The considerations for grant of bail and cancellation of bail are distinct. Factors to be considered for anticipatory bail include the nature and gravity of the accusation, antecedents of the applicant, possibility of fleeing from justice, likelihood of repeating similar offences, impact of the grant of anticipatory bail, reasonable apprehension of tampering of witnesses, frivolity in prosecution, and the possibility of the accused influencing prosecution witnesses.

JUDGMENT

1. This application under Section 439 (2) of Cr.P.C. has been filed for setting aside the order dated 28/8/2021 passed by Special Judge (POCSO Act), Gwalior in Bail Application No.2352/2021, by which the respondent no.2 has been granted bail.

2. It is submitted by the counsel for the applicant that while granting bail, the Court below must apply its mind to the facts of the case. The gravity of the offence is also to be considered. However, without applying any mind and without assigning any reason, the Court below has granted bail to the respondent no.2. It is submitted that according to the prosecution case, the prosecutrix is minor and is a student of Class 10th and from the month of September, 2020 the applicant was visiting her house for teaching her. For the first two months the respondent no.2 taught the prosecutrix properly, but thereafter, he started misbehaving with her. It is submitted that the respondent no.2 used to touch the private parts of the prosecutrix and in the absence of the mother of the prosecutrix, he used to commit rape on her. On 29/3/2021 at about 1-3 PM when the mother of the prosecutrix was not in the house and by threatening the handicapped brother of the prosecutrix, it was alleged that respondent no.2 committed rape on her. The respondent no.2 also compelled the prosecutrix to consume multiple pills, as a result, the prosecutrix had severe bleeding and acute pain in her stomach. Thereafter, the respondent no.2 used to threaten the mother of the prosecutrix on phone and when the mother of the prosecutrix enquired about the situation, then the prosecutrix narrated the incident to her mother. It is submitted that the respondent no.2 was arrested on 12/7/2021 and he moved an application for grant of regular bail. The Court below by order dated 28/8/2021 passed in BA No.2352/2021 allowed the said application without assigning any reason. It is submitted that it is true that the last incident of rape took place on 29/3/2021, but the FIR was lodged on 9/7/2021, however, the prosecutrix was treated in Lok Nayak Hospital, New Delhi. The applicant has also filed the copy of the outpatient registration card issued by the Lok Nayak Hospital, New Delhi. It is further submitted that the Supreme Court in the cases of Mahipal Vs. Rajesh Kumar alias Polia and another reported in (2020) 2 SCC 118 and Dr. Naresh Kumar Mangla Vs. Anita Agarwal and others reported in 2021 (1) MPLJ (Cri.) (SC) 353 has laid down relevant consideration which should be taken into consideration for grant of bail.

3. Per contra, it is submitted by the counsel for the respondent no.2 that the relevant factors for consideration for cancellation of bail are completely different. A bail order can be recalled only if the same was misused by the accused, however, in the present case there is no allegation that any threat was ever given by the respondent no.2 or he has misused the liberty in any manner.

4. Heard learned counsel for the parties.

5. It is not the case of the applicant that the High Court has granted bail to the respondent No.2.

6. The Supreme Court in the case of Mahipal (supra) has held as under:-

16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. In Neeru Yadav v. State ofU.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] , the accused was granted bail by the High Court [Mitthan