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2015 DIGILAW 1804 (RAJ)

Om Prakash v. State of Rajasthan

2015-10-16

GOPAL KRISHAN VYAS

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JUDGMENT : Gopal Kirshan Vyas, J. The instant Criminal Miscellaneous Bail Cancellation Application has been filed by the complainant Om Prakash under Section 439(2) Cr.P.C. to quash the Order dated 19.12.2014 passed by the Sessions Judge, Jodhpur Metropolitan, Jodhpur in Criminal Case No. 735/203, 2 whereby an Application filed by the petitioner for cancellation of bail of Vijay Kumar S/o Jaga Ram dated 25.8.2010 whereby Vijay Kumar granted bail by the Sessions Judge, Jodhpur Metropolitan, Jodhpur. 2. The learned Counsel for the complainant-petitioner submits that F.I.R. No. 40/2007 was registered against the respondent Vijay Kumar at Police Station Osiyan under Sections 363, 366 and 376(2)(g) I.P.C. in which a specific allegation of committing offence of rape was levelled against Vijay Kumar, but while considering him a juvenile, the Sessions Judge granted bail to the respondent but Vijay Kumar was not juvenile. 3. The complainant preferred S.L.P. before Hon'ble Supreme Court and vide Judgment reported in 2012 Cr.L.R. (SC) 407, the Hon'ble Supreme Court held that the accused-respondent Vijay Kumar was not juvenile on the date of occurrence and gave clear cut finding that accused was 19 years of age on the date of incident, therefore, an application was filed before the learned Sessions Judge, Metropolitan, Jodhpur for cancellation of bail of accused respondent Vijay Kumar under Section 439(2) of Cr.P.C., but the learned Sessions Judge, Jodhpur Metropolitan, Jodhpur rejected the said application for cancellation of bail vide Order dated 19.12.2014. 4. The learned Counsel for the complainant-petitioner vehemently argued that on wrong premises, the Bail Application of respondent Vijay Kumar was allowed by the learned Trial Court while considering him to be juvenile but question whether the accused respondent Vijay Kumar was juvenile or not has been decided by the Hon'ble Supreme Court in case of Om Prakash v. State of Rajasthan, in which the Hon'ble Supreme Court held that the date on which the occurrence took place, the respondent Vijay Kumar was 19 years of age, therefore, obviously the bail was granted on wrong premises by the learned Sessions Judge. Further, it is submitted that in the trial, the statements of prosecutrix have already been recorded on 9.4.2015 in which specific allegations are levelled against the Respondent No. 2 - Vijay Kumar, therefore, this application may kindly be allowed and while quashing the Order dated 19.12.2014 passed upon application filed by the petitioner complainant under Section 439(2) Cr.P.C., the bail granted to the Respondent No. 2 while treating him as juvenile dated 25.8.2010 may kindly be set aside Kumar, may kindly be taken into custody in C.R. No. 40/2007 registered at Police Station, Osiyan, Jodhpur for offence under Section 363, 366 and 376(2)(g) of the I.P.C. 5. The learned Counsel for the Respondent No. 2 submits that the Respondent No. 2 is not misused the bail granted to him even while treating him as juvenile, therefore, at this stage, it is not proper to cancel the bail. Therefore, the instant Bail Cancellation Application may kindly be dismissed. 6. After hearing the learned Counsel for the parties, it emerges from the facts that admittedly the Respondent No. 2 - Vijay Kumar was granted bail on the ground that he was juvenile vide Order dated 25.8.2010 and objection raised by the Complainant Om Prakash that Respondent No. 2 - Vijay Kumar was not juvenile heinous offence of rape was committed with daughter was rejected but the Hon'ble Supreme Court in case of Om Prakash v. State of Rajasthan, reported in 2012 Cr.L.R. (SC) 407, held that upon consideration of evidence and facts it emerges that accused Respondent No. 2 - Vijay Kumar was not juvenile on the date of incident. In view of above judgment, it is obvious from the facts that bail granted to the accused Respondent No. 2 was totally wrong because it was granted upon the fact that the Respondent No. 2 is juvenile. Now, the statements of prosecutrix have already been recorded in the trial in which she has made allegation against the accused for commission of offence of rape. Therefore, it is a fit case of cancellation of bail granted to the Respondent No. 2-Vijay Kumar. 7. Consequently, the instant Petition for cancellation of bail is allowed. Now, the statements of prosecutrix have already been recorded in the trial in which she has made allegation against the accused for commission of offence of rape. Therefore, it is a fit case of cancellation of bail granted to the Respondent No. 2-Vijay Kumar. 7. Consequently, the instant Petition for cancellation of bail is allowed. The bail granted by the learned Trial Court on 25.8.2010 in F.I.R. No. 40/2007 registered at Police Station Osiyan, District-Jodhpur for the offence under Sections 363, 366 and 376(2)(g) of the I.P.C. is hereby cancelled and it is ordered that accused Respondent No. 2 shall surrender before the Trial Court. However, the accused Vijay Kumar is hereby granted liberty to file regular Bail Application after surrender before the learned Trial Court under Section 439 Cr.P.C. within three weeks, till the accused Vijay Kumar surrenders before the learned Trial Court and file the regular Bail Application under Section 439 Cr.P.C., the accused Vijay Kumar shall remain on bail, which is granted to him earlier. Application allowed.