Jammu & Kashmir High Court
Rahat Hafiz And Ors vs Ut Of J&K on 19 August, 2025
1
Supple
sr. 3
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
(Through Virtual Mode)
Pronounced on: 19.08.2025
Bail Application No. 115/2024, CrLM No. 859/24
Rahat Hafiz and ors ...Petitioner(s)
Through: Mr. A.M Dar, Sr. Adv with Ms Mahjabeen, Adv.
vs.
1.UT of J&K, through Principal Secretary to Govt.
(Home) Department Civil Sectt. Srinagar, & ors
...Respondents.
Through: Mr. Sunil Sethi, Senior advocate,
Special Public Prosecutor.
CORAM:
Hon'ble Mr. Justice Mohd. Yousuf Wani, Judge.
JUDGMENT
1. Through the medium of the instant petition filed under the
provisions of Section 439 of the Code of Criminal Procedure, 1973,
(hereinafter referred to as the “Code” for short), corresponding to
Section 483 of the Bhartiya Nagarik Suraksha Sanhita, 2023, the
petitioner has sought grant of bail in his favour in case FIR No. 82 of
2013 under sections 302, 364, 201, 120-B, 420 & 468 RPC of Police
Station, Pir-Mitha, Jammu, on the main ground that he is the citizen of
India and a domicile of Union Territory of J&K and, as such, within his
rights to invoke the jurisdiction of this court for his enlargement on bail
in the aforementioned case FIR No. 82 of 2013 of Police Station, Pir-
Bail App No. 115/2024
2
Mitha, Jammu. That he has been unjustly implicated in the aforesaid
case FIR as the accusation against him is baseless. That he is an
educated individual hailing from a respectable family of Jammu whose
father is a prominent reputed Doctor in the region. That he has no
criminal antecedents. That he stands involved in the murder of one lady
namely Narjis Haji, when there is no credible evidence with the
prosecution linking him to the alleged incident. That death of the lady is
alleged to have occurred due to administration of poisonous substance
namely Aluminium Phosphate. That the prosecution is banking only on
circumstantial evidence so far his unjust involvement in the case is
concerned. That the trial of the case is going on in the court of learned
Additional Sessions Judge, Jammu (hereinafter referred to as the “trial
court” for short). That the charge sheet includes list of 39 prosecution
witnesses out of whom 9 witnesses are yet to be examined at the trial.
That the testimonies of the witnesses so far recorded do not connect
him with the alleged occurrence. That the statements of the witnesses
recorded during investigation and also at the trial reflect numerous
contradictions and discrepancies which undermine the credibility of the
prosecution narrative. That the medical testimonies presented by the
prosecution are equally contradictory and ambiguous. That he has been
facing prolonged incarceration since 11 years, during which cumbrous
trial period, the prosecution failed to lead any incriminating evidence
against him. That extended period of his confinement combined with
weak circumstantial evidence underscore the need for careful
revaluation of the case and consequent consideration of his request for
his bail. That his health has badly deteriorated during his last 11 years of
continued incarceration, as indicated by the medical certificates attached
Bail App No. 115/2024
3
to the bail application. That right to liberty guaranteed under Article 21
of the Constitution of India is a valuable trust which cannot be allowed
to be compromised. That the trial of the case is still incomplete with 8
to 10 witnesses yet to be examined, thus, indicative of the fact that legal
process may take further time to reach its completion. That he had no
alternative but to approach the learned trial court in the first instance
seeking bail on all the grounds especially his long incarceration without
completion of the trial. That the learned trial court rejected his
application on the ground that he cannot claim bail on account of long
incarceration from a trial court. That the prosecution case is wholly and
solely based on circumstantial evidence which is imaginary and too
weak to establish an unbreakable linking. That the Hon’ble Supreme
Court of India has set a precedent for granting bail to an individual
facing prolonged incarceration particularly when the prosecution fails to
present a strong case. That his right to liberty and health have been
severely compromised by his prolonged detention and as such the
grant of bail in his favour is likely to restore his freedom and to allow
him to seek medical treatment for his deteriorating health. That he is
entitled to presumption of his innocence till proved guilty embodied
under the cardial principle of criminal jurisprudence. That he has no
criminal antecedents at all and belongs to a respectable family. That he
is sole bread earner of his family and in case he is made to suffer further
incarceration, his entire family will starve for want of sustenance. That
he shall abide by any condition that may be imposed by this court.
