District: Howrah

In The High Court at Calcutta

Criminal Miscellaneous Jurisdiction

--------------C.R.M NO:

OF 2011

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 04.05.2011 passed by the
Learned

Chief

Judicial

Magistrate,

Howrah, in G.R Case No. 1853 of 2011,

thereby allowing the prayer for interim
bail

made

on

behalf

of

the

accused/opposite party nos. 2 to 4 in

connection with Bally Police Station
Case No. 166/2011 dated 18.04.2011
under Sections 498(A)/406/34 of the
Indian Penal Code;

-AndIn the matter of:

Smt. Chandana Kundu
Wife of Siddhartha Kundu
Of 64/3/3, Ichapur Road, Police Station
Bantra, District - Howrah.
Complainant/Petitioner
-Vs1. The State of West Bengal
.. Opposite Party

2.

Siddhartha Kundu

3.

Sudipta Kundu
Both sons of Sukumar Kundu

4.

Prabhati Kundu
Wife of Sukumar Kundu
All Of 328/3 G.T Road, Police
Station- Bally, District Howrah,
..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 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

Chief Judicial Magistrate, Howrah inter alia disclosing commission of offences by the
accused/opposite party nos. 2 to 4 punishable under Sections 498(A)/406/34 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 Bally 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 no 1 was socially married to opposite party no. 2 one
Siddhartha Kundu on 31.01.2010 according to Hindu rites and customs. It was a
negotiated marriage. The marriage was held from the father house of the
petitioner.
B) At the time of marriage petitioners father had given cash worth Rs.
1,00,000.00(Rupees one lack) wooden cot with beedings, steel Almirah, Gold and
silver ornaments etc. as per demand of the opposite party no. 2 to 4. Besides she
took her two wheeler and presentations to her matrimonial home.
C) That the petitioner herself is an English (Hons) graduate and her husband/
opposite party no. 2 is a doctor by profession. The petitioner no 2 now working as
a doctor at B.R.SINGH, Eastern Railway, Seldaha, Kolkata. The petitioner no 3 &
4 are the brother-in-law and mother-in-law respectively of the petitioner. Her
father-in law lives in abroad for the purpose of work most of the time.
D) That after marriage, the petitioner went to matrimonial home and happy was only
for a month. Thereafter the petitioner was force by the opposite party no. 2 to 4 to
do all house hold works like a maid servant as because the opposite party no. 2 to
4 did not keep any servant in the house for saving money. If the petitioner raised
any protest, she was most abused by the opposite party no. 2 to 4. Just after a
month the opposite party no. 4 asked to the petitioner to bring further cash of Rs.

2 lacks from her father, so that her husband can start a Nursing Home, leaving his
present job.
E) That the petitioner disclosed her inability to bring such a huge amoun from her
poor father and also told this to her husband, but all the opposite party no. 2 to 4
become furious and started continuously scolding and abusing the petitioner, for
non-fulfillment of their cash demands. The petitioner was no given proper food or
medicines or her daily necessities by the opposite party no. 2 to 4 and the
petitioner was torture both physically and mentally by the opposite party no. 2 to
4 without any fault.
F) That the opposite party no. 2 to 4 also completely restrained the petitioner to go
her fathers house or even to go to the local market or to talk with the neighbours.
So how the petitioner contacted her parents through the neighbours. Then the
parents and other relatives of the petitioner came to the matrimonial house of the
petitioner for 4/5 occasions and requested the opposite party no. 2 to 4 not to
torture the petitioner. They also disclosed their inability to pay Rs. 2 lacks to the
opposite party no. 2 to 4 as further dowry. But as soon as the parents left, the
opposite party no. 2 to 4 used to start their physical and mental torture upon the
petitioner as usual.
G) That on several occasions the opposite party no. 4 slapped the petitioner and
pushed hot khunti on her body. opposite party no. 2 to 3 also used slapped and

