JUDGMENT : S.K. Sahoo, J. - This is an application under section 439(2) read with section 482 Cr.P.C. for cancellation of bail granted to opposite party No. 2 Raju Bhola @ Rajkishore Bhol granted by learned 1st Addl. Sessions Judge, Puri vide order dated 01.07.2013 in Bail Application No. 616 of 2013. 2. The prosecution case as per the First Information Report lodged by the petitioner Ramesh Pradhan before Inspector-in-Charge, Sadar police station, Puri is that on 20.11.2012 at about 5.00 p.m. while the brother of the informant namely Subash Pradhan who was working at Surat had come to Puri with his five friends, the opposite party No. 2 along with other co-accused persons being armed with deadly weapons obstructed them near Batamangala in front of the shop of Dhanu Pradhan and attacked them and took away their vehicle, mobile phone and cash. One of the injured expired due to assault and then the accused persons kept his dead body inside a train and fled away. It is further stated in the First Information Report that the injured persons were under treatment at Sakhigopal Hospital and the whereabouts of the brother of the informant could not be ascertained. The vehicle which was taken away by the accused persons was left on the road which was subsequently seized. The informant suspected that the man who was killed by the accused persons and whose dead body was placed in the Jagannath Express might be his brother. It is further mentioned in the FIR that the accused persons were previously implicated in the assault of the brother of the informant for which a case was pending in the Court of learned Chief Judicial Magistrate, Puri. On receipt of such First Information Report from the petitioner, Puri Sadar P.S. Case No. 234 dated 24.11.2012 was registered under section 147 /148 /364 /302 /307 /201 read with section 149 of IPC which corresponds to S.T. Case No. 60/426 of 2013 pending in the Court of learned 1st Addl. Sessions Judge, Puri. 3. The Inspector-in-charge, Sadar Police station, Puri himself took up investigation of the case. Sessions Judge, Puri. 3. The Inspector-in-charge, Sadar Police station, Puri himself took up investigation of the case. During course of investigation on 25.11.2012, the I.O. arrived at GRPS, Cuttack and came to know that Cuttack GRPS U.D. Case No. 83 of 2012 was registered on 21.11.2012 as one Ajit Kumar Mishra, Station Superintendent of East Coast Railway intimated that on that day one unknown male person inn an intoxicated condition was found lying dead on platform No. 1. The dead body was sent for post mortem examination. The post mortem report indicated that the deceased had sustained number of contusions which were ante mortem in nature and could have been caused by hard and blunt weapons and the cause of death was opined as asphyxia resulting from regurgitation of food materials into the respiratory passage which could have been due to trauma. The Investigating Officer seized two numbers of the digital photographs of the unknown male person (dead) taken by the Inquiry Officer. The identification of the deceased was made. The opposite party No. 2 was taken into custody on 27.11.2012 as prima facie case was found against him for commission of offences under sections 147 /148 /364 /307 /302 /201 read with section 149 of IPC. Test Identification Parade was also conducted in which the witness Sankar Sethy participated and he identified the opposite party No. 2 as one of the culprits. It was also found that the opposite party No. 2 has been implicated in a number of criminal cases. It was also found during investigation that the accused persons abducted the deceased and other injured persons from Batamangala and assaulted them in the brick kiln of Ekadasi Jena @ Balia. After receipt of the supervision report of S.D.P.O., Sadar, Puri, the Investigating Officer submitted charge sheet under sections 147 /148 /364 /302 /201 /307 /149 IPC keeping the investigation open under section 173(8) Cr.P.C. 4. The petitioner moved an application for bail which was heard by learned 1st Addl. Sessions Judge, Puri who vide order dated 01.07.2013 observed that there is no prior criminal antecedent available against the petitioner and that the petitioner is constantly under medical attention and he is fighting for his survival for which three extensions were given by the Court in anticipation of his recovery but no sign of improvement was noticed as per the medical documents available on record. However the learned Court has been pleased to grant bail even though he has observed that the offences are heinous in nature and it has got hazardous impact on the society. 