Prolonged incarceration and slow trial progress can justify bail even in serious criminal cases.

JUDGMENT

1. The present second bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner who is in judicial custody in connection with F.I.R. No.661/2014, Police Station Kotwali, District Pali, registered for the offence under Sections 341, 302, 307, 394, 420, 465, 471/120-B IPC and 3/25 of the Arms Act.

2. Heard learned counsel for the petitioner and learned Public Prosecutor as well as learned counsel for the complainant. Perused the material available on record.

3. Arguing on this second bail application, learned counsel for the petitioner stated that the first bail application of the accused- petitioner was dismissed on 16.06.2020. Learned counsel for the petitioner submits that the petitioner is in judicial custody since 28.01.2015 and therefore he is facing incarceration for more than 7 years and out of 63 witnesses, only 4 witnesses have been examined so far. He further submits that there is no possibility of the completion of the trial proceedings of the present case in near future. Learned counsel also submits that the petitioner cannot be kept behind the bars for years together. Learned counsel submits that in the case of Union of India V/s K. A. Najeeb (Criminal Appeal No.98/2021 [Arising out of Special Leave Petition (Crl.) No.11616/2019] Decided on 01.02.2021), the Hon'ble Supreme Court has enlarged the accused on bail on the ground that the trial is not likely to be completed in a short duration and the petitioner had already suffered incarceration for more than 05 years. Learned counsel has further submitted that benefit of bail has been granted in identical cases by co-ordinate Bench of this Court in case of Dalpat Singh v. State of Rajasthan (S.B. Criminal Misc. 2nd Bail Application No.1257/2021, decided on 25.01.2022 and Om Prakash Yadav v. Union of India (S.B. Criminal Misc. 2nd Bail Application No.16122/2021, decided on 12.01.2022. Learned counsel for the petitioner, therefore, submits that the petitioner may be enlarged on bail and whatever the consequences of the trial will be, he will face the same. It is, therefore, prayed that the petitioner may be enlarged on bail.

4. Learned Public Prosecutor as well as learned counsel for the complainant are not in a position to controvert the submissions made by the learned counsel for the petitioner and the fact of the petitioner having suffered incarceration for more than 7 years is not disputed.

5. I have considered the submissions made at the Bar and gone through the requisite documents placed before this Court. The fact that the petitioner has suffered incarceration for more than 7 years is not disputed and out of 63 witnesses, only 4 witnesses have been examined till date. The Hon'ble Supreme Court in the case of Union of India V/s K. A. Najeeb(Supra) held as under :-

"14. We may also refer to the orders enlarging similarly-situated accused under the UAPA passed by this Court in Angela Harish Sontakke V. State of Maharashtra. That was also a case under Sections 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39 and 40(2) of the UAPA. This Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years' incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43D(5) of UAPA. Similarly, in Sagar Tatyaram Gorkhe V. State of Maharashtra, an accused under the UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined.

19. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondents 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 b