2. The instant bail petition has been resisted by the
respondents on the grounds that same is not maintainable under law and
Bail App No. 115/2024
4
deserves outright rejection. That the petitioner after filing an application
before the learned trial court in terms of provisions of Section 439 of the
Code corresponding to Section 483 Bhartiya Nagarik Suraksha Sanhita
and obtaining of an interim bail during the pendency of the said
application, has again invoked the same provisions of law after the
dismissal of the earlier application by the learned trial court vide its
order dated 04.04.2024. That the petitioner is facing charge of murder
of the deceased Narjis Haji and the prosecution witnesses examined at
the trial have supported the charge against him. That the contention of
the petitioner that he has been languishing in jail since last 11 year is
not true as he has been getting interim bails on health grounds which
concessions were misused by him by remaining absent at the trial. That
the investigating officer during investigation of the case collected
evidence to the effect that the petitioner after hatching conspiracy with
the co-accused administered poison to deceased under the motive of
grabbing an amount of Rs.10/- lacs which he had received from her on
account of sale of plot to her. That all the prosecution witnesses
recorded at the trial have deposed against the petitioner and the
remaining witnesses being relevant are required to be examined. That
the petitioner is facing charge of murder and that too of a lady who was
of his mother’s age. That the petitioner misused the concession of the
interim bail granted in his favour by the learned trial court by remaining
absent at the trial which fact constrained the learned trial court to
cancel the said concession in his favour and to issue non-bailable
warrant of arrest against him. That the petitioner never complained of
severe health problem and the routine day to day medical checkups were
conducted of him within the jail premises by the jail medical staff. That
Bail App No. 115/2024
5
there is every apprehension of misusing the concession of bail by him
by tempering with the remaining witnesses and by absconding at the
trial.
3. I have heard the learned counsel for the parties.
4. The learned counsel for the petitioner Mr. A. M Dar, Senior
Advocate, while reiterating his stand taken in the bail petition submitted
that the petitioner was falsely and frivolously implicated in the case FIR
which is evident from the fact that the investigating agency during the
investigation of the case has not connected him with the alleged offence.
That petitioner was intentionally implicated in the case FIR for
extraneous reasons. That there is no direct evidence at all connecting
the petitioner with the alleged crime. The learned counsel submitted
that notwithstanding the innocence of the petitioner and his being
implicated in the case on false and frivolous grounds, he is otherwise
entitled to grant of bail on account of his prolonged incarceration. The
learned counsel submitted that the petitioner was arrested in the case on
13.12.2013 on the ground of suspicion and since then he has been
languishing in the jail as under trial in the case FIR without
completion of criminal trial. He submitted that long incarceration of the
petitioner/accused with delay in completion of the trial tent-amounts to
the violation of his fundamental right to life and personal liberty
guaranteed under Article 21 of the constitution of our country. He
submitted that the petitioner is entitled to be granted bail on merits also
as in view of the evidence of very weak contradictory and
circumstantial nature adduced at the trial by the prosecution, there
appears no reasonable ground of his involvement in the case. The
Bail App No. 115/2024
6
learned counsel further submitted that the present bail application filed
by the petitioner while invoking the powers of this Court under Section
439 of the Code is very well maintainable as after rejection of the bail
by the learned trial court, the subsequent application will lie also under
Section 439 of the Code. He submitted that petitioner was granted
interim bail on health grounds by the learned trial court for a temporary
period, which came to be cancelled on 27.07.2024. He also contended
that all other co-accused have already been admitted to bail in the case
FIR. Learned counsel further submitted that petitioner hails from a
respectable family and has no criminal antecedents. That he shall abide
by any condition that may be imposed by this court.
Learned Senior counsel submitted that petitioner prays for
grant of bail in his favour mainly on account of his long incarceration of
about 12 years without completion of the trial against him.
