ORAL JUDGMENT

1. RULE. Learned advocates appear and waive service of notice on behalf of the respective respondents.

2. The present application has been filed, inter alia, seeking the following prayer.

“14. (B) THIS HON’BLE COURT BE PLEASED to present application by canceling the bail granted to respondent No.3 by way of order dated 15/07/2015 passed by Additional Sessions Judge and Special POSCO Judge, Ahmedabad (Rural), passed in Criminal Misc. Application No.1223 of 2015 in connection with C.R.No.I-38 of 2015 registered before Viramgam Town Police Station and further be pleased to quash and set aside order dated 28/10/2015 passed in Criminal Misc. Application No.1860 of 2015, passed by the Additional Sessions Judge and Special POSCO Judge, Ahmedabad (Rural), in the interests of justice.”

3. Learned advocate Mr.Champaneri appearing for the applicant has submitted that the impugned order is required to be quashed and set aside, since it is passed ignoring the correct proposition of law. He has submitted that the respondent-accused was granted regular bail for the offences punishable under Sections 354A(1), 354D(1), 114 of the Indian Penal Code, 1860, (for short, ‘the IPC’), and Sections 11(1) and 11(4) of the Prevention of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”), however, thereafter the Investigating OfÏcer filed a report dated 22.07.2015 for addition of Sections 376D(B) and 376D(C) of the IPC and Sections 3 and 4 of the POCSO Act. It is submitted that Additional Sessions Judge, Ahmedabad (Rural), vide order dated 22.07.2015 added the offence. It is submitted that thereafter, the State of Gujarat preferred an application under Section 439(2) of the Code of Criminal Procedure, 1973, for cancellation of bail granted to the respondent No.3-accused due to addition of serious offence. However, the said application has been rejected by the impugned order dated 28.10.2015 by Additional Sessions Judge and Special POCSO Judge, Ahmedabad (Rural), Ahmedabad.

3.1 Learned advocate Mr.Champaneri, has submitted that pursuant to the release of the respondent-accused on bail for the aforesaid offence punishable under Sections 354A(1), 354D(1) and 114 of the IPC and Sections 11(1) and 11(4) of the POCSO Act, subsequently, serious charges of Section 376 of the IPC came to be added, hence the trial court should not have rejected the application for cancellation of bail filed by the State Government only for the reason that earlier bail application filed by the respondent-accused was passed after the statement of the prosecutrix was recorded. It is submitted that after the addition of the serious offences under Section

376 of the IPC, the trial court either could have cancelled the bail application or the accused should have been arrested, however, nothing was done and hence, the applicant was constrained to file the present application, challenging the impugned order. Thus, he has submitted that the impugned order may be quashed and set aside and the matter may be remanded back.

4. Learned advocate Mr.Tejas Barot, appearing for the respondent No.3 – accused has submitted that the impugned order does not require any interference, since the same is precisely passed. He has submitted that the incident had occurred on 06.07.2015 and the FIR has been registered on 07.07.2015 at 1:15 p.m. and, therefore, there is delay in registering the FIR. It is submitted by him that there are various disputes going-on between the respondent-accused and the family members of the complainant and in order to harass the respondent-accused, the FIR has been registered. It is submitted by him that the addition of the offence under Section 376 of the IPC will not alter the position in any manner and the bail granted to the respondent-accused under the provisions of Section 439 of the Cr.P.C., does not require interference. It is submitted that the FIR does contain any allegation with regard to the offence under Sections 376D(B) and 376D(C) of the IPC.