- (1.) G. P. Mathur, J. This application has been moved by the complainant for cancel lation of bail granted to accused Upnendra Sharma (respondent No. 2) on 13-0-93 by Sri J. P. Agarwal, IVth Additional District Judge, Deoria.
(2.) THE record shows that an F. I. R. was lodged by Mahendra Singh under Sections 147, 148, 149, 302, 307, 336, 427, 323, 504, and 506,i. P. C. at P. S. Gauri Bazar District Deoria on 8-1-94, on the basis of which a case was registered as Crime No. 6 of 1994 against 16 persons including Upendra Sharma (respondent No. 2 ). It appears that after Upendra Sharma was taken into custody, he moved bail applications and his second bail application No. 439 of 1994 was rejected by a detailed order on 2-4-94 by Sri V. N. Shukla, IInd Additional Sessions Judge, Deoria. THEreafter Upendra Sharma filed a bail ap plication in this Court on 28-7-1994 which was registered as Criminal Misc. Bail Ap plication No. 6847 of 1994. It may be men tioned here that notice of this bail applica tion was given to the learned State counsel on 4-4-94. THE bail application was heard by me on 4-8-94, on which date I directed the learned State Counsel to produce the original copy of the post mortem report and the bail application was ordered to be listed on 19-8-94 as part heard. THE order sheet shows that the case was listed on 28-11-94 when the learned State counsel placed before me the report of Senior Medical Of ficer, Deoria about the injuries sustained by the deceased but the case was passed over as the learned counsel for the accused had sent illness slip. On 28-4-95 also it was adjourned on the same ground. THEreafter the bail application was listed on 1-5-95 and then on 21-5-95 when on the request of learned counsel for the accused it was ordered to be listed in the first week of July, 1995. In the meantime, the IVth Addl. Sessions Judge, Deoria granted bail to Upendra Sharma on 13-6-95. An application was also filed by the accused in the registry on the same day i. e. 13-6-95 praying that the bail application No. 6847 of 1994 be dismissed as not pressed. This application was placed in Court on 14-6-93 when it was ordered to be listed with the record on 26-6- 95 and on the said date the following order was passed on the bail application: "on the request of learned counsel for the applicant, this application is dismissed as withdrawn. " The facts mentioned above would show that the IVth Addl. Sessions Judge, Deoria granted bail to Upendra Sharma ac cused at a time when his bail application moved in High Court. The bail application moved in this Court had been heard on merits on 4-8-94 and it could not be dis posed of finally only on account of adjourn ments which were sought on behalf of ac cused. In fact on 24-5-95 the case was or dered to be listed in July, 1995 on the re quest of learned Counsel for the accused. Chapter XVIII, Rule 10 of the High Court Rules provides that every application for bail in a case which is under investigation or which is pending in a lower Court shall state the result of the bail application moved before the Sessions Judge and it shall not be entertained unless accompanied by a copy of order passed by him. This shows that an accused is not entitled to pursue his bail application simultaneously in the Court of Sessions as well as in the High Court. An accused can approach the High Court only after decision of his bail application by the Court of Sessions. Once an accused has filed an application for bail in the High Court it is not open to him to file a similar application in the Court of Sessions till the High Court has disposed of the matter. Therefore the order dated 13-6-95 deserves to be set aside and the bail granted to the accused is liable to be cancelled. Even on merits, the order dated 13-6-95 passed by Sri J. P. Agarwal, IVth Addl. Sessions Judge granting bail to Upendra Sharma is wholly unjustified. The order does not contain any reasons except that a co- accused of the case namely, Guddu had also been granted bail by the same learned Sessions Judge on 9- 6- 95. According to the case of prosecution, the accused were put ting obstruction in the irrigation of com plainants filed. In the morning of 8-1-94 the cpmplainant-Mahendra Singh wanted to ir rigate his field from his pumping set through a pipe when the accused came to his house and resorted to firing and brick bat ting. Due to the firing done by the accused, the complainant's uncle Jai Nath Singh and grandfather Bunni Ram received injuries. The complainant party went inside their house and bolted the doors but the accused continued to fire and throw brick bats. Some of the accused damaged the pumping set and irrigation pipe and one of them in stigated to set the house on fire. Meanwhile some people of the village came and on their intervention, the accused went away. After the accused had left, the complainant hired a taxi for taking his uncle Jai Nath and his Grand father Bunni Ram to District Hospital at Deoria for their treatment. When the taxi had proceeded to some distance three ac cused namely, Upendra Sharma, Guddu and Raj Nath came from behind on a Bullet motor-cycle which was being driven by Upendra Sharma. They tried to stop the taxi but the driver drove the same at a fast speed. The accused then overtook the taxi and fired due to which the front glass broke and the driver out of fear stopped the vehicle. The three accused then pulled out Bunni Ram from the taxi and each one of them fired upon him due to which he died. The accused then went away on their motor cycle. The post mortem report shows that Bunni Ram received gun shot injuries. While granting bail to co- accused Guddu Sri J. P. Agarwal, IVth Addl. Sessions Judge has mentioned that in the order rejecting the earlier bail application of the accused, there was no reference of a cross case and that Guddu was in custody for about one and a half years. The fact that there was no reference to a cross case in the earlier bail rejection order is wholly irrelevant. Sri J. P. Agarwal was not sitting in appeal over the order passed by Sri VN. Shukla, IInd Addl. Sessions Judge on 2-4-94 by which the second bail application of accused Guddu was rejected. The exist ence of a cross case was not a new cir cumstance or a new development. If a cross case had been registered, the same must have been done within a short time of registration of the present case. Sri V. N. Shukla had passed a detailed order while rejecting the bail application of Guddu co-accused. Looking to the facts of the case the delay of one and a half years was not a sufficient ground on which bail could be granted to Guddu coaccused. Even in the case of Guddu a bail application had been moved in the High Court after rejection of his second bail application on 2-4-94 by IInd Addl. Sessions Judge, Deoria and during the pendency of the bail application in this Court, he has been granted bail on 9-6-95. 1 am therefore, clearly of the opinion that there was absolutely no ground to grant bail to Upendra Sharma in the third bail ap plication which had been moved by him before IVth Addl. Sessions Judge, Deoria.
(3.) FOR the reasons mentioned above, the application for cancellation of bail moved by the complainant is allowed. The bail granted to accused Upendra Sharma by the order dated 13-6-95 of IVth Addl. Ses sions Judge is cancelled. The C. J. M. con cerned is directed to take immediate steps for taking the accused Upendra Sharma into custody. Office is directed to send an authen ticated copy of this order to C. J. M. Deoria and also to Sri J. P. Agarwal who was posted as IVth Addl. Sessions Judge, Deoria on 13-6-95 for his information. Bail cancelled .;