The learned senior Advocate in support of his arguments
placed reliance on the authoritative judgments of the Hon’ble Supreme
Court passed in Indrani Pratim Mukerjea vs. Central Bureau of
Investigation and anr, SLP (Crl) No. 1627/2022 dated 18.05.2022;
Saudan Singh vs. State of Uttar Pradesh (Crl) Appeal Nos. 308, 309,
310, 311, 312, 313, 314, 315, 316, 317, 318, 319,320, 334, 336, 325,
322, 323 & 324 of year 2022, arising out of SLPs (Crl) No.s 4033,
4635, 4634, 4636, 4213, 4638, 4643, 4642, 4849, 4641, 4396, 4847,
4844, 4848, 5472, 6928, 4639, 4332, 4640, 6449 of 2021, decided
through common order dated 25.02.2022; Neeraj vs. The State of
Uttar Pradesh SLP (crl) No. 11458/2022 dated 16.01.2023; Hussainara
Khatoon and ors vs. Home secretary, State of Bihar, Pattna, Writ Pet
Bail App No. 115/2024
7
No.l 57 of 1979 decided on 12.02.1979; Supreme Court Legal Aid
Committee vs. Union of India (UOI) and ors writ petition (crl) No. 307
of 1993 decided on 07.10.1994; Umarmia vs. State of Gujrat Crl Appeal
No. 1650 of 2011 decided on 01.02.2017; Union of India (UOI) vs. K.A
Najeeb Crl Appeal No. 98 of 2021 decided on 01.02.2021 & Ashim vs.
National Investigation Agency crl appeal No. 1525 of 2021 decided on
01.12.2021.
The learned counsel in support of his arguments also placed
reliance on the judgments of this Court passed in “Manzoor Ahmad Mir
vs. UT of J&K” bail app. No. 109/22 decided on 30.12.2022 and in
Bansi Lal vs. UT of J&K or ors bail app. No. 30/2024 decided on
03.07.2024.
The learned Senior Advocate also placed reliance on a latest
judgment of Hon’ble Apex Court titled Tapas Kumar Palit vs. State of
Chhattisgarh (Crl Appeal No. 738/25) decided on 14.02.2025.
The learned senior advocate submitted that the Hon’ble
Apex court has been pleased to grant bail to the appellants/accused in
the relied upon cases who were facing trial in respect of cases for
different periods ranging from 5 years to 10/15 years without
completion of trial against them while observing that they have
fundamental right to speedy trial guaranteed under Article 21 of the
Constitution of India which stands compromised due to their long
incarceration without expeditious trial against them.
5. The learned special PP Mr. Sunil Sethi, Senior Advocate in
rebuttal while reiterating his stand already taken in the written
Bail App No. 115/2024
8
objections submitted that the application filed before this court under
section 439 of the Code is not maintainable because the same was filed
during the operation of interim bail granted by the learned trial court
before which the similar provisions of the Code were earlier invoked.
He contended that the petitioner while approaching this court has
observed the directions given by the Hon’ble Supreme Court in “Kusha
Duruka vs. State of Odisha 2024 (2) SCC (Crl) 466, regarding
furnishing of the details of all the pending and already filed bail
applications in breach. That the petitioner-accused is facing charge for
the offence of murder of a lady who was of the age of his mother namely
Narjis Haji. That the motive behind the crime and the circumstances in
which the petitioner-accused committed the crime in conspiracy with co-
accused is gruesome. That the petitioner-accused even misused the
concession of interim bail on the medical grounds owing to which fact
he despite his being in custody since last more than 10 years does not
deserve the concession of bail. That the trial in the criminal case against
the petitioner and other co-accused is going on with active pace and the
prosecution witnesses so far recorded at the trial have inculpated the
petitioner. That there is concrete direct and documentary evidence
establishing the guilt of the petitioner-accused. That there is every
apprehension of the misusing of concession of bail by the petitioner-
accused by tampering with the prosecution evidence yet to be recorded
at the trial. That the petitioner has never complained of any health
problem and he has been given the required treatment at the jail medical
centre as and when required by him. That given severity of punishment
carried by the offence U/s 302 IPC charged against the petitioner, there
is every apprehension of his fleeing from justice and absconding at the
Bail App No. 115/2024
9
trial. The learned Special PP in support of his arguments placed reliance
on the authoritative judgments cited as Kusha Duruka vs. State of
Ordisha 2024 (2) SCC (Crl) 466; Sudha Singh vs. State of UP 2012 (2)
SCC (Crl) 505; Jadunath Singh vs. Arvind Kumar‘s & Anr 2024 (3)
SCC (Crl) 108; State of Tamil Nadu vs. S.A Raja 2005 (8) SCC 380 and
Vijay Madan Lal Choudhary & Ors vs. Union of India & Ors 2020 (4)
Crl. CC 126.
6. I have perused the instant application, the objections filed
in rebuttal and the scanned copy of the trial court record, especially the
evidence of the prosecution witnesses recorded at the trial.
