- (1.) KAMLAKAR Chaubey, J. This application under Section 43- of the Code of Criminal Procedure, 197j (hereinafter called Code) has been moved for the release of the applicant on and in Crime No. 166 of 1989 under Sections 147, 148, 149, 307 and 302 I. P. C. of P. S. Etmadpur, district Agra. The learned counsel for the applicant, the learned counsel for the complainant and the learned A. G. A. have already been heard at length.
(2.) BEFORE looking to the merits of the argument of the learned counsel for the parties, it is necessary to note down relevant facts leading to the present bail application. Od 31-7-1939 first informant Hirish alias Kallu Chauhin, r/o Nagla Prem, Mazra Clianli, P. S. Eimadpur, district Agra handed over a written report at Police Station on she basis of which the above case vas registered. In this report it was alleged-that on 3j-7-1989 at about 5-30 p. m. Rajvrer Singh, Singh, Dharma and Raj Kumar alongwith to unknown persons committed order of the father of she first informant. The brother, of the first informant hid also sustained fire arm injuries, who subsequently expired. After registration of the case, investigation proceeded and complicity of the applicant also came to light. From the Court of Judicial Magistrate III (L. C. C.) Agra, 'b' warrant Was not on 1-1-1998 to the Superintendent, District Jail, Kanour for applicant's transfer to his Court, It appears that applicant was detained n District Jail, Kanpur in connection with crime No 5io of 1989 under Section 307, I. P. C. of Police Station Govindnagar, of Kanpur Nagar. The applicant was said to have fired at Sub-Inspector of the Police Station and was arrested and sent to District Jail, Kanpur 27-12-1989. Since then he i; in that jail. Coming to know of these facts, the aforesaid 'b' warrant was sent to Superintendent of Jail, Kanpur by the Magistrate concerned from Agra. The Superintendent, District Jail, Kanpur did not comply with this requisition because of the pendency of 30/, I. P. C. case of Kanpur Naga?. From the record it further appears that in Section 307 I P. O. case at Kanpur Nagar, the applicant had been ordered to be released on bail but he has not submitted the necessary bail bonds as yet. Besides requisition of the applicant by the Criminal Court of Agra, a Sub-Inspector came from Agra and moved the Court of the Chief Metro militant Magistrate, Kanpur Nagar, for remand of the applicant in Agra case under Section 167 of the Code. The Chief Metropolitan Magistrate granted first remand presumably under sub-section (2) of Section 167 of the Code and directed him to be proceeded before the Agra Court on 21-2-1990. Order of the Chief Metropolitan Magistrate is dated 7-2-1990. No compliance of this order regarding production of the applicant before Agra Magistrate appears to have been done.
(3.) THE Applicant moved an application before the Magistrate at Agra for releasing him bail, which was rejected. THEreafter he moved the Sessions Court. THE In charge Session Judge, Agra, Sri R. K, Gupta vide his order dated 2-3-1990, rejected the bail application of the applicant a premature and there after the applicant has come to this Court The learned counsel for the applicant vehemently argued that by virtue of Warrant 'b' and remand taken in Agra case, the applicant is in custody of Agra case also and so he should be admitted to bail. The learned counsel for the complainant, however, contended that the applicant could not be said to be in custody in Agra case and so the question of releasing him on bail did not arise.;