CALLA, J. - (1.) THIS is an application under Sec. 439 (2), Cr. P. C. for cancellation of the bail granted by the learned Sessions Judge, Kota by his order dated 4. 10. 1991.
(2.) ON the question of maintainability of application under Sec. 439 (2), Cr. P. C. for cancellation of the bail by the High Court in a case where the bail was granted by the Sessions Judge, learned counsel for the complainant. petitioner, has cited before me Jagram vs. Ghamandi & Ors. (1), S. C. Gurucharan Singh & Ors. vs. Delhi Administration (2), State vs. Captain Jagjit Singh (3) and Sant Ram vs. Kalicharan (4 ). In Jagram vs. Ghamandi & Ors. (supra) this court has considered the question about the maintainability of an application under Sec. 439 (2), Cr. P. C. for cancellation of bail by the High Court in a case where the bail has been granted by the Sessions Judge. In the aforesaid case, the application for bail had been filed by the son and brother of the deceased persons, themselves who were injured and the State had not applied for cancellation of the bail. After considering several Supreme Court decisions, including the three cases as aforesaid, our High Court has clearly held that the application under Sec. 439 (2) Cr. P. C. in such cases is maintainable. So far as the scope of Section 439 (2) is concerned, the power for cancellation of the bail is there is the Court which has granted the bail and in case the bail is granted by the Sessions Court, the power is also there with the High Court to cancel the bail granted by the Sessions Judge, in case it is found that the order of granting bail has been passed arbitrarily and for reasons which are not germane or when the Court finds that the order of granting bail has been passed without proper judicial application of mind and the exercise of discretion by the Sessions Judge is not found judicious. The learned counsel for the accused-respondent No. 2 has placed heavy reliance on Man Singh vs. Ganga Singh & Anr. In this judgment, I find that the earlier decision in the case of Jagram vs. Ghamandi (supra) has not been considered nor S. C. Gurucharan Singh Ors. vs. Delhi Administration (supra) has been considered and all that the Court has observed in this case i. e. Man Singh vs. Ganga Singh & Anr. (supra) is that if the powers under Sec. 439 (2), Cr. P. C. cannot be said to be available in a given case, powers can be exercised by this court under Sec. 482, Cr. P. C. and it has been further observed in para 15 of the judgment as under : - "the other provision in which bail already granted can be cancelled is under section 439 (2), Cr. P. C. and for this exercise of powers there must be circumstances as discussed above. " Thus, I find that even in this case on which the counsel for the accused-respondent has placed heavy reliance, it has not been held that under Sec. 439 (2), Cr. P. C. the High Court is not clothed with the power of cancellation of bail, in case the bail has been granted by the Sessions Judge. On the contrary, even according to this judgment, Section 439 (2), Cr. P. C. is the relevan provision under which the bail already granted can be cancelled, provided there are appropriate circumstances for cancellation of the bail. Thus, the correct legal position is that the High Court has ample power to cancel the bail already granted by the Sessions Judge in an appropriate case, it is a case of concurrent jurisdiction with the High Court as well as of the Sessions Court and 1 hold that in a given case, the High Court can cancel the bail already granted by the Sessions Court. So far as the facts of this case are concerned, it is a case in which the minor prosecutrix herself has approached this Court for the cancellation of the bail which was granted to the accused- respondent No. 2 Girraj by the Sessions Judge, Kota by his order dated 4. 10. 1991. The minor prosecutrix who is said to be of 15 years of age, Meena by caste, was all alone in her house in the after-noon of 13. 09. 1991 and the accused-respondent No. 2 entered into the house by climbing over the wall. He is said to have jumped into the house from above, closed the main gate of the house and raped the prosecutrix, the daughter of a widowed mother who had no protection of any one at the time when the acused entered into the house. She had raised alarm, but her mouth was blocked by forcing cloth of lugri of the prosecutrix and her peticot and blouse were torn, bangles were broken and before Ram Gopal and Ram Dayal could come to her rescue, the accused-respondent No. 2 was already successful in completing the offence. The prosecutrix narrated the whole incident to her mother and brother. Later on, on 16. 09. 1991 when her grand father came who was out of village, the prosecutrix Indira, wife of Ram Charan and daughter of Ram Niwas Meena lodged the FIR on 16. 09. 1991. It has been argued by the counsel for the accused respondent No. 2 Girraj Meena, aged 25 years, resident of the same village to which the prosecutrix belongs that the prosecutrix is married and he has referred to the medical report to show that the prosecutrix is habitual to sexual intercourse and as per the medical report dt. 16th Sept. , 1991, the injuries sustained by the prosecutrix are about 24 hours old & therefore, according to the counsel for the accused-respondent No. 2 the injuries do not correspond to the time of the alleged incident of 13. 09. 1991. The injuries have been sustained some time on 15. 09. 1991 and, hence, there was a proper case for granting of bail and, therefore, this Court should not interfere with the order passed by the Sessions Judge.
