Vivek Singh Thakur, J
1. Petitioner, herein, is in judicial lock-up in case FIR No.7 of 2020 dated 21.1.2020, under Sections 302, 147, 149 of the Indian Penal Code
(‘IPC’ for short), registered in Police Station Parwanoo, District Solan, Himachal Pradesh. He has approached this Court, under Section 483 of
the Bhartya Nagrik Suraksha Sanhita, 2023 (for short ‘BNSS’), seeking regular bail in the matter.
2. In status report, filed on behalf of respondent-State, statement of complainant Rajan Kumar Singh has been reiterated, on the basis of which FIR
was registered against the petitioner and other co-accused.
3. According to status report, on 21.1.2020, an information was received from ESI Hospital, Parwanoo, in Police Station Parwanoo that a person
injured in a quarrel has been brought to the hospital for treatment, whereupon HC Vinod Kumar alongwith others had rushed to the hospital, where
statement of complainant Rajan Kumar Singh was recorded under Section 154 Cr.P.C., wherein he had stated that on that day, i.e. 20.12.2020, at
about 11 p.m., when he was sitting in his vehicle at Sector-6 Parwanoo, near Negi Petrol Pump, he had received a call on his mobile phone from Raju,
who was friend of crane owner Pushap Behl, requesting him to accompany Madan Lal in the crane, loaded with a vehicle, upto Delhi. Complainant
had agreed for that and had come near the crane whereon vehicle of Delhi bearing registration No.DL-6CM-4200 was loaded an crane driver Madan
Lal was standing near the crane and a white coloured taxi and 5-6 young men standing around the taxi, were also there and the taxi driver was
demanding fare, which was paid by one of those young men. Thereafter, the taxi driver left the place. Immediately thereafter, the man, who had paid
the fare to the taxi driver, had started asking Madan Lal to drop them at Delhi immediately at that time, whereupon complainant had enquired Madan
Lal about the status of fuel in the crane and Madan Lal had replied that fuel tank was to be filled. Thereafter, complainant Madan Lal and a young
man of Delhi vehicle boarded the crane and other persons sat in the vehicle loaded on the crane and crane was taken to Negi Petrol Pump and fuelled
for ₹2000/- paid by the occupants of Delhi vehicle and then they started towards TTR to proceed to Delhi, but suddenly it started raining heavily and
upon this complainant Rajan Kumar Singh had parked the crane at a distance of 35-40 metres from the Petrol Pump on the right side of the road. On
asking by young man, sitting in the crane, for reason to stop, Madan Lal had told that neither the wipers nor one of the head lights of the crane were
working and there was some defect in the crane. It was further told by the deceased that he will take them to Delhi next morning but the young men
did not accept that and had started scuffling and arguing with deceased Madan Lal in the crane itself, whereupon Madan Lal had telephonically
informed owner of crane Pushap Behl that there was a defect in the crane and that the occupants of the car had been forcing him to move for Delhi
and arguing and beating him, whereupon the crane owner had asked Madan Lal to lock the crane and to sleep in any other vehicle with further
assurance that he had been coming on the spot, whereupon complainant Rajan Kumar Singh and Madan Lal got down from the crane and the persons
from the Delhi Vehicle had also deboarded the crane and car and started beating Madan Lal by saying that in case he did not move for Delhi at once
then they would throw him from the road in gorge, whereas Madan Lal had asked them to talk with owner of the crane who was coming there. Upon
this, petitioners picked up Madan Lal and threw him in the gorge and had tried to overpower complainant also by saying that he was also to be thrown
in the gorge, whereupon complainant ran towards the Petrol Pump and had narrated the incident to persons deputed there and simultaneously he had
also informed crane owner Pushap Behl about the incident. Thereafter, crane owner had arrived at the Petrol Pump in his own vehicle, accompanied
by Tanuj Behl and Pankaj Kumar, and complainant had also joined him and when they reached on the spot, petitioners had already left the place.
Thereafter, complainant Rajan Kumar Singh, Tarun Behl, Pankaj Kumar and crane owner Pushap Behl had gone to the gorge in search of Madan Lal
where Madan Lal was found lying injured, from where Madan Lal was taken to ESI Hospital, Parwanoo, whereupon information was sent to Police
Station Parwanoo, which led to recording of statement of complainant Rajan Kumar Singh, under Section 154 Cr.P.C, on the basis of which FIR No.7
of 2020, dated 21.1.2020, under Sections 307, 147 & 149 IPC was registered.
4. Injured Madan Lal (now deceased) was referred for treatment from ESI Hospital Parwanoo to PGI Chandigarh, where he was declared brought
dead and after his death case under Section 307 IPC was converted into Section 302 IPC.
