Rajasthan High Court - Jaipur
Sanjay Parwani S/O Late Mohan Lal ... vs State Of Rajasthan Through Pp on 5 December, 2019
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Bail Cancellation Application No. 94/2018
IN
S.B. Criminal Misc. Bail Application No.8174/2018
Sanjay Parwani S/o Late Mohan Lal Parwani, Aged About 23
Years, R/o 65/194, Heerapath, Mansarovar, Jaipur (Raj.)
Complainant-Petitioner
Versus
1. State Of Rajasthan Through Pp, Raj.
Non-Petitioner
2. Dilip Garg S/o Shri Rambabu Garg B/c Mahajan, Aged
About 57 Years, R/o 65/195, Heerapath, Mansarovar,
Jaipur (Raj.)
Accused-Respondent
For Complainant- : Ms. Sweta Pareek
Petitioner(s)
For Accused- : Mr. Sandesh Khandelwal &
Respondent(s) Mr. Neeraj Sharma
For State : Mr. Deshraj Gosingha, PP
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Judgment / Order
05/12/2019
1. Complainant-petitioner has filed this bail cancellation
application under Section 439(2) of Cr.P.C.
2. F.I.R. No. 0344/2018 was registered at Police Station Mansarovar District Jaipur for offence under Section 376 of I.P.C.
3. It is contended by counsel for the complainant-petitioner that bail was granted to the accused-respondent by this Court vide order dated 09.07.2018. It is also contended that prosecutrix though aged 26 years, her mental age is seven years and her IQ (Downloaded on 07/06/2021 at 06:04:46 AM) (2 of 3) [CRLBC-94/2018] is 43.75 which puts the prosecutrix in the category of moderate mental retardation. Her prescription of December 2017 and January 2018 are also placed on record to substantiate the contentions.
4. It is further contended that accused who is a neighbour, was aware of the mental condition of the prosecutrix and taking advantage of the same, he committed rape upon her. Prosecutrix in her Court statement, has specifically deposed that petitioner committed sex with her.
5. Counsel for the accused-respondent has opposed the bail cancellation application. It is contended that High Court cannot review its own order and cancel the bail.
6. Reliance has been placed on "Abdul Basit @ Raju & Ors. Etc. vs. Md. Abdul Kadir Chaudhary and Anr. 2015 (1) SCC (Criminal) 257."
7. It is also contended that complainant-petitioner did not mention in the F.I.R. that prosecutrix was a specially abled child and that she has low IQ and that her mental age was seven years.
8. I have considered the contentions.
9. Section 439(2) of Cr.P.C. is a separate provision in the Code which empowers the Court to cancel the bail. Reasons for cancellation of bail are not enumerated in the Code. It is only by means of various pronouncements of the Apex Court that grounds for cancellation of bail are detailed out.
10. Apex Court in "Abdul Basit @ Raju & Ors. Etc. vs. Md. Abdul Kadir Chaudhary and Anr." (supra) has held that a bail (Downloaded on 07/06/2021 at 06:04:46 AM) (3 of 3) [CRLBC-94/2018] can be cancelled and the list of grounds given in the judgment is not exhaustive but only illustrative. Present is the case where the fact that prosecutrix having a mental age of seven years, was not revealed before the Court. Accused-respondent who is a neighbour was aware of the mental condition of the prosecutrix. From medical examination of accused, it is revealed that he is competent to commit rape.
11. From the statement of prosecutrix, it is revealed that she is having a low IQ. However, still she has deposed that a wrong act has been committed with her by the accused. Prosecutrix having IQ of 43.75 and mental age of seven years was not in a capacity to give valid consent. Hence, offence committed by the accused would fall under Section 376(2)(j) of I.P.C.
12. Rape has been committed with a girl aged 26 years having mental age of seven years, by a neighbour. Hence, this Court deem it proper to do justice to the victim. This Court is not reviewing its order rather this Court is exercising the special powers vested under Section 439(2) of Cr.P.C.
13. Prosecutrix was not capable of giving a valid consent, I, therefore, deem it proper to cancel the bail granted to the accused-respondent.
14. Criminal Bail Cancellation Application is allowed.
15. Trial Court is directed to get the accused arrested and proceed with the case.
(PANKAJ BHANDARI),J Amit Kumar/1 (Downloaded on 07/06/2021 at 06:04:46 AM) Powered by TCPDF (www.tcpdf.org)