kicks along with filthy abuses upon the petitioner, dragged her by her hair and
pushed her head on the walls. The petitioner was also instigated and provoked by
the opposite party no. 2 to 4 to committed suicide by hanging or taking poison, so
that opposite party no. 2 can marry again, get huge money. Opposite party no. 3
is a very much characterless person. In absence of opposite party no. 2 he used to
drag the petitioner, outraging her modesty, on several occasions and also used to
propose her for keeping sexual relationship with him. Whenever the petitioner
reported to the opposite party no. 2 & 4 regarding this matter, they used to
brutally torture her and subjected her to cruelty. During the last 23.01.2011 at
about 9 P.M while the petitioner was cooking. opposite party no. 2 to 4 attempted
to kill her by sprinkling kerosene oil upon her, but the petitioner some how
manage to escape from their and took shelter in her bed room.
H) That the petitioner bore all such inhuman and brutal physical and mental tortures
with the hope of a happy future. Her parents also all along advised her to keep
patience, so that everything would be all right, but all were in vain. On 04.04.2011
from morning opposite party no. 2 to 4 and assaulted her and kept locked in a
room. The opposite party no. 2 by phone called the petitioner parents for taking
away the petitioner their house at once and went to his place of work at about 9
A.M. the petitioner parents and aunt came at about 5 P.M on 04.04.201 for
compromising the situation, but then the opposite party no. 3 & 4 used most

filthily abused them and lastly drove them out along with the petitioner in one
cloth. Before coming out the petitioner only could take her ornaments given by
her father.
I) That the petitioner went to Bally P.S on 05.04.2011 to start a proper case for relief
but the police officer only recorded a G.D E on 05.04.2011 and asked her to bring
courts order to this effect.
J) 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 Chief Judicial Magistrate, Howrah upon receipt of the

aforesaid petition of complaint was pleased by his order dated 13.04.2011 to direct the
Officer-in-Charge, Bally 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, Bally Police Station Case No. 166/2011 dated 18.04.2011
under Sections 498(A)/406/34 of the Indian Penal Code was registered for investigation.

4.

That although the incident took place since after one month of marriage held on

31.01.2010 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 13.04.2011, the instant
case was registered for investigation by Bally Police Station.
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 04.05.2011 was pleased to allow the prayer for interim 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.

6.

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 family members
with dire consequences.

7.

That he petitioner states that 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.

8.

The aforesaid incident was informed to the local Police Station as also the 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 is annexed hereto and collectively marked with the
letter P - 2.

9.

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

opposite party nos. 2 to 4 was based on some misrepresented and distorted facts placed
before the Learned Magistrate by the opposite party nos. 2 to 4. Moreover, the opposite
party nos. 2 to 4 are continuously threatening the petitioner 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 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.

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 for the ends of justice.

10

10.

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.

11.

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

but, however, calls for exercise of such discretion in a judicious manner and not as a
matter of course. Order for bail bereft of any cogent reason cannot be sustained. The
nature of the offence is one of the basic considerations 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.

12.

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

11

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
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 was 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.

13.

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

12

set aside by this Honble Court, the life of the petitioner 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.

14.

That unless the order dated 04.05.2011 passed by the Learned Chief Judicial

Magistrate, Howrah in G.R. Case No. 1853 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 custody, the
petitioner, being the aggrieved party and the defacto complainant of the instant case,
would suffer prejudice and loss.

15.

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.

16.

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

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

17.

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

13

the order dated 04.05.2011 passed by the Learned

Chief Judicial Magistrate, Howrah, in G.R Case
No. 1853 of 2011, in connection with Bally Police
Station Case No. 166/2011 dated 18.04.2011
and/or 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.

14

AF F I D AV I T

I, Smt.Chandana Kundu, wife of Siddhartha Kundu, aged about 24 years, by occupation

house wife, residing at Of 64/3/3, Ichapur Road, Police Station Bantra, and District
Howrah, 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 May, 2011

Clerk to Mr.
Advocate

Commissioner

15

District: Howrah
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. Chandana Kundu
.. Complainant/Petitioner
-VsThe State of West Bengal & Ors.
Opposite Parties

Affirmed on 12th May, 2011

Mr. Ashish Dey
Advocate
Bar Association, Room No. 16
High Court, Calcutta.