TaxTMI 
TaxTMI 
2009 (7) TMI 1324
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....t by the learned S.D.J.M., Purnia vide order dated October 19, 2002, passed in C.A. No. 1098 of 2001 with reference to the complaint filed by the respondent No. 2 for alleged commission of offence punishable under Section 498A IPC, is confirmed. 3. The marriage of the appellant was solemnized with the respondent No. 2 on June 22, 1989. After the marriage, the respondent No. 2 started living with the appellant at her matrimonial home. During the subsistence of the marriage, the respondent No. 2 gave birth to two daughters. It is the case of the respondent No. 2 that the appellant and his family members started subjecting her to mental and physical cruelty for bringing insufficient dowry and also because she objected to illicit relations o....
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...., the record of the case was called for by the Sessions Court from the Court of learned Magistrate. 5. On October 19, 2002, the appellant surrendered before the Court of learned Judicial Magistrate First Class, Purnia and moved an application for bail. Since the original record was not available as the same was summoned by the Sessions Court, the learned Judicial Magistrate passed an order calling for the original record from the Court of learned District and Sessions Judge, Purnia. Though the copy of the application for bail was served on the learned Advocate for the original complainant, the learned Magistrate had not indicated in the order summoning record of the case from the Sessions Court that the bail application moved by the appe....
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....me day. It was noted by the learned Sessions Judge that though the complaint was filed by the respondent No. 2 on October 9, 2002, the learned Magistrate had taken into consideration divorce proceedings initiated by the appellant in the year 2000, i.e., after taking cognizance of the offence and had also relied upon other documents. Having taken into consideration relevant circumstances emerging from the record of the case, the learned Sessions Judge concluded that the learned Magistrate had enlarged the appellant on bail on considerations other than judicial. Therefore, the learned Sessions Judge, by order dated January 8, 2004, allowed the application filed by the respondent No. 2 and cancelled the bail granted to the appellant. 7. Fee....
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.... accused has been at large for a considerable time, the post-bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case of applications for cancellation of bail." [emphasis supplied] A careful reading of the said observations shows that while considering the factors relevant for consideration of bail already granted vis-à-vis the factors relevant for rejection of bail, this Court pointed out that for cancellation of bail, conduct subsequent to release on bail and supervening circumstances will be relevant. The said observations were not intended to restrict the power of a superior court to cancel bail in appropriate cases on other grounds. In ....
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....erior court. In view of the judicial order passed by the learned Magistrate, the Registry of the Sessions Court forthwith sent the record of the case to the court of learned Judicial Magistrate First Class. Thereafter, the learned Magistrate proceeded to hear the bail application submitted by the appellant. In the order summoning the record, it was nowhere indicated by the learned Magistrate that the application submitted by the appellant would be heard on the same day, i.e., on October 19, 2002. The learned advocate for the complainant was not put on notice at all and, therefore, could not remain present at the time when the bail application was taken up for hearing. The learned Magistrate considered the documents produced by the learned c....
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....interested to grant bail to the petitioner who is husband of the opposite part no. 2." 2. The findings recorded by the learned Sessions Judge and the High Court make it clear that the learned Magistrate had exercised discretion vested in him under Section 437 with oblique motive. The learned Magistrate was apparently bent upon granting bail to the appellant and, therefore, not only decided to hear the bail application presented by the appellant on the same day, but had also called for record from the superior court and granted bail to the appellant without hearing the learned counsel for the complainant. As the judicial discretion was exercised by the learned Judicial Magistrate First Class in an arbitrary manner and with oblique motives....