Bail applications must consider the distinct roles of accused individuals, particularly in serious crimes, prioritizing gravity and witness safety over parity or prolonged incarceration.

ORDER :

Mohammad Nawaz, J.

This petition under Section 483 of BNSS , 2023 is preferred by accused No.5, to enlarge him on bail in SC No.47/2021 pending on the file of VI Additional District and Sessions Judge, DK, Mangaluru, arising out of Cr.No.38/2020 of Mulki Police Station, Mangalore City.

2. Heard the learned Senior counsel Sri P.P.Hegde appearing for the counsel on record for petitioner, Ms. Asma Kousar, learned Addl. SPP for the State and perused the material on record.

3. At the out set, it is relevant to mention that this is the fifth petition in which the petitioner is seeking bail. On three occasions, bail petitions were withdrawn and one more petition was dismissed for non-prosecution.

4. This petition is presented seeking grant of bail to the petitioner, mainly on the ground of parity and long incarceration of the petitioner in custody. Further, on the ground that the witnesses examined before the trial Court have not divulged the role of the petitioner etc.

5. The contention of the learned Senior counsel can be summarized as under:

i. Out of the 10 accused chargesheeted, accused Nos.1, 6, 7, 9 and 10 are already enlarged on bail, out of them, accused No.7 is similarly placed as accused No.5, petitioner herein, against whom overt acts are attributed.

ii. Out of 78 chargesheet witnesses, 31 witnesses are examined. Remaining witnesses are largely formal and police witnesses. Thus, no material witness remains to speak against the petitioner and therefore, his further custodial detention is wholly unwarranted.

iii. There is an inordinate delay in completion of trial. Petitioner is in judicial custody from 6.6.2020, for more than five years. His prolonged incarceration amounts to violation of his fundamental right to speedy trial under Article 21 of Constitution of India.

6. The learned Senior counsel has placed reliance on a judgment of the Apex Court reported in 2024 SCC Online SC 1693 in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another , pressing into service para-19 of the said judgment, which is extracted hereunder:

"19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime."

7. Apart from the above grounds, the learned Senior counsel would also contend that the petitioner is innocent of the alleged offence and he has been falsely implicated in the case and even if the testimony of the eyewitnesses is taken into consideration, their statements are contradictory and inconsistent insofar as the petitioner is concerned.

8. Learned Addl. SPP has argued as under:

i. The offences alleged are grave and heinous in nature, involving in a brutal assault on the deceased. Petitioner is one of the assailant, who stabbed the deceased with a knife and assaulted with soda bottle and also caused grievous injuries to one of the eyewitness.

ii. CWs.1 to 4 are the eyewitnesses, out of them CWs.2 and 3 are the injured witnesses. Their statements clearly reveal the role of the petitioner. The said witnesses examined before the trial Court as PWs.2 to 5 have supported the case of prosecution.

iii. Petitioner is not similarly placed as the accused who are granted bail, hence, he is not entitled for bail on the ground of parity, as his role is distinct and graver. iv. The CCTV footage clearly depicts the overt act of the petitioner in assaulting the deceased and the i