D.K.Trivedi - (1.) BY means of this application the applicant has prayed that he be released on bail.
(2.) THE brief facts of the case are that the applicant Babu Tewari alias Govind was convicted under section 302 IPC and sentenced to imprisonment for life in Sessions Trial No. 166 of 1974 by the trial Judge, Unnao. THE appeal filed by the applicant was also dismissed. In 1983 the applicant while serving out the sentence moved an application for premature release. THE applicant's case for premature release had been postponed for three years by the State Government by an order dated 2-4-1983. THE applicant thereafter filed Writ Petition No. 3037 of 1983 in the Hon'ble Supreme Court of India for his release on licence under the provisions of the U. P. Prisoners Release on Probation Act THE Hon'ble Supreme Court by order dated 28-5-1984 disposed of the writ petition directing the State Government to dispose of the applicant's application for premature release within five months after the expiry of the period for which it had been postponed by the State Government. THE Hon'ble Supreme Court further issued a direction that in case the State Government failed to dispose of Form A of the applicant within the stipulated period then the, applicant be released on bail by the Sessions Judge, Unnao. It was further pointed out that in case the application was finally rejected then the State Government could move the Sessions Judge for cancellation of bail. From the perusal of the order of the Hon'ble Supreme Court it is clear that the State Government was directed to dispose of the application for premature release within five months after expiry of the extended period of three years. It is not disputed that the State Government by order dated 2-4-1983 postponed the decision for premature release of the applicant for three years, which means that the period was extended upto 1-4-1986. THE State Government thereafter was bound to dispose of the application within five months. This means that the State Government was bound to decide the application upto September 1986 and if the State Government failed to decide the said application upto September, 1986 then the applicant was entitled to be released on bail by the Sessions Judge. It appears that under some mistaken belief the applicant moved an application for bail before the Sessions Judge in January, 1985 on which the District Government Counsel (Criminal) submitted a report that on view of directions of the Hon'ble Supreme Court the applicant is entitled to be released on bail. THE Sessions Judge without considering the fact that time granted by the Supreme Court is upto September, 1986 and relying upon the report of the District Government Counsel (Criminal) granted bail to the applicant on 28-1-1985. THE applicant by order of the Sessions Judge remained on bail upto March, 1990 and no body noticed that on 28-1-85 the applicant could not be released under the orders of Hon'ble the Supreme Court. However, in August, 1990 it was discovered that the applicant was wrongly released in .1985 and, therefore, the application for cancellation of bail was moved by the State on 2-5-90. It may be mentioned here that in the meantime applicant Babu Tewari was arrested and sent to jail in Case Crime No. 49 of 1990 under sections 25/27/29 IPC on 19-3-1990. THE State Government Counsel on coming to know of the fact that applicant Babu Tewari is in tail moved an application before the Sessions Judge on 24-9-1990 that the applicant be not released from jail unless and until the application for cancellation of bail is not disposed of. THE Sessions Judge without considering the fact that whether he can pass such an order or not allowed the application and passed an order on same day informing the jail authorities that the applicant be kept in jail till the decision of the application for cancellation of bail. In the meantime, applicant moved a bail application in case crime No. 49 of 1990 under Secs. 25/27/29 IPC and the applicant was directed to be released on bail by this Court on 15-10-1990 vide Criminal Misc. Case No. 2699 of 1990. THE applicant thereafter furnished sureties etc. and finally the Chief Judicial Magistrate, Unnao, sent a release warrant of the applicant in view of the order dated 24-9-1990 passed by the Sessions Judge by which the Sessions Judge directed the jail authorities to keep the applicant in jail till the decision of the application for cancellation of bail. THE applicant, therefore, moved an application on 23-10-1990 before the Sessions Judge informing him that the applicant has already been released on bail in case crime No. 49 of 1990 by orders of the High Court therefore, he should be released from jail forthwith. From the perusal of the lower court record it appears that the Sessions Judge instead of directing the applicant to be released on bail passed an order directing that the application be put up on the date fixed. It may be pointed out that the District Government Counsel (Criminal) on this application submitted a report that the applicant be kept in jail till the decision of application for cancellation of bail. THE Superintendent, District Jail, Unnao, also by his letter dated 23-10-90 informed the District Judge that the High Court has already granted bail to the applicant in case crime No. 49 of 1990 and the release order has already been received in jail, therefore, there is now no case against the applicant. THE Superintendent, District Jail, further informed the District Judge that the applicant has been detained in jail only because the District Judge directed the jail authorities to keep the applicant in jail till the decision of application for cancellation of bail. THE Superintendent, District Jail, further informed the Sessions Judge that either custody warrant be