IMPORTANT POINT
The right to a speedy trial under Article 21 of the Constitution is paramount, and prolonged custody without trial can warrant the granting of bail.

JUDGMENT :

Vikas Bahl, J.

1. This is the second petition under Section 439 Cr.P.C. for grant of regular bail to the petitioner in FIR no. 58 dated 06.02.2019 registered under Sections 302, 120-B, 34 IPC and Section 25 of the Arms Act at Police Station City Bahadugarh, District Jhajjar.

2. Learned counsel for the petitioner has submitted that the petitioner has been in custody since 08.07.2019 and there are 39 witnesses, out of which, none have been examined and thus, the trial is likely to take time and has submitted that on the ground of long custody alone, the petitioner should be granted the concession of regular bail as any further incarceration would be violative of the right of the petitioner enshrined under Article 21 of the Constitution of India. It is further submitted that earlier bail application was filed by the petitioner which was dismissed as withdrawn on 21.11.2022 with liberty to file a fresh petition after giving full and better particulars and thus, in fact the present regular bail application is the first regular bail application filed by the petitioner. It is argued that the petitioner is not named in the FIR and even in the supplementary statement of the complainant Vikas, he had not named the present petitioner but had named one Sushil son of Rajesh, Bijender son of Ramesh and Sachin son of Dulhera and out of the said persons, Sushil and Bijender have been granted regular bail. It is submitted that the petitioner has been implicated on the basis of disclosure statement of the co-accused. Learned counsel for the petitioner has relied upon various orders of the Hon’ble Supreme Court, wherein, solely on the basis of the custody, the concession of bail has been granted.

3. Learned State counsel, on the other hand, has opposed the present petition for regular bail and has submitted that the present case relates to the murder of Ajay and the petitioner along with other co-accused have, as per the case of the prosecution, committed the said murder. It is argued that recovery of .32 bore pistol from Meerut has been recovered from the petitioner on 23.08.2019 and that the petitioner is a habitual offender and is involved in other cases. Other facts have however not been disputed.

4. Learned counsel for the petitioner in rebuttal has submitted that even as per the latest affidavit dated 18.02.2024 submitted by the Deputy Superintendent of Police, Bahadurgarh, in spite of lapse of more than 5 years, the weapon allegedly used by the present petitioner has not been transferred from that case from which the said weapon was recovered and there is no Ballistic/FSL report to show that the weapon allegedly recovered from the present petitioner was the one used in the present offence.

5. This Court has heard the learned counsel for the parties and has perused the paper book.

6. The petitioner has been in custody since 08.07.2019 and out of 39 witnesses, none have been examined and thus, the trial is likely to take time. The petitioner is not stated to be named in the FIR and a perusal of paragraph 4 of the order passed by the Additional Sessions Judge, Jhajjar would show that supplementary statement of complainant Vikas was recorded wherein he had named Bijender, Sushil, Sachin and others to be behind the murder of Ajay. It is not in dispute that Sushil and Bijender have been granted regular bail. The petitioner is stated to be implicated on the basis of statement of co-accused and the recovery of .32 bore from Meerut is stated to have been recovered from him on 23.08.2019. In the affidavit dated 18.02.2024, the Deputy Superintendent of Police has stated as under:

“14. That the weapon used by the present petitioner in the present offence could not transferred from the afore said cases pending against the present petitioner in Distt. Meerut, U.P. and hence no Ballistic report/FSL report of weapon used by the present petitioner in the present offence is available.”

7. Keeping in view the long custody of the present petitioner, any fu