- (1.) The present bail cancellation application has been filed by the petitioner-complainant for cancellation of bail granted by this Court to the accused-respondent No.1 vide order dated 09.04.2019 passed in S.B. Criminal Misc. Bail Application No.13208/2018 which reads as under:- "1. The present bail application has been filed under Section 439 Cr.P.C. The petitioner has been arrested in connection with FIR No.486/2018 Registered at Police Station Mansarovar, District Jaipur for the offence(s) under Sections 376 , 377 , 384 , 313 , 323 , 341 , 504 , 506 , 420 , 406 , 120B of IPC. 2. Counsel for the petitioner submits that in the first round of litigation, the prosecutrix has lodged the FIR against the petitioner in which challan under Section 376(2)(n) of IPC was presented by the police and after trial, the petitioner was acquitted by the learned trial Court vide order dated 22.3.2018 passed in Sessions Case No.11/2018 (Annexure-4). Counsel further submits that this is second round of litigation, again the prosecutrix has lodged FIR against the petitioner on 23.7.2018, wherein allegation of committing rape in the month of May has been levelled against the petitioner while the fact is that there is a dispute between the petitioner and prosecutrix and admittedly the petitioner lived for quite sometime with the prosecutrix and in cross-examination before the learned trial Court, the prosecutrix has admitted the fact of abortion at her own free will and further mentioned that the petitioner is her fiance and fact regarding taking of money from the petitioner was also admitted by the prosecutrix in her cross examination. Counsel further submits that the petitioner has been falsely implicated in this matter. Counsel further submits that the prosecutrix is running a girls PG hostel where in so many girls are residing and allegation of committing rape in the said hostel has been levelled against the petitioner. 3. Learned Public Prosecutor has opposed the bail application. 4. Considering the contentions put-forth by the counsel for the petitioner and taking into account the facts and circumstances of the case and without expressing any opinion on the merits of the case, this court deems it just and proper to enlarge the petitioner on bail. 5. Accordingly, the bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused- petitioner Rajendra Choudhary S/o Sagar Singh Choudhary shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so."
(2.) Counsel for the petitioner-complainant submits that on the date of granting bail to the accused-respondent counsel for the complainant was absent and the order dated 09.04.2019 was passed in the absence of the counsel for the complainant. Counsel further submits that the statement of the prosecutrix has been recorded by the learned trial Court as PW1 wherein she has specifically stated that the accused-respondent has committed rape on her. Counsel further submits that the accused-respondent is regularly harassing the petitioner-complainant after granting bail by this Court.
(3.) Learned Public Prosecutor submits that the statement of the prosecutrix has been recorded by the learned trial Court and the learned trial Court may be directed to expedite the trial. Heard counsel for the parties and perused the material available on record. The order dated 09.04.2019 was passed by this Court granting bail to the accused-respondent under Section 439 Cr.P.C. on merits after considering the material available on record and after hearing the learned Public Prosecutor and on the said date counsel for the complainant was absent.;