The court emphasized the importance of considering the improvements and infirmities in the statement of the prosecutrix and the reasons for granting bail to the applicant.

MUKTA GUPTA, J.

1. By this petition, the petitioner seeks cancellation of bail granted to respondent No.2 namely Majibudin @ Robert in case FIR No.598/2015 registered at Police Station Jagat Puri under Section 420 IPC, wherein later on offence under Section 376/34 was also invoked.

2. Regular bail was granted to respondent No.2 vide order dated 6th April, 2016, by the learned trial court and the reasons thereof are reproduced as under:-

“5. Briefly stated that facts of the case of prosecution are that there was a complaint by husband of the prosecutrix regarding her missing on which DD No.31-B, dated 30.09.2015 was recorded at PS Jagat Puri. The said prosecutrix had eloped with one Narender (co-accused) and they both were recorded from Jaipur on 01.10.2015 and on next day i.e. 02.10.2015, they both (co-accused Narender and prosecutrix) were let of and as prosecutrix did not allege about any offence. However, on 03.10.2015, prosecutrix lodged a complaint u/s. 420 IPC wherein she alleged that co-accused Narender who was running a vegetable shop near her house had told her that her husband was having a love affair with one lady and he knows one Tantrik who would perform Jadu-Tona activities as a result of which her husband would leave that lady and would be under her control. Co-accused Narender took several gold ornaments of the complainant for performance of tantric activities. Subsequently, the husband of the prosecutrix found gold ornaments missing and then prosecutrix told everything to her husband who beat her up. On the same day dated 28.09.2015, prosecutrix ran away with said Narender and reached Jaipur where she stayed for one day before both of them were recovered. Subsequently, as per procedure the said complaint U/s 420 IPC was sent to the office of DPC office for approval, who finally granted approval for registration of FIR and on 14.10.2015, present case FIR initially u/s 420 IPC was registered against co-accused Narender only. The co-accused Narender was not arrested on 14.10.2015 till 21.11.2015 as it was stated by IO, he was cooperating with investigation and getting jewellery articles recovered. But he was finally arrested on 21.11.2015 when no more jewellery could be recovered.

Subsequently, all of a sudden, on 25.11.2015, a fresh statement u/s 161 Cr.P.C. was recorded by the IO wherein, for the very first time, prosecutrix made allegations of rape against co-accused Narender only and not against the present applicant.

On 26.11.2015, IO introduced section 376 IPC in the present case FIR in addition to section 420 IPC. On 27.11.2015, statement of prosecutrix was recorded u/s 164 Cr.P.C. wherein for the first time, she named the present applicant Mujibudin @ Robert alleging that he also sexually abused her in Jaipur on 20.09.2015. It is pertinent to mention that till 27.11.2015 i.e. the date of recording of her statement u/s 164 Cr.P.C., she had made no complaint against the present applicant. She was medically examined on 27.11.2015 i.e. after about two months of the alleged incident but she refused to undergo her internal medical examination. The present applicant was arrested on 07.01.2016, Ld. ACMM, after mentioning in the hearing about case u/s 420/376/34 IPC, granted bail to the present applicant but subsequently, an application for cancellation of bail was moved by Ld. Addl. PP for State wherein it was mentioned that Ld. ACMM did not consider the offence u/s 376 IPC as IO failed to mention about the same in his status report.

6. On my query, it is stated by the IO that name of the present applicant was not mentioned in the said complaint and allegations for offence of cheating were made only against co-accused Narender who joined investigation and also got some gold articles recovered till 21.11.2015 and since no further recovery was effected, co-accused Narender was arrested on the same day i.e. 21.11.2015 for offence u/s 420 IPC.

7. Upon careful perusal of record, it is seen that in his status report