5. Mr. K.B. Kar, learned counsel for the petitioner while challenging the order of grant of bail to the opposite party No. 2 emphatically contended that the bail has been granted illegally and by wrong and arbitrary exercise of judicial discretion and after being enlarged on bail, the opposite party No. 2 has misutilized his liberty and therefore the bail granted to him should be cancelled. He further contended that since sufficient materials are available on record showing participation of the opposite party No. 2 in the crime, it was not proper on the part of the learned Court to grant him bail accepting the plea of illness. Mullifying his contentions, the learned counsel for the petitioner further urged that the opposite party No. 2 had earlier moved petition for bail in the Court of Session and it was dismissed on merit. It is further contended that the observations made by the learned 1st Addl. Sessions Judge, Puri that there was no criminal antecedent available against the opposite party No. 2 is apparently an error of record in as much as the case diary discloses that the petitioner is involved in a number of cases. It is further contended that it is a case of gruesome murder and there are also injured persons in the case and therefore grant of bail only on the health ground was not proper particularly when the petitioner was not suffering from any serious ailments. The learned counsel further contended that in the bail petition of the opposite party No. 2, it is mentioned that he was suffering from chronic diabetes and undergoing treatment since 2010 and his physical condition was serious as reported by the doctor and Superintendent of Jail. According to the learned counsel for the petitioner, mere suffering from diabetes is not a ground for grant of bail which could have been treated while remaining in custody. He further contended that the medical documents which have been filed along with the counter affidavit pertains to the year 2013 and it indicate that the disease is diabetes and therefore the observation of the learned 1st Addl. He further contended that the medical documents which have been filed along with the counter affidavit pertains to the year 2013 and it indicate that the disease is diabetes and therefore the observation of the learned 1st Addl. Sessions Judge that the opposite party No. 2 was fighting for his survival and there is no chance of improvement is palpably wrong. The learned counsel for the petitioner relied upon decision of this Court reported in Lingaraj Khandayat Ray Vs. Bibhu alias Braja Kishore alias Bibhuti Bhusan Swain and Another Lingaraj Khandayat Ray Vrs. Bibhu whrein it is held as follows:- "14?????????. For the sake of discussion even if admitting the illness to be genuine, then also that could not have been a ground to release the opposite party No. 1 on bail in as much as the opposite party No. 1 could have been sent for specialised treatment as an U.T.P. even if such facilities are not available in the Sub-Jail at Jagatsinghpur and in that respect appropriate direction could have been passed by the Court. Therefore, the reasoning recorded by the learned Addl. Sessions Judge that because of the said illness he had no other alternative, but to allow the petitioner to go on bail so as to save his life does not appear to be a reasonable or sound reason and it appears that such a finding was recorded only to support his conclusion in support of releasing the petitioner on bail". The leaned counsel for the petitioner further placed reliance in case of Gandu Mallia Vs. Kanhu alias Mahendra Mallia and Another, wherein it is held as follows:- "5. When the petition for bail in the present case was moved on the first occasion, illness of the opposite party No. 1 was not taken as an additional ground for his release. Only after the Court rejected the prayer, second petition was filed stating therein that he being an asthma patient should be admitted to bail or else the disease may prove fatal???... True it is, sickness of an Under Trial Prisoner sometimes weighs with the Court while deciding the question of bail, but it is not every sickness or infirmity that entitles him to be enlarged on bail. True it is, sickness of an Under Trial Prisoner sometimes weighs with the Court while deciding the question of bail, but it is not every sickness or infirmity that entitles him to be enlarged on bail. The nature and seriousness of the sickness, the availability of necessary treatment and reasonable amenities provided in jail are to be taken into consideration along with other circumstances before granting bail on the ground of illness. If asthma is considered to be a serious disease for admitting a person, accused of serious crime to bail, we may not blame the people commenting that there is no justice in the world and law always supports the accused and not the victim of the crime". The petitioner further placed reliance in case of Bibhuti Nath Jha V. State of Bihar reported in (2006) 34 Orissa Criminal Reports (SC) 423 wherein the Hon'ble Supreme Court refused bail to the accused even though plea of illness was taken for grant of bail and directed the accused to be referred to the hospital for specialized treatment. He further contended placing reliance in case of Dinesh M.N. (S.P.) Vs. State of Gujarat, that if bail is granted on untenable grounds, the plea of absence of supervening circumstances has no leg to stand. While placing reliance in case of Chhaila Pradhan and State of Orissa Vs. Bansidhar Pradhan and two Ors. and Bhagaban Pradhan and Others the learned counsel contended that when bail was granted illegally or improperly by wrong and arbitrary exercise of judicial discretion, it can be cancelled by the High Court under section 439(2) Cr.P.C. even if there is no new or additional circumstances appearing against the accused after the grant of bail. He further placed reliance in case