- (1.) J. C. Gupta, J. Bail granted to op posite parties No. 2 and 3 by the trial Court by the order dated 23-10-98 is sought to be cancelled by means of this application which has been moved by the complainant before this Court.
(2.) IN relation to an incident which allegedly occurred on 26-1-97 at 7. 30 p. m. in which five persons were gunned down and five other received fire-arm injuries, the F. I. R. was lodged at 9. 10 p. m. and case crime No. 33 of 1997 under Sections 147, 148, 149, 307, 302, 34 and 395 IPC PS. Kotwali, district Hamirpur was registered. Opposite parties No. 2 and 3 armed with fire arms are said to have participated in the firing. The police investigated the case and after its completion submitted charge sheet wherein the said opposite parties were shown as absconders because they could not be arrested despite proceeding drawn under Sections 82 and 83 Cr. P. C. It is alleged that the said opposite parties did not surrender themselves before the Court below instead they filed a writ petition No. 598/97 and the same was dismissed by a Bench of this Court by the order dated 4-3-97 with the observation that the petitioners could move an application under Section 156 Cr. P. C. before the con cerned Magistrate for redressal of their grievances in respect of the cross F. I. R. and that they could approach the Principal Secretary of Home U. P. Govt. or D. G. Police for passing appropriate orders for getting the investigation of the case done through C. B. C. I. D. Ashok Kumar Singh Chandel, opposite party No. 2 then filed writ petition No. 1049 (MD) of 1997 before the Lucknow Bench of this Court seeking quashing of the F. I. R. and for issu ing a further direction for transferring the investigation to some other agency includ ing C. B. C. I. D. . After the exchange of the counter-affidavit and rejoinder-affidavit the said writ petition was also dismissed by a Division Bench by the order, dated 12-5-97. IN pursuance of the direction of the Court, the State Government took a decision on the application of said op posite party that there existed no reasonable cause to get the case inves tigated by the C. B. C. I. D. and the Court took the view that since the investigation has already been completed and the charge sheet submitted, nothing remained to be investigated. With these conservations the writ petition was dismissed. The said respondents then made a further effort to get the investigation made through C. B. C. I. D. by moving an application under Section 482 Cr. P. C. which was registered as Criminal Misc. Application No. 4446 of 1997. The said application came up for hearing before Hon'ble R. N. Ray, J. and it was submitted on behalf of the opposite parties that if C. B. C. I. D. submitted a final report then the applicants could be precluded from getting the benefit be cause the local police was biased and by filing charge sheet the defence of the ap plicant would be prejudiced. The Hon'ble Judge disposed of the said application by passing the following order: "in the circumstances, this petition is final ly disposed of with a direction that the C. B. C. I. D. may file charge sheet within 4 months or its final report as the case may be, then the Court below is to act upon according to law and till that period of 4 months further proceeding in the above case shall remain stayed and the applicants may not be arrrested in con nection with the above case but they must be available to the I. O. concerned for interroga tion. " Thereafter this Court by its order dated 1-9-97 modified the earlier order dated 8-8-97 in the following terms: "illness slip has been filed on behalf of the learned counsel for the applicant. It has been submitted by the learned counsel for the op posite party that upon miss-tatement of the facts and concealment of facts, petitioner managed to get the orders as no C. B. C. I. D. investigation is pending. Let it be listed in the next supplementary cause list. IN the meantime, the earlier order stands modified to the extent that, if no inves tigation is pending with C. B. C. I. D. , then the restrictions regarding the arrest shall be deemed to be withdrawn and if the investigation agency consider fit and proper, they may arrest the applicants and produce before the learned Court below according to law. Let a copy of this order be sent down to the learned Court below at once for informa tion. " Inthemeantimeone of theaccused Nascem Ahmad Khan applied for bail before this Court which was registered as Criminal Misc. Bail Application No. 11953 of 1997 and the same was rejected by me by the order dated 1-9-97. Since op posite parties No. 2 and 3 had neither been arrested nor had appeared before the Court below their trial was separated and the trial Court proceeded with the trial of the remaining accused. On