I have also accorded in-depth consideration to the rival
arguments advanced on both the sides.
7. The petitioner-accused is facing trial on the charge of
murder of one lady Narjis Haji who is alleged to have been abducted by
the petitioner-accused and his home servant Riyaz Ahmad co-accused
on 12.12.2013, administered her poisonous substance and then
abandoned her dead body in a forest area. After the culmination of the
investigation in the case FIR No. 82/13 of police station Pir-metha
Jammu, final report/challan came to be presented before the trial court
against the petitioner-accused and three others. The accused including
the petitioner came to be charged in the case vide order dated
13.06.2014 of the learned trial court. The petitioner-accused stands
charged under sections 420, 468, 302,364, 201 and 120-B RPC.
8. The prosecution evidence was called on the same date i.e
13.06.2014 when the accused persons including the present petitioner
Bail App No. 115/2024
10
pleaded not guilty and claimed to be tried. So the prosecution evidence
is in the process of being recorded at the trial since long more than 11
years. The petitioner is reported to be facing detention in the case
since about last 12 years.
9. As on the date of rejection of earlier regular bail
application of the petitioner-accused by the learned trial court i.e
4.4.2024, out of 35 listed prosecution witnesses only 15 witnesses were
left to be examined.
10. By the time some more witnesses are expected to have
been recorded at the trial of the case but nevertheless the fact remains
that trial of the case is likely to take some more time to conclude.
11. It has been submitted by the petitioner in his petition that
he is not keeping good health and has developed severe health
complications inside the jail. The learned counsel for the petitioner
during his arguments inter alia submitted that petitioner was released
only for a short interim period on health grounds and his interim bail
was subsequently cancelled by order dated 27.07.2024.
12. Although, the petitioner has taken the grounds on merit
also in his bail application yet he has mainly sought the grant of bail on
account of his long incarceration of about 12 years with no hope of
conclusion of the trial at an earliest.
13. As hereinbefore mentioned this court has gone through the
evidence recorded at the trial so far which is of circumstantial nature, I
hesitate to comment on the nature of the evidence at this awaited stage
of the conclusion of the trial to prevent any prejudging in the matter.
Bail App No. 115/2024
11
14. While keeping the evidence adduced at the trial in mind,
the another question for addressal of this court arises as to whether the
accused having allegedly committed a heinous offence of murder is
entitled to be enlarged on bail on the ground of his long incarceration
of about 12 years. The matter has been the subject matter of the
discussion before the Hon’ble Apex Court in a number of cases.
15. One of the earliest judgments on the concept of speedy trial
was delivered by the Hon’ble Supreme Court in the case of Hussainara
Khatoon vs. Home Secretary, State of Bihar, (1980) 1 SCC 81. In the
said case, the Hon’ble Court deprecated the delay in commencement of
trials, which would apply equally to long pendency of trials. The Court
observed that un-necessarily prolonged detention in prison of under
trials before being brought to the trial, is an affront to all civilized norms
of human liberty. The Court observed as under:
“There is also one other infirmity of the legal and judicial system
which is responsible for this gross denial of justice to the under trial
prisoners and that is the notorious delay in disposal of cases. It is a
bad reflection on the legal and judicial system that the trial of an
accused should not even commence for a long number of years. Even
a delay of one year in the commencement of the trial is bad enough;
how much worse could it be when the delay is as long as 3 or 5 or 7 or
even 10 years. Speedy trial is of the essence of criminal justice and
there can be no doubt that delay in trial by itself constitutes denial of
justice. It is interesting to note that in the United States, speedy trial is
one of the constitutionally guaranteed rights. The Sixth Amendment to
the Constitution provides that:
“In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial.”
So also Article 3 of the European Convention on Human Rights
provides that:
“every one arrested or detained…..shall be entitled to trial
within a reasonable time or to release pending trial.”
