JUDGMENT Ravindra Singh, J.
1. This application has been filed on behalf of Deepak alias Prashant Tomar, O.P. No. 2 to recall the order dated 23.8.2005 passed by this court by which the bail granted to O.P. No. 2 by the learned Sessions Judge, Aligarh in Criminal Misc. Bail Application No. 1858 of 2004 vide order dated 11.8.2004 has cancelled.
2. From the perusal of the order dated 23.8.2005 passed by this Court, it appears that even after the receipt of the notice O.P. No. 2 has not filed any counter affidavit and has not engaged any counsel on his behalf but the order was passed after considering the merits of the case also because according to the facts of the case, allegations against the applicant is that he has committed rape with a minor girl aged about 4 years. According to the medical examination report, the injuries were seen at the private parts of the prosecutrix. The bail was granted to the applicant by the learned Sessions Judge only on the ground of minority after considering the report of the Chief Medical Officer in which the age of the applicant was assessed between 16 to 17 years. It is contended by the learned Counsel for O.P. No. 2 that the notice issued to O.P. No. 2 was served upon him and he has engaged him as counsel and he has filed memo of appearance on 12.1.2005. The case was printed in the cause list dated 23.8.2005 in which the name of the counsel was not printed but due to some inadvertence the inference was drawn that after the service of the notice O.P. No. 2 has not engaged any counsel to defend him, therefore, the order-dated 23.8.2005 has been passed by this court, and the bail granted to the O.P. No. 2 has been cancelled.
3. Considering the above submissions the O.P. No. 2, was released on interim bail by this court on 20.2.2006 because he was taken into custody in pursuance of the order dated 23.8.2005, technically the order dated 23.8.2005 has been recalled, because the name of the counsel of O.P. No. 2 was not printed in the cause list dated 23.8.2003 It is necessarily required to pass a fresh order on merits after hearing the counsel for the parties concerned
4. It is contended by the learned Counsel for the applicant that in the present case the F.I.R. has been lodged by the applicant Vijai Kumar Upadyay on 17.6.2004 at about 7.00 p.m. in respect of the incident which had occurred on 13.6.2004 at about 12 O'clock in day alleging therein that he was living as a tenant in house No. 1/47, Surendra Nagar P.S. Quarsi district Aligarh, on 13.6.2004 at about 12 O'clock the first informant and his wife were busy in their work but in a room of ground floor their daughter Km. Roopansi aged about 4 years was playing, all of sudden, they heard the shrikes of their daughter, they came down and opened the door and saw that Deepak aged about 20 years (O.P. No. 2) son of the landlord of that house was committing rape with the prosecutrix. He was caught hold by the first informant and his wife, the prosecutrix was in a pool of blood, she was lifted by them and its information was given to the father of the accused but due to Lok Laz and also fear of the accused, the F.I.R. was not promptly lodged. According to the medial examination report of the prosecutrix, hymen was torn in 10 0' clock position. According to the opinion of the doctor the injury could be caused due to the blunt object including the male organ. She was medically examined on 17.6.2004 at about 18.13 p.m. O.P. No. 2 applied for bail before the learned Sessions Judge, Aligarh, the same has been allowed on 11.8.2004 on the ground of minority. According to the Chief Medical Officer report, the age of the accused O.P. No. 2 was between 16 to 17 years. It has been clearly mentioned in the impugned order that considering the report of the Chief Medical Officer in which the age was assessed between 16 to 17 years but in the impugned order, it was clearly mentioned that no other evidence in respect of the age was filed by either of the side.
5. It is contended by the learned Counsel for the applicant that the accused O.P. No. 2 involved in a very serious offence in which he has committed the rape with a minor girl aged about 4 years. The prosecution story was fully corroborated by the medical examination report and the learned Sessions Judge has not considered the gravity of the offence and without adopting a proper procedure prescribed by the law, the accused was declared juvenile and released the applicant on bail
6. In reply of the above contention it is submitted by the learned A.G.A. and the learned Counsel for O.P. No. 2 that the learned Sessions Judge has power to grant bail, under Section 439 Cr.P.C. the power are same as of the High Court and considering the age of the accused, the learned Sessions Judge has released him on bail treating the accused as minor. Therefore, the learned Sessions Judge, has not committed any error in passing the impugned order dated 11.8.2004
7. Considering the facts and circumstances of the case, it appears that the accused O.P. No. 2 is involved in a case of rape in which the allegation against him is that he has committed rape with a girl aged about 4 years. According to the medical examination report of the prosecutrix, the rape was committed with her, her hymen was torn at 10 O' clock position. That allegation is serious in nature but it is surprising that the learned Sessions Judge has not considered the seriousness of the offence and after considering the Chief Medical Officer's report in which the age of the accused was assessed about 16 to 17 yeas, which was not supported by any other evidence and considering the accused as a minor, the learned Sessions Judge has released him on bail without considering the fact that he was not declared Juvenile by any competent court of law after adopting a procedure prescribed by the Juvenile Justice(Care and Protection of the Children) Act 2000, even no initiative was taken by the accused for declaring him to be a juvenile and no such procedure was followed. In such a situation, no benefit can be given to the accused under the provisions of Juvenile Justice (Care and Protection of the Children) Act 2000. Even the learned Sessions Judge has not made any such observation in drawing inference that the accused was given the benefit of the provisions of Juvenile Justice Act. According to the impugned order it appears that the accused has been given the benefit of minority as provided by Section 437 of Cr.P.C. because the proviso of Section 437(1) Cr.P.C. is as under:
Provided that the court may also direct that a person referred to in Clause (i) or Clause (ii) to be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
8. For giving the benefit of this proviso, on the ground of age, the accused must be under the age of 16 years but in the present case according to the medical examination report the age of the accused was 16 to 17 years. Therefore, the accused was not entitled to get any benefit of the proviso of Section 437(1) Cr.P.C. also. In the present case counter affidavit has been filed by Sri S.S. Rajput on behalf of O.P. No. 2. Its copy has been given to the learned Counsel for the applicant on 1.11.2006 in which it was mentioned in paragraph 7 that being a juvenile, the O.P. No. 2 is entitled to get the bail. Prior 1.11.2006 no counter affidavit has been filed on behalf of O.P. No. 2 but according to Annexure-4 of the bail cancellation application, which is Student/Scholar Register and Transfer Certificate, the date of birth of O.P. No. 2 has been mentioned as 17.8.1985 though this document has not been filed before the court of learned Sessions Judge at the time of disposal of the bail application of O.P. No. 2. According to the transfer certificate the applicant was aged about 18 years on 11.8.2004. The impugned order dated 11.8.2004 shows that it was not a reasoned order even the facts of the case have not been considered. It appears that it was passed in a causal manner and without considering the facts of this case and the provisions of law, the impugned order has been passed, which requires interference by this court. The impugned order dated 11.8.2004 is illegal and is hereby set aside. The bail granted to the applicant in pursuance of the order dated 11.8.2004 passed by the learned Sessions Judge, Aligarh is cancelled and the interim bail granted by this court on 20.2.2006 is also canceled. The O.P. No. 2 Deepak alias Prashant Tomar is on bail, his bonds are cancelled an sureties are canceled, he shall surrender before the court concerned forthwith, The C.J.M. Aligarh shall issue non-bailable warrant of arrest and he shall be taken into custody.
9. In view of the above the Criminal Misc. Recall Application No. 192887 of 2006 and Criminal Misc. Bail cancellation Application No. 17167 of 2004 are finally disposed of.
10. The office is directed to communicate a copy of this order, within a week to the learned C.J.M. Aligarh for compliance.