5. Petitioner was arrested by the police party on 23.1.2020 from Delhi and he was identified along with other co-accused by complainant Rajan
Kumar Singh in Identification Parade conducted in District Jail Solan, in presence of Executive Magistrate/Tehsildar.
6. It is case of prosecution that one of the co-accused had also called the police, threatening to kill deceased Madan Lal by throwing him in the gorge
on his refusal to take them to Delhi immediately at that time. Conversation of that call was recorded by the police. CD thereof has prepared and
placed on record of the Trial Court.
7. During investigation, DVDs of CCTV footage have also been taken in possession by the police wherein it is visible that at about 10.05 pm crane
loaded with a car had arrived at Petrol Pump for filling fuel and in that footage petitioner, other co-accused, complainant and deceased are also visible
and further that in the CCTV footage, at 11 pm, complainant Rajan Kumar Singh can be seen running towards and inside the Petrol Pump.
8. Present petition has been filed seeking enlargement of petitioner on bail on the ground of delay in trial, as it has been contended on behalf of
petitioner that even after detention of about 5 years, out of 45 witnesses only 4 witnesses have been examined after framing charges on 15.9.2023.
9. It has been contended on behalf of petitioner that all accused in present case are undertrial prisioners and despite that statements of witnesses have
not been recorded and case now has been listed for recording evidence of 3 witnesses on 4.3.2025 and keeping in view the pace of the trial, there is
no likelihood of completion of trial in near future. It has been further submitted that there is no role of the petitioner in delaying the trial and, therefore,
he is entitled for bail.
10. To substantiate plea to enlarge the petitioner on bail, learned counsel for the petitioner has relied upon order dated 5.7.2023 passed in Cr.MP (M)
No. 1501 of 2023, titled as Ram Singh @ Kaka Vs. State of H.P,. wherein accused under Section 302 IPC has been enlarged on bail on 5.7.2023
after remaining in jail for 3 years 2 months.
11. Learned counsel for the petitioner has also referred order dated 16.9.2023 passed in Cr.M.P. (M) No. 1494 of 2023, titled as Rampal @
Ramphal Vs. State of H.P., wherein accused under Section 302 IPC has been enlarged on bail after remaining in custody for 4 years 9 months by
considering plea of the petitioner regarding delay in trial.
12. Learned counsel for the petitioner has referred order dated 20. 10.2023 passed in Cr.M.P. (M) No. 2481 of 2023, titled as Sanma Vs. State of
H.P., wherein accused under Section 302 IPC has been released on bail after 3 years 3 months detention considering the fact that only 22 witnesses
out of 30 witnesses were examined by that time.
13. Learned counsel for the petitioner has further relied on order dated 4.11.2023 passed in Cr.M.P. (M) No. 2618 of 2023, titled as Jasbir Singh
Vs. State of H.P., wherein accused under Section 302 IPC has been released on bail after 3 years 5 months detention considering the fact that only
16 witnesses out of 39 witnesses were examined by that time.
14. Learned counsel for the petitioner has further relied on order dated 6.10.2023 passed in Cr.M.P. (M) No. 2461 of 2023, titled as Balwinder
Singh @ Kadu Vs. State of H.P., wherein accused under Section 302 IPC has been released on bail after 3 years 1 month detention considering the
fact that only 12 witnesses out of 34 witnesses were examined by that time.
15. Learned counsel for the petitioner has further referred order dated 21.8.2023 passed in Cr.M.P. (M) No. 1942 of 2023, titled as Robin Patrwal
Vs. State of H.P., wherein accused under Section 302 IPC has been released on bail after 2 years 2 months detention considering the fact that only
10 witnesses out of 51 witnesses were examined by that time.
16. Learned counsel for the petitioner has further referred order dated 1.9.2023 passed in Cr.M.P. (M) No. 1216 of 2023, titled as Rakesh Kumar
Vs. State of H.P., wherein accused under Section 302 IPC has been released on bail after 4 years detention considering the fact that only 13
witnesses out of 47 witnesses were examined by that time.
17. Learned counsel for the petitioner has further relied on order dated 24.7.2023 passed in Cr.M.P. (M) No. 1217 of 2023, titled as Kulveer Singh
Vs. State of H.P., wherein accused under Section 302 IPC has been released on bail after 1 year detention considering the fact that no witnesses out
of 30 witnesses were examined by that time.
