RAM NEWAS Vs. PHAOZDAR

JUDGEMENT

(1.) THIS is an application under section 439 (2) read with Section 4b2 of the Code of Criminal Procedure (Act No. 2 of 1974) (for short the Code) for cancel ation of bail alleged to have been granted to the opposite party by the order rated 3-4-1986 purponting to have been passed by me. The antecedents of the case reflect a commentary. In fact ' 3-4-86 ' was a date in the middest of the Advocates' Strike in the High Court in connection with creation of a Bench in the Western U. P. and I was not sitting in Court on that date, nor any application was filed before me, nor I passed any order dated 3-4-1986 granting bail to the opposite party Phaujdar son of Sukhai, resident of village Rakhia, Police Station Kaptanganj, District Basti.

(2.) IT is better to have few facts;. The opposite party Phaujdar was involved in an offence under Sections 302/307/34 IPC, read with section 25 of the Arms Act in Crime No. 86 of 1985, Police Station Kapianganj, District Basti. An incident took place at 2 p. m. on 19-7-1985 in which Smt.Beila Devi and Sita Ram Yadava were killed and the complainant Ram Newas received injuries A.first information report was lodged at 3.25 p. m. on the same day at Police Station Kaptangauj, District Basti. True copies of the postmortem examinatior reports conducted on the dead-bodies of the deceased Smt.Beila Devi and Sita Ram have been filed as Annexure ' 2 ' and ' 4 ' to the affidavit filed in support of this application. The learned Sessions Judge, Basti rejected bail application moved on behalf of the opposite party by order dated 30-8-1985. Sri G. P. Mathur, an Advocate of this Court, gave notice in the office of the Government office with an intention to move the first bail application and the notice number of that application was 8736 of 1985 That first bail application was presented before Hon'ble O. P.Saxena, J. and was argued by Sri G. P, Mathur. But the same was rejected on 3-12-1985. The learned counsel for the applicant urged that it was averred in paragraph no. 8 of the affidavit filed in support of the present application that he was instructed on behalf of the complainant to watch Jhe first bail application and oppose the same. He did watch the first bail application and the same was rejected The complainant informed his counsel that the opposite-party has been released on bail on the bases of the order purported to have been passed on 3-4-1986 by me. The present application has been filed for cancellation of that bail order.

(3.) I directed notice of this Application to be issued and served on the opposite party. The complainant applicant was directed to serve the opposite party through ' dasti process'. Am affidavit of service has been filed stating that the opposite party refused to accept the notice before two witnesses, namely, Chandra Singh and Ram Ujagar Yadav. The notices on the opposite parties were deemed to be sufficiently served and he had sufficient opportunity to file a counter affidavit but he did not do so. Similarly, on 16-7-1986 ten days' time was granted to the State to file counter affidavit at the request of the Assistant Government Advocate but the same was also not filed.