of Sirla Kakaji v. Sasapalli Vanu reported in Vol. 33 (1991) Orissa Judicial decision 403 (criminal), wherein repelling the contention advanced on behalf of the accused that nearly two years have elapsed since his release, it would not be proper to send him to custody even though bail was granted illegally, the learned Court held that where bail has been granted illegally, passage of time could not stand on the way for cancellation of bail. 6. Mr. Prem Kumar Pattnaik, learned Addl. Govt. 6. Mr. Prem Kumar Pattnaik, learned Addl. Govt. Advocate appearing for the State while supporting the contentions raised on behalf of the petitioner submitted that since it is a case of illegal, improper and arbitrary exercise of judicial discretion by the Court in granting bail to the opposite party No. 2, even in absence of any supervening circumstances, the bail order is liable to be cancelled. He also urged that mere passage of time would not stand on the way for cancellation of bail. 7. Dr. Ashok Kumar Mohapatra, learned Senior Advocate while supporting the bail order submitted that in the meantime the trial has already commenced and out of 38 chargesheet witnesses, 17 witnesses have already been examined and since there is no material on record to indicate any interference or attempt to interfere with due course of administration of justice by the accused or that he had misutilised concession granted to him in any manner and there is no supervening circumstances for cancelling the bail, it would not be proper to cancel the bail. He placed reliance in case of Hazari Lal Das Vs. State of West Bengal and Another, . Mr. Mohapatra, further contended that cancellation of bail is a harsh order and it takes away the liberty of an individual granted and should not be lightly resorted to. Concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation. He placed reliance in case of Manjit Prakash and Others Vs. Shobha Devi and Another, . It is submitted that since no irrelevant materials were taken into consideration while granting bail to the opposite party No. 2, it would not be proper to cancel the bail granted particularly in view of the passage of time. The learned counsel placed reliance in case of Sri Chandradhawja Mishra Vs. Kautuka Chhatria, and Ram Babu Tiwari Vs. State of M.P. and Another, . It is urged that there is no material on record that the opposite party No. 2 either tried to tamper with the evidence or committed any other overt act which would affect the fairness of trial. The learned counsel placed reliance in case of Jetha Bhaya Odedara Vs. Ganga Maldebhai Odedara and Another, . 8. It is urged that there is no material on record that the opposite party No. 2 either tried to tamper with the evidence or committed any other overt act which would affect the fairness of trial. The learned counsel placed reliance in case of Jetha Bhaya Odedara Vs. Ganga Maldebhai Odedara and Another, . 8. Law is well settled that rejection of bail in a non-bailable offence at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. For illustration, broadly the grounds for cancellation of bail are as follows:- (i) arbitrary and wrong exercise of discretion by the Court ignoring material evidence on record and passing a perverse order granting bail in a heinous crime which has a very serious impact on the society without giving any reason; (ii) interference or attempt to interfere with the due course of administration of justice; evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. Concept of setting aside an unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts or certain supervening circumstances requiring such cancellation. There is distinction between the parameters for grant of bail and cancellation of bail. If a Court of Session has granted bail to an accused, the State may move the Sessions Judge for cancellation of bail if certain new circumstances have arisen which was not earlier known to the State. However, when no new circumstances have cropped up except those already existed, the State if aggrieved by the order of the Sessions Judge granting bail has to approach the High Court being the superior Court under Section 439(2) Cr.P.C. to commit the accused to custody. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. Grant of bail requires consideration of the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and other similar considerations. At that stage, the prosecution is required to produce prima facie evidence in support of the charge and not the evidence establishing the guilt of the accused beyond reasonable doubt. It is the settled law that an order granting bail, by ignoring material evidence on record and without giving reasons, would be perverse and contrary to principles of law and such an order would itself provide a ground for moving an application for cancellation of bail. An accused has a right to make successive applications for grant of bail but while entertaining such subsequent bail applications, the Court has a duty to consider the reasons and grounds on which the earlier bail applications were rejected and to record what are the fresh grounds which persuade it to take a view different from the one it had taken in the earlier applications. 