18. Learned counsel for the petitioner has further relied on order dated 3.8.2023 passed in Cr.M.P. (M) No. 1631 of 2023, titled as Mahammad
Aadil Vs. State of H.P., wherein accused under Section 302 IPC has been released on bail after 2 years 5 months detention considering the fact that
only 1 witness out of 50 witnesses were examined by that time.
19. Learned counsel for the petitioner has also referred judgment rendered by the Supreme Court in Special Leave to Appeal No. 1627 of 2022, titled
as Indrani Pratim Mukerjea Vs. Central Bureau of Investigation, wherein accused under Section 302 IPC has been released on bail after 6 ½ years.
20. Reliance has also been placed upon order dated 15.2.2023 passed by the Supreme Court in Special Leave to Appeal (Crl.) No. 11714 of 2022,
titled as Mukesh Kumar Vs. The State of Rajasthan & another, whereby an accused under Section 302 IPC was released on bail, after custody of 15
months, in case FIR No. 164 of 2020, dated 8. 6.2020 registered under Section 307 IPC, but converted into Section 302 IPC on account of death of
injured person on account of injuries caused in the incident of free fight, wherein cross FIRs were registered by and on behalf of both sides.
21. Further reliance has been placed on order dated 28.6.2023 passed in Cr.M.P. (M) No. 1326 of 2023, titled as Daljeet Rana alias Kaka Vs. State
of H.P., wherein co-accused in murder case was enlarged on bail after 1 year 6 months in case FIR registered for causing death by gun bullet fired by
another co-accused.
22. Reliance has also been placed on order dated 29.8.2023 passed in Cr.M.P. (M) No. 2085 of 2023, Ghanshyam Vs. State of H.P.; order dated
13.10.2023, passed in Cr.M.P. (M) No. 2540 of 2023, titled as Subhadra Kumari Vs. State of H.P.; and order dated 18.10.2023 passed in Cr.M.P.
(M) No. 2606 of 2023, titled as Lata Devi Vs. State of H.P., in case of common FIR, wherein husband of Lata Devi had expired for receiving injuries
in a quarrel taken placed in the family and deceased was under influence of intoxication.
23. Reliance has also been placed on behalf of petitioner on order dated 9.9.2024 passed by the Supreme Court in Special Leave to Appeal (Cr.) No.
8523 of 2024, titled as Balwinder Singh Vs. State of Punjab & Another, whereby petitioner, an accused under Section 302 IPC, despite having direct
role in shooting the victim, was enlarged on bail after detention of 4 years 3 months with observation that trial was unlikely to be concluded on a near
date, whereas out of 47 witnesses 21 prosecution witnesses have already been examined and 9 were given up and only 17 witnesses were to be
examined.
24. Learned counsel for the petitioner has also referred order dated 6.10.2023 passed in Special Leave to Appeal (Crl.) No. 6505 of 2023, titled as
Praveen Rathore Vs. The State of Rajasthan & Another, wherein petitioner, an accused under Section 302 and 120B IPC, after detention of 4 years 6
months was enlarged on bail by observing that crucial witnesses had already been examined and out of 76 witnesses 53 witnesses had already been
examined with further observation that conclusion of trial will take some reasonable time.
25. Reliance has been placed on order dated 13.8.2024 passed by the Supreme Court in Special Leave Petition (CRL.) No. 8518 of 2024, titled as
Manishbhai Kalubhai Lathiya Vs. State of Gujarat, wherein petitioner, an accused under Section 302 IPC, was enlarged on bail after detention of 2
years 9 months by considering delay in conducting the trial.
26. Reliance has also been placed on judgment of Bombay High Court dated 25.9.2024 passed in Criminal Bail Application No. 1537 of 2021, titled as
Vipul Amrutlal Patel Vs. State of Maharashtra & Another, reported in 2024(4) BomCR (Cri) 328.
27. Order dated 26.11.2024 passed in Cr.MP(M) No. 2530 of 2024, titled as Ashok Kumar @ Governor Vs. State of H.P. has also been referred by
learned counsel for the petitioner, wherein petitioner an accused under Section 302 IPC was enlarged on bail after detention of about 4 years 2 months
by taking into consideration the fact that only 5 witnesses had been examined till then out of 38 witnesses and there was no likelihood of earlier
conclusion of trial.
28. Order dated 3rd September, 2024 passed in Cr.MP (M) No. 1584 of 2024, titled as Krishan Kumar Vs. State of H.P. has also been referred by
learned counsel for the petitioner, wherein petitioner an accused under Section 302 IPC was enlarged on bail after detention of 5 years 5 months by
considering the fact that out of 48 witnesses only 16-18 witnesses had been examined and there was no likelihood of conclusion of trial in near future.