We think that even under our Constitution, though speedy trial
is not specifically enumerated as a fundamental right, it is implicit in
the broad sweep and content of Article 21 as interpreted by this Court
Bail App No. 115/2024
12
in Maneka Gandhi v. Union of India. We have held in that case that
Article 21 confers a fundamental right on every person not to be
deprived of his life or liberty except in accordance with the procedure
prescribed by law and it is not enough to constitute compliance with
the requirement of that Article that some semblance of a procedure
should be prescribed by law, but that the procedure should be
“reasonable, fair and just”. If a person is deprived of his liberty under
a procedure which is not “reasonable, fair or just”, such deprivation
would be violative of his fundamental right under Article 21 and he
would be entitled to enforce such fundamental right and secure his
release. Now obviously procedure prescribed by law for depriving a
person of his liberty cannot be ‘reasonable, fair or just’ unless that
procedure ensures a speedy trial for determination of the guilt of such
person. No procedure which does not ensure a reasonable quick trial
can be regarded as ‘reasonable, fair or just’ and it would fall foul of
Article 21. There can, therefore, be no doubt that speedy trial and by
speedy trial we mean reasonably expeditious trial, is an integral and
essential part of the fundamental right to life and liberty enshrined in
Article 21.
The question which would, however, arise is as to what would
be the consequence if a person accused of an offence is denied speedy
trial and is sought to be deprived of his liberty by imprisonment as a
result of a long delayed trial in violation of his fundamental right
under Article 21. Would he be entitled to be released unconditionally
freed from the charge leveled against him on the ground that trying
him after an unduly long period of time and convicting him after such
trial would constitute violation of his fundamental right under Article
21 ? That is a question we shall have to consider when we hear the
writ petition on merits on the adjourned date….”
16. In Supreme Court Legal Aid Committee vs. Union of
India, (1994) SCC 731, the Supreme Court dealt with the issue of
delay in trial in the following manner:
“……..In substance the petitioner now prays that all
under-trials who are in jail for the commission of any
offence or offences under the Act for a period exceeding
two years on account of the delay in the disposal of
cases lodged against them should be forthwith released
from jail declaring their further detention to be illegal
and void and pending decision of this Court on the said
larger issue, they should in any case be released on bail.
It is indeed true and that is obvious from the plain
language of Section 36(1) of the Act, that the legislature
contemplated the creation of Special Courts to speed up
the trial of those prosecuted for the commission of any
offence under the Act. It is equally true that similar is the
objective of Words and Phrases, Section 309 of the
Code. It is also true that this Court has emphasised in a
series of decisions that Articles 14, 19 and 21 sustain
and nourish each other and any law depriving a personBail App No. 115/2024
13of “personal liberty” must prescribe a procedure which is
just, fair and reasonable, i.e., a procedure which
promotes speedy trial….
Now to refuse bail on the one hand and to delay trial of
cases on the other is clearly unfair and unreasonable and
contrary to the spirit of Section 36(1) of the Act, Section
309 of the Code and Articles 14, 19 and 21 of the
Constitution. We are conscious of the statutory provision
finding place in Section 37 of the Act prescribing the
conditions which have to be satisfied before a person
accused of an offence under the Act can be released.
Indeed we have adverted to this section in the earlier part
of the judgment. We have also kept in mind the
interpretation placed on a similar provision in Section 20
of the TADA Act by the Constitution Bench in Kartar
Singh v. State of Punjab10. Despite this provision, we
have directed as above mainly at the call of Article 21 as
the right to speedy trial may even require in some cases
quashing of a criminal proceeding altogether, as held by
a Constitution Bench of this Court in A.R. Antulay v. R.
S. Nayak11, release on bail, which can be taken to be
embedded in the right of speedy trial, may, in some
cases be the demand of Article 21 As we have not felt
inclined to accept the extreme submission of quashing
the proceedings and setting free the accused whose trials
have been delayed beyond reasonable time for reasons
already alluded to, we have felt that deprivation of the
personal liberty without ensuring speedy trial would also
not be in consonance with the right guaranteed by
Article 21. Of course, some amount of deprivation of
personal liberty cannot be avoided in such cases; but if
the period of deprivation pending trial becomes unduly
long, the fairness assured by Article 21 would receive a
jolt. It is because of this that we have felt that after the
accused persons have suffered imprisonment which is
half of the maximum punishment provided for the
offence, any further deprivation of personal liberty
would be violative of the fundamental right visualised by
Article 21, which has to be telescoped with the right
guaranteed by Article 14 which also promises justness,
fairness and reasonableness in procedural matters. What
then is the remedy? The offences under the Act are grave
and, therefore, we are not inclined to agree with the
submission of the learned counsel for the petitioner that
we should quash the prosecutions and set free the
accused persons whose trials are delayed beyond
reasonable time. Alternatively he contended that such
accused persons whose trials have been delayed beyond
reasonable time and are likely to be further delayed
should be released on bail on such terms as this Court
considers appropriate to impose. This suggestion
commends to us….”
