JUDGMENT : VED PRAKASH VAISH, J. 1. By way of the present petition under section 439 (2) of the Code of Criminal Procedure, 1979 (herein referred to as 'Cr.P.C.') the petitioner has impugned order dated 29th July 2016 passed by learned Special Judge (POCSO), Shillong whereby respondent No. 1 has been granted bail in Rynjah P.S. Case No. 69 (06) 2016 under Section 341/363/342 IPC R/w section 5 (g) (m)/6 POCSO Act. 2. The factual matrix of the case as culled out from the petition is that the petitioner is the father of the minor girl Miss 'X' (name changed). On 2nd June 2016 the victim/daughter of the petitioner, who is studying at Nongthymmai Nepali School in Class IV went for her tuition at around 3:30 to 4:00 PM and after tuition she came back home and kept the bag and after having tea she left the house to play with the son of her tuition teacher who resides in the same compound. On coming out of the house, the victim met her friend namely, Ame Suting who is also her neighbour and played a while outside her house. However, after sometime the said friend went home and she followed her to her house but on reaching the house, the respondent No. 1 pulled her tightly by her hand and took her inside the house. The other co-accused tied her hands and legs with a brown colour plastic rope and stuffed her mouth with a cloth. All the accused persons committed rape on her one after another. On the next day i.e. 3rd June, 2016, the victim did not disclose the incident as she was scared and on finding her tuition teacher with whom she could share the incident, she narrated the entire incident dated 2nd June, 2016. On coming to know about the incident the said tuition teacher was shocked and decided to inform her mother about the same and took the victim to the shop of her father and called her mother and they went home where the victim narrated the entire incident to her mother. 3. On coming to know about the incident the said tuition teacher was shocked and decided to inform her mother about the same and took the victim to the shop of her father and called her mother and they went home where the victim narrated the entire incident to her mother. 3. It is also stated by the petitioner that on coming to know about the incidents, the petitioner lodged an F.I.R. with the Officer-in-Charge of Nongthymmai Beat House on 3rd June, 2016 regarding commission of the crime on the child and requested to take necessary action against the perpetrators involved in the commission of the crime. On the basis of the said complaint police registered Rynjah P.S. Case No. 69 (06) 2016 U/s 341/363/342 IPC R/w section 5 (g) (m)/6 POCSO Act. The victim was medically examined at Ganesh Das Hospital, Shillong. On 4th June, 2016 the respondent No. 1 and the other co-accused were arrested. Statements of witnesses were recorded and statement of the victim under section 161 Cr.P.C. was recorded. Thereafter, statement of the victim/prosecutrix was also recorded under section 164 Cr.P.C. 4. The respondent No. 1 moved an application for grant of bail being Bail Application No. 105 (H) 2016 in GR No. 283 (A) 2016 which was allowed by learned Special Judge (POCSO) Shillong vide impugned order dated 29th July 2016. The said order reads as follows:- "29.07.2016 Perused the bail application No. 105 (H) 16 filed by Smti. Tika Nath Hajong on behalf of the accused Dhanbad Jamatia, U/S 437 Cr.P.C moved by Ld. Counsel Shri. U.K Sharma , Ld. Counsel submits that the accused person was arrested on 04.06.16 in connection with Rynjah P.S. Case No. 69 (6) 16, U/S 341/363/342 IPC, R/W Section 5 (g) (m)/6 of POSCO Act. Heard the submission of the Ld. Counsel appearing for the accused person who submits that the statement U/S 164 Cr.P.C of the victim and witnesses was recorded by the magistrate and all formalities of investigation is completed and the accused person is entitled to be enlarged on bail. Ld. Defence Counsel further submits that the accused person undertakes to cooperate with the investigation and abide by any condition(s) impose by the Court if enlarge on bail. On the other hands Ld. Prosecutor Shri. S.S. Das have no objection for grant of bail to the accused person, but with strict condition(s). Ld. Defence Counsel further submits that the accused person undertakes to cooperate with the investigation and abide by any condition(s) impose by the Court if enlarge on bail. On the other hands Ld. Prosecutor Shri. S.S. Das have no objection for grant of bail to the accused person, but with strict condition(s). I have perused the C/D and the detail report wherein the I/O has submitted that the statement U/S 164 Cr.P.C of the victim and the witnesses were recorded and also T.I.P was also conducted. Considering the submission of the Ld. Counsel appearing for the parties and the material available on record, I am of the considered opinion that the instant Bail Application deserved consideration. Without going into the merit of the case, I am inclined t enlarged the accused person Dhanbad Jamatia on bail for a bail amount of Rs 1,00,000/- with two sureties of the like amount on the condition; That the accused person shall appear before the I/O and cooperate with investigation; That the accused person shall not hamper or tamper with evidence nor influence witnesses and that the accused person shall not abscond nor leave Jurisdiction of this Court without prior permission. Failure to comply with the above condition(s) bail granted shall automatically stands cancelled. B/A to returned the C/D to the I/O. With the above observation the instant bail application is allowed and accordingly stands disposed off." 5. Feeling aggrieved by the said order dated 29th July 2016, the petitioner filed the present petition. 6. Learned counsel for petitioner urged that respondent No. 1 was released on bail only on the concession granted by Public Prosecutor. He also submits that learned Special Judge (POCSO) did not consider application on merit of the case and granted bail on the basis of concession given by Public Prosecutor which is illegal. 7. Learned counsel for petitioner further contended that the prosecutrix in her statement has clearly stated that she was raped by respondent No. 1 and co-accused person. 8. Relying upon the judgment in 'Puran v. Rambilas And Another', (2001) 6 SCC 338 and 'Subodh Kumar Yadav v. State of Bihar And Another', (2009) 14 SCC 638 , learned counsel for the petitioner urged that bail granted to respondent No. 1 is liable to be cancelled. 