1. The only question involved in this Criminal Revision whether the order releasing the respondents who are facing trial on the charge of murder is an abuse of the process of the court.

2. The facts of the case in brief are these. One Pawan Kumar was killed on 23-11-1997. A Police Challan was produced against the accused-respondents on 09-02-1998 charging them with the murder of said Pawan Kumar. The Additional Sessions Judge, Jammu found them prima facie guilty of murder and framed charges punishable under section 302/149/148/323 RPC against them on 25-09-1998. While the evidence was being recorded, the accused-respondents applied for release on bail. The learned trial court allowed the application by its order dated: 19-05-2000 on the sole and the only ground:-

"That this court in a case S. Ajit Singh Vs. State of J&K, Cr. L.J. 2000 (J&K) 343, has granted bail to the accused because of the delay on the part of prosecution to produce its evidence and the facts being identical, the ratio is applicable."

3. Mr. Sharma, learned Govt. Advocate, appearing for the State argued that the order of the trial court is illegal because the offence of murder being punishable with death or life imprisonment, bail could be granted only if the accused was under the age of sixteen at the time the offence was committed or is a woman or a sick person. Since bail has not been granted on any of these grounds, the order, argued the learned counsel is liable to be set aside and the bail bonds cancelled. The contention of Mr. Bhushan appearing for the accused-respondentsis that the order impugned being an interlocutory, revision is not maintainable in view of the bar of sub-section 4 (a) of section 435 Cr. P.C. He also argued that the trial court having exercised the discretion, the same should not be interfered when the trial is nearing conclusion as only statements of two or three remain to be recorded.

4. The first question is whether the decision of this court in S. Ajit Singh (supra) is a law declared which has to be followed. It is para 7 of the judgment on which reliance has been placed by the trial court which reads as under:-

"7. In the background of this case, as well as on account of circumstances explained hereinabove, this court is constrained to observe that non-examination of witnesses after having been allowed numerous opportunities does not justify the continuance of the petitioner to be kept in custody during the pendency of the trial. Especially when no reasonable muchless justifiable cause has been made out from the record for non-examination of its evidence by the prosecution."

These observations are in the particular facts and circumstances of the case and as such it is not in every case of delay that such a conclusion can be drawn. It is not even an obiter-dicta required to be followed by the subordinate courts. After reproducing this para, the trial court concluded as under:-

"11. This is amply clear from the above that the accused persons cannot be allowed to suffer incarfenation in the jail on account of the fact that despite numerous opportunities the prosecution has unjustifiably failed to examine any witness other than the ones mentioned herein, details whereof have been given in the application on behalf of the accused-applicant."

5. It appears the trial court was not made aware of the judgment of the Supreme Court in Raj Deo Sharma Vs. State of Bihar, AIR 1998 SC 3281, wherein specific directions have been given to the trial courts regarding the manner the trial is to proceed in case where the persecution fails to complete evidence within the specified period. Now whether delay in producing evidence could be a ground for releasing the accused involved in a murder case on bail will depend upon either the scope of section 497 or the application of the directions given by the Supreme Court. It is, however, made clear that the observations of the trial court that "It is the bail not jail which is the rule and exception is to re

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