- (1.) O. P. Jain, J. The State has filed this application for cancellation of bail. The brief facts leading to the application are that non-applicant Badloo was convicted under Section 302, IPC on 9-10-1968 in S. T No. 61/68. His appeal was dismissed by this Court on 29th March, 1972. It appears that after serving a major portion of the sentence he applied under Section 2 of U. P. Prisoners' Release on Probation Act, 1938 but no order was passed on his application. There fore Badloo along with some other accused persons who were similarly situated filed writ petitions before the Hon'ble Supreme Court and on 12-11-1984 the apex Court passed the following order: "the writ petitions above-mentioned being called on for hearing before this Court on the 12th day of November, 1984 upon perusing the said Writ Petitions, and the accompanying documents and upon hearing counsel for the parties. THIS COURT DOTH ORDER THAT the petitioners namely Badloo Convict No. 24928, s/o Alla Jilaya (In W. P. No. 2457/83), Bakkha Singh Convict No. 30920, s/o Shri Gurdatt Singh (In W. P. No. 2459/83), and Iqbal s/o Faiaza Khan (In WP. No. 2460/83) be released on Bail forthwith on their furnishing Sureties to the satisfaction of the Dis trict Session Judge concerned, and that in case of real hardship, the District and Sessions Judge may release the Petitioners on Personal Bond of Rs. 500/- (Five hundred) without sureties. THIS COURT DOTH FURTHER ORDER that in case the concerned authorities reject the application of the petitioners for prema ture release it shall be open to the authorities to apply for the cancellation of Bail and it shall be open to the Petitioners to challenge the rejection for which proceedings be taken in the High Court by either party. "
(2.) IN pursuance of the above order the Sessions Judge released the accused on bail on 10-2-85. Even after the above order by the apex Court the State did not take imme diate steps and it was on 18-8-1987 that FORM A prescribed under Rules 6 (1) of the Rules framed under U. P. Prisoners Release on Probation Act of 1938 (Act No. Ill of 1973), was rejected on the ground that the offence committed by the accused was pre-planned, that the accused is a har dened criminal and that the person who has offered himself as guardian is almost of the same age as the accused and is economically weak. About six years after the rejection of FORM A the present application for can cellation of bail has been filed on 22-2-1993. On this application being filed notices were issued to accused Badloo and a counter af fidavit has been filed on his behalf. Ave heard the learned A. G. A. for the State and the learned Counsel for the accused.
(3.) IT is pointed out on behalf of the accused that he has actually spent 11 years 12 months and two days in prison and has earned remission of 5 years one month 90 days upto 1-3-1984. The total comes to 17 years one month and 21 days. IT is argued that the accused was convicted in 1968 before Section 433-A Cr. P. C. was enacted and therefore, the Section is not applicable to him as held in the case of Mam Ram v. State AIR 1980 SC, 2147. The learned counsel for the accused has also rightly argued that simply saying that the accused is a hardened criminal is not sufficient and some, particulars should have been given if he had a criminal history. The learned counsel has also criticised the second ground given in Annexure-3 order passed on FORM A The second reason given by the State Government is that he has no proper guardian. Some cases have been cited in support of the view that if there is not a proper guardian the State should ap point a gardian. It may be mentioned that in another case of similar nature 8257/93 State v. Jyoti Prakash which has also been heard today the apex Court has ordered on 28-4-1983 as under: "we also direct that where a guardian is required to be appointed to produce a guardian or the guardian proposed by them is rejected as unsuitable the State Government shall appoint a Government Officer as the guardian in view of Section2oftheactofl938. . . . . . . . . . . . ";