- (1.) This application under Section 439 (2) Cr.P.C. has been preferred by the applicant, a victim who sustained injuries in the occurrence, seeking cancellation of bail granted to the Respondent No. 2 by an order dated 18.1.2013 passed by the Special Judge, Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act 1989 (in short Special Judge, S.C.S.T. Act), Allahabad in Case Crime No. 359 of 2012 under Sections 307, 323, 504 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station- Colonelganj, District- Allahabad. The factual matrix as unfurled in the F.I.R. and also highlighted by the applicant is that on 16.7.2012 at about 12 o'clock (noon) the applicant was on way to Allahabad University from his house where he was prosecuting studies in M.A. Final along with his elder brother Animesh Singh on his bike. When the bikers arrived near Lala Chungi their bike was intercepted by the Respondent No. 2 and his aides named in the F.I.R. To begin with, they all started hurling abuses and thereafter, co-accused Umesh Singh caught hold of the applicant. In the meanwhile, respondent No. 2 whipped out pistol from his waist and fired shot at the applicant with intention to commit his murder out of animosity resulting from Students' Union Election rivalry. The gun shot fired by the Respondent No. 2 hit the applicant in his stomach and he fell down on the road. He was immediately removed to the hospital by his brother (the first informant) with the help of passers by. After firing, all the named assailants fled away from the scene of occurrence brandishing their respective weapons in the air. The F.I.R. was lodged on the same day at 14.15 o'clock. The Respondent No. 2, it would appear, surrendered in the court of concerned Magistrate and moved his bail application in the court of Session Judge, Allahabad on 23.8.2012. The learned Sessions Judge, however, transferred the bail application on the same day to the court of Additional Sessions Judge, Court No. Xth (in short ASJ, Xth). The bail application lingered without orders in the said court up-to 23.11.2012 and it was thereafter that the said bail application was transferred to the court of Additional Sessions Judge, Court No. Vth (in short ASJ, Vth ) under the administrative order dated 23.11.2012 passed by the Sessions Judge. The bail application again lingered in the court of ASJ 5th till it was transferred to the court Special Judge SC/ST Act vide transfer order dated 18.1.2013 passed by the learned In-charge Sessions Judge, Allahabad on the transfer application of the Respondent NO. 2, moved on 11.1.2013. The transferee court, however, disposed of the bail application on the same day when it received the record of the bail application i.e. on 18.1.2013 admitting the Respondent No. 2 to bail. It is the order granting bail to the respondent no 2 which is under challenge before this Court.
(2.) The quintessence of the arguments advanced across the bar by the learned counsel for the applicant is that the respondent No. 2 is an inveterate hard core criminal having to his discredit long criminal antecedents. He attempted to commit murder of the applicant causing grievous fire arm injury on the vital part of the body of the injured during broad day light in a thickly populated area of Allahabad in presence of several persons including the eyewitnesses named in the F.I.R. On the basis of statements of the eyewitnesses and consequent upon the investigation of the case that followed, the respondent No. 2 was clearly nominated as the actual shooter. The motive behind the occurrence was the rivalry between the applicant and the Respondent No. 2 resulting from students' union election.
(3.) The main brunt of the arguments advanced by Learned counsel for the applicant is that the brother of the applicant, who is an eyewitnesses of the occurrence and also the first informant, had filed objection against the bail application of the Respondent No. 2 in the court of ASJ, Xth where the bail application was pending. In his objections, the first informant has not only vividly described the role of the Respondent No. 2 in attempting to commit murder of the applicant but has also disclosed his criminal antecedents. The Respondent No. 2, it is submitted, however, filed no affidavit to repudiate the contents of the objections so moved on behalf of the applicant. Learned counsel further argued that the bail application of the Respondent No. 2 filed on 23.8.2012 continued to protract in the court of ASJ, Xth for three long months but on all dates fixed in the case, learned counsel for the Respondent No. 2 only sought adjournments during this period. The bail application, it is submitted, was transferred from the court of ASJ, Xth to the court of ASJ, Vth under the administrative order dated 23.11.2012 of the Sessions Judge, Allahabad but there too, it continued to protract up-to 18.1.2013 by moving repeated adjournment applications by Respondent No. 2. Virtually, no efforts were made to get his bail application decided. The Respondent No. 2, it is alleged, manoeuvred to get his bail application transferred on 18.1.2013 from the court of ASJ, Vth to the court of Special Judge, S.C.S.T. Act by moving transfer application. A perusal of order sheet of the bail application shows that on 17.01.2013 the case could not be taken up due to strike by lawyers and 21.01.2013 was fixed by the transferer court The transferee court i.e. court of Special Judge, S.C.S.T. Act in a post-haste manner prepone the date for the reasons best known to him, decided the bail application enlarging the Respondent No. 2 on bail on the same day, the bail application was transferred by the In-charge Sessions Court to his court. The applicant, it is also submitted who was contesting the bail from the very inception and had filed his written objection, was not served even with the notice prior to the hearing of the transfer application. The transferee court also did not inform the applicant about the transfer of bail application to his court. This shows, it is vociferously submitted, the learned In-charge Sessions Judge had allowed the transfer application in the whimsical and wanton manner and even, dehors the rules and the procedure.;