- (1.) VINOD Prasad, J. This bail cancellation application has been filed by Dinesh Singh informant of Crime No. 299 of 1999, under Sections 302 I. P. C. , P. S. Civil Lines, District Etawah seeking cancellation of bail granted to accused Pramod Singh son of Bhagwan Singh in the aforesaid crime number by this Court on 24- 6-2003 in Criminal Miscellaneous Bail Application No. 9126 of 2003, Pramod Singh v. State, Annexure No. 6 to this Bail Cancellation Application. Before adverting to the merits of this cancellation application a brief narration of allegations against the accused is mentioned below.
(2.) ABHAY Singh Bhadoria @ Munna (Deceased) had gone to meet Shivraj Singh Sengar accompanied by his brother Dinesh Singh (informant), Mukesh Singh, Virendra Kumar Chowdary by his Tata Sumo U. P. 75 B 4489 on 15-7-1999 at 9. 00 a. m. When he ABHAY Singh Bhadoria @ Munna (deceased) reached near the Government tap installed near the house of Shivraj Singh Sengar aforesaid, then all of a sudden, from the western lane the named accused persons of his village namely Omveer Singh, Shiv Veer Singh, Rokki (all armed with rifle) and Promod Singh, respondent accused, armed with country made pistol appeared at the scene and at the instigation of Shiv Veer Singh all of them opened fire at the deceased ABHAY Singh Bhadori @ Munna who sustained injuries and died on the spot. This incident was witnessed by informant and his other associates. The accused thereafter made their escape good. The F. I. R. of this incident was scribed by the informant and was lodged at P. S. Civil Lines, Etawah at 9,20 a. m. i. e. 20 minutes after the alleged incident, after covering a distance of 1 KM which was registered as crime No. 299 of 1999, under Section 302 I. P. C. The police after due investigation submitted a charge-sheet in Court against all the named accused persons. It transpires that subsequently the matter was transferred to C. B. C. I. D. Which also after investigation under Section 173 (8) Cr. P. C. endorsed the said charge-sheet submitted by the police vide Annexure No. 2 to this Bail Cancellation Application. It also seems that some criminal miscellaneous proceedings under Sections 482 and 407 I. P. C. were also taken in this Court by the accused persons but they were not successful in their such attempt. However, for the purposes of the present bail cancellation application it is to be noted that Pramod Singh accused, whose bail is sought to be cancelled, gave a notice in this Court for his release on bail vide Criminal Miscellaneous Bail Application No. 9126 of 2003 on 25-8- 2001 after the same was refused by both the Courts below. The said bail application was however filed in the Registry of this Court on 23-6-2003, after a gap of one year and ten months during summer vacations. This bail application on behalf of said Pramod Singh accused was allowed by Hon'ble Omkareshwar Bhatt, J. on 24- 6-2003 by passing the following order : "two supplementary affidavits field today are taken on record. Heard learned Counsel for the applicant and learned A. G. A. for the State. In the F. I. R. the applicant alongwith three others is alleged to have fired at the deceased. The applicant is said to be armed with country made pistol. During investigation it has come that two persons fired at the deceased by rifle, one of them was bearing a red turban and one was without any turban. On the facts and circumstances of the case emerging from perusal of the record it is a fit case for grant of bail. The applicant Pramod Singh involved in Case Crime No. 299 of 1999, under Sections 302/34 I. P. C. and 27 Arms Act, Police Station Civil Lines District Etawah be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate, Etawah. " As soon as the applicant Dinesh Singh, informant, came to know of the said bail granting order he filed this bail cancellation application on 11-7-2003 which came up before Hon'ble Imtiyaz Murtaza, J. on 14-7-2003 on which date his Lordship was pleased to order that this bail cancellation application be placed before Hon'ble Omkareshwar Bhat, J. on the following day. On the next day that is 15-7-2003 Hon'ble Omkareshwar Bhatt, J. was please to pass following orders on this bail cancellation application : "issue notice to opposite party No. 2 for filing counter- affidavit within three weeks. Learned A. G. A. may also do so during the aforesaid period. One week's further time is allowed to the applicant for filing rejoinder affidavit. In the meantime it is provided that opposite party No. 2, Pramod Singh, if not already released, be not released in pursuance of the order dated 24-6-2003. List on 19-8-2003. " From the perusal of the above order dated 15-7-2003 it is perceptibly clear that his Lordship was of the view that if the accused Pramod Singh has not been released in pursuance of the order dated 24-6- 2003 then he should not be released in pursuance thereof. This bail cancellation application thereafter was listed on many dates before his Lordship and the arguments were also started but the same could not be concluded. Meanwhile Hon'ble Omkareshwar Bhatt, J. demitted the office and this bail cancellation application was listed before Hon'ble C. P. Mishra, J. and was dismissed in default on 4-10- 2004 for non-prosecution by his lordship, to which a restoration application was field on 30- 8-2005 and the said order was recalled on 5-9-2006 by me. Subsequently arguments were heard and the order was reserved on 7-9-2006. However, at the time of dictation of the order it transpired that one Criminal Miscellaneous Application No. 2337 of 1999, under Section 482 Cr. P. C. , was tagged alongwith this bail cancellation application and the same was still undisposed off hence the order could not be pronounced and the cancellation application was directed to be listed again on 19-2-2007 as an unlisted, case on which date the arguments were heard and were continued on 20-2-2007 and now by this order this application is being disposed off.
