JUDGMENT S.C. Mathur, J. 1. Janga Singh accused in Sessions Trial No. 51 of 1988 pending in the court of Sessions Judge, Kheri, arising from crime no. 26 of 1987 of Police station Nighasan, Kheri, has approached this Court for release on bail. 2. According to the first information report the deceased Jai Prakash son of Mata Prasad was done to death by five persons including the present applicant. All the five assailants have been mentioned in the first information report by name. As many as 42 injuries were inflicted upon the person of the deceased, including one fire-arm wound. The murder is alleged to have been committed in broad day-light at about 4.30 p.m., on 8th May, 1987 when the deceased after alighting from a bus at Dhakharwa crossing was waiting for another bus which would taken him to village Kafara. The place where he was murdered is a market. Four assailants, including the applicant, were carrying swords and one assailant was carrying country-made pistol. Report of the occurrence was lodged at 6.10 p.m., the same day. The distance between the place of occurrence and the police station is stated in the first information report as nine miles. The report is apparently prompt. The informant claimed to be an eye witness of the occurrence. On these facts, in my opinion, no case for bail is made out on merits. Certain technical pleas have been raised by the learned counsel for the applicant which may, however, be considered. The first ground is that the trial is being unduly delayed. It is asserted that the applicant was arrested on 9th May, 1987 and after committal to the court of Sessions the prosecution obtained adjournments on as many as seven occasions viz., on 13th May, 1988, 27th May, 1988, 26th June 1988, 23rd August, 1988, 23rd September, 1988, 2nd November, 1988 and 2nd December, 1988. It appears that the prosecution had to obtain these adjournments as the report of the Chemical Examiner had not been received. 3. The learned counsel for the applicant has cited the following authorities to press claim for bail on the ground of delay in conclusion of trial : 1. Nathu Ram v. State of U. P., 1987 Crimes 564 , 2. Sita Ram v. State, 1987 ACrR 35, 3. Prithvi Pal v. State of U. P., 1988 UPCrR 115, 4. 3. The learned counsel for the applicant has cited the following authorities to press claim for bail on the ground of delay in conclusion of trial : 1. Nathu Ram v. State of U. P., 1987 Crimes 564 , 2. Sita Ram v. State, 1987 ACrR 35, 3. Prithvi Pal v. State of U. P., 1988 UPCrR 115, 4. Janeshwar v. State 1989 UPCrR 38, and 5. Shree Narain Rai v. State of U. P., 1989 ACrR 116. The learned counsel for the State and the complainant have submitted that the question of delay has to be seen with reference to the facts of each case and no hard and fast rule can be laid down. The authorities cited on behalf of the applicant have been distinguished by pointing out that in those cases there was no explanation for the delay while in the present case there is explanation therefor, the same being non-receipt of the report of the Chemical Examiner. 4. In Nathu Ram (supra) the accused was arrested in December, 1985 and was committed to the court of Sessions on 12th February, 1986. 13th Match, 1986 was the date fixed for framing charge. The charge was not framed and the case was adjourned without any apparent reason. In the same manner the case was adjourned twenty times without the charge being framed. It has been observed in the bail order of this court that the case has been dealt with by the learned Sessions Judge in a most perfunctory manner. This was a case of repeated adjournments without any reason whatsoever. In Sita Ram's case (supra) charge-sheet was filed in the court of Magistrate on 18th January, 1986 and between this date and 17th October; 1986 the case was put up before the Magistrate on several occasions and on 31st October, 1986 it was fixed for passing order of commitment to the court of Sessions. Despite twenty adjournments the committal order was not passed without any reason whatsoever. The accused was languishing in jail since 1985 and since there was no explanation at all for repeated adjournments, bail was granted by this Court. This is also a case of unexplained delay. 5. In Prithvi Pal's case (supra) bail order was passed by this Court after finding that the applicant had been in jail since 25th March, 1987 and the trial had made no progress. This is also a case of unexplained delay. 5. In Prithvi Pal's case (supra) bail order was passed by this Court after finding that the applicant had been in jail since 25th March, 1987 and the trial had made no progress. Again this was a case of unexplained delay. 