Sabina, J. - (1.) Complainant-Petitioner has filed this petition under Section 439 (2) Code of Criminal Procedure, 1973 seeking cancellation of bail in F.I.R. No. 222/2016 registered at Police Station Bhusawar, Distt. Bharatpur, for offences under Sections 342, 376 of Indian Penal Code, 1860 read with Section 3/4 of Protection of Children from Sexual Offence Act, 2012.
(2.) Learned counsel for the petitioner has submitted that as per the prosecution case, respondent No. 2 has raped the prosecutrix aged about fifteen years. Prosecutrix while appearing in the witness box has duly supported the prosecution case. Respondent No. 2 had approached this Court for regular bail and the said petition was got dismissed as withdrawn with liberty to the petitioner to file a fresh one after statement of the prosecutrix was recorded during trial. Respondent No. 2 instead of approaching this court for bail after the statement of the prosecutrix was recorded, has approached the trial Court for bail. Trial Court on erroneous considerations has granted bail to the respondent No. 2. Trial Court while granting bail to the petitioner held that it could be said to be a case of consent and further held that the prosecutrix was a major at the time of occurrence by considering her Aadhaar Card and Local Identity Card. However, as per the school certificate age of the prosecutrix was fifteen years at the time of occurrence. Respondent No. 2 is a married man having three children and has committed a heinous offence. After bail was granted to the petitioner, again another FIR was got registered by the complainant side against respondent No. 2 alleging that he had given beatings to the prosecutrix. However, after investigation, the said allegations were found to be false.
(3.) Respondent No. 2 has opposed the petition and has submitted that the bail granted to respondent No. 2 by the trial Court could not be cancelled as it did not fall within the principles applicable for cancellation of bail. In support of his arguments, learned counsel has placed reliance on the decision of Hon'ble Supreme Court in Kanwar Singh Meena Versus State of Rajasthan and another, 2012 12 SCC 180, wherein it was held as under:- "Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail.";