HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Bail Cancellation Application No. 127/2020

IN

S.B. Criminal Miscellaneous 2^nd Bail Application No.9306/2020

Vinay Kumar Hada S/o Prakash Kumar R/o Anshika Fancy Store Near

Ara Machine Jaisinghpura Khor Jaipur Rajasthan

----Complainant/Petitioner

Versus

1.

State of Rajasthan through P.P.

___State/Respondent

2.

Rohit Kumar S/o Vishnu Kumar, aged About 33 Years, R/o

Ramgarh Dist. Alwar at Present R/o Jaisinghpura Khor PS

Brahmpuri Jaipur Rajasthan

----Accused-Respondent

For Petitioner/

Complainant (s)

:

Mr. Pushpendra Sharma, Advocate

through video-conferencing

For Accused/

Respondent

:

Mr. Rakesh Kumar Saini, Advocate

through video-conferencing

Mr. Deshraj Gosingha, Public Prosecutor

for the State

HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA

Order

29/04/2021 :

By the Court :

Instant application has been filed under Section 439 (2) of

Code of Criminal Procedure, 1973 seeking cancellation of bail granted to

the accused-respondent under Section 439 Cr.P.C. by this Court in S.B.

Criminal Miscellaneous 2^nd Bail Application No.9306/2020 vide its order

dated 11.09.2020 in F.I.R. No.236/2020 registered at Police Station

(2 of 4)

[CRLBC-127/2020]

Brahmpuri District Jaipur City (North) for offences punishable under

Section 376 of I.P.C. and under Sections 3, 4, 5-D and 6 of POCSO Act.

Submissions of learned counsel appearing for the petitioner/

complainant are that : (I) accused-respondent- Rohit Kumar was

arrested on 09.04.2020 and was produced before the learned trial Court

on 10.04.2020. Police filed charge-sheet on 09.07.2020 for offences

punishable under Sections 5-E and 6 of POCSO Act and under Sections

376-AB & 202 of I.P.C. A bail application to this effect was filed by

accused seeking benefit under Section 167 (2) Cr.P.C. on the ground

that the charge-sheet was not filed within the period of 90-days and,

therefore, accused was entitled for grant of statutory bail under Section

167 (2) Cr.P.C. However, the learned trial Court, vide its order dated

09.07.2020 (Annexure-2), dismissed the aforesaid application by

holding that the charge-sheet was filed within a period of 90-days. (II)

accused-respondent- Rohit Kumar had challenged the aforesaid order of

rejection of bail before this Court in S.B. Criminal Miscellaneous 2^nd Bail

Application No.9306/2020 and the said application was allowed, vide its

order dated 11.09.2020 (Annexure-3). (III) in the present case, the

accused was arrested on 09.04.2020 and was produced before the

Court of Magistrate on 10.04.2020, therefore, the period was to start

from the intervening night of 10.04.2020 & 11.04.2020, it means the

calculation was to start from 11.04.2020 and the filing of charge-sheet

on 09.07.2020 was within the period of 90-days, therefore, the accused

was not entitled to bail on the ground mentioned under Section 167 (2)

of Cr.P.C. and (IV) the impugned bail order dated 11.09.2020 was not

passed on merits or demerits of the case but solely on the technical

ground mentioned under Section 167 (2) Cr.P.C., therefore, the

impugned order is liable to be quashed.

(3 of 4)

[CRLBC-127/2020]

Learned Public Prosecutor appearing for the State has not

opposed the present bail cancellation application.

Learned counsel appearing for the accused-respondent has

opposed the submissions made by learned counsel appearing for the

petitioner/complainant and submitted that bail cancellation application

may kindly be dismissed.

Hon’ble Supreme Court in Chaganti Satyanarayana and

Others Vs. State of Andhra Pradesh, reported in A.I.R. 1986 S.C.

2130, observed as under :-

“25. Thus, in any view of the matter i.e. construing proviso

(a) either in conjunction with sub-section (2) of Section

167 or as an independent paragraph, we find that the total

period of 90-days under Clause (i) and the total period of

60-days under Clause (ii) has to be calculated only fr