The gravity of the charges, the interest of society, and the likelihood of the accused being available for trial are crucial factors in deciding bail applications.

ORDER :

1. The present second successive bail application is filed under Section 439 of the Code of Criminal Procedure, 1973 ('Code' for short), for regular bail in connection with FIR being C.R. No.I-100/2018 registered with Kalol Taluka Police Station, Gandhinagar for offences under Sections 302, 120(B), 34, 147, 148 and 149 of the Indian Penal Code ('IPC' for short) and Section 135 of the Gujarat Police Act.

2. The crux of the FIR is as under,

The accused persons in connivance with each other, keeping grudge about the dispute going on between the community of Hindu and community of Muslim, have hatched conspiracy and assaulted one Ashokbhai Ranchhoddas Patel with sharp cutting weapons and hard substance on head and left leg and thereby caused severe injuries and because of which, he succumbed to the same and thereby the accused have committed alleged offences.

In connection with the aforesaid FIR, the investigation was carried out and during the course of investigation, the concerned IO submitted report for addition of Sections 147, 148 and 149 of the IPC and on conclusion of the investigation, the chargesheet came to be filed for the offences under Sections 302, 120(B), 34, 147, 148 and 149 of the Indian Penal Code and Section 135 of the Gujarat Police Act.

3. Heard learned advocate, Mr. Hardik Barot for the applicant and learned APP Mr. Dhawan Jaiswal for the respondent - State.

4. Learned advocate for the applicant has referred to the averments made in the memo of application and submitted that the applicant was arrested in connection with the aforesaid FIR and, thereafter, he filed Criminal Misc. Application No.1497/2019, however, when this Court was not inclined to entertain the said application, the same was withdrawn on 19.07.2019 and, thereafter, the applicant filed another application under Section 439 of the Code being Criminal Misc. Application No.1740/2020 and this Court vide order dated 04.02.2020 dismissed the said application, copy of said order is placed on record at Page No.18. At this stage, learned advocate submitted that as against the said order passed by this Court, the applicant filed SLP No.4736/2020 before the Hon'ble Supreme Court and the Hon'ble Supreme Court, vide order dated 08.03.2021, dismissed the said SLP filed by the applicant, however, it was observed in the said order that the trial court will make an endeavour to expedite the trial. It was also observed that the petitioner (applicant) was, however, at liberty to approach the trial court for the grant of bail at an appropriate stage.

5. Learned advocate, thereafter, submitted that the prosecution has till date examined 23 witnesses out of 61 witnesses, however, thereafter as other six other co-accused out of total 13 accused, have jumped the bail when they were released on temporary bail, they are not available for the purpose of trial before the concerned trial court and, therefore for the said reason, the trial court is not in a position to proceed further with the trial. It is submitted that the applicant is in jail since last more than four years and, therefore on this ground, he may be enlarged on bail.

6. Learned advocate further submitted that certain prosecution witnesses have not supported the case of the prosecution and they have turned hostile. Learned advocate, more particularly, referred to Paragraph No.8 of the memo of application. Learned advocate, therefore, urged that when certain prosecution witnesses have not supported the case of the prosecution, the said aspect be considered at this stage while deciding the present application filed under Section 439 of the Code.

7. Learned advocate has placed reliance upon the decision of this Court in case of Kanti Sardul Bharvad Vs. State of Gujarat, reported in 2004 (4) Crimes 407 and submitted that in case of the concerned accused, who was also charged with the offences punishable under Section 302 of the IPC, when there was no substantial progress in the trial, this Court released the co