'Prosecution Examined Barely Two Witnesses Per Annum': J&K&L High Court Grants Bail To Murder Accused After 11 Years In Custody
The Jammu & Kashmir and Ladakh High Court has granted bail to an accused facing trial under Sections 302 and 201 RPC after observing that the prosecution had consumed more than eleven years to examine only twenty-four witnesses and had failed to conclude evidence despite repeated opportunities.The Court held that the petitioner's continued incarceration for nearly twelve years amounted to...
The Jammu & Kashmir and Ladakh High Court has granted bail to an accused facing trial under Sections 302 and 201 RPC after observing that the prosecution had consumed more than eleven years to examine only twenty-four witnesses and had failed to conclude evidence despite repeated opportunities.
The Court held that the petitioner's continued incarceration for nearly twelve years amounted to an infringement of his fundamental right to a speedy trial.
The Court was hearing a bail application arising out of a charge-sheet pending before the Court of the 2nd Additional Sessions Judge, Jammu, in a case registered under Sections 302 and 201 RPC.
A Bench of Justice Rajnesh Oswal observed that, “In fact, the prosecution has consumed a period exceeding eleven years to record the depositions of only twenty-four witnesses. Computed at an average of barely two witnesses per annum, this pace is far too languid to be ignored when viewed in juxtaposition with the submission preferred on behalf of the petitioner that his fundamental right to a speedy trial has been violated.”
The petitioner was facing trial in a charge-sheet arising out of an FIR registered with Police Station Akhnoor under Sections 302 and 201 RPC. The petitioner had initially approached the Trial Court seeking bail, but the application came to be dismissed.
Before the High Court, the petitioner contended that he had remained in custody since June 2014 and that the prosecution's case rested entirely upon circumstantial evidence without any eyewitness account. It was further submitted that despite the passage of more than eleven years, the prosecution had failed to conclude its evidence.
The petitioner further relied upon an order of the Trial Court expressing displeasure regarding the absence of a prosecution witness who was stated to be on VIP duty. It was argued that the prosecution had repeatedly delayed the matter despite numerous opportunities. Reliance was placed upon Vaibhav Singh v. State of Uttar Pradesh (2026).
The respondents opposed the bail application and argued that mere long incarceration could not entitle the petitioner to bail when he was facing trial for an offence punishable under Section 302 RPC. It was submitted that the gravity of the offence and the severe punishment prescribed disentitled the petitioner from the concession of bail.
The High Court examined the trial record and noted that the petitioner had been arrested in June 2014 and charges under Sections 302 and 201 RPC had been framed in November 2014. The Court observed that out of thirty-five prosecution witnesses, only twenty-four had been examined, while six witnesses had been dropped and two had expired, leaving three witnesses yet to be examined.
The Court further noted that the Trial Court had already granted a peremptory opportunity to the prosecution to conclude its evidence, failing which the evidence was liable to be closed. However, even thereafter, the prosecution failed to secure the attendance of its witnesses.
Referring to the conduct of the prosecution, the Court observed that, “Clearly, more than a decade has not been enough for the prosecution to conclude its evidence.” The Court also took note of the Trial Court's displeasure regarding the explanation furnished for the absence of a prosecution witness on the ground of VIP duty.
The Court held that it was unnecessary at the stage of bail to analyse the evidence already recorded and that the issue requiring consideration was the prolonged incarceration of the petitioner and the delay in conclusion of the trial.
The Court observed: “The protracted incarceration of the petitioner for a period spanning nearly twelve years, coupled with the failure of the prosecution to conclude its evidence despite numerous opportunities, renders this a fit case to hold that the petitioner's fundamental right to a speedy trial has suffered an egregious infringement.”
The Court relied upon the decision of the Supreme Court in Vaibhav Singh v. State of Uttar Pradesh (2026), wherein the Supreme Court held that an accused cannot be kept in jail indefinitely when the right to speedy trial under Article 21 stands infringed.
The High Court reproduced the observations of the Supreme Court that, “howsoever grave the crime may be, but if the accused is denied his right of speedy trial and is languishing in jail for years together and for no fault on his part, he cannot be kept in jail for indefinite period.”
The Court also relied upon its earlier decision in Raman Kumar v. Union Territory of Jammu and Kashmir (2025), wherein bail had been granted to an accused who had remained in custody for nearly thirteen years. The Court referred to the observations made therein regarding routine adjournments, delay in conclusion of trial, and the obligation of courts to protect the accused's right to speedy trial.
The Court further referred to Ishwarlal Mali Rathod v. Gopal (2021) and Sheikh Javed Iqbal v. State of Uttar Pradesh (2024), wherein the Supreme Court reiterated that serious charges alone cannot justify indefinite incarceration where the trial has remained pending for years without conclusion.
While balancing the embargo relating to the grant of bail in offences punishable with death or life imprisonment against the accused's constitutional rights, the Court observed that Article 21 also protects the right of an accused to a speedy trial and that such right cannot be defeated by prolonged and unjustified delay in conclusion of proceedings.
The High Court held that “notwithstanding the bar contained under Section 437/497 Cr.P.C. and Section 480 BNSS”, the petitioner deserved to be enlarged on bail in view of his prolonged incarceration and the failure of the prosecution to conclude evidence despite repeated opportunities.
Accordingly, the Court allowed the bail application and directed that the petitioner be released on bail subject to furnishing two solvent sureties of Rs. 50,000 each along with a personal bond of the like amount.
The Court further directed the petitioner to appear before the Trial Court on every date of hearing, restrained him from leaving the Union Territory of Jammu & Kashmir without prior permission of the Trial Court, and directed that he shall not seek unnecessary adjournments.
The Court also observed that in case of violation of any of the conditions imposed, the respondents would be at liberty to seek cancellation of bail before the Trial Court. The Trial Court was further directed to dispose of the case expeditiously.
Case Title: Kewal Sharma v. Union Territory of J&K & Ors.
Citation: 2026 LiveLaw (JKL)
Appearances
For Petitioner: Advocates Udhay Singh Salaria, Varun Anand
For Respondents: Dy. AG Pawan Dev Singh