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MANISHA BATRA, J. –

1. The instant one is the second petition filed by the petitioner under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) for grant of regular bail in case arising out of FIR No.281 dated 10.09.2021 registered under Section 302 of IPC at Police Station Sector 40, District Gurugram. His previous petition bearing No.CRM-M-36056-2023 was dismissed as withdrawn vide order dated 13.09.2023.

2. The aforementioned FIR was registered on the basis of a written complaint submitted by the complainant-Afzal Hussain, who was a caretaker of premises owned by one Radhey Shyam Sharma at Village Silokhara, District Gurugram, alleging that his cousin sister Rajima Bibi ( i.e. the victim) had performed love marriage with the present petitioner about three months back, and for the last 7–8 days, they had shifted into a room in the premises of Radhey Shyam Sharma by hiring the same on rent. Quarrels used to take place between the petitioner and his wife. In the morning of 10.09.2021, the complainant had gone to the room of the victim and found her dead body to be lying there. By alleging that the petitioner might have hand in the murder of his sister, he prayed for taking action in the matter.

3. After registration of FIR, investigation proceedings were initiated. Post-mortem examination of the dead body of the victim was conducted, as per which the cause of death was ligature strangulation. The petitioner was arrested on 28.09.2021. On interrogation, he suffered a disclosure statement admitting the fact that he had murdered his wife. He also got recovered a lungi (piece of cloth) used by him for strangulating the victim. Investigation now stands completed.

4. It is argued by learned counsel for the petitioner that he has been falsely implicated in this case. He is in custody for a period of about five years. The chances of conclusion of trial in the near future are still bleak, as only 14 out of 25 prosecution witnesses have been examined so far. His prolonged incarceration militates against his fundamental right guaranteed under Article 21 of the Constitution of India. The case rests upon circumstantial evidence, and there is no eyewitness to the occurrence. His continued incarceration would not serve any useful purpose. His antecedents are clean. It is, therefore, argued that he deserves to be extended the benefit of bail. In support of his argument, learned counsel for the petitioner has placed reliance upon Arvind Dham v. Directorate of Enforcement (SC) 2026 INSC 12 : 2026 SCC Online.

5. Per contra, learned State counsel has argued the present petition being a successive one is not maintainable. He has further argued that taking into consideration the gravity of the allegations as leveled against the petitioner, he does not deserve to be extended the benefit of bail.

6. This Court has heard the rival submissions made by learned counsel for the parties.

7. The petitioner is alleged to have caused the homicidal death of his own wife by strangulating her. The case rests upon circumstantial evidence. The petitioner has suffered incarceration for a period of more than 4 years and 11 months. The trial is still likely to take considerable time to conclude as substantial number of prosecution witnesses are still remained to be examined.          So far as question of maintainability of this petition is concerned, undoubtedly it is a successive petition. The well-settled proposition of law is that if there is some drastic change in the circumstances, the successive petition is maintainable. It is equally well settled that deprivation of personal liberty without ensuring speedy trial is not in consonance with the right guaranteed by Article 21 of the Constitution of India. In Javed Gulam Nabi Shaikh vs The State of Maharashtra and another 2024(9) SCC 813, the Hon’ble Apex Court had observed that howsoever, serious a crime may be, an accused has a right to speedy trial. Bail is not to be withheld as a punishment.  It was also observed that if the State or any prosecuting agency including the Court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution, then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed, is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. It is also well-settled that the object of bail is to secure the attendance of the accused at the trial and the proper test to be applied is in the solution of the question is whether the bail should be granted or refused or whether it is probable that the party will appear to take its trial and it is indisputable that bail is not to be withheld as a punishment.  Reference in this regard can also be made to Gurbaksh Singh Sibba v. State of Punjab, (1980) 2 SCC 565.

8. So far as the question of prolonged incarceration and inordinate delay in conclusion of the trial is concerned, the Hon’ble Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51 had observed that the provisions contained in Section 436A of Cr.P.C. which requires inter alia the accused to be enlarged on bail if the trial is not conclude within specified period, would apply to under-trial prisoners as well in the absence of any specific provisions.        The petitioner has suffered incarceration of about 05 years. Only 14 out of 25 prosecution witnesses have since been examined. There is nothing on record to show that delay in any manner is attributable to him. Taking into consideration the period spent by the petitioner in custody, the fact that trial is not likely to be conclude shortly, the clean antecedents of the petitioner and the facts and circumstance peculiar to this case, the petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing personal as well as surety bonds to the satisfaction of the learned Chief Judicial Magistrate/trial Court/Duty Magistrate concerned.

9. It is made clear that any observation made herein above is only for the purpose of deciding the present petition and the same shall have no bearing on the merits of the case.

10. Since the main petition has been allowed, pending application, if any, is rendered infructuous.

Petition allowed.

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