JUDGMENT : The Court proceedings have been conducted through Video-Conference. 2. I have heard Mr. S.B. Rahman, learned counsel for the applicant/ complainant. Also heard Mr. N.J. Dutta, learned Additional Public Prosecutor, Assam, appearing for the respondent No.1 and Mr. H.R.A. Choudhury, learned senior counsel, appearing for the respondent No.2/accused. 3. Ahammad Ali Mandal, the complainant of Goalpara Police Station Case No.583/2019 under Section 376 IPC read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”), has filed this application for cancellation of pre-arrest bail granted to Mujahidur Rahman Mondal by virtue of order dated 06.01.2020 while dealing with A.B. No.4173/2019 (Mujahidur Rahman Mondal -Vs- The State of Assam). I have taken judicial notice of the fact that the complainant or the victim were not impleaded as respondents by the accused when Anticipatory Bail Application (supra) was filed. 4. Before a reference to the order granting bail is made, I would like to make a reference to the gist of the accusations, and the evidences collected in the course of investigation, which are available with the Case Diary, in context of which the application for anticipatory bail under Section 438 Cr.PC was required to be considered by the Court. 5. Ahammad Ali Mandal vide written complaint accused Mujahidur Rahman Mondal while saying that on 21.09.2019 at about 12 Noon when his minor daughter “Ms. F” aged years was sleeping in her house, the accused entered the house silently, gagged her mouth and committed rape forcibly, against her will and fled the place of occurrence. 6. It appears that in the course of investigation, statement of the victim was recorded under Section 164 Cr.PC, as is ordinarily done in cases of rape. The statement is available on the investigation file/with the Case Diary, which was produced before the bail Court. In the statement of the victim recorded under Section 164 Cr.PC dated 23.09.2019, it was stated by the victim that she is a student of Mahatma Gandhi School. On last Saturday, after going home from the school, the victim was sleeping after having meal. The victim sensed that someone was there in the bed room. The victim saw Mujahidur Rahman Mondal in the room, who gagged her. The accused put pressure on her chest and forcibly committed rape. The victim could not raise her voice. On last Saturday, after going home from the school, the victim was sleeping after having meal. The victim sensed that someone was there in the bed room. The victim saw Mujahidur Rahman Mondal in the room, who gagged her. The accused put pressure on her chest and forcibly committed rape. The victim could not raise her voice. The sound produced in the room cannot be heard in the other room. Mujahidur Rahman Mondal threatened the victim that she should not disclose the matter to anybody. Being frightened, the victim kept lying in the room. When the elder sister of the victim came to the room, the incident was narrated to her. The sister told the victim that she would inform the parents about the incident. After a while she left. The victim got depressed and cut her hand with a blade. After a while, the sister came back to the room and saw that the victim had cut her hand with a blade and blood was oozing. Her elder sister informed everybody about it, as also the elder brother. Victim was taken to the hospital and the case was lodged. 7. Since the complainant claimed that the victim was a minor, in the course of investigation, certificate issued by Board of Secondary Education, Assam was taken, which reflects the date of birth of the victim as 05.02.2004. Birth Certificate issued by the Department of Health Services, Government of Assam under Sections 12/17 of the Registration of Births and Deaths Act, 1969 and Rules 8/13 of the Assam Registration of Births and Deaths Rules, 1999 was also taken by the investigating agency, which also reflects the date of birth of the victim as 05.02.2004. By virtue of the 2(two) documents, the age of the victim would be 15(fifteen) years approximately on the date of the incident. 8. It appears that the accused filed A.B. No.4173/2019. Case Diary was called for, and on perusal thereof, pre-arrest bail under Section 438 Cr.PC was granted vide the order dated 06.01.2020 in the following terms:- “ Heard Mr. HRA Choudhury, learned senior counsel for the petitioner and Mr. H Sarma, learned Addl. PP, Assam. 