MADAN, J. - (1.) THIS bail application filed under section 439, Cr. P. C. has come up for hearing before us pursuant to the referral order passed on 6. 5. 1999 by the learned Single Judge of this Court. THIS bail application has been filed after the learned Sessions Judge Karauli in his order dated 12. 3. 1999 declined to grant bail to the accused petitioners (1) Prabhu and (2) Rameshwar in Sessions Case No. 22/ 99 wherein accusation against them is for offence punishable under Sections 302, 341 323 & 34 IPC.
(2.) THE learned Single Judge in his order (supra) has observed that in D. B. Criminal Misc. Bail Application No. 730/98 moved in D. B. Cr. Appeal No 473/98 Chauthia vs. State, the Division Bench of this Court in its order dated 10. 12. 98 direc-ted that the presence of the accused applicants (co-accused persons in the said D. B. Bail application) be procured through non-bailable warrants and produced before it. In the subsequent order dated 10. 2. 1999 this Court again directed to arrest the accused applicants and expressed displeasure for non-compliance of its earlier orders. THE present accused applicants seem to have been arrested and apprehen-ded in compliance of the orders of the Division Bench. THErefore, the learned Single Judge observed that it would be appropriate to place this bail application before this Court for consideration and necessary orders. Consequently, the learned Single Judge directed that the matter may be placed before the Hon'ble Chief Justice for such necessary direction and this is how this bail application has been placed be-fore us under the order dated 11. 5. 1999 passed by the Hon'ble Chief Justice. We have heard the learned counsel for the parties at length and also considered the rival contentions advanced by them during hearing. The learned counsel for the petitioners has sought appropriate direction for enlargement on bail of petitioners (1) Prabhu s/o Couthai & (2) Rameshwar s/o Ghasardia, who are presently lodged in District Jail, Karauli, on the grounds inter-alia that the petitioners are in custody since 27. 1. 1999; the investigation has been completed; the charge sheet has been filed and, therefore, their detention is no longer required for the purposes of investigation and otherwise except for facing trial. On merits, it has been contended by Shri Gupta that the petitioners are alleged to have been armed with lathies at the time of occurrence, but no recovery of the lathies have been made from them, rather the recovery was affected from co-accused Prabhu and that too after a period of two years of the occurrence and that a part, significantly enough, no blood stains have been found on the recovered lathies and hence they cannot be accused of the commission of the alleged crime. It has also been contended that deceased Mithia Kumhar had died as a result of the injuries sustained by him by sharp edged weapon and those deadly injuries resulting in the death of the deceased have been attributed to one Gulab, who is still at large and has not been apprehended. Shri Gupta then contended that since father of Gulab namely Chauthia was granted bail during trial, therefore, the present co-accused petitioners should also be enlarged on bail during trial. It is significant to mention in this context that Chauthia though on bail during trial, has since already been tried and convicted by the learned trial court in Sessions case No. 61/97 for offences punishable under Sections 341, 323, 302 & 302/ 34 IPC by judgment dated 16. 5. 98 against which he has preferred D. B. Cr. Appeal No. 473/98, which has already been admitted and wherein application for suspension of his impugned sentences was rejected by this Court in its order dated 10. 12. 1998. It was upon the direction of this Court that since co-accused namely the present petitioners were still at large notwithstanding the conviction of co-accused Chauthia, as a matter of fact, it was shocking to the judicial conscience that notwithstanding participation of the four accused in the commission of the crime, accused Chauthia had alone been tried and convicted by the trial court obviously as a result of non-production of the co-accused like the present petitioners and Gulab, out of whom consequent upon directions of this Court given in earlier orders dated 10. 12. 1998 and 10. 2. 1999 to the investigating agency to procure presence of the above named co-accused through non-bailable warrants, only these two present accused petitioners have been arrested while 4th co-accused Gulab has still not been apprehended by the police. Moreover, the past conduct of the present accused petitioners was so reprehensible more particularly they were not apprehended notwithstanding the challan having been filed against them also before the trial court, the trial could not proceed with in a consolidated manner and ultimately the trial court was left with no option but to proceed against co-accused Chauthia during trial, which culmina-ted into conviction against him, as aforesaid, and, therefore, they do not deserve any sympathy for grant of post-arrest bail.
(3.) DURING the course of hearing, Shri Gupta also contended at the bar that this bail application would have been placed for hearing before the learned Single Judge instead of the matter being referred to the Division Bench. We may observe in this context that as per provisions contained in Rule 54 and proviso (a) to Rule 55 of the Rules of the High Court of Judicature for Rajasthan, 1952 (for short, "the High Court Rules") it is prerogative of the Hon'ble Chief Justice to allocate the Benches to be constituted from time to time in accordance with his directions. Proviso (a) to Rule 55 of the High Court Rules provides that the Chief Justice may, from time to time direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges. Thus, it is sole prerogative of the Chief Justice at his discretion either to allocate the matter to the Single Judge or in appropriate case to the Division Bench. In the instant case, the matter has been placed before us pursuant to the referral order dated 6. 5. 1999 of the learned Single Judge which was placed before the Hon'ble Chief Justice who has consequently directed in his order dt. 11. 5. 1999 to place this matter before us. Without expressing any opinion on merits of the case, least it may prejudice their trial, however, taking on over all conspectus of the matter, we do not deem it appropriate to grant liberty of bail under Section 439, Cr. P. C. to the present accused petitioners and consequently their bail application being devoid of any merit is dismissed. The investigating agency is directed to comply with earlier orders dated 10. 12. 1998 and 10. 2. 1999 by taking necessary steps for apprehending and arresting the remaining co-accused in accordance with law and pro-duce him before the learned trial Court after proper inquiry and investigation into the matter for trial so as to avoid any further delay in the trial against the co-accused. The trial court is also directed to expedite the trial pending against all the co-accused as soon as the co-accused Gulab is arrested and produced before it for trial. .;