VIJAY KUMAR UPADHYAY Vs. STATE OF U P

JUDGEMENT

(1.) RAVINDRA Singh, J. This application has been filed on behalf of Deepak alias Prashant Tomar, O. P. No. 2 to recall the order dated 23-8-2005 passed by this Court by which the bail granted to O. P. No. 2 by the learned Sessions Judge, Aligarh in Criminal Misc. Bail Application No. 1858 of 2004 vide order dated 11-8- 2004 has cancelled.

(2.) FROM the perusal of the order dated 23-8-2005 passed by this Court, it appears that even after the receipt of the notice O. P. No. 2 has not filed any counter-affidavit and has not engaged any Counsel on his behalf but the order was passed after considering the merits of the case also because according to the facts of the case, allegations against the applicant is that he has committed rape with a minor girl aged about 4 years. According to the medical examination report, the injuries were seen at the private parts of the prosecutrix. The bail was granted to the applicant by the learned Sessions Judge only on the ground of minority after considering the report of the Chief Medical Officer in which the age of the applicant was assessed between 16 to 17 years. It is contended by the learned Counsel for O. P. No. 2 that the notice issued to O. P. No. 2 was served upon him and he has engaged him as Counsel and he has filed memo of appearance on 12-1-2005. The case was printed in the cause list dated 23-8-2005 in which the name of the Counsel was not printed but due to some inadvertence the inference was drawn that after the service of the notice O. P. No. 2 has not engaged any Counsel to defend him, therefore, the order-dated 23-8-2005 has been passed by this Court, and the bail granted to the O. P. No. 2 has been cancelled.

(3.) IT is contended by the learned Counsel for the applicant that the accused O. P. No. 2 involved in a very serious offence in which he has committed the rape with a minor girl aged about 4 years. The prosecution story was fully corroborated by the medical examination report and the learned Sessions Judge has not considered the gravity of the offence and without adopting a proper procedure prescribed by the law, the accused was declared juvenile and released the applicant on bail.