JUDGMENT 1. - The petitioner is facing trial it/ss. 302, 307, 323, 324, 147, 148 r/w 149 & 120-B IPC alongwith other accused persons in the Court of Special Judge SC/ST Cases & Additional Sessions Judge, Bikaner in Sessions Case No. 57/98. The petitioner moved first bail petition which was decided on 13.11.1998. The first bail petition was not pressed on behalf of the petitioner and a direction was sought that the trial may be expedited. Therefore, this Court dismissed the bail petition and gave direction to the trial Court to complete the trial as far as practicable within three months. Thereafter when the trial could not he over within three months, the learned Sessions Judge sought to extend time which was further extended by six months. 2. Now the second bail petition has been moved by the petitioner on the ground that he is in custody since 2.5.1996 and during the 31/2 years only eight witnesses have been examined out of the list of 33 witnesses despite the directions given by this Court to expedite the trial. Therefore, the petitioner may be released on bail only on this ground because the petitioner cannot be subjected to long incarceration without progressing the trial. The arguments were heard and a report was also sought from the SHO of the concerned Police Station. It has been revealed that only eight witnesses have been examined in the Court one witness each on 24.7.1998, 1.9.1998, 29.1.1999, 10.3.1999, 10.8.1999 and 10.9.1999. Two witnesses were examined on 10.2.1999. Thereafter, there is no further progress in the case and no witness has been examined since 10.9.1999. The learned Public Prosecutor submitted that the summons were issued which were served and witnesses did not appear. The police also got served the bailable warrants issued by the Court. Even then the witnesses did not appear in the Court and therefore the witnesses could not be examined. In these circumstances, the prosecution is not responsible in any manner for the delay in trial so far. The learned Public Prosecutor has cited R.D. Upadhyay v. State of A.P. & Ors., (1998) 5 SCC 696 , R.D. Upadhyay v. State of A.P. & Ors., 1998 JT (6) 486 , Narasindia Murthy v. The State by Gouribidanur Police, 1991 Cr.L.J. 3205 & Hussainara Khatoon &Ors. v. Home Secretary, State of Bihar, Patna,1980 SCC (Cr1.) 40 . The learned Public Prosecutor has cited R.D. Upadhyay v. State of A.P. & Ors., (1998) 5 SCC 696 , R.D. Upadhyay v. State of A.P. & Ors., 1998 JT (6) 486 , Narasindia Murthy v. The State by Gouribidanur Police, 1991 Cr.L.J. 3205 & Hussainara Khatoon &Ors. v. Home Secretary, State of Bihar, Patna,1980 SCC (Cr1.) 40 . It is argued that even if the trial has not been completed within the time as directed by the Court even then the accused is not entitled for bail on this ground alone because the nature of the case and the facts and circumstances of the case have to be considered alongwith the delay. It is further argued that in this case two persons have been killed and there are serious allegations and in the over all facts and circumstances of the case, the petitioner should not be released on bail. 3. The learned counsel for the petitioner has also referred in his support Ruldu Singh v. State of Rajasthan, 1996 RCC (Suppl.) 43 , Munna alias Kamta Prasad & Anr. v. State of Madhya Pradesh, 1986 (3) Crimes 429 , Manna alias Mahendra v. State of Rajasthan, 1989 (2) RLW 51 , Jawahar Singh v. State of Raj., 1989 RCS 180 , Babu & Anr. v. State of Raj., 1989 RCS 517 , Gyan Prakash alias Gyan Chand v. State of Raj., 1990 WLN 278 & Sunil K. Sinha v. State of Bihar, 1998 SCC (Cr1.) 1366 . It is vehemently contended that whenever there is unreasonable delay in trial, it is a very relevant consideration because the under trial accused cannot be put to long incarceration. In this case the petitioner is in judicial custody since 2.5.1996 and only eight witnesses have been examined which shows that the trial is likely to consume more time. There is no material to show that the accused is placing any hindrance in trial. 4. I have earnestly considered the rival contentions and all the cases referred by both the sides. In Ruldu Singh v. State of Rajasthan the accused was facing trial for the charge under section 302 IPC for 34 months. It was observed that the detention of accused persons in jail for unreasonable period without trial or during the pendency of a sessions trial is to be viewed seriously. In Ruldu Singh v. State of Rajasthan the accused was facing trial for the charge under section 302 IPC for 34 months. It was observed that the detention of accused persons in jail for unreasonable period without trial or during the pendency of a sessions trial is to be viewed seriously. In Manna alias Mahendra v. State of Rajasthan the accused was arrested on 27.4.1987 and the trial was pending before the Additional Sessions Judge No. 1, Bharatpur which could not