- (1.) G. P. Mathur, J.- This is an application for bail by Attar Singh who is in custody in case No. 187 of 1989 under Sections 147, 148, 149, 307, 302, 452, I. P. C. , P. S. Kavi Nagar, district Ghaziabad. According to the case of the prosecution the incident took place on 22-5-1988 in which Sushil Kumar was killed and Subey Singh and Ved Prakash received injuries. The applicant Attar Singh applied for bail but the same was rejected by Shri O. P. Garg, Sessions Judge, Ghaziabad, on 30-6-1989. The applicant then applied for bail vide Cr. Misc. Bail Application No. 6642 of 1989 in this Court and gave notice of the bail application to the Government Advocate on 2-7-1989. The bail application was heard by Hon'ble K. K. Chaubey, J. on 20-7- 1989 when His Lordship, after hearing learned counsel for the applicant as well as for the complainant, passed an order for summoning the case-diary and directed that the case be listed on 14-8-1989. It appears from the record that the bail application was not listed on 14-8-1989. Meanwhile the applicant, without disclosing, the fact that he had already filed a bail application in the High Court, moved a second bail application before the learned sessions Judge, Ghaziabad. Shri O. P. Garg learned Sessions Judge, Ghaziabad, granted bail to the applicant on 5-10-1989. Alter the applicant had been granted bail by the Sessions Judge, Ghaziabad, his bail application, which he had iiled in this Court, was listed for orders in court on 22-10-1989. On that date counsel for the applicant gave a statement that the bail application be rejected as not pressed. Accordingly Bail Application No. 6692 of 1989 was rejected as not pressed on 22-10-1989. The State moved bail application No. 24 of 1991 before the learned Sessions Judge, Ghaziabad for cancelling the bail granted to the applicant on 5-10-1989 on the ground that the bail application had been moved before the Sessions Court suppressing the fact that the applicant's bail application was already pending in the High Court and that the applicant had obtained the bail order by playing fraud. Shri J. C. Gupta, learned Sessions Judge, Ghaziabad, by his order dated 27-7-1990 cancelled the bail of the applicant on the ground that the applicant had knowledge that his bail application was pending in the High Court when he moved the second bail application before the Sessions Judge and that when an application for bail was pending in the High Court after its rejection by the Court of Sessions Judge, the Sessions Judge bad no jurisdiction to grant the said bail. By the same order dated 27-7-1990 the learned Sessions Judge granted parole to the applicant for 15 days which lam informed at the bar that the parole was extended for a further period of 15 days. The applicant surrendered on 25-8-1990.
(2.) AFTER cancellation of the bail of the applicant by the learned Sessions Judge, Ghaziabad, he has applied for bail vide Crl. Misc. Bail Application No. 8849 of 1990 in this Court. Shri R. K. Shangloo, learned counsel for the application has contended that the applicant has not played any fraud and that no impropriety had been done by moving the second bail application before the learned Sessions Judge at a time when his bail application was pending consi deration in the High Court. He has placed reliance on the case of Mohan Singh v. Union Territory, 1978 Cr LJ 844 (SC ). Shri D. N. Wali, learned counsel for the complainan', has opposed the bail application and has submitted that after the bail application of the applicant had besa heard by Hon'ble K. K. Chaubey, J. on 20-7-1989, the applicant fully knew that, his bail application would be rejected and, therefore, without disclosing the fact of riling of the bail applica tion in the High Court, the applicant moved the second bail application before the learned Sessions Judge, Ghaziabad. According to learned counsel the applicant had committed fraud and was guilty of having coaacaled a material fact and, therefore, he was not entitled to bail. He has placed reliance on a case reported in 1984 ACC at 947 (Summary), The learned Sessions Judge has held that once the bail application of an accused is rejected by the Sessions Judge and accused applies for bail before the Hon'ble High Court the Sessions Judge has no jurisdiction to grant bail. It will not be proper to say that if the bail application of an accused is pending before the High Court the Sessions Judge has no jurisdiction to grant bail to him. Section 439 Cr. P. C. confers concurrent power of granting bail both on the High Court as well as