( 1 ) HEARD Mr. Shaukat A. Shaikh, learned counsel for the petitioner. The petition was received by the Court from Jail Authorities, but thereafter, Mr. Shaukat a. Shaikh made appearance and ultimately, filed his appearance and, therefore, he is heard for the petitioner on merit.

( 2 ) THE reply affidavit filed by the State of Gujarat and rejoinder affidavit submitted by the petitioner is taken on record whereby, the petitioner has attempted to respond to the facts disclosed in the reply affidavit, qua 9 different offences that have been referred in the reply affidavit.

( 3 ) BY invoking jurisdiction of the Court under article 226 of the Constitution of India, the petitioner has assailed the legality and validity of the order passed by the State Government. In exercise of powers vested with it under Section 268 of the Code of Criminal procedure. Having considered the nature of submission made before the Court by learned counsel Mr. Shaikh as well as learned A. P. P. Ms. Punani, it emerges that matter is based on the language of the order passed and the facts considered by the authority while passing the order under Section 268 of the Code of Criminal Procedure. It is not a matter of dispute that when the order came to be passed, the accused was facing more than one prosecution, but the order under Section 268 of the Code of Criminal procedure is passed in reference to the registration of the offence registered by D. C. B. P. S. I. being CR no. 11/94. Undisputedly, the petitioner has been granted bail by the Honble the Apex Court for the vary offence i. e. offence registered by D. C. B. P. S. I. CR No. 11/94 on 14th November 2002. Out of 9 offences, in 7 other offences, the petitioner is either granted bail by the competent Court or he has been acquitted by the competent court on conclusion of the trial. It is mentioned in the rejoinder affidavit that he has been declared acquitted in 3 such offences and he is enjoying bail in other 5 offences. The petitioner accused has been held guilty of the offence punishable under Section 302 registered by dariapur Police Station being CR No. I 91/94. The say of the petitioner is that, as the State Government has passed the order under Section 268 of the Code of criminal Procedure, he is not granted bail.

( 4 ) (I) learned A. P. P. Ms. Punani strongly resisted the submissions that the fact of existence of the order passed by the State Government under Section 268 of the code of Criminal Procedure, has been considered merely while dealing with the bail application by the Appellate bench when the bail plea was pressed into service after conviction. According to her, the bail plea was not found acceptable on its own merits, i. e. on more than one ground. Existence of an order under Section 268 of the Code of Criminal Procedure is one of the ground looked into by the learned Division Bench and for the purpose, she has taken me through the order passed by the learned Division Bench, rejecting the bail plea. (II) the Court is in agreement with submissions of ms. Punani that it will be wrong to accept that the petitioner has not been granted bail, where the petitioner has been held guilty of serious offence punishable under Section 302 of the Indian Penal Code, merely because there is an order under Section 268 of the code of Criminal Procedure for the crime registered with dariapur Police Station (i. e. I 91/94)

( 5 ) THE grievance of the present petitioner, as expressed by Mr. Shaikh is that, even for the sake of argument, it is accepted that the bail plea was not accepted only on the ground that there is an order under section 268 of the Code of Criminal Procedure by the state Government, but especially when the Honble the apex Court has enlarged the present petitioner on bail, in the very offence i. e. I 91/94, the petitioner is tempted to assail the order in its legality after several years and there is nothing wrong in doing so.

( 6 ) IT is true that the petitioner has failed i