THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483 BNNS) PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.137/2021 OF ATTIBELE P.S FOR THE O/P/U/S 302 OF THE IPC WHICH IS PENDING BEFORE THE LEARNED III ADDL.DISTRICT AND SESSIONS JUDGE, ANEKAL IN S.C.NO.5049/2021.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

ORAL ORDER

The present Criminal Petition is filed by the petitioner/accused No.2 under Section 439 of the Criminal Procedure Code challenging the order dated 24.08.2021 passed by the III Additional District and Sessions Judge, Bengaluru Rural District, sitting at Anekal in Criminal Miscellaneous No.5305/2021, whereby the application filed by accused Nos.1 and 2 seeking regular bail in Crime No.137/2021 for the offences punishable under Sections 302 IPC came to be rejected.

Brief facts

The case of the prosecution is that petitioner/accused No.2 and deceased - Bijoy Sarania were residing in a rented house. It is stated that the deceased had borrowed a sum of Rs.900/- from accused No.1, which led to a quarrel between the deceased and accused No.1. On 13.04.2021, accused Nos.1 and 2 allegedly assaulted the deceased. The charge sheet against accused No.2 is that accused No.2 assaulted the deceased with hands and kicked him on the chest, while accused No.1 inflicted a knife injury on the back. The injured was shifted to multiple hospitals and ultimately, succumbed to the injuries.

Learned counsel for the petitioner submits that:

(i) the petitioner has been falsely implicated;

(ii) there is no eye witness to the incident and the case rests on circumstantial evidence;

(iii) the specific overt act of assault with a deadly weapon is attributed only against accused No.1;

(iv) the role of the petitioner is limited to assault which would at the most attracts lesser offences under the provisions of Sections 323 and 324 of the Indian Penal Code, 1860. The Investigation is completed and charge sheet is filed.

Per contra, learned High Court Government Pleader for the respondent-State submits that there is a prima-facie material showing involvement of the petitioner/accused No.2. The offence is grave, punishable under Section 302 of the IPC. There is likelihood of absconding and tampering with the witness. The Trial Court has rightly rejected the bail application filed by accused Nos.1 and 2.

There is no Eye witness to the incident. The entire case is based on circumstantial evidence. The petitioner has been in custody for about five (5) years. It is also not in dispute that only six (6) witnesses have been examined out of 23 witnesses and the trial is likely to take considerable time. The Hon'ble Apex Court in the case of Union of India Vs. K.A.Najeeb¹AIR 2021 SC 712 has held at paragraph No.16 as under:

“This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail.”

The Apex Court has held that prolonged incarceration and delay in trial are relevant factors for grant of bail. The spe