JUDGMENT :

1. Heard learned Advocate Mr. Hriday Buch on behalf of the applicant and learned APP Mr. Ronak Raval on behalf of the respondent-State, learned Advocate Mr. Rathin P. Raval on behalf of the respondents no. 2 and 3.

2. Issue Rule returnable forthwith. Learned APP Mr. Raval as well as learned Advocate Mr. Raval on behalf of the respondents no. 2 and 3 waive service of rule on behalf of the respondent-State and respondents no. 2 and 3 respectively.

3. With consent of the parties, the present application is taken for final decision.

4. By way of this application, the applicant challenges order dated 19.08.2021 passed by the learned Additional Sessions Judge, Rajula in Criminal Miscellaneous Application No. 164 of 2021 whereby the present respondents no. 2 and 3 who are original accused no. 1 and 4 have been enlarged on regular bail.

5. It is the case of the applicant that the applicant herein was the first informant in FIR no. 11193024201046 of 2020 registered with the Jafrabad Police Station, Amreli on 16.11.2020 for offences punishable under Sections 302, 323, 504, 34, 143, 147, 148, 149 of the Indian Penal Code and Section 135 of the Gujarat Police Act. The allegation as leveled in the FIR is that the first informant, on the date of the incident at around 10:30 pm had received an information that his brother Bharat was involved in quarrel where upon first informant rush to the spot in the village where he found that his brothers Bharat as well as Sachin were being assaulted by the accused, five accused as named in the FIR, the present respondents no. 2 and 3 being the accused no. 1-4. The first informant further alleges that brothers of the first informant, more particularly, his brother Bharat was being assaulted by the accused with sticks and whereas the first informant and his brother Sachin had tried to intervene whereupon even they had been assaulted by the accused. It appears that the said Bharat, had been taken to a nearby hospital where he had been declared dead. Thus, alleging the First Information Report came to be filed. Investigating Officer had filed the charge sheet arraigned all the five accused on 30.01.2021.

6. Learned Advocate Mr. Buch on behalf of the applicant would submit that originally accused no. 2, 3 and 4 had preferred Criminal Miscellaneous Application No. 28 of 2021 before the learned Sessions Court, Amreli at Rajula and whereas vide an order dated 02.03.2021, the learned Sessions Court had been pleased to reject such application. Learned Advocate Mr. Buch would submit that the said order has been challenged by the applicants therein, accused no. 2 to 4 before this Court by preferring Criminal Miscellaneous Application No. 5703 of 2021 and whereas learned Co-ordinate Bench of this Court vide an order dated 09.08.2021 had permitted the applicants therein to withdraw the said application with liberty to file afresh before the learned Court below after the depositions of eye witnesses namely Mr. Sachin, Mr. Karan, Mr. Anil and Mr. Deva, which depositions are stated to be recorded by the learned Sessions Court.

6.1. Learned Advocate Mr. Buch would submit that in spite of the application for regular bail of the accused no. 2, 3 and 5 not being entertained by the learned Sessions Court and such order being not interfered by this Court, learned Sessions Court vide the order impugned, had released the present respondents no. 2 and 3 i.e. the accused no. 1 and 4 on regular bail vide order dated 19.08.2021. Learned Advocate Mr. Buch would take this Court through the reasonings of the learned Sessions Court and whereas it is submitted by learned Advocate Mr. Buch that the reasonings, by the learned Sessions Court reflect complete non-application of mind by the learned Sessions Court. It is submitted that the first informant is stated not to have witnessed the incident and whereas from a bare reading of the First Information Report it becomes clear that the first informant was a witness. It is also mentioned