K.L. Shrivastava, J.

1. This is an application under Section 439 of the Criminal Procedure Code, 1973 (for short 'the Code') for grant of bail.

2. Learned counsel for the applicants submits that the applicants are in custody right from 14-10-86 in connection with an offence under Section 302/149 of the I.P.C. and the connected Sessions Trial is still pending. He informs that this Court on 12-12-1987 had rejected the applicants' application for bail (vide Misc. Cr. Case No. 1603/87) observing as Under :-

If for no fault of the petitioners, the prosecution evidence is not concluded by the end of March, 1988 they may again move this Court for bail.

3. Learned counsel for the applicants had made a statement at the Bar that for no fault of the applicants, the prosecution evidence is not yet concluded as the prosecution witnesses do not turn upfor evidence and urges that in view of Article 21 of the Constitution they deserve to be enlarged on bail solely on the ground of delay in the trial.

4. Article 21 of the Constitution of India reads thus :-

No person shall be deprived of his life or personal liberty except accroding to procedure established by law.

5. In the decision in Hussainara Khatoon & others v. State of Bihar AIR 1979 SC 1360. the Apex Court of the country interpreting Article 21 of the Constitution delivered itself thus :-

A procedure prescribed by law for depriving a person of his liberty cannot be reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial, can be regarded as "reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Art. 21. In Babusingh's case AIR 1978 SC 527., it has been observed thus :-

Personal liberty deprived, then bail is refused; is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasion, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Art. 21 are the life of that human right.

In Sheela Barse's case 1986 C. Cr. J. (SC) 249., it has been held that the consequences of violation of the fundamental right to speedy trial implicit in Article 21 of the Constitution would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right.

6. It is true that in considering the prayer under Section 439 of the Code several factors have to be kept in mind including the interests of the accused, the prosecution as also of the society. However, delay in the trial cannot be ignored. What may be termed a reasonable period may no doubt vary with the facts and circumstances of each case. In Anurag Bhaitha's case AIR 1987 Pat 274 (FB)., which relates to delay in hearing of appeals, with reference to Article 21 of the Constitution it has been observed thus:-

If Art. 21 and the right to speedy public trial is not merely a twinkling star in the high heavens to be worshipped and rendered vociferous lip-service only but indeed is an actually meaningful protective provision then a fortiorari expenditious hearing of substantive appeals against convictions is fairly and squarely within the mandate of the said Article.

7. In the decision in Munna alias Kamta Prasad's case 1986 (3) Crimes 429., the applicant" were charged with offences triable by Court of Sessions and the connected Sessions Trial had not been completed though more tha