6. In Janeshwar (supra) the accused had been in jail since 27th March, 1986 and till the date of passing the bail order by this Court the trial had not concluded and the applicant had not abused liberty when he was earlier released on parole. In Shree Narain Rai (supra) the applicant was in jail since 1st March, 1988 and till 22nd December, 19-8 no steps had been taken to commit the accused to the court of Sessions. There was no apparent reason for the delay and hence bail was granted. : 7. In the above cases the applicants had been In jail for varrying periods and there was no apparent reason for the cases pending against them not making the desired progress. In none of the cases any fixed period has been prescribed which will constitute culpable delay entitling the accused to bail. Rightly no such period has been fixed. The Code of Criminal Procedure also does not fix any such period. The matter of grant of bail has. been left to the discretion of the court and in each case the court will have to exercise this discretion judicially and not arbitrarily. It would not be an arbitrary exercise of discretion to grant bail where the court finds that the trial is not making the desired progress. Similarly, it will also not be ait arbitrary exercise of discretion if despite delay the court, taking other factors into consideration, refuse to enlarge the accused on bail. One such factor may be the assurance available to the court from bare allegations contained in the first information report that most probably the accused has committed a henious crime. This assurance may be further strengthened where through investigation, which is apparently fair, the allegations contained in the first information report have been found to be correct. It would also not be an arbitrary exercise of discretion where, despite delay, bail is refused because the offence was committed in a most brutal manner and the involvement of the accused is highly probable. It would also not be an arbitrary exercise of discretion where, despite delay, bail is refused because the offence was committed in a most brutal manner and the involvement of the accused is highly probable. Again it will be a fair exercise of discretion to refuse bail, despite delay, where the court feels that on release of the accused there is likelihood of further criminal occurrences of serious nature claimed himself also to be an eye witness. According to him he was accompanying the deceased Jai Prakash. Deceased Jai Prakash was the brother of the informant. 8. Both the brothers had gone to Kheri in connection with a criminal case in which the deceased was an accused. This criminal case arose from the murder of the brother of the applicant's co-accused Subag Singh. The criminal case was fixed the same day in court at Kheri. The deceased's party were returning home after attending to the case. It is not uncommon for family members to accompany the accused persons to court. Therefore, the informant appears to be a probable eye witness. This probability is strengthened by the fact that immediately after the occurrence the informant covered a distance of nine miles and lodged the report. The occurrence had taken place at about 4.30 p.m., and the report was lodged at 6.10 p.m. It is apparently a prompt report. The assailants are named along with the weapons carried by each. There is only one fire-arm injury and the rest appeared to have been caused with a sword. The injuries accord with the assignment of weapons contained in the first informant report. Even one sword assault on the neck would have been sufficient to snuff life out of the deceased, but that was not to be. Apart from the fire-arm injury there are as many as 41 other injuries. The deceased was thus murdered in a most brutal manner. The present murder appears to be in revenge of the murder of co-accused Subag Singh's brother. Thus one murder had led to another Possibility of further murders in the event of applicant's release cannot be ruled out. For the reasons herein I am of the opinion that it will not be a fair exercise of discretion to enlarge the applicant on bail on the mere ground of delay in conclusion of the trial. Thus one murder had led to another Possibility of further murders in the event of applicant's release cannot be ruled out. For the reasons herein I am of the opinion that it will not be a fair exercise of discretion to enlarge the applicant on bail on the mere ground of delay in conclusion of the trial. Putting it the other way, in my opinion, it will not be an unreasonable exercise of discretion on my part to refuse bail to the applicant on the facts stated herein, despite the delay relied upon by the applicant. The view that I have taken does not militate against the decisions relied upon by the learned counsel for the applicant. In none of the cases it has been laid down as a proposition of law that if the trial is not concluded within a particular period, the accused must be enlarged on bail In each case the question of bail will have to be considered on the facts and circumstances of that case. The only broad propositions of law that can be laid down are : 1. The grant of bail is discretionary and the discretion should be exercised reasonably and not arbitrarily ; 2. In henious crimes like murder, bail should ordinarily be refused, where there is strong probability of the trial ending in conviction ; 3. Bail should ordinarily be refused where release on bail has the potentiality of leading to further criminal occurrences ; and 4. The court has discretion, not obligation, to enlarge the accused on bail where there is unexplained delay in conclusion of the trial. 