Bail App No. 115/2024
14
17. Again, Umarmia vs. State of Gujarat, (2017) 2 SCC
731, the Supreme Court, while granting bail to an under trial who
had been in custody for about 12 years, observed as under:-
“…..This appeal is filed against the judgment dated 16-6-2010
in Criminal Misc. Sr. No. 44 of 2010 by which the Court of
Designated Judge (TADA) at Porbandar (hereinafter referred to
as “the Designated Court”) rejected the bail application filed by
the appellant under Section 439 CrPC and Section 20(8) of the
Terrorist and Disruptive Activities (Prevention) Act, 1987
(hereinafter referred to as “the Act”). Crime No. I-43 of 1994
was registered under Section 154 CrPC for the offences
committed under Sections 121, 121-A, 122, 123, 124-B read
with Section 34 of the Penal Code, 1860, Sections 25(1-A), (1-
B) and 25(1-AA) of the Arms Act, Section 9-B of the
Explosives Act, Sections 3, 4, 5 and 6 of the Explosive
Substances Act and Sections 3, 4 and 5 of the Act.
2. The statement of one Suresh recorded under Section 108 of
the Customs Act revealed that explosive substances, powder
RDX boxes, bags containing firearms, 45 bags of weapons, 15
boxes of RDX and 225 pieces of silver ingots were smuggled
into the country and taken to Zaroli and Dhanoli Villages of
Valsad District. The first charge-sheet was filed on 12- 1-1995
in which the name of the appellant is found at Serial No. 1 in
Column 2 which refers to persons who were absconding. The
11th supplementary chargesheet was filed on 6-6-2005 wherein
it was mentioned that the appellant was arrested at 1700 hrs on
10-12- 2004.
*******
10. After considering the submissions of both sides, we are of the
opinion that the appellant is entitled to be released on bail for the
following reasons:
A. The prior approval required under Section 20- A(1) of the
TADA Act was not taken from the District Superintendent of
Police before the FIR was recorded.
B .Admittedly, the appellant had been suffering incarceration
for more than 12 years. C. Only 25 out of 192 witnesses have
been examined so far.
D. There is no likelihood of the completion of trial in the near
future.
E. Though there is a confessional statement of the appellant
recorded under Section 15 of the TADA, the same cannot be
looked into by us in view of the violation of Section 20-A(1) of
the TADA Act.
11. This Court has consistently recognized the right of the
accused for a speedy trial. Delay in criminal trial has been
Bail App No. 115/2024
15
held to be in violation of the right guaranteed to an accused
under Article 21 of the Constitution of India. (See Supreme
Court Legal Aid Committee v. Union of India [Supreme
Court Legal Aid Committee (Representing Under trial
Prisoners) v. Union of India, (1994) 6 SCC 731: 1995 SCC
(Cri) 39] and Shaheen Welfare Assn. v. Union of India
[Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC
616 : 1996 SCC (Cri) 366] .) The accused, even in cases
under TADA, have been released on bail on the ground
that they have been in jail for a long period of time and
there was no likelihood of the completion of the trial at the
earliest. [See Paramjit Singh v. State (NCT of Delhi)
[Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252
: 1999 SCC (Cri) 1156] and Babba v. State of Maharashtra
[Babba v. State of Maharashtra, (2005) 11 SCC 569 :
(2006) 2 SCC (Cri) 118.
12. Though the appellant is involved in serious offences
and has absconded for a period of 10 years before he was
arrested in 2004, we see no reason to confine him to jail as
he has already suffered more than 12 years in custody and
the trial may not be completed in the near future. Taking
note of the above, we grant relief of bail to the appellant
subject to the following conditions…….”
18. In the case of Union of India vs. K. A. Najeeb, (2021)
3 SCC 713, a three Judge Bench of the Hon’ble Supreme
Court, while considering the long incarceration as also the
effect of rigour of Section 43-D(5) of the UAPA Act, observed
as under:
“17. It is thus clear to us that the presence of statutory
restrictions like Section 43-D(5) of the UAPA per se does
not oust the ability of the constitutional courts to grant bail
on grounds of violation of Part III of the Constitution.
