Sonia Gokani, J.

By way of filing this application under Section 439 (2) of the Code of Criminal Procedure, 1973 the applicant seeks to challenge the order dated 25.11.2016 passed in Criminal Misc. Application No.871 of 2016 by the learned 4th Additional Sessions Judge, Bhavnagar, whereby the Sessions Court had granted regular bail in connection with IC.R.No.47 of 2016 registered with Gangajaliya Police Station, Bhavnagar for the offences punishable under Sections 302, 143, 147, 148, 149, 201, 384, 120 B and 34 of the Indian Penal Code and Section 135 of the Gujarat Police Act.

2. According to the State, the respondent is one of the key accused. He has been involved in a similar offence being IC.R.No.113 of 2014 registered with Nilambaag Police Station for the very offences being Sections 302, 120 B, 201 and 34 of the Indian Penal Code and Sections 25(1) and 27(3) of the Arms Act. As the respondent-accused had been enlarged on regular bail by the Sessions Court, the State has challenged the same by way of present application under Section 439 (2) of the Code of Criminal Procedure, 1973.

3. The case of the prosecution in a capsulized form is that on 08.09.2016 at 11:30 p.m., the first informant and his brother Rafiqkbhai when were working with their labour Jahid @ Tayo near Sindhi Dharma Shala at Vegetable Market, one Sohel @ Bhopo Yusufbhai Sidi had intimated them that Pradip @ Lalo Bharwad, Hardik Kalubhai Ulva and Sajid @ Bawlo and others who were waiting for them with the weapons and therefore, they should not go home. Very soon Pradip @ Lalo came with baseball bat, Hardik Kalubhai Ulva and Sajid @ Bawlo had sword in their hands and Jitubhai Rabari had wooden bat, Raja Magic also had sword and one boy named Tau was having knife. Pradip @ Lalo asking first informant as to why were they not vacating the shop and started beating the first informant and his brother. The complainant and Sohel both ran away from the shop and his elder brother Rafikbhai and Jahid @ Tayo they both were indiscriminately beaten. Thereafter, the complainant and Sohel @ Bhopo went to find them, they found at near Aamba Chowk Bapu Mehta's Street a man was lying in a pool of blood. It was the elder brother of the complainant Rafikbhai who had sustained severe injuries on all parts of body essentially on head. The motive behind this crime was that the deceased Rafikbhai Makwana had purchased a property in Vadvanera area and had constructed some shops and residences thereon. For one of the shops, the present respondent Valibhai Halari and his friend Ubed were threatening him to either carry out a document of transfer of one of the shops in their names or to give them Rs. 10 Lakh by way of extortion. When he did not pay any heed to the threats of theirs, he had been done away to death.

4. This Valibhai Haladithe respondent-accused when moved an application for regular bail under Section 439 of the Code of Criminal Procedure, he has been granted regular bail by the learned 4th Additional Sessions Judge, Bhavnagar. The Investigating Officer had made his affidavit, the statement of one Husainbhai Mohmmadbhai Makwana was also shown to the Court who had stated that three to four days before this respondent and one Raju Painter had called the deceased and his wife and his father to his office and had demanded extortion of Rs. 10 Lakh or to vacate the shop and also had threatened if he did not listen to them, it would be difficult for him to live, they did not file any complaint. The Court was also actuated by the Voice Spectrography Test and the sample of present respondent had not been taken. Considering the fact that for actual incident the present respondent was not present. Moreover, one of the accused Sajid @ Bawlo had already died and yet his name had been given. Actual name of the coaccused was Shahnawaz @ Shanu and another coaccused was not Jitubhai Gawabhai Rabari but Jitubhai Rameshbhai Rabari. Since there were two names where some change