9. Some more observations are required to be made on the question of delay. Delay now is a common phenomenon in almost every institution. Courts are not an exception. In our own court some of the case have just to be forgotten after filing them like first appeals in civil cases. Criminal appeals in murder cases are also not being decided within the desired period. The average period of pendency of appeals in murder cases in which bail has been granted appears to be about ten years According to the information supplied to me by the office such appeals filed in the year 1978 are now being listed for hearing. The causes for this delay may be various. The average period of pendency of appeals in murder cases in which bail has been granted appears to be about ten years According to the information supplied to me by the office such appeals filed in the year 1978 are now being listed for hearing. The causes for this delay may be various. It cannot, however, be gainsaid that some times the delay may be beyond the control of the prosecuting agency or the Magistrate or the Sessions Judge. Must all such delays necessarily lead to grant of liberty to the accused ? Perhaps the answer may not be in the affirmative. If delay is laid down, as a proposition of law, the sole factor sufficient to entitle the accused liberty from jail, there is likelihood of abuse of law by manipulating adjournments. Manipulation of adjournments is not unknown to Indian legal system. 10. A word about delay by Magistrates and Sessions Judges. Magistrates and Sessions Judges are subordinate to the High Court. The High Court exercises administrative control over them. If they, without justification, delay conclusion of trial, some more responsibility rests on the High Court than merely granting bail to the accused. Crime may have been committed against an individual but it is a wrong against society and that is why in cognizable offences State prosecutes the culprits and not victim or the members of his family. Victim or the members of his family appearing as prosecution witnesses get diet money. It is the society that is, therefore, interested in incarceration of criminals. If criminals will return to society merely because the Magistrate or the Sessions Judge could not conclude the trial within a particular time, perhaps it may affect the credibility of the judicial system. Therefore, the impact of release on bail of the accused on the society may also be required to be seen while considering an application for bail. By way of illustration I may mention the cases of dacoity and robbery with or without murder. If such criminals are to be enlarged on bail merely on the ground of delay in conclusion of trial, perhaps law and order would be put in jeopardy. My purpose in making the above observation is not to say that the delay is not a relevant factor in exercising discretion in favour of granting bail. If such criminals are to be enlarged on bail merely on the ground of delay in conclusion of trial, perhaps law and order would be put in jeopardy. My purpose in making the above observation is not to say that the delay is not a relevant factor in exercising discretion in favour of granting bail. My purpose is to point out that along with delay other factors also deserve consideration and further where a judicial unit under the administrative charge of the High Court is at fault, the High Court will be failing in its duty towards society if it does not pull up its own unit and is satisfied by merely granting bail to a person who has apparently committed a heinous crime and whose return to the society may lead to disturbance of law and order or public order. 11. The view that I have taken accords with the view taken by Dr. Parmeshwar Dayal, J. (as he then was) in Mahabir v. State of U. P., 1986 ACrR 244. In this case an accused who was charged with committing rape on a minor girl of 12 years sought release on bail on the ground of delay in conclusion of the trial. It appears that AIR 1979 Supreme Court 1518, Nimeon Sangma v. Home Secretary, Government of Meghalaya and Court's Circular Letter No. 104/Vlll-g-33 Adm. G, dated September 6, 1979 were relied upon for pressing that where trial does not conclude within six months of the arrest of the accused, such accused should be enlarged on bail. Nimeon Sagma's was a habeas corpus petition through which release was sought of a large number of persons who were languishing in jail for long period without trial. The Court obtained from the Government a list of such persons who were languishing in jail for more than six months. In paragraph 4 of the report it has been mentioned : "In the reply statement, we find a large number of cases where detention for considerable periods, without the trial having commenced, is being suffered by various persons." From this observation it is apparent that the number of persons suffering incarceration for more than six months was fairly large and certainly more than two. Their Lordships, however, did not direct release of all such persons on bail or otherwise. Their Lordships, however, did not direct release of all such persons on bail or otherwise. Release on bond was directed in respect of two persons only After referring to sections 167, 209 and 309 of the Code of Criminal Procedure, Article 21 of the Constitution, human rights and the need for expeditious disposal of criminal cases, their Lordships while declining to pass order of release on bail or otherwise in respect of the remaining detenus observed in paragraph 5 as follows :- "Even so we do not wish to pass any orders at the moment until more particulars are brought to our notice." from this it is apparent that their Lordships did not intend to lay down law that mere delay in disposal of the criminal case is sufficient to entitle the under trial prisoner to obtain release on bail. Therefore, whenever bail is claimed on the ground of delay in disposal of case, the court will have to take, into account the facts and circumstances of that case and the court cannot blindly grant bail on the mere ground of delay. 