IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1766 OF 2008 State of Maharashtra ...Applicant Vs. Shyam Ramchandra Dabhade ... Respondent --- Mrs. M.H. Mhatre, APP for State ---- CORAM: V.M. KANADE J. DATED 24TH FEBRUARY, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant and the learned Counsel for the Respondent No.1. 2. The learned Counsel for the Respondent No.1 seeks some time to file reply. This is opposed by the Learned Counsel appearing on behalf of the original Complainant. 3. It is submitted that this application is pending since February, 2008 and time has been taken by the Respondent No.1 on one pretext or the other and as a result, this application for cancellation of bail has remained pending. 4. The learned Counsel appearing on behalf of the Respondent No.1 submits that the Respondent No.1 is in jail and no prejudice would be caused to the Applicant if the matter is adjourned. 5. In view of this, the request for adjournment cannot be accepted particularly because this application is pending since very long time. 6. The learned Counsel appearing on behalf of the Applicant has submitted that the offence under section 302 r/w. 34 of the Indian Penal Code was registered vide C.R. No.119/2006 at Dehu Road Police Station, Pune. The Respondent No.1 is the original Accused No.1 in the aforesaid case. It is alleged that the Respondent No.1 and others had assaulted one Tanaji Shinde with swords, knife and other lethal weapons and as a result, the said Tanaji Shinde succumbed to the injuries and died. 7. The application for bail filed by the Respondent No.1 was opposed by pointing out the antecedents as well as role played by the present Respondent No.1 and the material in the form of 9 eye witnesses. The Sessions Court was pleased to grant bail, firstly, on the ground that the Respondent No.1 was in jail for more than 13 months. Secondly, the Learned Sessions Judge was of the view that the prosecution had not given sufficient explanation for non-commitment of the case to the Court of Sessions and, therefore, the Sessions Judge has relied on the judgment of the Apex Court in the case of Mohan Lal Vs. State of U.P. II (1991) CCR 467. The Sessions Court has also discarded the antecedents of the Respondent No.1 on the ground that merely because some cases were pending against him, it would not be a ground for refusing bail to the Applicant. 8. I have perused the impugned order. In my view, the points recorded by the Sessions Court are perverse and, therefore, the said order of granting bail, in my view, cannot be sustained. The postmortem notes indicate that there were 16 injuries on the person of the deceased. The deceased had been inflicted the blows all over his body with swords, knives and other weapons. There were 9 eye witnesses, who had seen the Applicant while he was inflicting several blows with sword on the deceased. The Trial Court ought not to have discarded the statements of 9 eye witnesses and ought not to have granted bail to the Respondent No.1 only on the ground that the Respondent was in jail for a period of 13 months. The Sessions Court also, in my view, erred in coming to the conclusion that non- commitment of the case to the Sessions Court was sufficient ground for granting bail. In my view, the Apex Court in several cases has laid down the factors which are taken into consideration while considering the application for bail. The Court has to take into consideration, firstly, the seriousness of the said offence, the manner in which the said offence has been committed, the motive behind the said offence, in fact, the said offence had occurred in public at large, the possibility of the accused threatening the witnesses or pressurizing the witnesses if he is released on bail. The possibility of the accused absconding and fleeing from the justice is also one of the consideration, which has not been taken into consideration by the Court while granting bail and lastly, the Court has also to take into consideration the past conduct and antecedent of the accused in order to see whether the Applicant deserves to be released on bail or not. The Sessions Court, in my view, has erred in relying on the observations made by the Apex Court in Bhagirathsinh Jadeja V/s. State of Gujarat, A.I.R. 1984 S.C.372 case has considered an isolation without considering the other factors involved in the present case. 9. There cannot be a strait-jacket formula, which can be applied in the case while considering the grant of bail since each case would depend on the facts and circumstances of the case. Therefore, relying on few observations made by the Apex Court, it would not be sufficient for the purpose of exercising the discretion vested in the Court for granting bail. In the present case, record indicates against the Respondent No.1 that there are as many as 10 cases are filed and which are pending against him. However, three cases are filed for the offence punishable under section 364 A r/w.34 of the Indian Penal Code along with the provisions of the Arms Act. One case is filed for the offence punishable under section 302 r/w. 34 of the Indian Penal Code. Four cases are filed for the offences punishable under section 392 and other related offences. Taking into consideration the antecedents of Respondent No.1, in addition to the material which is already on record in the present case, that would be an additional factor why bail ought not to have been granted by the Sessions Court. It is quite considerable condition in law that even application for cancellation of bail is filed by the Complainant, the Court has to consider whether the bail granted by the Court has been misused or the the Court has to examined whether the order passed by the Sessions Court is such that the said order is unsustainable under any circumstances. In the present case, looking at the nature and the gravity of the offence, criminal antecedents of the Respondent No.1, the material which is on record against the Respondent No.1 showing his involvement in the said offence, the order passed by the Sessions Court cannot be justified under any circumstances and viewed from any angle, the said order, in my view, has to be set aside. The finding which are taken into consideration are perverse. 10. The application for cancellation of bail granted to the Respondent No. 1 is allowed. I am informed that the Respondent No.1 is already in jail on account of his involvement in some other cases. The Applications have been filed by the original Complainant and also by the State vide Criminal Application Nos.1766 of 2008 and Criminal Application No.438 of 2008. Both Applications are allowed and the impugned order is set aside. The trial is, however, expedited. V.M. KANADE J.