9. Adverting to the materials available on record, it is apparent that there are eye witnesses to the occurrence. One of such witnesses namely Sankar Sethi, who is the friend of the deceased Simanchal Gauda has stated as to how he, the deceased and others were assaulted by split wood and iron rods. He also identified the opposite party No. 2 as one of the culprit in the test identification parade. The statements of Subash Pradhan, Loknath Sethi, Naresh Pradhan and Budhi Pradhan prima facie make out the case against the opposite party No. 2. The post mortem report indicates that the deceased had sustained number of injuries on different parts of his body. The manner in which the deceased and his friends were abducted, assaulted and the body of the deceased was kept in a train which was detected at Cuttack Railway Station clearly makes out a prima facie case against the petitioner. Every effort was made to cause disappearance of evidence of offence. The manner in which the deceased and his friends were abducted, assaulted and the body of the deceased was kept in a train which was detected at Cuttack Railway Station clearly makes out a prima facie case against the petitioner. Every effort was made to cause disappearance of evidence of offence. Apart from availability of prima facie case, it appears that the opposite party No. 2 had got a number of criminal antecedents i.e. Puri Sadar P.S. Case No. 152 of 2004, Puri Sadar P.S. Case No. 87 of 2005, Puri Sadar P.S. Case No. 32 of 2007, Puri Sadar P.S. Case No. 38 of 2007, Puri Sadar P.S. Case No. 48 of 2007, Puri Sadar P.S. Case No. 74 of 2007 and Chandanpur P.S. Case No. 58 of 2009. In view of criminal antecedents of the opposite party No. 2, the observation of the learned Court that there is no prior criminal antecedent available against the opposite party No. 2 is a complete error of record. The records of Bail Application No. 81/616 of 2013 was called for from the Court of learned 1st Addl. Sessions Judge, Puri which was received. While going through the records of the bail application, it appears that in paragraph 5, it is mentioned regarding the rejection of earlier bail application. It is mentioned in paragraph 6 that the opposite party No. 2 is a chronic diabetic patient undergoing treatment since 2010 and that his physical condition had become serious as has been reported by the doctor and Superintendent of Jail for which interim bail was granted on 10.04.2013. In Paragraph 7, it is mentioned that interim bail was extended on few occasions and finally the opposite party No. 2 surrendered before learned S.D.J.M., Puri after expiry of last extension period. In paragraph 8 and 9 of the bail petition, health grounds have been taken for grant of bail. No medical documents were submitted by the opposite party No. 2 along with the bail application. The learned Court has also not called for the report from the jail authorities regarding the health condition of opposite party No. 2 prevailing at the time of adjudication of the bail application. It seems that the earlier medical reports which were called for at the time of granting interim bail were considered and bail order was passed. The learned Court has also not called for the report from the jail authorities regarding the health condition of opposite party No. 2 prevailing at the time of adjudication of the bail application. It seems that the earlier medical reports which were called for at the time of granting interim bail were considered and bail order was passed. Thus it is apparent that at the time of passing the impugned order, the learned Court has no medical documentary proof regarding the health condition of the opposite party No. 2 prevailing then. When the bail application was earlier rejected on merit and no fresh grounds have been made out to take a different view and there was no material before the Court regarding the health condition of the opposite party No. 2 prevailing then, it was not proper on the part of the Court to grant bail only on the health ground in spite of observing that the offences are heinous in nature and it has got hazardous impact on the society and that to committing an error of record that the opposite party No. 2 has got no prior criminal antecedent. 10. After bestowing my anxious, painstaking and careful consideration to the tactical and enthralling contentions raised at the Bar as well as the materials available on record and on perusal of the case-laws cited, I am of the considered view that the exercise of judicial discretion in granting bail to the opposite party No. 2 was illegal, improper and arbitrary and therefore bail granted to the opposite party No. 2 should be cancelled. Accordingly, the CRLMA application is allowed and the impugned order dated 01.07.2013 passed by learned Ist Addl. Sessions Judge, Puri in Bail Application No. 616 of 2013 is hereby set aside. The bail order stands cancelled. The opposite party No. 2 is directed to surrender before the trial Court forthwith failing which necessary steps be taken by the trial Court for immediate apprehension of the opposite party No. 2. Any observation made in this order shall not influence the trial Court while adjudicating the trial of the case. A copy of the order be sent to the learned trial Court for compliance. Final Result : Allowed