8. It appears that the accused filed A.B. No.4173/2019. Case Diary was called for, and on perusal thereof, pre-arrest bail under Section 438 Cr.PC was granted vide the order dated 06.01.2020 in the following terms:- “ Heard Mr. HRA Choudhury, learned senior counsel for the petitioner and Mr. H Sarma, learned Addl. PP, Assam. This is an application under Section 438 Cr.P.C. filed by the petitioner, namely, Mujahidur Rahman Mondal, praying for pre-arrest bail apprehending arrest in connection with Goalpara PS Case No.583/2019 under section 376 IPC read with section 4 of the POCSO Act (corresponding to GR Case No.2367/2019). Learned counsel for the petitioner submits that no such incident as alleged in the FIR has taken place and the FIR was lodged by making some concocted story because of property dispute between the parties. Case diary called for is received and perused which shows that the victim has already been examined by the doctor and her age is found to be above Having considered the materials in the case diary, including the statement of the victim and the medical report and also the nature of accusation as reflected in the FIR, this Court is of the view that custodial interrogation of the petitioner may not be necessary for the purpose of investigation of the case. Accordingly, it is provided that, in the event of arrest of the petitioner in connection with the aforementioned case, the petitioner above named shall be released on furnishing a bail bond of Rs.20,000/-, with a suitable surety of the like amount to the satisfaction of the arresting authority. The pre-arrest bail is subject to the following conditions. 1. The petitioner shall appear before the Investigating Officer within 15 days and co-operate with the investigation. 2. The petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. The pre-arrest bail application stands disposed of. Send back the case diary.” 9. It is required to be highlighted that although relevant documentary evidences Re; date of birth of the victim and her statements were available on investigation record yet were not pointedly highlighted by the prosecution. 10. The pre-arrest bail application stands disposed of. Send back the case diary.” 9. It is required to be highlighted that although relevant documentary evidences Re; date of birth of the victim and her statements were available on investigation record yet were not pointedly highlighted by the prosecution. 10. Perusal of the order indicates that the Court while granting bail noticed the plea made on behalf of the bail applicant that no such incident, as alleged in the FIR, had taken place and the story cooked up has been concocted on account of some property dispute. I however notice that no such document indicating property dispute was placed on record with the bail application. The above extracted order also reveals that the Case Diary had been received and perused and shows the age of the victim as determined by the Doctor to be 18(eighteen) years. The order further indicates that having considered the material in the Case Diary, including the statement of the victim and medical report, and also the nature of accusation, as reflected in the Fir, the Court was of the view that custodial interrogation of the applicant might not be necessary for the purposes of investigation. In view of the said considerations, the application was allowed. 11. Mr. S.B. Rahman, learned counsel for the applicant/complainant, the father of the victim, has made a plea for cancellation of bail essentially on the ground that his daughter aged about 15(fifteen) years had been subjected to rape. Accused has been named in the Fir, as also in the statements given by the victim of offence under Section 164 Cr.PC and Section 161 Cr.PC. The nature and gravity of accusation was required to be considered by the Court under Section 438(1)(i) Cr.PC, however, the said aspect of the matter has been ignored. It has been highlighted that the complainant was not impleaded as party and, therefore, could not highlight the relevant evidences available on record which establish commission of offence under Sections 375/376 IPC and Section 3 and Section 4 of POCSO Act. It has been pleaded that because learned counsel for the prosecution did not highlight the relevant evidences, and relevant laws required to be applied at the time of grant of pre-arrest bail, miscarriage of justice has been caused. It has been pleaded that because learned counsel for the prosecution did not highlight the relevant evidences, and relevant laws required to be applied at the time of grant of pre-arrest bail, miscarriage of justice has been caused. Because the relevant materials were not brought to pointed notice of the Court, the order came to be passed in ignorance of the most relevant evidences. It has been vehemently argued that irrelevant factors came to be considered by the Court because due assistance was not given to the Court. By such conduct, relevant materials have been kept out of consideration and, therefore, it would constitute good ground to cancel the bail. 12. Learned counsel for the applicant/complainant has relied on the decision rendered by Hon’ble Supreme Court of India in the case of Kanwar Singh Meena -Vs- State of Rajasthan & Ors., reported in (2012) 12 SCC 180 (Paragraph 10) to advance his arguments. 13. Before I proceed with the matter, I would like to extract the relevant statutory provisions in context of which learned counsel for the complainant has addressed arguments. