aware of the fate of the
complaint filed by her under Section 156(3) of the Code of Criminal Procedure which
relates to other offences committed by the opposite party nos. 2 to 4 over an incident of
4.2.2011 and 09.02.2011 for which the husband of the petitioner had to take admission to
M.R. Bangur Hospital.
Copies of the complaint registered as AC-208 of 2011 as also other relevant
documents relating to the same are annexed hereto and marked with letter P2.

7.

Your petitioner submits that since the date of release of the opposite party nos.

2 to 4 on bail, they are continuously threatening the petitioner and her husband with dire
consequences.

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8.

That on 24.3.2011 in the morning, the opposite party nos. 2 and 3 started to

instigate the opposite party no.4 to create pandemonium in and around the residence of
the petitioner and they further instigated her for inflicting physical torture upon the
petitioner and her husband. At about 7-30 p.m. the opposite party no. 4 after returning
from her office, all of a sudden started assaulting the petitioner with fists, blows and kicks
as a result of which the petitioner sustained injuries and she had to go to M.R. Bangur
Hospital for treatment. Furthermore, the opposite party nos. 2 to 4 are continuously
threatening the petitioner and her husband over phone to withdraw the instant case using
indecent and abusive languages.

9.

The aforesaid incident was informed to the local Police Station as also the

Superintendent of Police, South 24-Parganas but no initiative has yet been taken by the
police authorities for protecting the life of the petitioner and her husband and they are
continuously being threatened by the accused/opposite party nos. 2 to 4.

A copy of the complaint to the Superintendent of Police, South 24-Parganas

along with the medical papers are annexed hereto and collectively marked with the letter
P3.

11

10.

That the order passed by the Learned Magistrate granting bail to the opposite

party nos. 2 to 4 was based on some misrepresented and distorted facts placed before the
Learned Magistrate fraudulently by the opposite party nos. 2 to 4. Moreover, the opposite
party nos. 2 to 4 are continuously threatening the petitioner and her husband for
withdrawing the instant case. Your petitioner submits that the opposite party nos. 2 to 4
are causing immense difficulties to the lives of the petitioner and her husband by
threatening them on a regular basis. Moreover, the police personnel of local Police
Station without taking any proper steps against the opposite party nos. 2 to 4 are
jeopardizing the lives of the petitioner and her husband. In such circumstances, it is
humbly prayed that this Honble Court would be pleased to cancel the bail bond of the
opposite party nos. 2 to 4 by taking them into custody and saving the lives of the
petitioner and her husband for the ends of justice.

11.

Your petitioner submits that the order impugned is a product of non application

of judicial mind. At the time of consideration of the bail application the Learned
Magistrate has failed to consider the antecedents of the opposite party nos.2 to 4 and the
materials in the Case Record. In such circumstances the order in question is liable to be
set aside.

12.

Your petitioner submits that grant of bail though being a discretionary order

but, however, calls for exercise of such discretion in a judicious manner and not as a

12

matter of course. Order for bail bereft of any cogent reason cannot be sustained. The
nature of the offence is one of the basic consideration for grant of bail more heinous is
the crime, the greater is the chance of rejection of the bail. However, depending on the
factual matrix of the matter in the instant case the Learned Magistrate without
scrutinizing the grave nature of the offences committed by the opposite party nos. 2 to 4
and by passing the order thereby granting bail to the accused/opposite party nos. 2 to 4 in
an arbitrary manner, has caused grave miscarriage of justice.

13.