29. Reliance has been placed by learned counsel for the petitioner on order dated 18.9.2024 passed in Cr.MP (M) No. 1804 of 2024, titled as
Suryakant Vs. State of H.P., wherein petitioner, an accused under Section 302 IPC, has been enlarged on bail by co-ordinate Bench on the ground of
delay in trial after custody of more than 3 years 10 months by taking into consideration the fact that there was no likelihood of conclusion of trial in
near future as 23 witnesses were yet to be examined.
30. Reliance has been placed on order dated 14.6.2024 passed in Cr.M.P (M) No. 1103 of 2024, titled as Akhil Kaushal Vs. State of H.P., wherein
petitioner, an accused under Section 302 IPC, has been enlarged on bail after detention of 6 years by taking into consideration the fact that out of 25
witnesses only 12 witnesses had been examined and there was no likelihood of conclusion of trial in near future.
31. Learned counsel for the petitioner has put reliance on order dated 3.7.2024 passed by the Supreme Court in Criminal Appeal No. 2787 of 2024,
titled as Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Another, wherein petitioner, an accused under Section 489B, 489C, 120B read with
Section 34 IPC for commission of offence of smuggling of consignment of counterfeit notes from Pakistan to Mumbai, has been enlarged on bail after
detention of 4 years 5 months on the ground of delay in trial.
32. Reliance has also been placed on judgment dated 5.4.2024 passed by the Supreme Court in Criminal Miscellaneous Bail Application No. 7691 of
2023, titled as Naresh Kumar Vs. State of Rajsthan, wherein petitioner, an accused under Section 302 IPC, has been enlarged on bail on the ground of
delay in conclusion of trial.
33. Judgment dated 18.12.2024 passed by the Supreme Court in SLP (Crl.) No. 12939 of 2024, titled as Siddhant @ Sidharth Balu Taktode Vs. The
State of Maharashtra and Another, has also been relied by learned counsel for the petitioner, whereby petitioner an accused under the provisions of
Maharashtra Control of Organised Crime Act, 1999 has been enlarged on bail after detention of more than 5 years on the ground of delay in trial as
despite 5 years of detention, charges have not been framed.
34. Learned counsel for the petitioner has placed reliance upon judgment passed by the Supreme Court in Shaheen Welfare Assn. Vs. Union of India,
(1996) 2 SCC 616: 1996 SCC (Cr.) 366 wherein it has been held that a person cannot be kept behind bars when there is no prospect of trial being
concluded expeditiously with following observation:-
“8. It is in this context that it has become necessary to grant some relief to those persons who have been deprived of their personal Cr.MP (M) No. 2935 of
2023 liberty for a considerable length of time without any prospect of the trial being concluded in the near future. Undoubtedly, the safety of the community and
the nation needs to be safeguarded looking to the nature of the offences these undertrials have been charged with. But the ultimate justification for such
deprivation of liberty pending trial can only be their being found guilty of the offences for which they have been charged. If such a finding is not likely to be
arrived at within a reasonable time some relief becomes necessary.â€
35. Learned counsel for the petitioner has placed reliance upon judgment of the Supreme Court in Jagjeet Singh vs. Ashish Mishra, (2022) 9 SCC
321: (2022) 3 SCC (Cri) 560: 2022 SCC OnLine SC 453w, herein it has been observed that no accused can be subjected to unending detention
pending trial. Reference to following para has been emphasized:-
 “40. Having held so, we cannot be oblivious to what has been urged on behalf of the respondent-accused that cancellation of bail by this Court is likely to
be construed as an indefinite foreclosure of his right to seek bail. It is not necessary to dwell upon the wealth of case law which, regardless of the stringent
provisions in a penal law or the gravity of the offence, has time and again recognised the legitimacy of seeking liberty from incarceration. To put it differently, no
accused can be subjected to unending detention pending trial, especially when the law presumes him to be innocent until proven guilty. Even where statutory
provisions expressly bar the grant of bail, such as in cases under the Unlawful Activities (Prevention) Act, 1967, this Court has expressly ruled that after a
reasonably long period of incarceration, or for any other valid reason, such stringent provisions will melt down, and cannot be measured over and above the
right of liberty guaranteed under Article 21 of the Constitution (see Union of India v. K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713, paras 15 and
17] ).â€
36. Reliance has also been placed on the order dated 17. 9.2021 passed by the Supreme Court inC hintan Vidya Upadhyay Vs.
State of Maharashtra, SLP Criminal No. 2543 of 2021,w hereby an accused in custody for 6 years was enlarged on bail in a case registered for
commission of offence punishable under Section 302 IPC.