(3.) LEARNED Counsel for the Informant in this bail cancellation application raised many submissions. He contended that in this case the notice of the bail application of the respondents accused was given on 25-8-2001 to the learned A. G. A. but the same was kept pending and it was only after a gap of one year and ten months that the bail application was field in the Registry of this Court on 23-3-2003 without giving any further notice to the learned A. G. A. in accordance with Chapter XVIII and Rule 18 (3) (a) (b) of the High Court Rules, 1952, herein after referred to as the Rules. LEARNED Counsel contended that the applicant should have given two days further notice to the Government Advocate before moving bail application in this Court as is provided under that Rule. LEARNED Counsel further contended that the bail has been granted by Hon'ble Onkareshwar Bhatt, J. on wrong facts. He submitted that it was never the prosecution case that any of the accused was wearing red turban. He further contended that the bail order of the accused respondent is a non-speaking order and has been passed without considering the merits of the matter and the allegations leveled against the respondent accused. He submitted that it was the day light murder and the F. I. R. was lodged promptly within 20 minutes of the incident and respondent accused was armed with a country made pistol with specific role of firing at the deceased. He submitted that the respondent accused was not alleged to be armed with a rifle and therefore, while granting bail to the respondent accused who was armed with a country made pistol Hon'ble Judge has not considered his case at all. LEARNED Counsel further submitted that facts as alleged by the prosecution were not taken into consideration at all and prior to the day on which bail was allowed to the respondent accused the bail of co-accused Omveer already stood rejected by this Court. He also contended that respondent accused has absconded for one and a half year and two other co-accused persons of the crime namely Shiv Veer Singh and Rocky were still at large and they have not been apprehended as yet. LEARNED Counsel thereafter contended that no doubt there is no fetter on the powers of this Court to grant bail to an accused of non- bailable offence but the said power has to be exercised which circumspection within the ambit of law laid own by the Supreme Court. He contended that granting of bail is not an arbitrary exercise of power but is a judicial discretion to be exercised within the scope of Section 439 Cr. P. C. as has been explained and enumerated by the Apex Court, learned Counsel contended that so far as Criminal Miscellaneous Application, being Criminal Miscellaneous Application Number 2337 of 1999, Arjun Singh Bhadoria and Ors. v. State of U. P. and Ors. , under Section 482 Cr. P. C. , attached with this bail cancellation application is concerned the said application has nothing to do with the present Bail Cancellation Application and it should be ordered to be untagged from the record of this cancellation application. LEARNED Counsel contended that since the order of granting bail to the accused respondent has been passed on wrong facts against the Rules of the Court without proper opportunity to the Public Prosecutor (AGA) therefore, the bail of the accused respondent should be cancelled. He pointed out that in the impugned bail granting order it is mentioned that out of two persons who fired at the deceased by rifle one of them was wearing a red turban and other was without any turban was never the allegation of the prosecution nor any prosecution witness has said the said fact and more over this was no ground to grant bail to the accused respondent. LEARNED Counsel in the last contended that on the facts of the case it was a day light incident with prompt F. I. R. and eye-witness account and the post-mortem report being consistent with the prosecution version, therefore, there was no justification to grant bail to the accused respondent without considering his case on the merits of the matter against the Rules of the Court without proper opportunity to the public prosecutor (AGA) and therefore, it should be canceled. Sri V. P. Srivastava, learned Senior Counsel for the respondent accused on the other hand contended that this bail cancellation application should be dismissed as merit less as grant of bail is one thing and cancellation thereof is quite different. Sri Srivastava contended that since the accused respondent has not tampered with the witnesses nor has absconded, therefore, the bail which has been granted to the accused respondent should not be canceled. He further submitted that cancellation of bail has to be Judged from a different angel altogether and it is not a ground to cancel the bail of an accused merely because the bail granting order is against the facts of the case or that it was passed during vacations and also because the Rules of the Court were not observed while granting bail. Learned Counsel has relied upon various judgments of the Supreme Court reported in AIR 1992 SC 474, Vikramjit Singh v. State of Madhya Pradesh; 2002 (1) JIC 254 (SC) : (2002)1 S. C. C 649 ; Harjeet Singh @ Seeta v. State of Punjab and Anr. ; (1984)1 S. C. C. 284 ; Bhagirathsinh S/o Mahipal Singh Judeja v. State of Gujarat; AIR 1999 SC 3026 ; Subhendu Mishra v. Subrat Kumar Mishra; 1995 (2) JIC 1362 (SC) : 1995 ACC (32) 12: Dolat Ram v. State of Haryana (SC); 2005 (2) JIC 521 (SC) : (2005) 4 SCC 178 ; Nityananad Rai v. State of Bihar and Anr.;