1. Facin trial under Sections 302 and 201 RPC for murder, petitioner sought bail citing inordinate pre-trial custody. (Para 1 , 2 , 3 )
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2026 Supreme(Online)(J&K) 780
Rajnesh Oswal, J
Kewal Sharma – Appellant
Versus
Union Territory of J&K – Respondent
Bail App. No. 339/2025 | CrlM No. 2303/2025
Important Points
Protracted incarceration and infringement of the fundamental right to a speedy trial under Article 21 of the Constitution of India justify the grant of bail, regardless of the gravity of the offence or statutory bars against bail for serious crimes.
Subject
Criminal Law - Bail
Act Referred
Headnote
(A) Constitution of India - Article 21 - Right to Speedy Trial - RPC - Sections 302 and 201 - Cr.P.C / BNSS - Sections 437, 497 and 480 - Bail application - Accused in custody for nearly twelve years - Prosecution failed to conclude evidence despite multiple opportunities - Fundamental right to speedy trial violated - Long incarceration without fault of the accused is ground for bail even in heinous crimes - The pace of trial was found to be languid, with the prosecution taking over a decade to examine most of the witnesses. (Paras 9, 11, 12)
(B) Bail - Principles - Bail is not to be withheld as a punishment - Grave nature of the crime cannot be the sole ground to oppose bail when the trial is prolonged indefinitely and the right to speedy trial is infringed. (Para 12 and 13)
Facts of the case:
The petitioner was arrested on June 6, 2014, and charged under Sections 302 and 201 of the RPC. Despite being in custody for nearly twelve years, the prosecution had examined only 24 out of 35 witnesses. The trial court had expressed strong displeasure over the casual approach of the prosecution, particularly regarding the non-appearance of witnesses. The petitioner sought bail on the ground of prolonged incarceration and violation of the right to a speedy trial.
Findings of Court:
The court found that the petitioner's fundamental right to a speedy trial suffered an egregious infringement due to the protracted incarceration and the prosecution's failure to conclude evidence despite numerous opportunities.
Issues: Whether an accused charged with a heinous offence is entitled to bail based on prolonged incarceration and the violation of the right to a speedy trial under Article 21 of the Constitution.
Ratio Decidendi: The court ruled that howsoever grave the crime may be, if an accused is denied the right to a speedy trial and languishes in jail for years through no fault of their own, they cannot be detained indefinitely. Such infringement of Article 21 overrides statutory bars on bail for offences punishable by death or life imprisonment.
Result: Petition allowed.
(B) Bail - Principles - Bail is not to be withheld as a punishment - Grave nature of the crime cannot be the sole ground to oppose bail when the trial is prolonged indefinitely and the right to speedy trial is infringed. (Para 12 and 13)
Facts of the case:
The petitioner was arrested on June 6, 2014, and charged under Sections 302 and 201 of the RPC. Despite being in custody for nearly twelve years, the prosecution had examined only 24 out of 35 witnesses. The trial court had expressed strong displeasure over the casual approach of the prosecution, particularly regarding the non-appearance of witnesses. The petitioner sought bail on the ground of prolonged incarceration and violation of the right to a speedy trial.
Findings of Court:
The court found that the petitioner's fundamental right to a speedy trial suffered an egregious infringement due to the protracted incarceration and the prosecution's failure to conclude evidence despite numerous opportunities.
Issues: Whether an accused charged with a heinous offence is entitled to bail based on prolonged incarceration and the violation of the right to a speedy trial under Article 21 of the Constitution.
Ratio Decidendi: The court ruled that howsoever grave the crime may be, if an accused is denied the right to a speedy trial and languishes in jail for years through no fault of their own, they cannot be detained indefinitely. Such infringement of Article 21 overrides statutory bars on bail for offences punishable by death or life imprisonment.
Result: Petition allowed.
Legal Category Hierarchy
- crime and sentencing
-
practice and procedure
- bail
- trial
- constitutional law
Advocates:
For the Appellants/Petitioners: Udhay Singh Salaria, Varun Anand
For the Respondents: Pawan Dev Singh
For the Appellants/Petitioners: Udhay Singh Salaria, Varun Anand
For the Respondents: Pawan Dev Singh
Table of Contents
2. Petitioner argued right to speedy trial violated by 11-year incarceration without evidence concluding. State opposed bail. (Para 2 , 3 , 5 , 6 )
3. Eleven years elapsed for only 24 of 35 witnesses; prosecution defaulted despite peremptory orders to conclude evidence. (Para 8 , 9 , 10 , 11 )
4. Right to speedy trial under Article 21 overrides bar to bail for heinous offences when prosecution causes inordinate delay. (Para 12 , 13 , 14 )
5. Bail granted; petitioner released on sureties and conditions; trial court directed to expedite the case. (Para 14 , 15 )
6. Does prolonged pre-trial incarceration without trial concluding violate an accused's fundamental right to a speedy trial?
