ORDER

27.8.2010 — This application under Section 439(2) of the CrPC has been filed by the informant in G.R. Case No.345 of 2009 of the Court of S.D.J.M., Titilagarh for cancellation of bail granted to the present opposite party in the said G.R. case by the learned Addl. Sessions Judge. Titilagarh by his order dated 31.7.2009 passed in BLAPL No.218 of 2009.

2. Bereft of unnecessary details, the allegation against the present opposite party as per the FIR in the said case is that the opposite party by practising inducement and coercion had been keeping physical relationship with the daughter of the informant, aged about 16 years, since six months prior to the lodging of the FIR. On 15.7.2009 on the inducement and instiga¬tion of the opposite party, the informant’s daughter took away a cash of Rs.40,000/- and some gold ornaments, her wearing apparels and her certificate and left with the opposite party in the mid-night. The FIR was accordingly registered for commission of offences under Sections 363/366, IPC.

3. On the date of lodging of the FIR the opposite party was apprehended and he filed bail application before the S.D.J.M., Titilagarh which was rejected. Thereafter, the opposite party approached the Addl. Sessions Judge, Titilagarh in BLAPL No.218 of 2009. By order dated 31.7.2009, the learned Addl. Sessions Judge released the opposite party on bail with certain conditions.

4. It is submitted by the learned counsel for the peti¬tioner that the learned Addl. Sessions Judge, Titilagarh had granted bail to the opposite party illegally without taking into consideration the relevant materials on record. His particular submission is that though the case has been registered u/ss. 363/366, IPC in fact the materials on record make out also a case u/s. 376, IPC and therefore the bail order passed by the learned Addl. Sessions Judge is vitiated for non-consideration of that aspect. The learned counsel appearing for the opposite party, on the other hand, submits that the Court below has taken into consideration all relevant materials and has given good reasons for passing the bail order. It is his further submission that even after being released on bail the opposite party has never misused the liberty granted to him and therefore the bail order needs no interference.

5. In the case of State of Orissa v. Jagannath Patel and another, 1992 CRI.L.J. 1818 this Court observed as follows :-

“The power to take into custody an accused who has been enlarged on bail has to be exercised with care and circumspec¬tion. The power is of extraordinary nature and is meant to be exercised in appropriate cases when with preponderance of probabilities it is clear that the accused has misused the liber¬ty, or compelling reasons exist, or grant of bail was illegal and/or was by improper, arbitrary exercise of discretion. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made. When it would be no longer conducive to a fair trial to allow the accused to retain his freedom of enjoying bail, cancellation is called for.”

In the said case though the Court came to the conclusion that grant of bail in favour of the accused by the learned Addl.Sessions Judge was not justified, it refused to interfere with the bail order holding that though the accused persons were released on bail eight months before, there was no allegation or material about misusing of liberty by them while on bail.

6. In the case of Manjit Prakash and others v. Sobha Devi and another (2008) 41 OCR (SC)- 108, it has been observed that at the time of dealing with an application for cancellation of bail, the Court has to consider whether irrelevant materials of sub¬stantial nature and not of a trival nature were taken into con¬sideration. It was also observed that cancellation of bail is a harsh order as it takes away the liberty of an individual and should not be