ORDER

Heard learned counsel for the petitioner, learned A.P.P. for the State and learned counsel for the opposite party no. 2 who submits that with the change of learned counsel the stand of the present petitioner has also changed.

2. The learned counsel for the opposite party no. 2 submits that bail is a significant aspect of criminal litigation and is indisputably the most sought after litigation in the Court of law. The settled principles is that the bail is the rule and jail is an exception, but provision of cancellation of bail is an exception to the settled principles, as it robs the accused of his liberty, thus, it is said that when liberty of an accused is at stake, bail is the only way to protect it until the accused is acquitted or convicted.

3. It is important to keep in mind that there is a difference between a plea for cancellation of bail versus a plea challenging the order for grant of bail, though on the face of it, both situation seems to be the same, however, the grounds of challenging the both are completely different. In an application for cancellation of bail, the Court ordinarily looks for supervening circumstances, whereas in an application challenging the order for grant of bail, the grounds of challenge is the very order of the Court. The illegality of due process is challenged on account of improper or arbitrary exercise of discretion by the Court while granting bail. It is, thus, submitted that the difference lies in the fact that if there is any illegality in the order granting bail, the aggrieved can approach a superior forum for getting the order granting bail set aside, but if there is no illegality in the order granting bail then the aggrieved can seek cancellation of bail on the ground of misuse/concession granted to the accused while granting bail.

4. In the present case, the petitioner herein challenged the order granting bail before the Hon’ble Apex Court but the same was not interfered with, rather the Hon’ble Apex Court directed the petitioner to file an application seeking cancellation on the issue of misuse of the concession by the opposite party herein, as alleged.

5. It is next submitted that the significance of bail lies in the fact that whenever any allegation is brought before the Court, based on which the accused seeks bail, the allegation remains in the realm of allegation i.e. neither the Judge nor the learned lawyer representing the accused nor the learned A.P.P. or the learned lawyer representing the victim have seen the occurrence, thus, it is only the material on record based on which a prima facie view is to be taken i.e. whether to grant bail or to reject, but then what strikes the Court is that there is no provision in the Cr.P.C. or any other law which compensates the accused in the event of his acquittal. Why bail is the rule and rejection is the exception perhaps lies in the fact --- that if an accused is denied bail how his period of incarceration be compensated in the event of acquittal and if the accused is finally convicted he will serve the sentence, but then this by no stretch of imagination leads to an irresistible conclusion that bail in each and every case has to be granted in breach of the law propounded.

6. The basic principles governing grant of bail are: –

(i) The nature of the accusation weighing in the gravity and severity of the offence.

(ii) The severity of punishment.

(iii) Position of the accused i.e. whether the accused can exercise influence on the victim and the witnesses or not.

(iv) Likelihood of the accused to approach or try to approach the victim or witnesses.

(v) Likelihood of the accused absconding from the proceeding.

(vi) Possibility of accused to tamper with evidence.

(vii) Obstructing or attempting to obstruct the due course of justice.

(viii) Possibility of repetition of offence if let out on bail.

(ix) The prima facie satisfaction of the Court in support of the charge including frivolity of the charge.

(x) The different and distinct fact of each case