Cr.MP(M) No. 846 of 2010 31.8.2010 Present: Mr. N.K. Thakur, Advocate, for the petitioners. Mr. P.K. Sharma and Ms. Shubh Mahajan, Addl. Advocate Generals, for the respondent. I have heard learned counsel appearing for the petitioners as also the learned Additional Advocate General. The petitioners have been charged for offence under Section 376 (2) (g) of the Indian Penal Code on the allegation that they have sexually assaulted the prosecutrix who is a married lady. The other allegation against them is that the entire episode was videographed on the mobile phone. Notice of this petition was issued to the State. The learned Additional Sessions Judge, by an order dated 30th July, 2010, rejected the application of the petitioners on the ground that the clothes and vaginal smear etc. of the prosecutrix were to be examined by the Forensic Science Laboratory and the mobile phone which was used for purposes of videography was also to be examined. The State had requested for rejection of bail application on the ground that these reports including the report of videography were awaited from the Forensic Science Laboratory. Primafacie, it seems that the petitioners may be guilty of serious offence namely under Section 376 (2) (g) of the Indian Penal Code. In these circumstances, they cannot be released. However, after considering the material on record and the fact that the custodial interrogation of the petitioners is no more required, this is a fit case in which the petitioners can be released on bail. Learned Additional Advocate General submits that no bail can be granted more especially in view of the judgment of the Supreme Court in Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and another, AIR 2004 SC 1866 and the fact that the anticipatory bail of one of the petitioners has also been rejected. Adverting to the second circumstance, petition under Section 439 of the Code of Criminal Procedure is to be treated differently than that under Section 438. So far as the facts of Kalyan Chandra Sarkar’s case are concerned, all that need be said is that I have gone through the Zimminis, statement of the prosecutrix as also the reports from the Forensic Science Laboratory. Primafacie, the petitioners may be guilty of the offence which is yet to be established, but at the same time, I find from the medical evidence as also the reports that it is equally possible that they are not involved and the petitioners cannot tamper with the evidence more especially when the reports have been obtained by the prosecution and challan is being filed within next 2/3 weeks. In these circumstances, I deem it fit case in which the petitioners can be released on bail subject to the following conditions: a. That the petitioners shall join investigation as and when directed by the Investigating Officer; b. That the petitioners shall attend trial on each and every date of hearing except when exempted by the learned trial Court in accordance with law for which purpose an application shall be filed by the petitioners; c. That the petitioners shall furnish personal bonds in the sum of Rs. 40,000/- each with one surety in the like amount each to the satisfaction of the learned Sessions Judge, Una and shall further undertake to abide by all conditions as imposed in this order and also any other or further condition which may be imposed by the learned trial Court as may be considered necessary in the facts and circumstances of the case; d. That the petitioners shall not abscond from the jurisdiction of the learned Sessions Judge, Una; e. That the petitioners shall confine themselves to their house after Sun set and before Sun rise. A direction is issued to the Police Station, Amb to ensure that each and every condition imposed upon the petitioners is strictly adhered to. On violation of any condition, they shall be taken into custody forthwith without reference to this Court. Petition stands disposed of. Dasti copy on usual terms. August 31, 2010 (Dev Darshan Sud), (ms) Judge