JUDGMENT :

1. List revised.

2. Heard Sri Vijay Shantam, learned counsel for the applicant and Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on record.

3. Sri Ravindra Kumar, learned counsel for the first informant is not present even when the matter is taken in the revised list.

4. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Shani, seeking enlargement on bail during trial in connection with Case Crime No. 86 of 2019, under Section 376 I.P.C. and Section 3/4 POCSO Act, 2012, registered at Police Station Banna Devi, District Aligarh.

5. On 07.07.2023 the following order was passed by this Court:-

"1. List revised.

2. Heard Shri Vijay Shantam, learned counsel for the applicant and Shri J.P. Tripathi, learned counsel for the State. Shri Ravindra Kumar, learned counsel for the first informant is not present despite the matter being taken up in revised.

3. At the outset, learned counsel for the applicant submits that the applicant had claimed juvenility which has been rejected by the court concerned against which revision has been preferred before this Court which is pending consideration being Criminal Revision No. 121 of 2023 (Juvenile (X) vs. State Of U.P. and others) under the Juvenile Justice (Care and Protection of Children) Act, 2015.

4. It is submitted that since applicant is in jail, present bail application under Section 439 Cr.P.C. be considered as his bail application before the trial court was rejected.

5. Learned counsel for the State has serious objection to it. It is argued that the said proposition cannot be permitted to go on. Once the applicant has chosen to take benefit under the Special Act under juvenile jurisdiction, he has to follow the said path and proceed as per law. He cannot take up the simultaneous path under the Code of Criminal Procedure for release on bail under Section 439 Cr.P.C. He submits that the present application is not maintainable and thus be rejected.

6. Since learned counsel for the first informant is not present, in the interest of justice, matter is adjourned.

7. The matter has interesting question involved in it as learned counsel for the applicant has chosen two paths for the applicant. In these circumstances, learned counsel for the applicant shall give a notice to the counsel for the first informant in writing within a week. He prays for and is granted ten days' time to prepare the matter.

8. Prayer is allowed.

9. List on 21 July 2023."

6. The facts of the case are that a first information report was lodged on 01.02.2019 by Smt. Manju Devi for offences under Section 376 I.P.C. and Section 3/4 POCSO Act, 2012 against the applicant with the allegation that she lives in a rented house on I.T.I. Road, Aligarh. She has two daughters. The first daughter is aged about 10 years and the second daughter is aged about 08 years. Shani the son of her so called jeth came to the house on 30.01.2019 at about 6.30 pm and forced her to send her daughters to see a fair. She refused sending her daughters with him but Shani did not listen to her and took both her daughters on a motorcycle. He took them to a jungle instead of taking them to fair where he made the younger daughter wait near the bike but took the elder daughter inside a jungle. He then committed rape upon her and then at about 8.30 or 9 pm dropped both girls outside the house and went away. Both her daughters then told about the incident to her so called mami who then told it to her and then she has brought her daughters to the police station. Her report be lodged.

7. The victim was medically examined where although the doctor did not found any injury on her body but found her hymen to be ruptured. The final opinion in the supplementary Medico Legal report as given by the doctor is as follows:-

"There is use of sign of force of penetration present. Hymen ruptured fresh injury present on internal examination. According to pathological examination for vaginal smear no spermat