the transfer application moved by the complainant, further proceedings of the trial were stayed by this Court by the order 1-1-98. It is also relevant to mention here that the C. B. C. I. D. in the meantime submitted charge sheet before the trial Court on 14-9-98 against all the accused persons. It further transpires that Ashok Kumar Singh Chandel, opposite party No. 2 again filed writ petition No. 2377 (MD)/98 before the Lucknow Bench of this Court with the prayer to issue a writ of man damus directing the respondents not to arrest him in the case. However, the writ petition was got dismissed as not pressed. Opposite parties No. 2 and 3 then moved another application under Section 482 Cr. P. C. (Crl. Misc. Application No. 642 of 1998) before the Lucknow Bench -which came after hearing before Hon'ble l. M. Quddusi, J. The following interim order was passed on 13-10-98: "heard the learned counsel for the ap plicants and the learned Additional Govern ment Advocate. Learned Additional Government Advo cate prays for and is granted two weeks time for filing counter- affidavit. Learned counsel for the applicants has pointed out that the order dated 21-3-97 passed by the Division Bench at Luck-now in Writ Petition No. 1049 (MB) of 1997 in the matter of the petitioner in which it was directed that the petitioner shall not be arrested in case Crime No. 33 of 1997 under Sections 147, 148, 149, 302, 34, 395 I. P. C. However, it appears that the matter has been directed to be investigated by the C. B. C. I. D; vide Govern ment Order, dated 10th July, 1998 and in pur suance thereof C. B. C. I. D. is making investiga tion in respect of the petitioner No. 1 only. The ("ode of Criminal Procedure does not provide that when investigaiiandn of a case is made the same may be made'fonty in respect of one per son. It may be that there may be other culprits and they may be shielded in case the whole case is not investigated. In view of this respondent No. 2, i. e. Additional Director General of Police C. B. C. I. D. is directed to get the aforesaid case crime investigated as a whole and not in respect of a particular person. Until further orders of this Court the petitioners shall not be arrested in pursuance of the investigation made by the civil police and till the investigation is made by the C. B. C. I. D. as directed above. However, it will be open for the petitioners to surrender and move an applica tion for bail. Learned counsel has submitted that in the matter of Ms. Mayawati the Hon'ble Supreme Court has directed to move applica tion for bail and in that case the same was to be considered by the Court and in case it was rejected she was allowed time to move applica tion in the higher court and for a specified period it was directed that the applicant (Ms. Mayawati) will not be arrested. I,earned counsel claims parity with that order on the ground that the order passed by the Hon'ble Supreme Court is the law of the land. He has also submitted that the applicant No. 1 is political person being ex. M. L. A. for two terms. Considering the facts and circumstances of the case and submissions made by the learned counsel, I am of the view that the Hon'ble Supreme Court has wide powers and can pass any orders but in every case the orders cannot be followed at it is the ex clusive jurisdiction of the Hon'ble Supreme Court to make orders. However, in the facts and circumstances of the present case only this much is provided that in case the petitioners surrender and move application for bail in the aforesaid case crime the same shall be con sidered and disposed of the same day. List this case after two weeks. " After obtaining the aforesaid ex-pane order, the respondent No. 2 and 3 surrendered before the Court on 23-6-98 and moved their applieation for bail which was allowed by the Court below on the same day and the/opposite parties were granted bail which is sought to be can celled by means of this application.
(3.) CANCELLATION of bail has been sought mainly on the ground thai the Court below while allowing bail to the opposite parties No. 2 and 3 did not con sider various orders passed earlier by this Court on the petitions filed on behalf of the contesting opposite parties nor the gravity of the case wherein five persons were killed and five others seriously in jured was considered and bail has been granted in an arbitrary manner on un tenable grounds without affording reasonable opportunity of hearing to the applicant. Notices were issued to opposite parties No. 2 and 3 who have put in ap pearance and have filed counter-affidavit wherein allegations made in the applica tion have been denied and the order grant ing bail is being defended on the ground that the same has been passed after con sideration of entire facts and circumstan ces of the case.;