IMPORTANT POINT
The judgment established the principle that the right to individual liberty must be balanced with the interest of society, especially when there is prolonged detention without commencement of trial and limited evidence against the accused.

JUDGMENT :

J.C. DOSHI, J.

1. Rule. Learned APP waives service for the Respondent-State and learned Advocate, Mr. Das, waives for Respondent No. 2 the original complainant.

1.1 By way of the present appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the ‘Act of 1989’) the appellant-original accused has prayed to release him on regular bail in connection with FIR being C.R. No. 11993010200842 of 2020, registered with Rapar Police Station, Kachchh, under Sections 302 and 120B of the Indian Penal Code, Section 135 of the G.P. Act and Section 3(2)(v) of the Act of 1989.

2. The brief facts of the case of the prosecution are that the husband of the first informant, namely Devjibhai Maheshwari, was an advocate by profession. The deceased-Devjibhai accepted the brief of Luhar Samajwadi, which no other advocate was willing to take-up, due to the fear of original accused Nos. 2 to 9. It is, further, stated in the FIR that the deceased-Devjibhai had been trying to get registered an FIR for several days before his death, but, police was not registering the same. According to the first informant, when the accused persons did not succeed in persuading the deceased-Devjibhai to retire from the matter, they hatchedup a conspiracy and committed his murder. Hence, the FIR in question came to be lodged for the offences, as noted in Paragraph-1, hereinabove.

3. Heard, learned Advocate, Mr. Dagli, appearing for the appellant, learned Advocate, Mr. Das, for the first informant and the learned APP for the Respondent-State.

4. Learned advocate, Mr. Dagali, appearing for the appellant submitted that he is behind bars since 27.09.2020. It was submitted that the charge-sheet came to be filed on 21.12.2020 and though, the charge also has been framed, the trial has not commenced yet and not a single witness is examined, till date, as the first informant, who happens to be the wife of the deceased Devjibhai Maheswari, is not cooperating in conducting trial.

4.1 It was submitted that as many as 66 witnesses have been cited in the charge-sheet and not a single witness is examined, so far. Therefore, it was submitted that it will take long in completing the trial.

4.2 It was submitted that the appellant has been in jail since long and as the trial has not even commenced, the liberty of the appellant is at stake.

4.3 It was submitted that there is no eye-witness of the alleged offence and that the role of the petitioner is carved out only on the basis of the CCTV footage. However, it was submitted that the face of the person, caught in the CCTV footage, is not visible and that, there is no proper investigation done with regard to the said CCTV footage.

4.4 It was submitted that, initially, the FIR was filed against as many as nine persons, including the present appellant. But, later on, the other persons were dropped from the charge- sheet by describing them as only suspects and the chargesheet is filed only qua the present appellant.

4.5 The attention of this Court was drawn to the order dated 19.05.2023, passed by the learned 2nd Addl. Sessions Judge, Bhachau, Kachchh, in Criminal Misc. Application No. 244 of 2023, more particularly, the observations made at internal Page-4 thereof, which reads as under:

“The applicant/accused preferred this bail application because, the trial is not proceeding further as complainant is not ready to proceed in this case. It is important to note that the regular bail to the applicant/accused is rejected by this Court as well as by the Hon’ble High Court of Gujarat. It is also fact that the Special Criminal Application No. 8999/2020 is pending before the Hon’ble High Court of Gujarat. So, looking to the peculiar facts and circumstances of this application, the subject matter about the investigation is pending before Hon’ble High Court of Gujarat so this Court as a subordinate court should be slow to proceed further in the case. The applicant/accused is not entitled for a r