Indeed, both the restrictions under a statute as well as the
powers exercisable under constitutional jurisdiction can be
well harmonised. Whereas at commencement of
proceedings, the courts are expected to appreciate the
legislative policy against grant of bail but the rigours of
such provisions will melt down where there is no
likelihood of trial being completed within a reasonable
time and the period of incarceration already undergone has
exceeded a substantial part of the prescribed sentence. Such
an approach would safeguard against the possibility of
provisions like Section 43-D(5) of the UAPA being used asBail App No. 115/2024
16the sole metric for denial of bail or for wholesale breach of
constitutional right to speedy trial.”
19. In yet another judgment in the case of Ashim alias
Asim Kumar Haranth Bhattacharya vs. National
Investigation Agency, (2022) 1 SCC 695, the Hon’ble
Supreme Court observed as under:
“9. We have to balance the nature of crime in reference to
which the appellant is facing a trial. At the same time, the
period of incarceration which has been suffered and the
likely period within which the trial can be expected to be
completed, as is informed to this Court that the statement
of PW 1/de facto complainant has still not been completed
and there are 298 prosecution witnesses in the calendar of
witness although the respondent has stated in its counter-
affidavit that it may examine only 100 to 105 witnesses but
indeed may take its own time to conclude the trial. This
fact certainly cannot be ignored that the appellant is in
custody since 6-7- 2012 and has completed nine-and-half
years of incarceration as an under trial prisoner.
10. This Court has consistently observed in its numerous
judgments that the liberty guaranteed in 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 is imperative and the undertrials cannot
indefinitely be detained pending trial. 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 him on
bail.
11. Deprivation of personal liberty without ensuring speedy
trial is not consistent with Article 21 of the Constitution of
India. While deprivation of personal liberty for some
period may not be avoidable, period of deprivation pending
trial/appeal cannot be unduly long. At the same time,
timely delivery of justice is part of human rights and denial
of speedy justice is a threat to public confidence in the
administration of justice.”
20. Again, in the case of Jagjeet Singh & Ors. Vs. Ashish
Mishra @ Monu & anr. 2021 LiveLaw (SC) 376, the Hon’ble
Supreme Court, relying up the ratio laid down in K. A. Najeeb’s
case (supra), observed that no accused can be subjected to unending
Bail App No. 115/2024
17
detention pending trial, especially when law presumes him to be
innocent until proven guilty. It has been further observed that even
when statutory provisions expressly bar the grant of bail after a
reasonably long period of incarceration, such stringent provision
will melt down.
21. As hereinbefore mentioned the learned counsel for the
petitioner Mr. A.M Dar, Senior Advocate referred to the judgment
passed by the Hon’ble Apex Court in Saudan Singh vs. State of
Uttar Pradesh (Criminal Appeal No. 308/2022) in which a bunch of
petitions came to be allowed and the Hon’ble Apex Court was
pleased to grant bail to the petitioners who were suffering from
incarceration during different periods ranging from 5 to 10/15
years. The petitioner also has been suffering detention in the case
FIR since lat about 12 years still the trial of the case is likely to
take some more time to conclude.
22. The co-accused in the case FIR have already been
enlarged on bail in the case.
23. The learned counsel for the petitioner during his arguments
has also referred to a recent judgment of the Hon’ble Apex Court
decided on 14.02.2025 in case titled Tapas Kumar Palit vs. State of
Chhattisgarh Crl Appeal No. 738/25 decided on 14.02.2025 in which the
Hon’ble Apex Court was pleased to enlarge the appellant to bail on
account of his continued incarceration. It is profitable to reproduce the
paras 5 to 15:
5. The appellant was arrested on the very same date i.e. 24th March,
2020. At the end of the investigation charge-sheet came to be
filed.
Bail App No. 115/2024
18
6. The trial is in progress. Till this date the prosecution has been
able to examine 42 witnesses. The prosecution intends to
examine as many as 100 witnesses. We are conscious of the
Order passed by us taking the view that once the trial commences
and the witnesses are being examined then in serious crimes like
murder, dacoity, rape, etc, the Court ordinarily should not
exercise its discretion for the purpose of grant of bail, more
particularly, looking into the evidence which has come on record.
7. However, this is a case in which the appellant is in custody as an
under trial prisoner since 24th March, 2020. He has no other
antecedents. The panch witnesses to the recovery panchnama
have also turned hostile.
8. It’s been now 5 years that he is in judicial custody. The learned
counsel appearing for the Statehasno idea as regards the time
likely to be consumed to complete the recording of the oral
evidence.
9. In such circumstances, we are left with no other option but to
order release of the appellant on bail. We do not undermined the
seriousness of the crime that has been alleged.