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, “Act of 2015”) is required to be noticed because it specifies the documents on which a Court of law can rely for determination of age. Section 94 of the Act of 2015 reads as under:- “94. Presumption and determination of age.- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining — (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” (emphasized by me) 14. The accused has been charged with committing offence under Section 4 of the POCSO Act. Section 4 is required to be read with Section 3 of the said Act. Section 29 of the POCSO Act provides for presumption as to certain offences. Under these circumstances, I deem it necessary to extract Sections 3, 4 and Section 29 of the POCSO Act herein below:- “Section 3. Section 4 is required to be read with Section 3 of the said Act. Section 29 of the POCSO Act provides for presumption as to certain offences. Under these circumstances, I deem it necessary to extract Sections 3, 4 and Section 29 of the POCSO Act herein below:- “Section 3. Penetrative sexual assault.-- A person is said to commit ‘penetrative sexual assault’ if-- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person. Section 4. Punishment for penetrative sexual assault. [(1)] Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than [ten years] but which may extend to imprisonment for life, and shall also be liable to fine. [(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine. (3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim. X X X X X Section 29. (3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim. X X X X X Section 29. Presumption as to certain offences.— Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.” 15. So far as the law, as cited, is concerned, Paragraph 10 of Kanwar Singh Meena’s case (supra) rendered by Hon’ble Supreme Court of India reads as under:- “10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Session 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 the 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 the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. But, that is not all. The High Court or the Sessions Court can cancel the 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-recognised 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 the 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.” (emphasized by me) 16. The law of cancellation of bail as interpreted by the Hon’ble Supreme Court of India makes it evident that while cancelling bail, primary considerations that would weigh with the Court would be 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 process of justice. The Hon’ble Supreme Court of India has further added and rather impressed on the power of the High Court or the Court of Sessions to cancel bail. It has been held that bail can be cancelled even in cases when the order granting bail suffers from serious infirmities resulting in miscarriage of justice. It has been held that 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 Court of Sessions would be justified in cancelling the bail. It has been held that 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 Court of Sessions would be justified in cancelling the bail. An order passed by a Court granting bail, ignoring relevant materials indicating prima facie involvement of the accused, or taking into account irrelevant materials are legally infirm orders and lead to miscarriage of justice. It has been held that the High Court or Court of Sessions is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately lead in weakening the prosecution case and have adverse impact on the society. It has been held that if relevant materials have been kept out of consideration, it would be a good ground to cancel bail. 17. Having considered the contention of the learned counsel for the complainant in context of the statutory provisions, extracted above, it becomes clear that in terms of provisions of Section 94 of the Act of 2015, relevant evidences had been furnished by the victim/complainant, which were available on the investigation file with the Case Diary in the form of certificate issued by Board of Secondary Education, Assam and Birth Certificate issued by Department of Health Services, Government of Assam. Both the documents indicate the date of birth of the victim to be 05.02.2004. By virtue of the said date of birth, the victim would be approximately 15(fifteen) years of age at the point in time when she was allegedly raped. Perusal of the order of bail indicates that the said evidences in regard to age of the victim were not highlighted by the prosecution in the course of arguments and, therefore, apparently came to be ignored by the Court granting bail. The bail order does not even refer to the said certificates. Such infirmity has resulted in miscarriage of justice. The certificate issued by the Doctor, without any ossification test/scientific test, came to be relied upon by the Court. Thus, the most relevant material came to be ignored resulting in grant of pre-arrest bail to a rape accused, while a Doctor’s opinion Re: age without ossification/scientific test came to be considered. 