proceed till the decision of a revision petition pending in the High Court. The learned Judge considered various judgments of Hon'ble Supreme Court and found the delay of more than a year unreasonable particularly in the circumstances that the prosecution moved an application for not examining the prosecution witnesses till the revision petition is decided by the High Court and opposed the application filed by the accused to record the prosecution evidence. Similar view was taken in Munna alias Kamta Prasad & Anr. v. State of Madhya Pradesh . It was observed in Jawahar Singh v. State of Raj . that gravity of the offence is one of the consideration, but it is not the sole consideration and delay in trial entitles the accused to bail. In Babu & Anr. v. State of Raj . keeping in mind the right of a person to speedy trial and that one cannot be kept behind bar for an indefinite period, the accused in custody for about a year was granted bail. In Gyan Prakash alias Gyan Chand v. State of Rajasthan the trial was pending for the last 25 months, 11 witnesses were examined out of 22 witnesses. The witnesses were not examined by the Curt even when they were present in the Court. These facts and circumstances were considered just and proper to allow the bail application. In Sunil K. Sinha v. State of Bihar a case for grant of bail was made out in view of the long incarceration of the appellant for a period of about 1 year and 10 months and trial likely to consume some more time. These facts and circumstances were considered just and proper to allow the bail application. In Sunil K. Sinha v. State of Bihar a case for grant of bail was made out in view of the long incarceration of the appellant for a period of about 1 year and 10 months and trial likely to consume some more time. In the cases referred by the learned Public Prosecutor it has been held that speedy trial is right of the accused and even in the cases where delay takes place in the trial, the Court has to keep in consideration various circumstances of the case including the gravity of the offence, the lapse on the part of the prosecution and the delay if any attributed to the accused. 5. In the instant case it is evident that the petitioner is in custody since 2.5.1996 i.e. more than about 3 years 8 months. The prosecution has submitted a list of 33 witnesses and as already mentioned only 8 witnesses have been examined. In view of the long list of the witnesses, the trial is likely to consume sufficiently long time. There is no material to put fault on the part of the petitioner or other accused persons. The striking feature is that the witnesses are not appearing despite repeated service of summons and bailable warrants, which is clear from the report placed before me. Of-course the trial Court has not further issued non-bailable warrants against the witnesses but even then there is no reason why the witnesses are not appearing even after due service. There is no application on the part of the witnesses showing their inability to attend the Court. So far there is no allegation from the prosecution side that the witnesses are being detained or threatened by the accused persons on bail or their relatives. In view of the above facts and circumstances of the case even after considering the gravity of the offence, I deem it just and proper to enlarge the petitioner on bail considering the over all facts and circumstances of the case so that the petitioner is not put to long incarceration any more. The under trial cannot be allowed to be kept in jail for unreasonably long period without making any satisfactory progress in the trial of the Sessions Case. The under trial cannot be allowed to be kept in jail for unreasonably long period without making any satisfactory progress in the trial of the Sessions Case. May be that the prosecution is not responsible for the delay but the sum and substance is that the delay has occurred due to non-attendance of the prosecution witnesses despite service of summons and bailable warrants. Consequently, this bail petition deserves to be allowed. 6. The bail petition of Gurmukh Singh is hereby allowed. The petitioner Gurmukh Singh S/o Surain Singh shall be released on bail if he furnishes a personal bond for a sum of Rs. 20,000/- and a surety in the like amount to the satisfaction of the trial Court with the following conditions : (1) The petitioner shall regularly appear before the trial Court on all the dates of hearing and co-operate with the trial of the case, (2) The petitioner shall not give any threat, inducement or promise to the prosecution witnesses. 7. The trial Court is directed to expedite the trial and to procure the attendance of the prosecution witnesses, even if, it is felt necessary to issue non-bailable warrants to procure there attendance, if they do not appear on service of summons or bailable warrants.Bail granted. *******