(3.) SHRI P. K. Sharma appearing for the petitioner has submitted that no doubt the prosecutrix is married but as per customs in the Meena community, she was to be sent to her-in-laws house only after attaining the majority. SHRI K. C. Sharma for the accused-respondent argued that if the marriage of the prosecutrix has not been consumed, she has not visited her husband and she is minor, how the medical report shows that she is habitual to sexual intercourse and that her vagina admits two fingers and he has further submitted that she is a girl of easy virtues. I have heard the learned counsel for the prosecutrix and for the accused-respondent No. 2 and the learned Addl. Public Prosecutor Shri M. K. Kaushik who has also supported this application for cancellation of the bail. I have perused the record and the order passed by the learned Sessions Judge. The only ground which appears to have prevailed with the learned Sessions Judge while passing the bail order is that as per the medical report dated 16th Sept. 1991, the injuries are 24 hours old and therefore, such injuries were not sustained by the prosecutrix on 13. 09. 1991. In my opinion, such circumstances mere mention of the duration of injuries in the Medical Report cannot be the sole decisive factor for the purpose of exercising discretion for granting the bail. After all, it is only an opinion of the Doctor and it will be a subject matter of inquiry at the stage of trial. In such cases, when a minor girl of 15 years is the victim, whether she is married or unmarried, and in case of married, whether the marriage has been consumed or not, cannot be conclusively decided on the basis of medical report, to say that he is a girl of easy virtues is only adding insult to the injury. The learned Sessions Judge, at this stage, ought to have taken into consideration the entire facts and circumstances before passing the order dated 4. 10. 1991 granting the bail. Besides this, Shri P. K. Sharma has invited my attention to the affidavits filed by Ram Gopal son of Dhanraj and Smt. Kailashi widow of Ram Niwas & the mother of the prosecutrix and Ram Dayal son of Prabhulal. In all these affidavits, it has been deposed that after the granting of the anticipatory bail under Section 438, Cr. P. C. the accused- respondent has been moving with weapon in the village, he has created terror, threatened these witnesses and that even otherwise, the accused-respondent No. 2 is a ruffian and has been moving in the village with rifle and had also threatened Ram Gopal with Dhariya on 26. 10. 1991. On the second day of Navratri he had threatened the mother of the prosecutrix instructing her that she may brief her daughter, not to give evidence against him and in case the evidence is given he would not spare Inderjit i. e. the brother of the prosecutrix. The accused-resondent Girraj has also threatened with rifle, the other witness Ram Dayal. In the facts of this case, I am simply bemoaned and shocked that the discretion of even granting anticipatory bail under Sec. 438, Cr. P. C. has been exercised in favour of the accused-respondent against whom there were serious allegations of committing rape upon a minor girl of his own village in the broad day light. In such cases, when such heinous offence is committed and the allegations are of dare devil act, there was hardly a case for exercising the discretion of granting the bail to the accused-respondent much less under Sec. 438 Cr. P. C. The accused-respondent Girraj s/o Manna Lal Meena, resident of Gandavad, Police Station, Itawa, District Kota in FIR No. 149/1991, shall be arrested immediately and be committed to the custody without any loss of time. The cancellation of accused-respondent's bail bonds and surety bonds will be the natural consequence only after his arrest. ;