37. So far as orders/judgments relied upon by learned counsel for the petitioner are concerned, I am in agreement with the plea of learned Additional
Advocate General that each and every case has to be considered on its own merit and in some cases bail has been granted keeping in view nature of
role alleged to have been played by the accused therein and considering direct or circumstantial evidence therein and, therefore, the bail granted in
some cases having a lesser period of detention, may not be relevant for the purpose of adjudication of present case, because the bail granted in some
of cases cannot be said to be a bail granted in similar circumstances.
38. Petitioner had approached this Court earlier also by filing Cr.M.P.(M) No. 1512 of 2020, which was dismissed on 6th January, 2021.
39. It has been submitted that petitioner was denied temporary bail by this Court vide order dated 3.5.2024 passed in Cr.M.P. (M) No.744 of 2024,
however, vide order dated 15.6.2024 passed in Cr.M.P. (M) No. 1001 of 2024, he was enlarged on temporary bail in the month of June, 2024 for
treatment of his ailing wife and during that period petitioner did not indulge in any unlawful activity and did not violate any terms and conditions
imposed upon him for enlarging him on interim bail and he had surrendered before the concerned Jail Superintendent in terms of condition of grant of
temporary bail.
40. It has been further submitted that the petitioner is permanent resident of India having his family and, therefore, there is no possibility of his fleeing
from justice.
41. It has been further submitted that petitioner is under-trial prisioner whose guilt is yet to be proved and continuation of his detention will amount to
conviction and sentence without subjecting to trial particularly keeping in view the pace of trial.
42. It has been further submitted on behalf of the petitioner that petitioner is ready to abide by any condition for enlarging him on bail and he is also
ready and undertakes to furnish bail bonds, with surety of local persons, to the satisfaction of Trial Court to assure his presence and also his availability
during the trial and thereafter.
43. It has been submitted by learned Additional Advocate General that pace of trial is also affected by the conduct of the petitioner/accused as on
4.1.2024 witnesses were present in the Court, but could not be examined as except the petitioner all other accused persons were unrepresented and
they sought time to engage counsel. Further that on 4.12.2024 matter was adjourned on the ground that Advocate of three accused, who had to come
from Aligarh, was not available on that date and, therefore, petitioner is not entitled for bail on ground of delay in trial.
44. Learned counsel for the petitioner has pointed out that charges were framed on 15.9.2023 and case was fixed for recording evidence on
16.11.2023 and on that date no prosecution witness was present. Further that on 4.1.2024 though examination of witness was deferred but not at the
instance of petitioner. Further that on 1.5.2024 statement of only one witness was recorded in examination-in-chief, but was deferred on request of
Public Prosecutor on the ground that Court time was over.
45. Referring order dated 29.6.2024 passed by the Trial Court, it has been submitted on behalf of petitioner that there is no possibility of conclusion of
trial in near future, as it has been categorically recorded by the Trial Court that long dates were given because earlier docket for recording evidence
was full.
46. It has been further submitted by learned counsel for the petitioner that on 4.12.2024 case was transferred from Additional Sessions Judge-I to
Additional Sessions Judge-II and there was no certainty that statements of witnesses would be recorded on that date and, therefore, absence of
Advocate of other three co-accused cannot be considered a deliberate or intentional absence for causing delay in trial.
47. Taking into consideration the entire facts and circumstances, but without commenting on merits thereon and taking into account factors and
parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the
opinion that petitioner may be enlarged on bail in present case at this stage.
48. Accordingly, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to his furnishing personal bond in the sum of
₹2,00,000/- (Rupees Two lakh only) with two sureties, each in the like amount, one of which, as undertaken by the petitioner shall be local to the
satisfaction of trial Court/Sessions Judge within two weeks, and upon such further conditions as may be deemed fit and proper by the trial Court,
including the conditions enumerated hereinafter, so as to assure presence of the petitioner at the time of trial:-
(i) That the petitioner shall make himself available to the Police or any other Investigating Agency or Court in the present case as and when required;
(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade
him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate
the prosecution witnesses;
(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;
(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;
(v) that the petitioner shall not misuse his liberty in any manner;
(vi) that the petitioner shall not jump over the bail;
(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;
(viii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during
trial; and
(ix) the petitioner shall not leave India without permission of the Court.
49. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner, enlarged on bail, as
deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to
impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.
50. In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may
approach the competent Court of law for cancellation of bail, in accordance with law.
51. Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-
IV.7139 dated 18.03.2013.
52. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of
the bail application.
53. The petition stands disposed of in the aforesaid terms.