9. Notice of the petition was issued to the respondent No. 1 on 12.08.2016. 9. Notice of the petition was issued to the respondent No. 1 on 12.08.2016. As per affidavit of the petitioner, respondent No. 1 was served with notice by way of dasti notice on 17.08.2016 besides service by registered post on 22.08.2016. However, the respondent No. 1 chose not to appear despite service of notice. 10. Learned counsel for respondent No. 2/State has fairly conceded that bail was granted on the basis of concession given by Public Prosecutor. He also submits that the victim/prosecutrix in her statement under section 161 Cr.P.C. has named the respondent No. 1. He has also pointed out that prosecutrix in her statement under section 164 Cr.P.C. named the respondent No. 1 and the other co-accused person who committed rape on her. 11. I have given my thoughtful consideration to the submissions made by learned counsel for petitioner as well as learned counsel for respondent No. 2 and also perused the material on record. 12. The law in regard to grant or refusal of bail is well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of a course. Though, at the stage of granting bail a detailed examination of evidence and elaborate documentation of merit of the case need not be undertaken, there is no need to indicate in such orders the reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. 13. The Hon'ble Supreme Court in the case of 'Subodh Kumar Yadav' (supra) has observed that: "16. I fact it is now well settled that if a superior court finds that the court granting bail had acted on irrelevant material, or if there was non-application of mind or failure to take note of any statutory bar to grant bail, or if there was manifest impropriety as for example failure to hear the Public Prosecutor/complainant where required, an order for cancellation of bail can in fact be made. (see Gajanand Agrawal v. State of Orrisa and Rizwan Akbar Hussain Syyed v. Mmehmood Hussain, at SCC p. 370, para 7.) Further, while cancelling bail, the superior court would be justified in considering the question whether irrelevant materials were taken into consideration by the court granting bail. 14. (see Gajanand Agrawal v. State of Orrisa and Rizwan Akbar Hussain Syyed v. Mmehmood Hussain, at SCC p. 370, para 7.) Further, while cancelling bail, the superior court would be justified in considering the question whether irrelevant materials were taken into consideration by the court granting bail. 14. The Hon'ble Supreme Court in 'Puran's case (supra) held:- "10......One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trail court has to be corrected. 11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State of (Delhi Admn.). (1978) 1 SCC 118 . In that case the Court observed as under: "If, however a Court of Session had admitted an accused person to bail, the state has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may well approach the accused to custody. When, however, the State is aggrieved by the circumstances that have cropped up except those already existing, it is futile for the state to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Sessions vis-a-vis the High Court." 15. A similar question cropped up before the Hon'ble Supreme Court in another case titled 'Brij Nandan Jaiswal v. Munna Jaiswal and Anr.' AIR 2009 SC 1021 wherein it was held:- "7. This position follows from the subordinate position of the Court of Sessions vis-a-vis the High Court." 15. A similar question cropped up before the Hon'ble Supreme Court in another case titled 'Brij Nandan Jaiswal v. Munna Jaiswal and Anr.' AIR 2009 SC 1021 wherein it was held:- "7. It is now a settled law that complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant could question the merits of the order granting bail. However, we find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary." 16. In case of 'Narendra K. Amin v. State of Gujarat' (2008) 13 SCC 584 a three judge bench of the Hon'ble Supreme Court observed that when irrelevant materials have been taken into consideration the same makes the order granting bail vulnerable. If the order is perverse, the same can be set aside at naught by the superior court. 17. In the instant case, the petitioner lodged the F.I.R., Rynjah P.S. Case No. 69 (06) 2016 U/s 341/363/342 IPC R/w section 5 (g) (m)/6 POCSO Act on 3rd June, 2016. The prosecutrix was medically examined at Ganesh Das Hospital, Shillong. Statement of the prosecutrix as well as statements of witnesses namely, Sunita Chettri and Ame Suting under section 161 Cr.P.C. were recorded. Thereafter, statement of prosecutrix under section 164 Cr.P.C. was recorded. In her statement, the prosecutrix has named the respondent No. 1 (including the other co-accused persons) as the persons who committed rape on her and extended threat to her. 18. On perusal of the impugned order aforesaid, it is clear that learned Special Judge did not consider with merits of the case and the bail was granted only on the basis of concession given by Public Prosecutor. The inevitable result is that the impugned order is liable to be interfered with. 19. 18. On perusal of the impugned order aforesaid, it is clear that learned Special Judge did not consider with merits of the case and the bail was granted only on the basis of concession given by Public Prosecutor. The inevitable result is that the impugned order is liable to be interfered with. 19. In view of the of the aforesaid discussions, I am inclined to set aside order dated 29th July, 2016 passed by learned Special Judge (POCSO) Shillong. Accordingly, the impugned order dated 29th July, 2016 passed by learned Special Judge (POCSO) Shillong in Rynjah P.S. Case No. 69 (06) 2016 U/s 341/363/342 IPC R/w section 5 (g) (m)/6 POCSO Act is set aside and learned trial court/ Special Judge is directed to take appropriate steps in accordance with law. 20. It is hereby clarified that while passing this order no opinion has been expressed with regard to merit of the case. Needless to say that it shall be open for the respondent No. 1 to move an application for bail and the same will be considered by learned trial court on its own merits in accordance with law. 21. A copy of this order be sent to the learned Special Judge (POCSO) Shillong.