JAIN, J. - (1.) HEARD learned counsel for the complainant- petitioner, learned counsel for the accused and learned Public Prosecutor.
(2.) THE complainant-petitioner has filed this application under Section 439 (2) of the Code of Criminal Procedure for cancellation of bail granted to the accused non-petitioner No. 2 Hitesh by Shri Kailash Prashad Meena, Civil Judge (J. D.) & Judicial Magistrate (First Class), Tijara, District Alwar in case No. 23/794/04, FIR No. 171/2004. The petitioner lodged a FIR on 17. 07. 2004 at Police Station Tapukda, District Alwar for the offence under Section 377 IPC against the accused non-petitioner No. 2 wherein it was alleged that on 14. 07. 2004 the accused committed the above offence with his younger son Arun aged about 6 years. The accused non-petitioner No. 2 was arrested on 2nd Sept. , 2004. He moved an application under Section 437 Cr. P. C. for grant of bail before the Civil Judge (J. D.) & Judicial Magistrate (First Class), Tejara, Alwar, which was dismissed by him on the same day i. e. , 2nd Sept. , 2004. The accused non-petitioner No. 2 thereafter, moved an application under Section 439 Cr. P. C. before the Additional Sessions Judge No. 2, Kishangarh Bas, Alwar, which was dismissed vide order dated 10th Sept. , 2004 with a direction that the accused non-petitioner No. 2 will be entitled to file another bail application after receipt of the F. S. L. Report. The accused non-petitioner thereafter moved an application under Section 439 Cr. P. C. before this Court and this Court vide order dated 20th Sept. , 2005 rejected the bail application of the accused non-petitioner No. 2 under Section 439 Cr. P. C. in S. B. Cr. Misc. Bail Application No. 4400/2004, a certified copy of which has been placed on record. The accused non-petitioner No. 2 further moved an application under Section 439 Cr. P. C. before the Additional District Judge No. 2, Kishangarh Bas, Alwar but the same was also rejected vide order dated 5th Oct. , 2004. The Trial Court framed charge against the accused for the offence under Section 377 I. P. C. on 10. 11. 2004 and fixed the case for prosecution evidence on 24. 11. 2004.
(3.) THEREAFTER, the accused non-petitioner moved an application under Section 437 (6) Cr. P. C. on 10th Jan. , 2005 before the Civil Judge (J. D.) & J. M. (First Class), Tijara, Alwar on the ground that trial has not been concluded within 60 days from the date of framing of the charge, therefore, he should be released on bail. Shri Kailash Meena, Judicial Magistrate (First Class), Tijara vide its order dated 10th Jan. , 2005 allowed the bail application of the accused non-petitioner No. 2. The bail order dated 10th Jan. , 2005 is reproduced as under:- ******* Being aggrieved with the above bail order dated 10. 01. 2005, the complainant petitioner preferred this application on 24. 01. 2005 under Section 439 (2) Cr. P. C. for cancellation of the bail granted to the accused. This Court passed the following order on 29th Jan. , 2005, which reads as under:- ``heard. Perused the impugned order and other relevant documents. Admit. Issue notice to non-petitioner No. 2 returnable on 15. 2. 2005 as to why the bail granted to him should not be cancelled. A show cause notice be also issued to the concerned officer as to why and in what circumstances, bail has been granted to non-petitioner No. 2 without material or substantial change in the facts and circumstances of the case after the rejection of his bail by the same court vide order dated 2. 9. 2004 and by the learned Addl. Sessions Judge, Kishangarhbas u/ss. 438 and 439 Cr. P. C. vide orders dated 29. 7. 2004, 10. 9. 2004 and 5. 10. 2004 respectively, which is against judicial propriety and discipline. Sd/- (Harbanslal) J. '' The Judicial Magistrate sent his reply dated 03. 02. 2005. The Judicial Magistrate in paras 8 & 9 of his reply has admitted that bail application of accused under Section 439 Cr. P. C. was rejected by the Additional Sessions Judge No. 2, Kishangarh Bas twice vide orders dated 10. 09. 2004 and 05. 10. 2004. The accused non-petitioner No. 2 filed its written reply dated 03. 03. 2005 to this application under Section 439 (2) Cr. P. C. This Court vide order dated 3. 03. 2005 called the file of the Trial Court. ;