MAHENDRA SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This application has been moved by the complainant for cancellation of bail granted to accused Upendra Sharma (respondent No. 2) on 13-6-95 by Sri J.P.Agarwal, IVth Additional District Judge, Deoria.

(2.) The record shows that a F.I.R.was lodged by Mahendra Singh under Sections 147, 148, 149, 302, 307, 336,427, 323, 504,506, 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 application in this Court on 28-7-1994 which was registered as Criminal Misc. Bail Application No. 6847 of 1994. It may be mentioned here that notice of this bail application 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 Officer, 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 20-5-95 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. on 13-6-95 praying that the bail application No. 6847 of 1994 be dismissed as not pressed. This application was placed in Court on 14-6-95 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 :

(3.) The facts mentioned above would show that the IVth Addl. Sessions Judge, Deoria granted bail to Upendra Sharma accused at a time when his bail application was pending in the High Court. The bail application moved in this Court had been heard on merits on 4-8-94 and it could not be disposed of finally only on account of adjournments which were sought on behalf of accused. In fact on 24-5-95 the case was ordered to be listed in July, 1995 on the request of learned counsel for the accused. Chapter XVIII, Rule 13 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 Session 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 Session. 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 Session 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.