STATE OF GUJARAT Vs. MADHUBHAI BHIMABHAI MER

JUDGEMENT

(1.) THE original complainant � Jetubhai Naranbhai Vaghosi filed Criminal Misc. Application No. 10805 of 2012 under the provisions of Section 482 read with Section 439(2) of the Code of Criminal Procedure, 1973 ("the Code" for short) before this Court whereby challenged the Order dated 11.7.2012 passed by the learned Second Additional Sessions Judge, Bhavnagar, in Criminal Misc. Application No. 421 of 2012, releasing the respondents No. 1, 2 and 3 on regular bail. The said application came to be entertained by this Court by issuing notice to the respondents accused on 31.7.2012 which was made returnable on 24.8.2012. During the pendency of the said application, the State of Gujarat also challenged the said order passed by the learned Sessions Court, Bhavnagar, releasing the respondents No. 1, 2 and 3 on regular by way of filing Criminal Misc. Application No. 12924 of 2012 under the provisions of Sections 439(2) read with Section 482 of the Code. This Court issued Rule in the matter on 7.9.2012 which was made returnable on 21.9.2012. Pursuant to which, the respondents � accused appeared in the matter through their learned Advocate. Since challenge in both the aforesaid applications is against the same order, these matters are ordered to be heard together. Respondents � accused have filed their Affidavit-in-reply in Criminal Misc. Application No.12924 of 2012 filed by the State of Gujarat on

(2.) HEARD learned APP Ms. Jirga Jhaveri for the State of Gujarat, Mr. K.B. Anandjiwala, learned Advocate appearing for the original complainant and learned Advocate Mr. N.K. Majumdar assisted by learned Advocate Mr. Khambhoja for the accused.

(3.) THE grievance made by the State of Gujarat as well as the original complainant is that the learned Additional Sessions Judge, Bhavnagar, has not assigned any reasons for releasing the respondents on regular bail in a serious offence of murder. It was argued that the learned Sessions Judge has erred in accepting the say of the original accused No.1 Madhubhai Bhimabhai Mer of his alibi, when alibi is yet to be established. The defence of alibi can be established by the accused only by examining the defence witnesses. Even otherwise, the alibi is treated as weak piece of evidence and unless the same is proved by the accused, the court has to prima facie decide about the involvement of the accused. It was further argued that the complaint which was lodged immediately after the incident wherein the name of original accused No.1 was given by the complainant and when other two eye witnesses have also named this accused in their statements recorded under Section 161 of the Code, in absence of any material, the learned Sessions Judge ought not to have accepted the say of the accused No.1 about his defence of alibi. It was further argued that the learned Sessions Judge has referred to several judgments in the impugned order but he has not even examined or referred the allegations made in the FIR as well as the allegations made by the eye witnesses who have involved all these accused in the crime and have attributed the role played by each of them.