STATE Vs. JOHN DSOUZA, S/O ANTONIO DSOUZA

JUDGEMENT

(1.) Heard Mr.C. A. Ferreira, learned Public Prosecutor for the applicant and Mr. Arun Bras De Sa, learned Advocate for the respondent. Rule. By consent, Rule is made returnable forthwith.

(2.) By this application under Section 439(2) of Criminal Procedure Code, the applicant seeks cancellation of bail granted to the respondent by the Additional Session Judge, Panaji, Fast Track Court No.2 (in-charge of the Children's Court) granting bail to the accused for the offences under Sections 377 and 506 Part II of Indian Penal Code and Section 8(2) of the Goa Children's Act, 2003("The Act" for short).

(3.) The respondent was arrested on 31.10.2008 in Crime No.508 registered against him for the offences punishable under Section 377 and 506 (II) of Indian Penal Code and Section 8 of the Act. On the same day, the application for bail was moved, in the late evening by the wife of the respondent at the residence of Additional Session Judge, who was in-charge of the Children Court, who made it returnable on the same day at about 10.30 p.m. It is the case of the respondent that along with the application and order passed by the learned Judge, the Advocate for the respondent went to the Women Police Station and he was informed that the respondent was required for medical examination and other investigation and, therefore, the Advocate advised the wife of the respondent to keep the matter pending so that the police could complete the investigation. Accordingly, the wife of the accused agreed to keep the matter pending and the Advocate did not serve the notice on the applicant and learned Judge was informed by the Advocate that he was not pressing the bail application on that day and he would approach the learned Judge on the next day. It is the case of the respondent that the Advocate approached the learned Additional Session Judge at about 5.15 p.m. on 01.11.2008 and requested him to fix the matter for hearing later in the evening on the same day. But since the learned Jude was not inclined to accede to the said request, at the instance of the Advocate for the respondent, the matter was fixed on 02.11.2008 at 10 p.m. Thereafter, the copy of the said order was served at Women Police Station at about 5.30 p.m. on 01.11.2008. On 2.11.2008, Mr. Paresh Navelkar, P.S.I. Attached to Women Police Station submitted his reply. According to the respondent, P.S.I. Navelkar was asked by the learned Judge whether he wanted the presence of Public Prosecutor to which P.S.I. Stated that Public Prosecutor was not available. Thereafter, the learned Judge asked the P.S.I. whether he wanted further time to which P.S.I. replied in the negative. However, P.S.I. has denied these statements in his affidavit dated 24.11.2008. Thereafter, upon hearing the learned Counsel for the respondent and P.S.I. Navelkar, the learned Judge passed the impugned order granting bail to the respondent by imposing certain conditions. The respondent was asked to execute bail bond in the sum of Rs.10,000/- with one surety in the like amount. The learned Judge held that the presence of the accused, was required only for medical examination, that is to conduct Eliza test and recording statement of witnesses and on these grounds, the accused could not be detained having regard to the preliminary medical report pertaining to the accused and victim and also in view of the fact that panchanama of the scene of offence and attachment of the vehicles, was carried out.