JUDGMENT 1. - Instant application has been filed under Section 439 [2] Cr.P.C. praying inter alia that the order granting bail to accused respondent Nos.2 and 3, namely Dayaram and Ratan Lal, vide impugned order dated 16.05.2012 by the Additional Sessions Judge, Bandikui, District Dausa be set aside, along with the order dated 16.01.2013, whereby the application filed by the complainant/petitioner under Section 439 [2]Cr.P.C. was rejected. 2. In the instant case, petitioner/complainant, Umrao Gurjar is a brother of the prosecutrix [name withheld to protect her identity]. 3. The statement of the prosecutrix [name withheld to protect her identity] was recorded under Section 164 Cr.P.C. 4. Prosecutrix, in her statement, has specifically stated that the respondent Nos.2 and 3, along with other co-accused came to her parental house and forcibly kidnapped her; and thereafter Ratan Lal and Dayaram and Bachhu Singh committed offence of gang-rape. 5. The learned counsel appearing for the petitioner/ complainant has submitted that the grave error was committed by the Court of Additional Sessions Judge, Bandikui, Dausa while granting pre-arrest bail to the accused-respondent Nos.2 and 3, namely Dayaram and Ratan Lal, who were accused of the offence of gang-rape. 6. Counsel appearing for the petitioner/complainant further submitted that the same Judge, vide a different order dated 13.12.2012 [Annexure-4] denied the relief of pre-arrest bail to similarly situated co-accused, namely Bachu Singh. 7. It is contended by the learned counsel that the same set of evidence was available with the Presiding Officer. The Presiding Officer granted pre-arrest bail to the accused respondent Nos.2 and 3, but declined the same to one Bachhu Singh. 8. It is further contended by the learned counsel that since the role assigned to the aforesaid three accused is identical, there was no other difference in the order granting bail to one set of accused, and declining bail to another accused, except that name of counsel in both cases is different. 9. Counsel appearing for the petitioner/complainant pleaded that when the petitioner filed an application for cancellation of bail granted to accused respondent Nos.2 and 3, the Court observed that the Investigating Agency has decided not to prosecute the accused for commission of offence punishable under Section 376 (2) (g) I.P.C. 10. Counsel appearing for the petitioner/complainant further pleaded that after bail cancellation application was decided the Investigating Officer has submitted charge-sheet against the accused respondents for the offence of gang-rape. 11. Counsel appearing for the petitioner/complainant further pleaded that after bail cancellation application was decided the Investigating Officer has submitted charge-sheet against the accused respondents for the offence of gang-rape. 11. It is argued by the learned counsel that as on today, there is a definite stand of the prosecution agency that the accused-respondents have committed offence of gang-rape. 12. Mr. Pankaj Gupta, the learned counsel appearing for the accused-respondents Nos.2 and 3 has raised the following arguments to advance the prayer that bail already granted to the respondent Nos.2 and 3 should not be cancelled. 13. Firstly, once the application under Section 439 (2) Cr.P.C. was rejected by the Court below, the petitioner could not file an application under Section 439 (2) Cr.P.C. before this Court. 14. Jurisdiction under Section 439 (2) Cr.P.C. is a concurrent jurisdiction, same can be exercised by the Sessions Judge and also by the High Court. Normally first application for bail under Section 439 Cr.P.C. is considered by the Court below, thereafter this Court also entertain the same under Section 439 Cr.P.C. Mere mentioning of a wrong Section will not change the character of the prayer, and this Court will not be precluded to dispense justice as technicalities cannot triumph over substantial justice. 15. Secondly, it is contended by the learned counsel that after bail was granted by the Sessions Judge, the Court below has accepted bail bonds under Section 437 (2) Cr.P.C., vide order dated 26.08.2013 Annexure R/1, thus anticipatory bail granted to the petitioners has merged into regular bail. 16. Acceptance of the bail bonds under Section 437 Cr.P.C of the accused-respondents is, in pursuance of the order granting pre-arrest bail is a ministerial act. Acceptance of bail bonds is not a conscious decision of the Judge below. Since the pre-arrest bail has been granted as a follow up he had accepted the bail bonds. 17. In support of above contention, Mr. Gupta, the learned counsel appearing for the accused-respondent Nos.2 and 3, has relied upon the case of Naresh Kumar Banshiwal v. State of Rajasthan & another, reported in 2012 (4) Cr.L.R. (Raj.) 2045 , wherein it was held that once anticipatory bail has been cancelled by the High Court, later-on if the bail has been accepted under Section 437 Cr.P.C., the order cannot be cancelled. 18. 18. After cancellation of pre-arrest bail by the High Court to grant regular bail is a conscious decision of the Magistrate, whereas after grant of pre-arrest bail by the Sessions Court, the Court while accepting bail bonds was performing a ministerial duty. There is no quarrel with the proposition propounded in the judgment. Even if pre-arrest bail is cancelled, later-on if situation so arise, the Lower Court can grant bail, to illustrate the bail can be granted when Court acknowledge the right of speedy trial of the accused or witnesses have turned hostile or for numerous reasons, which cannot be enumerated in water tight jackets. 