sent or the applicant be released from the court itself. THE learned Sessions Judge instead of passing any orders appears to have overlooked this letter also. From the perusal of the record it appears that no orders have been passed on this letter. THE Sessions Judge finally allowed . the application for cancellation of bail on 19-11-1990 and directed that the applicant, who was in jail, be kept in jail and custody warrant be sent to jail authorities. THE applicant thereafter moved this application for bail. On behalf of the Government Advocate a preliminary objection has been raised that the present bail applications not maintainable because the applicant did not make any prayer for quashing of the order dated 19-11-1990 by which the Sessions Judge cancelled the bail of the applicant. In view of the peculiar facts of the case I summoned the record of the case and treated this application as one under section 482 CrPC in order to prevent miscarriage of justice. I have heard the learned counsel for the applicant Sri. J. N. Chauhary, and the Additional Government Advocate on behalf of She State. As the arguments could not be completed on 8-4-1991, therefore, I passed the order directing the Chief Judicial Magistrate to release the applicant on bail. In the instant case it is not disputed that the applicant's application for premature release is still pending and has not yet been disposed of by the State Government, therefore, in view of the order of Hon'ble the Supreme Court the applicant could not be detained after September, 1986. It appears that the applicant was released on bail wrongly under some bona fide mistake because even the District Government Counsel (Criminal) submitted a report in favour of the applicant and the Sessions Judge granted bail to the applicant. It appears that all the persons including the Sessions Judge interpreted the order of Hon'ble the Supreme Court wrongly but as the District Government Counsel (Criminal) and the Court also interpreted the order of Hon'ble the Supreme Court wrongly therefore, it can be presumed that the applicant was released on bail under some bonafide mistake. In my opinion, it cannot be said that the applicant committed any fraud or misled the court. It is also not disputed that upto September, 1986 no application for cancellation of bail was moved by the State and the State for reasons best known to it moved the present application for cancellation of bail in May, 1990 without disposing of the application for premature release.
(3.) THE learned Sessions Judge in May, 1990 ought to have considered that now the applicant could not be detained in jail and he is entitled to be released on bail by orders of Hon'ble the Supreme Court and, therefore, his bail now cannot be cancelled unless and until the State decides the application for premature release and say that the application for premature release has been rejected. THE learned Sessions Judge further should have considered that he has no power to direct the jail authorities to keep the applicant in jail till the decision of the application for cancellation of bail. In my option the learned Sessions Judge has no power to make an interim order of cancellation of bail. By giving direction to the jail authorities that the applicant be kept in jail till the decision of the application for cancellation of bail has. the effect of temporary, intervening, cancellation of bail. THE learned Sessions Judge should have considered that cancellation of bail as an extraordinary step and it must be preceded by an enquiry. This Court in Rameshwar Prasad v. State, 1974 ALJ 844 took a view that the Sessions Judge cannot stay the operation of bail order passed by the Magistrate. The personal liberty of an individual can be curbed only by procedure established by law. The order by which the learned Sessions Judge directed the jail authorities to keep the applicant in jail till the decision of the application for cancellation of bail was not a proper order and in fact was without jurisdiction. The learned Sessions Judge was also informed that bail in Case Crime No. 49 of 1990 has been granted by the High Court, but even then keeping the person in jail is on the face of it against the propriety and judicial discipline. Again after receipt of letter from jail and the application moved by the applicant the learned Sessions Judge did not pass any order on the said application and kept the same pending. This itself shows that the learned Sessions Judge after coming to know of the fact that the applicant is not wanted in any other case kept the applicant in jail only on the basis of pendency of the application for cancellation of bail. I find force in the contention of the applicant's counsel that from these facts it is evident that the learned Sessions Judge in order to circumvent the order of this Court as well as the order of Hon'ble the Supreme Court passed an order on the application directing the application to be put up on the date fixed. The Hon'ble Supreme Court while disposing of the writ petition granted bail to the applicant, if the State failed to dispose of the application for premature release within five months after expiry of the extended period. It is also not disputed that the applicant thereafter has been released on bail under orders of the Hon'ble Supreme Court in Writ Petition No. 3034 of 1983, therefore, heavy duty was cast on the learned Sessions Judge to scrutinise the record before issuing interim order of detention or passing final order on the application for cancellation of bail The learned Sessions Judge overlooked the fact that the applicant could not be detained in jail after September, 1986 under the order of Hon'ble the Supreme Court, in my opinion the order for cancellation of bail is on the face of it is not a legal order.;