Judgment :

T.S. THAKUR, J.

1. This special leave petition arises out of an order dated 11th December, 2008 passed by the High Court of Gujarat at Ahmedabad whereby Special Criminal Application No.638 of 2008 filed by the petitioner- Babubhai Bhimabhai Bokhiria has been dismissed and order dated 29th March, 2008 passed by the Additional Sessions Judge, Porbandar affirmed. The Additional Sessions Judge, Porbandar had by the said order summoned the petitioner as an accused person in exercise of his power under Section 319 of the Cr.P.C. in Sessions Case No.5 of 2007 for offences punishable under Sections 302, 201 read with Sections 34, 120-B, 465, 468 and 471 of the Indian Penal Code, Section 25 of the Arms Act and Section 135 of the Bombay Police Act.

2. The incident that provides the genesis of the case aforementioned took place on 16th November, 2005 in which one Mulubhai Modhwadiya was gunned down resulting in registration of Criminal Case No.1 170 of 2005 at Kamlabaug Police Station, Porbandar for the offences mentioned earlier. Upon completion of the investigation, the jurisdictional police filed a charge sheet on 15th February, 2006 before a Magistrate who committed the same to the Sessions Court to be registered as Case No.5 of 2007.

3. The police charge-sheet cited a large number of witnesses out of whom as many as 134 have been examined by the prosecution. It was, at this stage, that an application was filed by the son of the deceased on 17th March, 2008 in which the applicant prayed for adding the petitioner-Babubhai Bhimabhai Bokhiria as an accused in exercise of the Courts power under Section 319 of the Cr.P.C. The Sessions Judge allowed the said application and added the said Shri Babubhai Bhimabhai Bokhiria as a co- accused in the case vide order dated 29th March, 2008. Aggrieved by his addition as an accused the petitioner preferred Special Criminal Application No.638 of 2008 before the High Court of Gujarat which, as noticed earlier, has been dismissed by the High Court in terms of the order impugned in this special leave petition.

4. When the special leave petition came up before a Bench comprising of P. Sathasivam and H.L. Dattu, JJ., this Court referred the matter to a larger Bench in view of a similar reference made in Hardeep Singh v. State of Punjab (AIR 2009 SC 483). The Court at the same time granted permission to the accused persons to move an application for bail before the competent Court. The matter then came up before a Bench of three Judges who formulated five different questions and referred the same to a Constitution Bench, for an authoritative pronouncement.

5. Criminal Miscellaneous Petition No.24292 of 2011 was at that stage filed by the applicant-Veja Prabhat Bhutiya in which he prayed for his addition as a party to the present proceedings and for vacation of order dated 17th December, 2008 by which further steps in the case were stayed. In the alternative the applicant prayed for grant of bail to him. By an order dated 8th December, 2011 a three-Judge Bench of this Court allowed the prayer for impleadment but directed that the prayer for grant of bail be considered by the regular Bench. That is precisely how Criminal Miscellaneous No.24292 of 2011 seeking vacation of the stay order and/or grant of bail and Criminal Miscellaneous No.20502 of 2008 filed by the petitioner in the special leave petition has come up before us for hearing.

6. Appearing for the applicant Mr. U.U. Lalit, learned Senior Counsel, strenuously argued that the applicant has been in custody for over six years. Even so there are no prospects of the Constitution Bench taking up the reference in the near future which implies that unless this Court either vacates the said order passed on 17th December, 2008 or grants bail to the applicant, there is no chance of the applicant or other persons who are similarly languishing in jail for years seeing the end of their trial and resultant agony. It was also urged that although the spec