ORDER :

1. The application is under Section 439 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘the Code’) for cancellation of bail and for quashing and setting aside of the order dated 07.01.2021 passed by the learned 15th Additional Sessions Judge, Rajkot in Criminal Miscellaneous Application No.2611 of 2020 whereby the learned Sessions Judge was pleased to allow the regular bail of the present respondent No.2. The impugned order shows that regular bail was granted in connection with the First Information Report bearing C.R. No.11208002202063 of 2020 dated 19.12.2020 registered with Aaji Dam Police Station, Rajkot City for the offences punishable under Sections 307, 326, 325, 324, 323, 506(2), 504, 143, 147, 148 and 149 of the Indian Penal Code and under Section 135(1) of the Gujarat Police Act.

2. Learned Advocate for the applicant Mr. K.S. Chandrani submits that the son of the deceased (first Informant) is the de-facto complainant and that prior to filing of the charge-sheet, the respondent No.2 was released on regular bail by the learned Sessions Judge on the ground that he was not present at the scene of offence and was at Civil Hospital, Rajkot and thereafter, at Naklank Hotel, Kalawad Road, Rajkot. It is further submitted that the plea which has been raised by the respondent No.2 at the stage of bail ought not to have been considered by the learned Sessions Judge since the investigation was still proceeding and the reliance on the plea of alibi for granting bail in a heinous offence which is imprisonment for life has led to grant of bail and the same is illegal and erroneous and deserves to be quashed and set aside. It is also submitted that the plea of alibi raised by the accused cannot be accepted simply on the words of the accused without there being any concrete evidence in this regard and thus, reliance placed by the learned Sessions Judge in appreciating the same to grant bail has led to an unjust and unfair order leading to miscarriage of justice.

3. Learned Advocate Mr. K.S. Chandrani submitted that the bail application preferred by the co-accused before and after the filing of the charge-sheet came to be rejected by the learned Sessions Judge and hence, the order granting bail to the respondent No.2 is contrary to the observations made in the orders rejecting the bail of the co-accused and therefore, the impugned order deserves to be quashed and set aside. It is further submitted that there are specific allegations in the First Information Report qua the respondent No.2 that he had caused injuries to the deceased with a stick and the same has been corroborated by the injured witnesses as well as the eye witnesses who state about the presence of the respondent No.2 at the place of offence and therefore, the order passed by the learned Judge is contrary to the investigation carried out since the charge-sheet has been filed against the respondent No.2 without any Report under Section 169 of the Code and therefore, the bail granted is required to be cancelled.

4. Further, exploring the facts of the case, it is submitted that the deceased was beaten with iron pipe, stick and other weapons by the respondent No.2 and others and therefore, the deceased suffered multiple grievous injuries all over the body and because of the injuries, he was under treatment from 19.12.2020 to 28.12.2020 as an indoor patient and thereafter, died on 18.01.2021. It is further submitted that during the course of investigation, the investigating officer recorded the further statement of the injured victims. One of the injured victims – Mayurbhai had disclosed the role of the respondent No.2. It is also submitted that the final opinion, as to the cause of the death of the deceased as given by the F.S.L., is on account of the injuries sustained by the deceased all over the body. Thus, it is submitted that the cause of death is directly attributed to the injuries caused by the respondent No.2 and other co-accus