12. After making the observations reproduced hereinabove their Lordships made the following further observation in the same paragraph 5 :- "It will sufficie for the present-and the counsel for the State assures us that any direction given by this Court will be promptly complied with-that we direct the State to consent to release all persons who have been in custody for over six months and whose trials have not commenced or against whom charge-sheets have not been laid." The sentence immediately following the quoted sentence reads : "But we make one exception in cases where sections 302 and 395 of the Indian Penal Code are involved." In such cases their Lordships merely fixed time for concluding investigation or trial. It is apparent from the succeeding sentence that their Lordships' direction to the State to consent to release was confined to cases of petty offences and did not extend to henious offences. Sections 302 and 395 have been specifically mentioned in the exception but that does not mean that other henious offences are not covered by the excepting observations. Section 396 is more henious than section 395, the former being dacoity with murder and the later being mere daeoity. Sections 302 and 395 have been specifically mentioned in the exception but that does not mean that other henious offences are not covered by the excepting observations. Section 396 is more henious than section 395, the former being dacoity with murder and the later being mere daeoity. There will be no valid reason to treat a case under section 395 as falling within the excepting observation of their Lordships and a case under section 396 outside it. Reference to sections 302 and 395 of the Indian Penal Code in the observations of their Lordships is only by way of illustration. Be that as it may, it is not necessary to dilate further on this point as the present case is also a case under section 302 and is squarely covered by the exception made by their Lordships. In such cases therefore, where there is delay in conclusion of investigation or trial, more appropriate order Would be to direct conclusion of the same within a time to be fixed by the court as was done by their Lordships. In view of the observations made by their Lordships in the above case, this Court issued Circular Letter mentioned hereinabove for the guidance of the subordinate judiciary. Clause (a) of the Circular Letter as reproduced in Mahabir's case (supra) reads as follows :- "The subordinate criminal courts shall get a periodical list of under- trial prisoners pertaining to their courts prepared fortnightly and suo moto pass orders releasing under trial prisoners who may be in jail for over six months on bail or personal bonds as the circumstances may require." The ultimate direction in the Circular Letter is to pass suitable orders consistent with the mandate of the Honourable Supreme Court. Mandate of the Supreme Court, as observed hereinabove, is not to blindly order release on bail on the mere ground of delay in the conclusion of investigation or trial. In each case, specially cases of henious crimes, facts and circumstances will have to be considered. 13. In respect of the above judgment of the Supreme Court and the Circular Letter of this Court, Dr. In each case, specially cases of henious crimes, facts and circumstances will have to be considered. 13. In respect of the above judgment of the Supreme Court and the Circular Letter of this Court, Dr. Dayal, J., has observed as follows in Mahabir's case (supra)- "The observations of the Honourable Supreme Court have to be followed in the light that the persons in custody try to circumvent and exploit the situation and position of law and they do manoeuvre in the offices to their advantage. Morever, the State Government was directed by the Honourable Supreme Court to consent to release all such persons, but the State Government does not appear to have taken any lead in the matter. Rather the Court issued the Circular Letter observing that the steps, related in the Circular Letter, might be taken to achieve the desired result. In clause (b) of the Circular Letter, it was observed that the Courts concerned could pass suitable orders in cases of such under trials after the Additional Chief Judicial Magistrate brought to their notice the cases of under trials over six months. It was further mentioned in the said Circular Letter that the State Government had been requested to send for a list of under trials from the different jails fortnightly and move an application before the Court having jurisdiction to order for the release of the under trials who were in jail for over six months without imposing any condition. At the same time, it was observed that in the event of moving of such applications, the Courts should pass suitable orders in the matter consistent with the mandate of Honourable the Supreme Court. All these observations show that the merits of each case, for the purposes of bail, have to be considered on the facts and circumstances of each such case." With the above observation Mahabir's application for bail was rejected. I am in respectful agreement with the observations of Dayal, J. In paragraph 12 of the report is has been observed thus :- "In the instant case, the occurrence had taken place on 28-6-1985 and the notice of this application was given on 12-9-1985, but the application was presented in Court on 18-11-1985. The possibility cannot be ruled out that something might have been manoeuvred for delaying the disposal of this application with a view to taking the advantage of the aforesaid Circular Letter." 