Delay in trial and prolonged incarceration can be grounds for granting bail, as observed in previous court decisions.

JUDGMENT

1. The petitioner has been arrested in connection with FIR No. 71/2017 of Police Station Mahamandir, Jodhpur for the offence punishable under Sections 302, 201, 304B, 498A/34 IPC. He has preferred this fourth bail application under Section 439 Cr.P.C.

2. Counsel for the petitioner submits that while rejecting the third bail application, this court vide order dated 22.11.2021 directed the trial court to conclude the trial preferably within a period of six months from the date of receiving certified copy of the order. Counsel submits that the present petitioner is inside the jail since 26.02.2017 i.e. for last more than five and half years and trial is yet pending. He submits that till now, only 13 witnesses have been examined before the trial court out of total 41 witnesses. Counsel further submits that the trial proceedings are not being concluded on account of failure of the witnesses in appearing before the trial court. In such circumstances, the benefit of bail may be granted to the accused-petitioner.

3. Learned Public Prosecutor has opposed the bail application. Heard and considered arguments advanced by learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

4. This court had requisitioned progress report from the trial court which has been received and as per report, statement of only 13 witnesses have been recorded out of total 41 witnesses.

5. The Hon'ble Supreme Court in the case of Tapan Das v. Union of India (Special Leave to Appeal Crl. No.5617/2021, decided on 07.10.2021) has observed as under :-

"Taking into consideration the fact that the petitioner is reported to be in custody since 16.10.2017 and has, thus, suffered incarceration for around 4 years and there is no likelihood of completion of trial in the near future, which facts are not controverted by learned Additional Solicitor General appearing for the Union of India during the course of hearing, we are inclined to grant bail to him."

6. The Hon'ble Supreme Court in another case of Union of India v. K.A. Najeeb in Criminal Appeal No.98 of 2021 (arising out of Special Leave Petition (Crl.) No.11616 of 2019) held as under:-

"18. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statute as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings. Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

19. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected."

It is further noteworthy that the co-ordinate Bench of this Court in the case of "Sunil v. State" (S.B. Criminal Miscellaneous 4th Bail Application No.4024/2022) granted bail to the accused- p