Mahesh Bhagwati, J. - (1.) - This order governs the disposal of application filed under Section 439(2) of Cr.RC. by the petitioner Hemant Parwani seeking cancellation of bail of the respondent No. 2 Prakash @ Gainda Pamnani who has been granted bail vide order dated 4th May, 2009 rendered by Special Judge, SC/ST (Prevention of Atrocities) Cases, Ajmer.
(2.) Heard learned counsel for the petitioner, learned counsel for the respondent No. 2 as also learned Public Prosecutor appearing for the State and carefully scanned the relevant material available on record.
(3.) Learned counsel for the petitioner has craved the cancellation of bail on the following grounds- (1) This Court vide order dated 30.04.2009 passed in S.B. Criminal Misc. Application No. 2828/2009 directed the respondent No. 2 to surrender and move a fresh bail application before the concerned Court and the concerned court in turn was directed to hear and decide the bail petition on the same day. (2) Pursuant to the directions given by this Court, the respondent No. 2 should have surrendered before the Magistrate having jurisdiction but the respondent No. 2 instead of appearing before the Judicial Magistrate having jurisdiction, surrendered before the court of Sessions, who in turn, transferred the case for adjudication to the Special Judge, SC/ST Cases. (3) The concerned court in the instant case is not the court of Session but the court of a Magistrate having jurisdiction as neither on 4.5.2009 any trial was pending before the court of Session nor the case had been committed by the Judicial Magistrate having jurisdiction to the Sessions Court. (4) The Station House Officer police station Ganj, Ajmer submitted an application before the Special Judge, SC/ST Cases, Ajmer praying that the case was pending investigation and the respondent No. 2 Prakash @ Gainda Pamnani was required for the purpose of investigation, as such, he should be handed over to him but the learned Special Judge, neither rejected the prayer of the SHO police station Ganj nor accepted it, nor made any mention of this fact in the impugned order dated 4.5.2009. (5) The Special Judge, SC/ST Cases had no jurisdiction to adjudicate the bail petition filed by the respondent No. 2, as such, the bail granted to the non-petitioner was totally arbitrary, illegal and sans jurisdiction. (6) Learned Sessions Judge, Ajmer categorically observed in his order dated 15.4.2009 that eight more criminal cases were pending against the respondent No. 2 in different courts. In spite of that, the Special Judge, SC/ST Cases did not take note of these pending cases and arbitrarily granted bail to him.;