14. The possibility cannot be ruled out that something might have been manoeuvred for delaying the disposal of this application with a view to taking the advantage of the aforesaid Circular Letter." 14. The position of the case in hand is no better and the above observations apply equally to the applicant before me. In this case the occurrence took place on 8th May, 1987. According to the applicant he was arrested on 9th May, 1987. According to the State he was arrested on 13th May, 1987. On 10th July, 1987 an application for bail, to be moved On behalf of the applicant and his co-accused Subag Singh, Tara Singh and Jagir Singh, was ready for filing. Affidavit in support of the application had been sworn by Gyan Singh. Notice of this application was given to the learned Government Advocate on 10th September, 1987. The application was not moved on the noticed date. The date of motion was changed five times. The application was ultimately filed in court on 7th June, 1988 during the summer vacation, almost eleven months after it was ready for filing and was rejected the same day. This was registered as Criminal Misc. Case No. 374 (B) of 1988. The learned counsel for the State submitted that the applicant was also a party to the earlier bail application which was rejected on 7th June, 1988. The applicant on the other hand submits that he had withdrawn from that application and his name had been deleted. The record of this Court shows that the applicant's name was mentioned at serial no. 4. His name, however, stands deleted in the record of this Court The learned counsel for the State produced his own record which did not contain the deletion. It was submitted by the learned counsel for the applicant that there might have been omission to correct the copy of the application that was supplied to the learned Government Advocate but the fact remains that before the application was filed in court the name of the applicant was deleted from the application. At this stage it is not possible to determine whether the applicant's allegation is correct or incorrect. However, it must be pointed out that whenever correction is made in the original application filed in court, that correction should be incorporated in the duplicates supplied to the learned counsel for the State also. At this stage it is not possible to determine whether the applicant's allegation is correct or incorrect. However, it must be pointed out that whenever correction is made in the original application filed in court, that correction should be incorporated in the duplicates supplied to the learned counsel for the State also. It is an unhealthy practice likely to lead to corruption if this is not done. For the purposes of this case I may assume that the earlier application was filed after deleting the name of the present applicant. So far as the present application is concerned, it was ready for filing on 26th July, 88 for which date notice was also given to the learned Government Advocate the same day. However, the application was not, filed on 26th July, 1988 and was instead filed on 28th October, 1988. Two questions arise in the mind-Why the applicant was vacillating ? Was he manoeurving the delay in sending report by the Chemical Examiner ? These questions arise from the observations made in Mahabir's case. of course there is no evidence of such manoeuvring by the applicant in the present case and I am not rejecting the present application on that ground. I am rejecting the application only on the ground that on the facts and circumstances of the case the applicant is not entitled to bail. I have posed the questions only to show that a bald proposition of law that bail should be granted in all cases of delay has dangerous propensities. Normally bail orders are not such lengthy as I have ventured to write but I have been provoked into writing a lengthy order because the authorities on delay cited by the learned counsel for the applicant needed proper appraisement. It is this proper appraisement that compelled me to make some observations on the factual aspects of the case also. I had to make these observations to meet the submissions of the learned counsel for the parties. The learned Sessions Judge will, however, decide the case uninfluenced by those observations. 15. This, however, is not the end of the matter. There are other technical pleas raised by the learned counsel for the applicant which I now advert to. The learned counsel for the applicant submits that the prosecution witnesses do not know the applicant as he resides 18-20 kilometers away and he has been falsely nominated. 