The right to speedy trial under Article 21 of the Constitution is fundamental, and bail is the rule while jail is the exception, especially when trial has not commenced for an extended period.

JUDGEMENT :

[MILIND N. JADHAV, J.]

1. Heard Mr. Talreja, learned Advocate for Applicant and Ms.Yadav, learned APP for Respondent – State.

2. This is an Application under Section 439 of the Code of Criminal Procedure , 1973 (for short “Cr.P.C.”) seeking Regular Bail in connection with C.R. No.130 of 2018 registered with Waliv Police Station, Palghar for the offence punishable under Section 302 read with 34 of the Indian Penal Code , 1860 (for short “ IPC ”).

3. Applicant is arrested on 13.02.2018 and has been in custody for almost 7 years till date. His several Bail Applications before the Sessions Court have been dismissed previously. After the present Application was filed, Applicant did not have representation and sought legal aid. Advocate Mr. Ajay Talreja is appointed to represent and espouse the cause of Applicant. He would draw my attention to the FIR appended at page No.9 of the Application and would contend that it is borne out from the record that the 3 Accused namely Accused No.1 Mohd. Karim Alias Kalim, Accused No.2 – Sainath Anil Devkar and Accused No.3 – present Applicant Guddu Soubhan Harijan had a previous enmity with the victim and had called him at the incident spot ukyk which is a public place near the nullah ( ) on the intervening night of 12.02.2018 and 13.02.2018. The victim went to the incident spot and there was a quarrel which ensued between the 3 Accused on one side and the victim on the other side. The quarrel and altercation escalated to such an extent that Accused No.2 held the victim with his hands, Accused No.1 poured kerosene on the victim and the present Applicant i.e. Accused No.3 lit and ignited matchstick and threw it on the victim who was drenched with kerosene resultantly leading to the victim suffering 90 – 95% severe burn injuries. Victim was alive for and admitted to hospital and succumbed to his injuries on the following day in the hospital during which period, 3 dying declarations were recorded.

4. Mr. Talreja would persuade me to consider those dying declarations in order to drive home the fact that apart from the material contradictions therein he would contend that the victim was known to the 3 Accused and it is clearly borne out there was previous enmity and a previous quarrel which were the precursor incidents to the present incident in question.

5. He would submit that the ghastly act of the present incident has undoubtedly taken place and the law as also the trial will take its own course. He would persuade me to consider the long incarceration of the Applicant for almost 7 years vis-a-vis the conduct of the trial.

6. Mr. Talreja has also drawn my attention to the fact that the Applicant is married and having two children. His wife and his two children are residing in Village Belachi Pada, Waliv, Taluka Vasai, District Palghar. He would submit that he is also survived by his parents who are residing in village Navapur, Subhashchandra Nagar, District Nandurbar. He would persuade the Court to consider the Applicant’s case on parity considering that according to the prosecution case as also evidenced from the dying declarations, the role of Accused No.3 in the present crime being equal to the other 2 Accused, his role cannot be segregated to put it up on a higher pedestal. He would submit that in that view of the matter this Court be pleased to apply the principle of parity considering that the trial has not commenced till date.

7. Ms. Yadav, learned APP appearing for the prosecution would in her submissions submit that the accused has committed gruesome act but on the issue of trial she would submit that the trial has not commenced. She would