Your petitioner submits that while granting bail an accused the Court has to

keep in mind not only the nature of the accusations but the severity of the punishment. If
the accusations entail a conviction then the nature of evidence in support of the
accusation, reasonable apprehensions of the witnesses being tampered with or
apprehension there being threat of the complaint should also weigh with the court in the
matter of grant of bail, while it is not expected to have the entire evidence establishing
the guilt of the accused beyond reasonable doubt but there ought always to be a prima
facie satisfaction of the court in support of the charge, frivolity in prosecution should
always be considered and it is only the element of genuineness that shall have to be
considered in the matter of grant of bail , and in the event of there being some doubt as to
the genuineness of the prosecution, in the normal course of events, the accused is entitled
to an order of bail. However, in the instant case the opposite party nos. 2 to 4 along with

13

their associates on a number of occasions threatened the petitioner and her husband with
dire consequences if they did not withdraw the complaint giving rise to the instant case.
On refusal on the part of the petitioner the she and her husband were harassed, humiliated
and even assaulted on several occasions by the opposite party nos. 2 to 4 and their
henchmen. Inspite of complaints made with police authorities no fruitful purpose was
achieved. In such circumstances the petitioner humbly prays before this Honble Court to
interfere into the matter and to extend the justice to an unfortunate wife by setting the
aside the order in question.

14.

Your petitioner submits that she is passing her days in constant fear because of

the threats given to her by the opposite party nos. 2 to 4 and their associates for
withdrawing the case against the accused persons. In such circumstances if the bail
granted to the opposite party nos. 2 to 4 is not cancelled and the order in question is not
set aside by this Honble Court, the life of the petitioner as also her husband will be in
danger. As such it is prayed that this Honble Court may be pleased to set aside the order
granting bail to the opposite party nos. 2 to 4 and cancelling their bail.

15.

That unless the order dated 11.3.2011 passed by the Learned Additional Chief

Judicial Magistrate, Alipore in B.G.R. Case No. 1233 of 2011 is set aside and the bail
granted in favour of the opposite party nos. 2 to 4 is cancelled and they are taken into

14

custody, the petitioner, being the aggrieved party and the defacto complainant of the
instant case, would suffer prejudice and loss.

16.

That the balance of convenience lies strongly in favour of the petitioner as also

in favour of the orders as prayed for in this application.

17.

That it is expedient in the interest of justice as also to uphold the dignity of law

that the aforesaid order passed by Learned Additional Chief Judicial Magistrate, Alipore
is set aside forthwith.

18.

That this application is bonafide and made in the interest of justice.

In the circumstances it is prayed that Your

Lordships may be graciously pleased to allow this
application and to cancel the bail granted to the
accused/opposite party nos.2 to 4 by setting aside
the order dated 11.3.2011 passed by the Learned
Additional Chief Judicial Magistrate, Alipore,
South 24-Parganas in B.G.R Case No. 1233 of
2011, in connection with Purba Jadavpur Police
Station Case No. 44/2011 dated 25.2.2011 and/or

15

to pass such other order or orders as Your

Lordships may deem fit and proper.

And your petitioner as in duty bound shall ever pray.

16

AF F I D AV I T

I, Smt. Kajal Das, wife of Brojo Gopal Das, aged about 60 years, by occupation house
wife, residing at 140, Lake East 3 rd Road, Santoshpur, Police Station Purba Jadavpur,
Kolkata 700075 do hereby solemnly affirm and state as follows :1.

That I am the petitioner of this application and as such, I am well conversant

with the facts and circumstances of the instant case. I am also competent to
affirm this affidavit.

2.

That the statements made in paragraph 1 are true to my knowledge, those made
in paragraphs 2 to 6, 8 and 9 are matters of record while the rest are my
respectful submissions before this Honble Court.

Prepared in my office
Advocate

Deponent is known to me.

Solemnly affirmed before me

On this 6th day of April, 2011

Clerk to Mr.
Advocate

Commissioner

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DISTRICT: SOUTH 24-PARGANAS

IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS
JURISDICTION
--------

In the matter of:

An application under Section 439(2) of the
Code of Criminal Procedure, 1973;
-AndIn the matter of:
Smt. Kajal Das
.. Complainant/Petitioner
-VsThe State of West Bengal & Ors.
Opposite Parties

Affirmed on 6th April, 2011

Mr. ASHISH DEY
Advocate
Bar Association, Room No. 16
High Court, Calcutta.