1. This application has been filed by the defacto-complainant for cancellation of pre-arrest bail granted to the opposite party no. 1 by order dated 8.11.2016.
2. Counsel for the de-facto complainant submits that the order dated 8.11.2016 was obtained by the opposite party no. 1 by suppressing materials facts namely pendency of Criminal Misc. Case No. 7509/2016 at the relevant time i.e. when Cri. Misc. Case No. 7909 of 2016 was filed on 21 October, 2016. There is specific pleadings according to counsel for the applicant in the section 438 Code of Criminal Procedure application on 21 October, 2016 that no application under section 438 had been rejected or was pending prior to the said application which in itself would constitute suppression, as on 21.10.2016, Cri. Misc. Case No. 7509 of 2016 was rejected and on the same day Cri. Misc. Case 7907 of 2016 was filed i.e. during the pendency of the first application. The Court below proceeded to grant anticipatory bail to the opposite party no. 1 as no notice had been issued and she was an aged lady.
3. The case diary was not perused properly, and it was the finding of the Court below that the offence needed custodial interrogation. The opposite party no. 1 being an aged lady was the only reason for granting her anticipatory bail.
4. This application has been opposed by counsel for the opposite party no. 1, Manowara Begum. In the application, a report was called by the court below. The said report it did not show anything adverse and therefore the order was passed. Reliance is placed on (2016) 3 C Cr LR (Cal) 416.
5. The order for pre-arrest bail was passed on 8.11.2016 that is only after Cri. Misc. Case 7509 of 2016 had been rejected as no one appeared for default on 26 October, 2016. Therefore, it cannot be said that during the pendency of the first application for pre-arrest bail the second application was allowed. Being a discretionary order and discretion having been exercised by the court below and in the absence of cogent and overwhelming circumstance the application calls for no interference and be dismissed.
6. Having considered the submissions of the parties and on scrutiny of the case diary, it appears that Cri. Misc. Case 7509 of 2016 was filed on 6 October, 2016. During the pendency of the said application on 21 October, 2016 Cri. Misc. Case 7907 of 2016 was filed. On 21 October, 2016 a report was sought as to whether any bail prayer was rejected or not and the matter was adjourned till 24 October, 2016, when the case diary was produced. The petitioner sought an adjournment and the matter was adjourned till 26 October, 2016. 26 October, 2016 is an extremely crucial date as two things happened on that date. Cri. Misc. Case 7509 of 2016 was rejected for non-appearance and in Cri. Misc. Case 7907 of 2016 case diary was not produced, and when one reads the two orders the reason for non-production of the case diary in Cri. Misc. Case 7907 of 2016, on 26 October, 2016, is its production on the same day in Cri. Misc. Case 7509 of 2016 and it is only for this reason that the matter was adjourned till 8 November, 2016.
7. It is true that the advocate in the office of the Public Prosecutor in the court below was not very vigilant. It was a duty cast on him to apprise the court and intimate the contents of the case diary, re: the pendency of CRM 7509 of 2016 and in not doing so, the office of the Public Prosecutor in the district has committed dereliction of duty. This would not absolve the opposite party no. 1 from stating the correct facts before the court and although no copy of the 438 application before the court below has been produced before us but in the order dated 8.11.2016 it has been recorded that advocate of the opposite party no. 1 submitted that no application under section 438 had been rejected or was pending in the court below prior to the filing of the application and the date on which this was submitted must be noted that is on 8.11.2016. The said submission cannot be faulted as rightly no application was rejected, as understood in a court of law. It was rejected for non-appearance, which in normal course would mean dismissed for default i.e. for non-appearance but not rejected on merits. Therefore, on 8 November, 2016 no application under section 438 of the Code of Criminal Procedure was pending.
8. Now to consider the grounds which weighed with the court in allowing the application in spite of holding that custodial interrogation would be necessary and that there had been non-compliance with notice under section 41A of the Code of Criminal Procedure. Such notice would not be required as one of the alleged offence was under section 313 of the Code of Criminal Procedure. The only ground which weighed with the court for passing the order is the opposite party no. 1 being an aged lady.
9. Although counsel for the opposite party no. 1 contends that the opposite party no. 1 suffers from various ailments but this was not produced before the court below.
10. One is not even aware whether medical treatment sheets or prescriptions were annexed to the petition. Some medical papers have been handed over to court wherefrom it will appear that she is neither diabetic nor does she suffer from blood pressure. Thyroid is also within limits and although adviced treadmill tests, no such tests have been placed in the medical document handed to court. Therefore, ailments can also not be a reason to grant anticipatory bail to the opposite party no. 1.
11. The Court Below relied on the submissions of the State Counsel. On 08.11.2016 there was no application pending or rejected, therefore the discretion exercised cannot be faulted.
12. Bail granted can only be interfered with in case of overwhelming circumstance, which cannot be found here. Accordingly this application fails and is dismissed.
13. Certified copy of this order, if applied for, be given to the parties on priority basis.
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