ANURADHA KHEMAKA NEE BANSAL Vs. SUDARSHAN KUMAR KHEMKA

JUDGEMENT

(1.) This is an Application for cancellation of Bail filed under Section 439(2) of the Code of Criminal Procedure (hereinafter referred to as the said Code) by the Complainant/Petitioner. She feels aggrieved by the interim Bail granted to the Opposite Party No. 1 by the learned Sub-Divisional Judicial Magistrate, Bidhannagar on 21.1.2005 in connection with G. R. Case No. 530 of 2005 arising out of Lake Town Police Station Case No. 320 dated 20.12.2004 under Sections 417, 420, 354, 498A, 406 and 120B of the Indian Penal Code Sections 3 and 4 the Dowry Prohibition Act.

(2.) Learned Senior Counsel appearing on behalf of the petitioner submitted that the interim Bail granted by the learned Magistrate was passed on a Holiday Remand on the ground that the health condition of the Opposite Party No. 1 was not good; but, however, without looking into any medical documents the said Order was passed. He further submitted that how could the learned Magistrate determine in the absence of any medical certificate as to the nature of the illness and the very basis of the Order found on the ground of illness was vitiated by the error of judgment. Learned Senior Counsel submitted that in stead of acceding to the prayer of interim Bail on the very first day the learned Magistrate should have awaited for the learned Public Prosecutor to make his submission. He referred to the Order of the Transit Court which did not grant him Bail on health ground. As such, how could a fresh cause of action, so far as it health is caused, arise within such a short period ? Learned Senior Counsel submitted that there was absolutely non- application of mind by the learned Magistrate while granting the prayer for Bail and the same has to be cancelled.

(3.) Learned Senior Counsel for the Petitioner referred to the decision of the Supreme Court in Puran v. Rambilas & Anr., 2001 SCC (Cr) 1124 : 2001 C Cr LR (SC) 391 and submitted that the order passed by the learned Magistrate was absolutely on the basis of ignoring the materials and without giving proper reasons which were perverse and contrary to the principles of law and as such, on that ground that Bail should be cancelled as the learned Magistrate did not go into the merit but, only on the ground of illness for which there was ho document before the Court and exercise of the powers of Bail on such premises was a perverse Order.