18. Such infirmity has resulted in miscarriage of justice. The certificate issued by the Doctor, without any ossification test/scientific test, came to be relied upon by the Court. Thus, the most relevant material came to be ignored resulting in grant of pre-arrest bail to a rape accused, while a Doctor’s opinion Re: age without ossification/scientific test came to be considered. 18. Perusal of the order of bail further indicates that the prosecution failed in its duty in pointedly highlighting the statements given by the victim under Sections 164 Cr.PC and 161 Cr.PC, which were available on the investigation file/Case Diary. Both the statements clearly indict the accused of committing offence of rape. Surely, if the said statements had been highlighted in the course of arguments, miscarriage of justice would not have been caused by grant of pre-arrest bail. There is no reference to the contents of the statements of the victim in the bail order. The statements were the most important pieces of evidence available on record. 19. Statements of the victim recorded under Sections 164 Cr.PC and 161 Cr.PC, prima facie, indicate commission of offence of rape of a minor girl clearly establishing commission of offence under Sections 375/376 IPC warranting rigorous imprisonment for a term which shall not be less than 20(twenty) years. Likewise, the statements given by the victim aged 15(fifteen) years indicating sexual assault upon her would require invoking Section 3 of the POCSO Act, read with Section 4 of the POCSO Act. These penal provisions also would invite punishment with imprisonment for a term which shall not be less than 20(twenty) years. This aspect of the matter also was not highlighted and, therefore, could not be considered by the Court. 20. Section 29 of the POCSO Act inheres presumption of commission of such an offence, unless contrary is proved. Age of the victim, as established by the certificates and her statements recorded under Section 164 Cr.PC and 161 Cr.PC would invite commission of offence under Section 3 of the POCSO Act and, therefore, presumption as to commission of the said offence would be attracted under Section 29 of the POCSO Act. This aspect of the matter was also not highlighted. 21. This aspect of the matter was also not highlighted. 21. Section 438(1)(i) Cr.PC inheres that the High Court or the Court of Session shall take into consideration “nature and gravity of accusation.” It was not highlighted by the prosecution that the nature and gravity of accusation, as brought out from the evidences available on records, are such that the accused did not deserve to be granted pre-arrest bail. This has further caused manifest injustice. 22. The provisions for grant of bail under Section 438 Cr.PC and Section 439 Cr.PC are of uncommon nature. Such an application can be filed in the Court of Session or in the High Court. In case such an application is filed in the Court of Session and is rejected, the accused can subsequently also approach the High Court for similar relief, however, not in appellate or revisional jurisdiction. Per se, the order denying bail is not challenged before the High Court because the jurisdiction of the High Court and the Court of Session exists side by side. Likewise, bail granted by the Court of Session, or the High Court can be cancelled, if the law as declared by the Hon’ble Supreme Court of India so demands. 23. Although the question of maintainability of the application for cancellation of bail has not been raised, however, I have given the issue some thought. Section 439(2) Cr.PC gives power to the High Court or the Court of Session to “direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.” The Chapter of the Code would be Chapter XXXIII starting from Section 436 Cr.PC to Section 450 Cr.PC. Thus, Section 438 Cr.PC would be included within the scope of Section 439(2) Cr.PC. 24. Review can be defined as the process of going over a subject again in study; a judicial re-examination; a second or repeated view of something; to look over again. This Court in this case, however, is not reconsidering the same materials to arrive at a different conclusion to review the order of bail. Rather the materials to which reference have been made in this order though were most relevant, however, were not brought to the notice of the Court granting bail and, therefore, came to be totally ignored. This Court in this case, however, is not reconsidering the same materials to arrive at a different conclusion to review the order of bail. Rather the materials to which reference have been made in this order though were most relevant, however, were not brought to the notice of the Court granting bail and, therefore, came to be totally ignored. Also irrelevant materials were