( 1 ) RULE. The service of Rule is waived by Mr. U. R. Bhatt, ld. A. P. P. for the respondent-State.

( 2 ) HEARD Mr. B. M. Mangukiya, learned counsel appearing for the petitioners and Mr. U. R. Bhatt, ld. A. P. P. appearing for the respondent-State. This is an application for bail preferred under Section 439 of the Criminal Procedure Code by the petitioners-orig. accused nos. 1 and 2 for the offence registered vide C. R. No. I-10/2001 with the Mandal Police Station, Tal. Viramgam, Dist. Ahmedabad. The petitioners were arrested on 10th March, 2001 and since then they are under judicial custody. Both these petitioners alongwith other five accused persons are facing trial for the offences punishable under Sections 147, 148, 149, 302, 323, 324 and 506 (2) of the Indian Penal Code and Section 135 of the Bombay Police Act.

( 3 ) UNDISPUTEDLY this is the second - a successive application for bail. Earlier both these petitioners had applied for bail alongwith other co-accused persons before this Court by filing a Criminal Misc. Application No. 2446/2001. When the Bail Application was moved, no formal chargesheet was submitted by the Investigating Agency. However, when the petition was taken up for hearing, the chargesheet was tendered on 12th April, 2001 before the learned Judicial Magistrate First Class. The entire papers of investigation were brought before the Court on the day of hearing i. e. on 19th April, 2004, before the trial Court.

( 4 ) CONSIDERING the totality of facts and circumstances of the case emerging from the papers of investigation, the learned counsel appearing for the petitioners-accused did not press the bail plea qua the present petitioners and other co-accused were enlarged on bail on certain conditions. A copy of the order passed by this Court is produced with the present petition at Annexure-B pg. 14.

( 5 ) I have gone through the relevant documents including the order of rejection of bail as it was not pressed by both these petitioners and the order dated 16th January, 2004, passed by the learned Additional Sessions Judge, Viramgam, while dealing with the Misc. Criminal Application No. 4/04.

( 6 ) THE grievance of the present petitioners is that they have cooperated with the trial through out. However, for no fault on their part, there is no substantive progress in the trial but for certain reasons and circumstances beyond the control of the petitioners-accused, they are not able to see any light at the end of the tunnel and the protraction of the trial has led both the petitioners to frustration. It is submitted by Mr. Mangukiya that since trial was not progressing, the petitioners-accused were compelled to move an application before the learned Additional Sessions Judge, Ahmedabad. The order of rejection of bail plea is neither a speaking order nor legal, at least temporary bail could have been granted. It is further argued that the net effect of the rejection of the bail application is that the petitioners are languishing in judicial custody for the offence as if the petitioners have to undergo sentence, a pre-trial conviction. The prosecution has failed in conducting the trial in the reasonable period and the unreasonable period taken by prosecution in conducting trial has given rise to the second bail application under Section 439 of the Criminal Procedure Code, in the background of the Article 21 of the Constitution of India. In response to the query raised by the Court, Mr. Mangukiya has fairly accepted that at least the petitioners ought to have been granted bail for a fixed period and they are ready to surrender themselves to judicial custody on the day on which the statement under Section 313 of the Code of Criminal Procedure is recorded by the trial Court or immediately on the day of conclusion of the prosecution evidence. Though Mr. Mangukiya has attempted to submit the case on merit, the Court has refused to accept any such submission and the Court is not inclined to pass any comme