15. This, however, is not the end of the matter. There are other technical pleas raised by the learned counsel for the applicant which I now advert to. The learned counsel for the applicant submits that the prosecution witnesses do not know the applicant as he resides 18-20 kilometers away and he has been falsely nominated. It is pressed that this fact could be verified by holding test identification parade. The applicant it appears made an application claiming identification but the same was rejected by the court below. It was submitted by the learned counsel for the applicant that once the prosecution opposes identification, adverse inference has to be drawn against it. In support of the proposition he has cited the following authorities :- 1. Lajja Ram v. State, AIR 1955 All. 671 , 2. State v. Neel Kanth, AIR 1967.All. 447, 3. State v. Raju, AIR 1971 SC 708 and 4. Suresh Chandra v. State, 1979 ACrR 385. Sri Virendra Bhatia learned counsel for the complainant has submitted that there is no question of adverse inference being drawn against the prosecution as the prayer for identification parade was not opposed by the prosecution but was rejected by the learned Magistrate himself without calling upon the prosecution to meet the application. He has further submitted that identification evidence is not substantive evidence and has only corroborative value. It is submitted by him that once the involvement of the applicant is established through the testimony of dependable witnesses during the trial, the order of rejection passed by the learned Magistrate will be of no avail to the applicant. He has cited Madan Mohan Singh v. State of U. P., 1986 ACrR 103. 16. All the decisions relied upon by the learned counsel for the applicant are in appeals preferred after the conclusion of trial. The proposition of law laid down in all these cases is : "If the prosecution turns down the accused's request for identification it runs the risk of veracity of the eye witnesses being challenged on that ground." as observed by V. N. Verma, J. (as he then was) in Sureeh Chandra's case (supra). The proposition of law laid down in all these cases is : "If the prosecution turns down the accused's request for identification it runs the risk of veracity of the eye witnesses being challenged on that ground." as observed by V. N. Verma, J. (as he then was) in Sureeh Chandra's case (supra). In the same judgment the learned Judge has observed at page 388- "......The Supreme Court remarked that the absence of test identification in all cases is not fatal and if the accused person is well known by sight it would be waste of time to put him up for identification but if the prosecution failed to hold an identification test on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case." (emphasis supplied). From the emphasised portion in the above observation it would be seen that the argument of the learned counsel for the applicant at this stage is premature. At the most at this stage the prosecution has run a risk, that risk being that the veracity of the eye witnesses may be challenged during trial. The effect of the order of the learned Magistrate can be seen only after the evidence has been led. The proposition of law remains that failure to hold test identification is not necessarily fatal to the prosecution. For precisely the same reason V. P. Mathur, J. (as he then was) refused in Madan Mohan Singh's case (supra) to enlarge an accused on bail merely on the ground that his application for test identification had been rejected by the court below. It is also the case of the applicant that he was not produced before the Magistrate within 24 hours of his arrest and the grounds of arrest were not communicated to him. It is further alleged that proper remand orders were not passed. On these points there are factual disputes between the parties. The State does not admit the applicant's factual averments The State asserts that the applicant was arrested not on 9th May, 1987 as alleged by him but on 13th May, 1987 and he was produced before the Magistrate on 14th May. 1987. On these points there are factual disputes between the parties. The State does not admit the applicant's factual averments The State asserts that the applicant was arrested not on 9th May, 1987 as alleged by him but on 13th May, 1987 and he was produced before the Magistrate on 14th May. 1987. It is also the case of the State in the counter-affidavit filed in Writ Petition No. 9859 (HC) of 1988 that at the time of his arrest the applicant was informed of the grounds of arrest and he was interrogated and daring the interrogation he admitted the guilt and it was as a result of the interrogation that the arms used in the occurrence were recovered. The State denied that proper remand orders were not passed. The writ petition has been filed by the applicant and will be heard and disposed of by a Division Bench. In order to avoid conflict of decisions, it will be desirable on my part to refrain from making any observation on these pleas which are already contained in the writ petition. I accordingly leave these points open to be argued by the learned counsel for the parties in the writ petition. 17. The last ground on which bail has been claimed is of parity. It is not disputed that co-accused Har Bhajan Singh has been granted bail. His ease is distinguishable. He as not armed with sword but was armed with a fire-arm. Only one fire-arm injury was found on the person of the deceased and that was on a non-vital part-back of the elbow joint. It is because of this distinguishing feature that he has been enlarged on bail. The applicant who was allegedly armed with sword cannot claim parity with Hari Bhajan Singh. As many as 41 incised wounds were found on the person of the deceased. 18. In view of the above the application is rejected.