brought to the notice of the Court which could not even be considered for grant of pre-arrest bail, like the certificate issued by the Doctor. Import and effect of the most relevant penal provisions, viz. Sections 375 and 376 IPC and Sections 3, 4 and 29 of the POCSO Act were not highlighted before the Court, in context of the evidences available on record. By virtue of such conduct, pre-arrest bail came to be granted to a person accused of committing rape of the minor daughter of the complainant. The Court is faced with a circumstance as to whether predicament of the complainant in such circumstances can be ignored? Surely, justice is required to be secured by passing an order in context of relevant evidences and the relevant laws. A perusal of the bail order indicates that the contents of relevant evidences were not referred to; nor were the relevant laws considered. Therefore, in the humble opinion of this Court it cannot be concluded that considering cancellation of bail granted to the accused would be in review jurisdiction. Rather this Court is passing this order while referring to materials which were not at all considered by the bail Court. 25. I am also of the view that where power to cancel bail has been provided under the Code of Criminal Procedure, the Court would not hesitate to pass an order so as to secure the ends of justice. The power to cancel bail is not expressly barred under the Code of Criminal Procedure and, therefore, this Court is justified to cancel the bail so as to secure the ends of justice. This is particularly so because the case in hand is clearly covered by the law declared by the Hon’ble Supreme Court of India in Kanwar Singh Meena’s case (supra), portion of which has been extracted hereinabove. 26. This is particularly so because the case in hand is clearly covered by the law declared by the Hon’ble Supreme Court of India in Kanwar Singh Meena’s case (supra), portion of which has been extracted hereinabove. 26. In this case, I am faced with a situation wherein, because the prosecution failed to highlight the relevant materials, it resulted in grant of pre-arrest bail under Section 438 Cr.PC in a case in which a minor girl allegedly has been raped. Relevant material that can be translated into legal evidence was available, however, apparently was not highlighted by the prosecution and, therefore, got ignored. Although the accusations were of serious nature, however, were not highlighted. In such circumstances, in my considered opinion, the case would be covered by judgment rendered by Hon’ble Supreme Court of India in Kanwar Singh Meena’s case (supra), relevant portion of which has been extracted above. There is another aspect of the matter. The equities are required to be balanced. The Court is also required to consider the predicament of the victim. The Court is required to consider that after alleged rape of a minor, the accused would be roaming around freely in the society of the victim. The dilemma and plight faced by the victim is also required to be considered by the Court. The conscience of the Court is shaken, faced with plight of the victim. I may, however, add that this is an extreme case of its kind in which though the evidences were available, however, were apparently not highlighted by the prosecution at the time of hearing resulting in passing of bail order de hors the relevant material and the law. The victim or the complainant were not impleaded as respondents and, therefore, did not have the occasion to assist the Court. 27. Mr. H.R.A. Choudhury, learned senior counsel for the accused has been confronted with the law and all the materials, referred to above. Mr. Choudhury, as a responsible officer of the Court, has not been able to contradict, either the legal position or the factual aspect of the matter. 28. 27. Mr. H.R.A. Choudhury, learned senior counsel for the accused has been confronted with the law and all the materials, referred to above. Mr. Choudhury, as a responsible officer of the Court, has not been able to contradict, either the legal position or the factual aspect of the matter. 28. Considering the facts and circumstances of the case, in context of the law and the statutory provisions to which detailed reference has been made herein above, I hereby cancel pre-arrest bail granted under Section 438 Cr.PC in Goalpara Police Station Case No.583/2019 under Section 376 IPC read with Section 4 of the POCSO Act vide order dated 06.01.2020 in favour of the accused, namely, Mujahidur Rahman Mandal. 29. Let a copy of this order be conveyed to Superintendent of Police, Goalpara, who shall proceed with the investigation, in accordance with law. 30. Before I part with the order, I make it clear that anything said herein above is only for considering the aspect of grant of bail and cancellation of bail. No part of the order would be construed as opinion of the Court on merits. Anything said herein in the order would not influence the trial.