Bishambhar Dayal, J.
1. This is an application for bail. Their application for bail was rejected by the learned Sessions Judge, Agra. The applicants have been charged of an offence punishable under Rule 125 of the Defence of India Rules. One of the grounds for rejecting the application by the learned Sessions Judge was that a learned single Judge of this Court remarked in Daya Ram v. State, Misc. Case No. 601 of 1984 D/- 10-3-1964 (All) to the effect that no bail could be granted in such cases unless the Court is of opinion that the accused appears not to be guilty of the offence. We have heard learned counsel and have looked into the matter. Rule 155 of the Defence of India Rules is applicable only to those cases where the Central Government or the State Government by notified order specifies that in the case of a contravention of a particular rule, Rule 155(b) would be applicable and bail would not be granted unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. Rule 156 is as follows:
'155. Special provision regarding bail. Notwithstanding anything contained in the Cr. P. C. 1898 (5 of 1898), no person accused or convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or on his own bond unless .
(a) the prosecution has been given 'an opportunity to oppose tie application for such release, and
(b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.'
2. The main part of the section merely says that such an offender shall not be released on ball unless two conditions arc satisfied. The first condition is a general one which applies to every case and that is that no bail shall be granted unless aninto a discussion of those questions. In the above quoted case it was held by this Court that a decree passed against a co-trespasser would be an effective decree as between him and the plaintiff even though the other co-trespassers ceased to be parties to the suit as a result of the suit having abated against them. The position, in my view, would not be different where instead of the suit having abated against the remaining co-trespassers it had been dismissed against them for default of prosecution.
The considerations on which the argument far a total dismissal of the case is supported in the present (case?) were precisely those which were utilized in the argument for a total dismissal of the suit in the case of AIR 1968 All 496. It was however held that those considerations did not warrant the dismissal of the suit against the defendant who was still before the court, nor would a decree passed against him be in any manner inconsistent with the abatement of the suit against the co-trespasser. It is true that in that case there was no allegation that the defendants were acting in conceit as is the allegation in the present case. The decision of the case, however, did not turn on that feature of the case at all, but was made to rest on the principle that it was open to a plaintiff to sue only one of the co-trespassers, and obtain a decree against him. It was observed that the effect of a suit having abated against one out of this two or more defendants is exactly the same as if he had not been impleaded as a defendant at all. Likewise the effect of the dismissal of a suit for default of prosecution against some of the defendants is exactly the same as if they had not been impleaded as defendants at all. If a decree against a co-trespasser sued alone could have been passed, there is no reason why a decree cannot be passed against him because the other co-trespassers had also been originally impleaded as defendants but the suit was dismissed against them for default of prosecution.
Whether or not those co-trespassers against whom the suit has been dismissed for default of prosecution will allow the decree to take effect or whether they will create obstructions in obedience of the decree by the defendants against whom the decree is obtained are entirely irrelevant considerations in adjudging the lights of parties actually present before the Court. The decree, in case if comes to be passed, will be an effective decree against the appellant and in judging whether a decree can or cannot be passed the Court will not take into account the possible attitude of the persons who are not before it as parties. On account of the dismissal of the suit for default of prosecution against the other co-trespassers no decree can be said to have been passed in their favour, and if a decree is ultimately passed against the appellant it will not be a decree inconsistent with any other decree in regard to the same subject matter. The suit has, therefore, to be disposed of on merits as against the defendant-appellant. The order of remand passed by the lower appellate court does not call for any interference and it was indeed the only proper order to be passed.
3. The appeal has no force and it is accordingly dismissed with costs.