IMPORTANT POINT
The court clarified that bail can be cancelled if the initial decision was unjustified, regardless of supervening circumstances.

ORDER :

Applicant has filed this application under section 439(2) of the Code of Criminal Procedure, 1973 for cancellation of the bail given to the non-applicant Jasmat s/o Jagdish Sendhav vide order dated 8-1-2024 passed by the trial Court.

2. The prosecution story in brief is that on 10-12-2023, when the prosecutrix was alone at her home at around 1 o’clock, accused approached her and sexually assaulted by touching the private parts of the prosecutrix with brutal intention of committing rape upon her. Accordingly, offence has been registered against the respondent No. 2.

3. Learned counsel for the applicant contended that the learned trial Court failed to appreciate the gravity of the evidence as well as statement of the prosecutrix. The prosecutrix has specifically stated in her statement recorded under section 164 of Criminal Procedure Code that the accused came to her home and asked about her father, when she replied that no one was in the house, the accused caught the prosecutrix with bad intention and threatened her. Counsel has also pointed out that less than 1 month of incarceration and the age of the prosecutrix is less than 14 years whereas the age of the accused/respondent No. 2 is 42 years in spite of that, trial Court has granted bail to the accused/respondent No. 2. The offence committed by the accused is heinous in nature. Therefore, respondent No. 2 does not deserve for bail. Hence, he prays that the bail granted to the respondent No. 2 Jasmat be cancelled.

4. Learned Panel Lawyer has also supported the aforesaid contentions of the petitioner.

5. Per contra, learned counsel for the respondent No. 2 opposes the prayer by submitting that the ground of incarceration cannot be entertained for cancellation of bail. No bail can be cancelled without any strong event of supervening circumstances. Hence, prays for its rejection. Learned counsel has also relied upon the verdict of Hon’ble Apex Court rendered in the case of Bhuribai vs. State of M. P., SLP No. 9508/2022.

6. Heard learned counsel for the parties and perused the documents filed along with the case diary.

7. Considering all the facts and circumstances of the case, arguments advanced by counsel for the parties, nature and gravity of allegation as also the fact that the age of the respondent No. 2 is 42 years and prosecutrix’s age is only 13 years and 7 days and also the statement recorded under section 164 of Criminal Procedure Code, it appears that the finding given by the trial Court regarding to grant of bail does not appear to be justifiable. Insofar as the verdict of Hon’ble Apex Court in Bhuri Bai (supra) is concerned, in this case, Co-ordinate Bench of this Court has suo moto considered the bail order and cancelled the same and under such circumstances, the SLP was allowed by Hon’ble Apex Court. Whereas, in the case at hand, application under section 439(2) of Criminal Procedure Code has been filed on instance of aggrieved father of minor prosecutrix. Hon’ble Apex Court in aforesaid case of Bhuribai (supra) specifically ordained as under :—

“19. It remains trite that normally, very cogent and overwhelming circumstances or grounds are required to cancel the bail already granted. Ordinarily, unless a strong case based on any supervening event is made out, an order granting bail is not to be lightly interfered with under section 439(2) of Criminal Procedure Code.”

8. However, it is also well settled that cancellation of bail cannot be limited to the occurrence of supervening circumstances or overwhelming evidence against accused. On this aspect, the law laid down by Hon’ble Apex Court in Neeru Yadav vs. State of U. P. and another, (2014) 16 SCC 508 is condign to quote here :—

“12…It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, i