Bail granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion can be cancelled by the High Court and/or Sessions Court under Section 439(2) of the Code, even if there are no additional circumstances against an accused appearing in the record after the grant of bail.

( 1 ) THIS case was registered on a letter from the prosecutrix Ku. Anju Khatri relating to the case registered for an offence under Sections 376/34, I. P. C. wherein, accused Gyanchand and Kamal Jain were apprehended by Police, Vidisha. The two accused having been allowed bail by the trial Court the cancellation thereof and the transfer of the case from the Court of Additional Sessions Judge, Vidisha (Sh P. D. Maran) is prayed. Earlier, on an application being made by accused Gyanchand for bail, this Court having considered all the available material and the circumstances of the case had dismissed the application under a detailed order dated 18-3-91 in Cr. Misc. Case No. 448/91. On facts, the case of co-accused Kamal Jain is also similar and not distinguishable from accused Gyanchand.

( 2 ) LATER, a further application for bail was made by accused Gyanchand on a special ground of illness of his father, submitting that his presence was required for attending his father, but that too was dismissed on 4-7-91 in Cr. Misc. Case No. 1243/91.

( 3 ) A brief narration of facts would facilitate the further discussion. According to prosecution, when prosecutrix Ku. Anju was returning home from her friends' house and happen to pass in front of the house of accused Kamal Jain, the accused persons, whom she used to call as uncle, taking advantage of their position as such, took her upstairs on the pretext of giving her the photo reels. At that time, the mother of accused Kamal was not at home. Prosecutrix was made to enter the room and the accused persons then close the door from inside and undressed her. Thereafter, each of the accused committed rape on her and during the commission of the sexual acts with the prosecutrix, the other accused took photographs. She was put under the fear and a threat was given that if she disclosed the incident to anyone her naked photographs of the sexual acts would be published in the town.

( 4 ) AFTER satisfying their lust, before she would be allowed to leave the house by the accused persons, the mother of accused Kamal returned home and found the prosecutrix weeping. On an enquiry by the lady, the accused persons told to her that she was daughter of the Proprietor of Fine Art Studio and was weeping because of the beating given to her by her parents.

( 5 ) WHEN the prosecutrix returned home, she took some poisonous substance in the state of agony and despair. Her father was out of station and on his return he found his daughter, prosecutrix Anju admitted in the hospital where she narrated the incident to her mother, on gaining consciousness. The report of the incident was lodged by her father with the Police. She was medically examined and injuries on her body including the injury on her cheek by teeth bits, were found. Her vaginal swab on test showed that she was subjected to sexual intercourse. Under the circumstances, considering the case diary statements and the material collected by Police during investigation, the bail applications of accused Gyanchand were dismissed as narrated earlier.

( 6 ) SUBSEQUENTLY, both the accused persons namely Gyanchand and Kamal Jain moved an application for the grant of bail before the trial Court which was allowed by order dated 31-10-91 granting temporary bail to the accused persons for a period of 15 days. The learned trial Court in the said bail order, referred to the submissions made by the accused persons that accused Gyanchands' father was sick and there was none to look after him, and that the father of accused Kamal having died two years ago and his brothers being in service and posted outside, he was the only earning male member in the family, and therefore, they prayed for the bail. It was further submitted by the accused persons that they were in custody for the last one year and alternatively prayed that if they are not granted bail pending trial, they be released on temporary bail.

( 7 ) THE learned trial Court on consideration of