B.L.Yadav - (1.) THIS is an application under section 439 (2) read with Section 4b2 of the Code of Criminal Procedure (Act No. 2 of 1974) (for short the Code) for cancel ation of bail alleged to have been granted to the opposite party by the order rated 3-4-1986 purponting to have been passed by me. The antecedents of the case reflect a commentary. In fact ' 3-4-86 ' was a date in the middest of the Advocates' Strike in the High Court in connection with creation of a Bench in the Western U. P. and I was not sitting in Court on that date, nor any application was filed before me, nor I passed any order dated 3-4-1986 granting bail to the opposite party Phaujdar son of Sukhai, resident of village Rakhia, Police Station Kaptanganj, District Basti.
(2.) IT is better to have few facts;. The opposite party Phaujdar was involved in an offence under Sections 302/307/34 IPC, read with section 25 of the Arms Act in Crime No. 86 of 1985, Police Station Kapianganj, District Basti. An incident took place at 2 p. m. on 19-7-1985 in which Smt.Beila Devi and Sita Ram Yadava were killed and the complainant Ram Newas received injuries A.first information report was lodged at 3.25 p. m. on the same day at Police Station Kaptangauj, District Basti. True copies of the postmortem examinatior reports conducted on the dead-bodies of the deceased Smt.Beila Devi and Sita Ram have been filed as Annexure ' 2 ' and ' 4 ' to the affidavit filed in support of this application. The learned Sessions Judge, Basti rejected bail application moved on behalf of the opposite party by order dated 30-8-1985. Sri G. P. Mathur, an Advocate of this Court, gave notice in the office of the Government office with an intention to move the first bail application and the notice number of that application was 8736 of 1985 That first bail application was presented before Hon'ble O. P.Saxena, J. and was argued by Sri G. P, Mathur. But the same was rejected on 3-12-1985. The learned counsel for the applicant urged that it was averred in paragraph no. 8 of the affidavit filed in support of the present application that he was instructed on behalf of the complainant to watch Jhe first bail application and oppose the same. He did watch the first bail application and the same was rejected The complainant informed his counsel that the opposite-party has been released on bail on the bases of the order purported to have been passed on 3-4-1986 by me. The present application has been filed for cancellation of that bail order. Sri Jokhan Prasad, learned counsel for the Complainant, urged that as the first bail application was dismissed on 3-12-1985, hence if second bail application was to be filed that could have been filed only before the Hon'ble Judge having dismissed the first bail application and not before any other Hon'ble Judge. The alleged bail order dated 3-4-1986, as presented before the Chief Judicial Magistrate, Basti indicates to have been passed in Criminal Misc. Bail Application no. 15793 of 1986 (Phaujdar son of Sukhai v. State of U. P. In this application Sri Shyam Lal Yadav, Advocate of this Court, has been shown as counsel for the applicant Phaujodar who moved the bail application and applied for a certified copy of the bail order. In paragraph no. 15 of the affidavit filed in support of the present application for cancellation of bail it has been averred that an endorsement has been obtained from Sri Shyam Lal Yadav, Advocate to the effect that he did not move any such application for grant of bail nor obtained the alleged bail order and that no bail application was ever presented before this Court on 3-4-1986. An endorsement was also obtained from the Criminal Department of this Court and there was no trace of the alleged bail application no. 15793 of 1986 (Phaujdar v. State). The order dated 3-4-1986 is fabricated by a gang which appears to have specialized in fabricating the stay orders and bail orders of this Court in civil and criminal matters without there being any application or order passed on it. It was urged that the order dated 3-4-1986 may be cancelled and the opposite party may be taken into custody. Sri Surendra Nath Singh, Assistant Government Advocate, representing the State, also stated that no notices has been received in connection with Criminal Misc. Application No. 15795 of 1986 in the office of the Government Advocate, for moving second or third bail application in which the order dated 3-4-1986 granting bail to opposite party was passed.
(3.) I directed notice of this Application to be issued and served on the opposite party. The complainant applicant was directed to serve the opposite party through ' dasti process'. Am affidavit of service has been filed stating that the opposite party refused to accept the notice before two witnesses, namely, Chandra Singh and Ram Ujagar Yadav. The notices on the opposite parties were deemed to be sufficiently served and he had sufficient opportunity to file a counter affidavit but he did not do so. Similarly, on 16-7-1986 ten days' time was granted to the State to file counter affidavit at the request of the Assistant Government Advocate but the same was also not filed. On that date i. e.16-1-1986, the Registrar of this Court was directed to furnish information, in respect of such bail orders, which purported to have been issued from this Court, but in respect of which no bail applications were filed. This fact could have been ascertained with the assistance of the Chief Judicial Magistrate of different district in the State by receiving informations as to how many bail orders were received by them for enlarging the accused on bail during the Advocates' Strike period. Particular numbers of the bail applications given in the order itself could have been compared here in the Criminal Department. In this way, it could have been ascertained, as in how many cases the bail orders were fabricated and used by the gang operating in this regard, to get a number of: accused, and in many cases hard hardened criminals, enlarged on bail, in respect of which neither bail applications were filed nor orders were passed by the Bench concerned. The information was sought for by letter dated 26-7-1986 from the Chief Judicial Magistrate, Basti but no compliance report has been received so far. A report dated 20-7-1986 was submitted by the office of the Criminal Department which was placed before me clearly shows that since 3-4-1986 to 11-5-1986 no such bail order was issued from the office of the Criminal Department. Another report was also received showing that during the strike period no bail application concerning Basti Judgeship was moved before this Court which was evident from the perusal of the relevant registers.;