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TMI Blog2022 (4) TMI 1653X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondent no. 2 accused. Additionally, the High Court did not consider that the respondent no. 2 - accused is a hardened criminal with nearly twenty criminal cases pending against him. Under such circumstances, this Court should exercise its jurisdiction under Article 136 of the Constitution and set aside the bail granted to respondent no. 2 accused. 4. Learned Counsel for respondent no. 1 State supported the submissions of the appellant and submitted that the impugned order is a cryptic one which is liable to be set aside. He submitted that there is a strong prima facie case against the respondent no. 2 accused who committed the heinous offence of rape and sexual assault upon his minor niece for nearly three to four years. Further, respondent no. 2 accused is an infamous criminal who has twenty criminal cases registered against him, in some of which he has already been convicted. The list of cases registered against him include cases relating to murder, attempt to murder, kidnapping, dacoity, etc. Therefore, the order of the High Court granting bail to respondent no. 2 accused should be set aside. 5. Per contra, learned counsel for respondent no. 2 submits that the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out." 9. The above factors do not constitute an exhaustive list. The grant of bail requires the consideration of various factors which ultimately depends upon the specific facts and circumstances of the case before the Court. There is no strait jacket formula which can ever be prescribed as to what the relevant factors could be. However, certain important factors that are always considered, inter alia, relate to prima facie involvement of the accused, nature and gravity of the charge, severity of the punishment, and the character, position and standing of the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of bail. xxx xxx xxx 10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of nonapplication of mind, rendering it to be illegal....." 13. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 this Court followed the holding in Prasanta Kumar Sarkar (supra) and held as follows: "17. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a nonapplication of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment..." 14. Recently, a three Judges' Bench of this Court in Jagjeet Singh & Ors. V. Ashish Mishra @ Monu & Anr. in Criminal Appeal No. 632 of 2022, has reiterated the factors that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the court." 16. In the present case, it is necessary to determine whether the High Court while granting bail to the respondent no. 2 accused has properly exercised its discretion under Section 439 CrPC by following various parameters laid down by this Court. A bare perusal of the impugned order passed by the High Court does not suggest that the Court has considered any of the relevant factors for grant of bail. It would be fruitful to extract the impugned order at this juncture: "1. The present bail application has been filed under Section 439 Cr.P.C. The petitioner has been arrested in connection with FIR No. 319/2021 Registered at Police Station Udhyog Nagar, District Sikar for the offence(s) under Sections 354, 354B, 354D, 376(2)F, 376(2)N, 450, 506, 509 IPC and Sections 9N/10, 5L/6, 5(N)/6 and 18 of POCSO Act. 2. Learned counsel for the petitioner submits that the petitioner has been falsely implicated in this case. He is behind the bars since 30.05.2021. Chargesheet has been filed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 this Court indicated the importance of reasoning in the matter concerning bail and held as follows: "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from nonapplication of mind ..." (emphasis supplied) 20. In Brij Nandan Jaiswal v. Munna, (2009) 1 SCC 678, which concerned a challenge to grant of bail in a serious offence, this Court has reiterated the same position as was observed in Kalyan Chandra Sarkar (supra). This Court has held as under: "12... However, we find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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