10. However, many times we have made ourselves very clear that
howsoever serious a crime may be the accused has a fundamental
right of speedy trial as enshrined in Article 21 of the
Constitution.
11. Before we close this matter, we would like to observe as to
why the Public Prosecutor wants to examine 100 witnesses. Who
are these 100 witnesses? We are aware that it is the public
prosecutor who could be said to be in-charge of the trial and he
has to decide who is to be examined and who is to be dropped.
But at the same time, no useful purpose would be served if 10
witnesses are examined to establish one particular fact.
12. The aforesaid results in indefinite delay in conclusion of trial.
It is expected of the Public Prosecutor to wisely exercise his
discretion in so far as examination of the witnesses is concerned.
13. Where the number of witnesses is large, it is not, in our
opinion, necessary that everyone should be produced. In this
connection, we may refer to Malak Khan vs. Emperor [AIR 1946
Privy Council 16] where their Lordships observed as follows at
page 19:-
“It is no doubt very important that, as a general rule, all Crown
witnesses should be called to testify at the hearing of a
prosecution, but important as it is, there is no obligation
compelling counsel for the prosecution to call all witnesses who
speak to facts which the Crown desire to prove. Ultimately it is
a matter for the discretion of counsel for the prosecution and
though a Court ought, and no doubt will, take into
consideration the absence of witnesses whose testimony would
be expected, it must judge the evidence as a whole and arrive at
its conclusion accordingly taking into consideration the
persuasiveness of the testimony given in the light of such
criticism as may be levelled at the absence of possible
witnesses.”
14. In this regard, the role of the Special Judge (NIA) would also
assume importance. The Special Judge should inquire with the
Special Public Prosecutor why he intends to examine a particular
witness if such witness is going to depose the very same thing
Bail App No. 115/2024
19
that any other witness might have
deposedearlier.Wemaysoundasiflayingsomeguidelines,buttimehas
cometoconsiderthisissue of delay and bail in its true and proper
perspective. If an accused is to get a final verdict after
incarceration of six to seven years in jail as an under trial
prisoner, then, definitely, it could be said that his right to have a
speedy trial under Article 21 of the Constitution has been
infringed. The stress of long trials on accused persons – who
remain innocent until proven guilty – can also be significant.
Accused persons are not financially compensated for what might
be a lengthy period of pre- trial incarceration. They may also
have lost a job or accommodation, experienced damage to
personal relationships while incarcerated, and spent a
considerable amount of money on legal fees. If an accused person
is found not guilty, they have likely endured many months of
being stigmatized and perhaps even ostracized in their
community and will have to rebuild their lives with their own
resources.
15. We would say that delays are bad for the accused and
extremely bad for the victims, for Indian society and for the
credibility of our justice system, which is valued. Judges are the
masters of their Courtrooms and the Criminal Procedure Code
provides many tools for the Judges to use in order to ensure that
cases proceed efficiently.”
24. In the backdrop of the aforementioned discussion this court
is of the considered opinion, that it may meet the ends of justice in case
the petitioner-accused is admitted to bail in the case, subject to some
reasonable terms and conditions.
25. Accordingly, the petition is allowed and the petitioner is
directed to be released on bail subject to his furnishing of surety and
personal bonds each in the amount of Rs.2/- lacs respectively to the
satisfaction of learned trial court and the Superintendent of Jail
concerned in which he is presently lodged. The bail order however,
shall be subject to the following conditions:-
i) In case the petitioner has a Passport he shall surrender the same
before the trial court and shall not travel out of the Union
Territory of J&K without permission of the trial court.
ii) That he shall not cause any threat, intimidation or undue influence
on un-examined prosecution witnesses so as to dissuade them
from making their statements before the trial court.
Bail App No. 115/2024
20
iii) That he shall remain punctual at the hearings of the trial case
unless exempted for any hearing by the learned trial court.
iv) That he shall not confront the family or relatives of the deceased
until the conclusion of the trial.
26. This court makes it clear that if the petitioner commits
breach of any of the aforementioned conditions imposed by this court,
the prosecution shall have right to approach this court seeking
cancellation of bail.
27. Disposed of.
(MOHD. YOUSUF WANI)
JUDGE
SRINAGAR:
19.08. 2025
“Ayaz/”
i) Whether the Judgment is reportable in law books/journals: ? Yes.
ii) Whether judgment is Speaking ? Yes
Bail App No. 115/2024