Yes. When an under-trial has languished in jail for over a decade due to prosecution's failure to conclude evidence, Article 21 is infringed. (Para 12 , 13 )
7. Can the embargo against bail for offences punishable with death or life imprisonment be overcome?
Yes. The right to speedy trial under Article 21 outweighs the statutory bar when the prosecution causes inordinate delay without fault of the accused. (Para 13 , 14 )
8. How do courts evaluate the pace of prosecution evidence for a speedy trial violation?
Courts consider the total period of custody, number of witnesses examined, adjournments granted, and prosecution's diligence in concluding evidence. (Para 9 , 10 )
9. What constitutes failure to conclude evidence despite peremptory court orders?
When the prosecution fails to produce remaining witnesses within a timeline set by court, leading to closure of its evidence, it constitutes such failure. (Para 10 )
10. Are routine adjournments for prosecution witnesses a valid basis to deny bail in long-pending trials?
No. Courts deprecate routine adjournments that break the back of litigants and violate the accused's right to a speedy trial. (Para 13 )
CORAM:
HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE
JUDGMENT
1. The petitioner is facing trial in charge-sheet titled “UT of J&K v. Kewal Sharma” arising out of FIR No.109/2014, registered with Police Station Akhnoor under Sections 302 , 201 RPC , which is pending before the Court of 2nd Additional Sessions Judge, Jammu, (hereinafter referred to as “the Trial Court”).
2. The petitioner initially approached the Trial Court for the grant of bail but was unsuccessful; his application was dismissed by way of an order dated September 17, 2025. Consequently, the petitioner has preferred the instant application for bail, principally on the ground that the protracted delay in trial has violated his fundamental right to a speedy trial.
3. It is submitted that the petitioner was taken into custody on 6th June, 2014, and has ever since been languishing behind bars. It is further contended that the entire case against the petitioner hinges solely upon circumstantial evidence, completely bereft of any eyewitness testimony, and that the prosecution’s story is riddled with material inconsistencies. In precise terms, the petitioner submits that he has endured custody for a period exceeding eleven years, during which time the prosecution has been unable to conclude its evidence. Therefore, on account of such inordinate incarceration, it is prayed that the petitioner be enlarged on bail.
4. This bail application was preferred on 24th November, 2025. Notwithstanding the multiple opportunities afforded to the respondents, they have omitted to file any response to the same. By an order dated 12th May, 2026, it was directed that should the respondents fail to submit their response, the matter would be adjudicated upon the strength of the record available. Accordingly, in view of the respondents' default, this Court has proceeded to hear the matter in the absence of their response.
5. Learned counsel for the petitioner vehemently argued that the petitioner deserves bail due to his long incarceration and the respondents' failure to conclude evidence despite multiple opportunities. To demonstrate the respondents' lack of diligence, learned counsel produced the Trial Court's order dated February 25, 2026. In the said order, the Court expressed strong displeasure with the justification proffered for the absence of prosecution witness Rajinder Khajuria, who was reportedly on VIP duty as per the communication received from the SSP Traffic, Srinagar. Learned Counsel relied upon the Supreme Court judgment in Vaibhav Singh v. State of Uttar Pradesh , 2026 LiveLaw (SC) 439.
6. Per contra, the application is resisted by Mr. Pawan Dev Singh, learned Dy. AG appearing on behalf of the respondents. He argued that the petitioner's custody for a period exceeding eleven years cannot ipso facto operate as a passport to bail, especially when he stands charged for a heinous offence punishable under Section 302 RPC . It is further submitted that in view of the severe quantum of punishment, the mere length of incarceration endured by the petitioner provides no justification for his enlargement on bail.
7. Heard and perused the record of Trial court.
8. The record shows that the petitioner was arrested on June 6, 2014. The challan was presented before the Judicial Magistrate 1st Class, Akhnoor, Jammu, on July 13, 2014, and committed to the Court of the Principal Sessions Judge, Jammu, on the same day. On August 9, 2014, the case was assigned to the Trial Court. Charges under Sections 302 and 201 RPC were framed against the petitioner on November 10, 2014. Out of 35 prosecution witnesses cited, 24 have been examined to date, six have been dropped, and two are deceased, leaving three witnesses to be examined.
9. 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 view