19. Counsel appearing for the accused-respondents No.2 and 3 has also relied upon the following judgments (i) Aslam Babalal Desai v. State of Maharashtra, reported in AIR 1993 S.C. 1 (1) , (ii) Dolat Ram and Others v. State of Haryana, reported in (1995) 1 S.C.C. 349 and (iii) Raj Kumar Jain and Another v. Kundan Jain and Another, reported in AIR 2004 S.C. 3794 to contend that the grounds for cancellation of bail are entirely different than the grounds of bail. 20. Counsel appearing for the accused-respondents No.2 and 3 has drawn attention of this Court to Para 4 of Dolat Ram's case [supra], which reads as under:- "4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly [illustrative and not exhaustive] are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted." 21. To fortify the above submissions, the counsel appearing for the accused-respondents No.2 and 3 has read the relevant portion of Aslam Babalal Desai's case [supra], which reads as under:- "Once the order of release is by fiction of law an order passed under Sections 437(1) or (2) or 439 (1) it follows as a natural consequence that the said order can be cancelled under Sub-section (5) of Section 437 or Sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh's case [ AIR 1987 SC 149 ] the grounds for cancellation under Sections 437 (5) and 439 (2) are identical, namely, bail granted under Sections 437 (1) or (2) or 439 (1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. The view we are taking is consistent with this Court's view in the case of Bashir & Raghubir (supra) but if any ambiguity has arisen on account of certain observations in Rajnikant's case our endeavour is to clear the same and set the controversy at rest." 22. Similar view was earlier observed by the Apex Court in the case of Raghubir Singh v. State of Bihar, reported in A.I.R. 1987 (SC) 149 . 23. To controvert the above submissions, counsel appearing for the petitioner/complainant, has relied upon the following judgments:- (i) State v. Ram Charan, reported in WLC 2008 395 . (ii) Dinesh M.N. (S.P.) v. State of Gujarat, reported in W.L.C. (SC) Criminal 2008 (2) 764 , (iii) Manjit Prakash and others v. Shobha Devi and another, reported in (2009) 13 S.C.C. 785 and (iv) Prakash Kadam and Others v. Ramprasad Vishwanath Gupta and another, reported in (2011) 6 S.C.C. 189 , to urge that where irrelevant materials were taken into consideration or relevant materials were ignored and order granting bail is perverse, the High Court while exercising its jurisdiction under Section 439 (2) Cr.P.C. can cancel the bail. 24. In the present case, the bail was granted to accused-respondents on a wrong premise. The respondents are accused of offence of gang rape. 25. Prosecutrix while making statement on oath has levelled specific allegations. Therefore, in such a serious offence when atrocities against the women are on rise, grant pre-arrest bail has sent a wrong message to the society at large. 26. This Court shall refrain to dwell the reason as to why the bail ought not to have been granted, lest accused are not prejudiced for grant of regular bail later, but suffice it to say that there is a remarkable difference between the grant of pre-arrest bail and a regular bail. 27. Before the investigation could conclude by grant of pre-arrest bail for offence of gang rape, the Investigating Officer has been put to disadvantage, as vital clues to gather evidence of gang-rape, collection of clothes and simen were lost. For offence of rape, the investigation ought to be swift, as the time is an essence. 28. 27. Before the investigation could conclude by grant of pre-arrest bail for offence of gang rape, the Investigating Officer has been put to disadvantage, as vital clues to gather evidence of gang-rape, collection of clothes and simen were lost. For offence of rape, the investigation ought to be swift, as the time is an essence. 28. A proviso to Section 309 I.P.C. has been added casting a duty upon the Courts to conclude trial within a period of two month. 29. The Courts on numerous occasion have held that the investigation in offence of rape should be prompt and the trial should also conclude at the earliest. 30. Taking totality of circumstances into consideration, this Court is of the considered opinion that after reading of the statement of the prosecutrix recorded under Section 164 Cr.P.C. and attending circumstances, there could be no option, but to decline bail to the accused-respondents under Section 438 Cr.P.C., therefore, the view formulated by the Court below is not one view, which is possible on the facts and circumstances of the present case, therefore, same being perverse ought to be corrected at the earliest. 31. Consequently, instant bail cancellation application preferred by the complainant/petitioner stands accepted and the pre-arrest bail granted to the accused-respondent Nos.2 and 3, namely Dayaram and Ratan Lal, stands cancelled. The accused-respondent Nos.2 and 3 shall be immediately taken into custody by the Superintendent of Police, Dausa and produced before the appropriate Court as per provisions of law.Application for cancellation of bail accepted. *******