on the Court of Sessions. The correct position of law is that even after rejection of a bail by the High court the Court of Session may entertain and consider an application for bail of the same accused provided new substantial grounds for bail have arisen since the last order of rejection of bail and reasonably long interval has also elapsed. It is true that judicial propriety and decorum requires that the Session Judge should not proceed to consider the bail application of an accused on merits if he has already applied for bail before the High Court. In the present case after the rejection of the first bail application by the learned Sessions Judge, Ghaziabad, on 20-6-1989 the applicant gave notice of his bail application to the Government Advocate on 3-7-1989. This bail application was heard by the High Court on 20-7-1989 when an order was passed for summoning the case diary. The applicant moved the second bail application before the learned Sessions Judge, Ghaziabad, when his bail application had already been heard by the High Court and was pending consideration. The application deliberately did not disclose this fact while moving the second bail application before the learned Sessions Judge. It is, therefore, clear that the applicant committed fraud and 'concealed a material fact'. In case the applicant had disclosed the correct facts, in all probabilities, the learned Sessions Judge would not have considered the second bail application of the applicant on merits and would not have allowed the same on 5-10-1989. I am, therefore, of the opinion that the learned Sessions Judge has rightly cancelled the bail of the applicant by his order dated 27-7-1989 and the order cannot be said to be illegal or improper. The question still remains as to whether the applicant should be allowed to languish in jail for an indefinite period of time. According to the prosecution case eight accused participated in the crime out of whom one was armed with a farsa, one with ballam, five with lathis and the applicant was armed with a danda. The post-mortem report shows that the deceased sustained in all five injuries which included two abraded contusions and three incised wounds. The abraded contusions must have baea caused by blunt weapon. There is no internal damage under the same. The death appears to have been caused due to incised wound on the chest as the ribs were fractured and the lung was punctured. Subey Singh injured received five injuries which were all simple. Ved Prakash received ten injuries, some of which were simple and some were grievous. He sustained fracture in his hand. Since as many as six accused including the applicant were armed with blunt weapons and the deceased sustained only two injuries by blunt weapon it cannot be said with certainty that the applicant had also assaulted the deceased. It is also streneously contended by the learned counsel for the applicant that the applicant Attar Singh is aged about 70 years and is keeping bad health and, therefore, he should be granted bail on heath ground. In the counter-affidavit it is asserted that the applicant is a stout person and is about 60 years of age. The order dated 30-6-1989 shows that the applicant was summoned from jail. The learned Sessions Judge was of the opinion that the applicant was an old person and though he was suffering from asthametic bronchitis he could be looked after by the jail doctor. Shri J. C. Gupta, Sessions Judge, Ghaziabad, who cancelled the bail of the applicant by his order dated 27-7-1990 has also observed in his order that the applicant was an old and infirm man and was suffering from severe eye ailment. In fact he granted him, parole by the same order. Therefore, there can be no doubt that the applicant is an old man of about 70 years and is not keeping good health. The applicant was arrested on 22-5-89 and was initially granted bail on 5-10-1989 after he remained in jail for about four months 13 days. He is again in jail since 26-8-1990 and has undergone about three months 7 days. The applicant has thus remained in jail for about 7 months and 20 days. I am of opinion that the applicant has received sufficient punishment for having obtained bail by concealment of material fact but now looking to his old age and ill health he may be released on bail.
(3.) LET applicant Attar Singh be released on bail in Crime No. 157 of 1989 under Sections 147, 148, 149, 307, 302 and 452, I. P. C. P. S. Kavi Nagar, Ghaziabad, on furnishing two sureties and a personal bond to the satisfaction of C. J. M. , Ghaziabad. Bail granted. .;