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3. This application for cancellation of bail has genesis in one FIR being CR No. I 5 of 2005 filed by one Abdul Rehman, a Police Officer, who was a member of the Special Investigating Party formed at Udaipur, Rajasthan to investigate into various offences registered against one Sohrabuddin. As per the above FIR, one Sohrabuddin, son of Anwaruddin Shaikh, resident of Zaraniya, Nagda, Madhya Pradesh, who was accused of offences punishable under Sections 120(b), 121, 121A, 122, 123, 307, 186, 224 of the Indian Penal Code, under Sections 25(1)(b) and Section 27A of the Arms Act and under Section 135(1) of the Bombay Police Act. In the above FIR it is alleged that the above accused (Sohrabuddin) was acting at the behest of ISI to spread the terror and to disturb the unity and integrity of the country and also entered into conspiracy by possessing arms and ammunition so as to kill one of the big leaders of the State of Gujarat and when asked to surrender by the police party, fired from his revolver and attempted to kill them.

5. As per the charge sheet and the statements of witnesses, the role played by the respondent is that the respondent is a qualified doctor having degree of M.D. (DGO) and had also worked as a Civil Surgeon with State of Gujarat. The headache for the ATS team was Kausarbi, who witnessed the fake encounter of Sohrabuddin. Therefore, the team decided to do away with Kausarbi. As per the statement of Shri V.A.Rathod, Police Inspector, he was in the tempo carrying the woods along with Shri Nathubha, driver and from Chiloda circle, the tempo was asked to follow one jeep belonging to ATS and was driven by co-accused, Inspector, Shri Chaube was accompanied by one another person sitting in a jeep. These two vehicles joined by another vehicle from Himatnagar, which was occupied by DIG, Shri Vanzara and SP, Shri Rajkumar Pandian. Under the instructions of Shri Vanzara, bundles of grass were lifted from the adjoining farm and loaded in a tempo. Thereafter all these vehicles proceeded towards isolated forest area and when they reached the riverbed of Dhavdi, the tempo got struck. Attempts to bring out the tempo failed. At that time, Dy. S.P., Shri Amin had alighted from the jeep driven by Shri Chaube. As per the statement of Nathubha, he took a tempo filled with wooden logs at Chiloda circle and at that time co-accused, Inspector, Shri Chaube was present at Chiloda circle in a jeep. Shri Nathubha states that as the tempo could not come out, the higher officer decided to burn the dead body of Kausarbi at that place only and therefore accordingly burnt the dead body of Kausarbi and two accused collected the remains of the body and left for destroying the same. Thereafter, DIG, Shri Vanzara, Shri Rajkumar Pandian and the respondent returned to Ahmedabad in Maruti Zen whereas Shri V.A. Rathod and Shri Nathubha were dropped at Himmatnagar to find out of crane to remove the tempo which was struck in river Dhavdi.

16. Dr. Mukul Sinha, learned Counsel appearing for the original intervener-complainant-Rubabuddin vehemently submitted that the respondent being a police officer, a protector and duty bound to prevent the crime himself is involved in a grave offence itself is sufficient to deny bail to the respondent. Dr. Sinha further submits that the order of learned Judge granting bail is illegal per se inasmuch as irrelevant considerations have weighed in the form of antecedents of victim-Sohrabuddin and registration of 25 FIRs against him and orderly action of respondent as police officer in preventing the crime against the society and subjecting such offices to humiliation and harassment. Dr. Sinha further submits that the respondent herein is involved in heinous crime and comparison of prima facie in nature while granting bail is thoroughly unwarranted and the present case is required to be appreciated from that angle. Dr. Sinha further submits that Sohrabuddin is a victim of crimes committed by the respondent and, therefore also, above comparison ought not have been made while hearing the case of the prosecution about the theory of conspiracy on the basis of material on record. Dr. Sinha submits that retraction of statement of Nathubha Jadeja can be adjudged at the stage of trial and not at the stage of bail. Dr. Sinha also relied on one complaint registered against respondent herein for involvement in serious offence. Of course, the same is controverted by learned Counsel for the respondent and submitted that after full-fledged inquiry respondent herein came to be exonerated.

c. When the corpse of Kausarbi was cremated, presence of the respondent officer is established by the statement of witnesses.

d. Retraction of the statement of Shri Nathubha or any other statement by any other person is to be considered at the stage of Trial as laid down by the apex court in case of State Through C.B.I. v. Amarmani Tripathi .

e. Irrelevant comparison about lodgment of 25 FIRs for various serious offences against Sohrabuddin and meritorious service of the respondent-Officer by the learned Judge amounts to extraneous consideration.