HAMID HUSSAIN vs UT OF J AND K TH P/S THATHRI DODA

Sr. No. 4

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual Mode)

Pronounced on : 14.10.2026
Uploaded on : 21.10.2026





Case : Bail App No. 320/2024
CrlM No. 2067/2024
Hamid Hussain

…..Appellant/Petitioner(s)
Through: Mr. S. A. Hashmi, Advocate

Vs


UT of J&K

.…. Respondent(s)

Through : Mr. Adarsh Bhagat, GA


CORAM: HON’BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE


JUDGMENT



1. Through the medium of the instant successive bail petition having been
filed in terms of the provisions of Section 439 of the erstwhile repealed
Code of Criminal Procedure, 1973, (hereinafter referred to as the “Code”,
for short), corresponding to Section 483of the Bhartiya Nagarik Suraksha
Sanhita, 2023, (“BNSS”, for short), the bail on behalf of the
petitioner/accused in case FIR No. 19/2016 of Police Station Thathri,
Doda has been sought on the grounds inter alia that he has been facing
trial in the aforementioned case FIR since last about nine years; that the
charges in the case FIR concerned were framed against him by the learned
trial court on 22.02.2017 and despite considerable lapse of time, the trial
in the case has shown no substantial progress; that out of fifty listed
prosecution witnesses, only nineteen witnesses have been examined over
the past nine years at a cumbrous trial; that the failure on the part of the
prosecution to ensure the timely presence and examination of its witnesses
has resulted in prolonged incarceration of the petitioner; that mere perusal
of the charge sheet reveals that the allegations lack substance and there is
no prima facie case made out against the petitioner; that the learned trial
court rejected his bail application solely on the basis of presumptions and
Bail App No. 320/2024 Page 1 of 19

assumptions which are not sustainable in the eyes of law; that he has been
subjected to a prolonged trial without any substantial progress which has
violated his right to a speedy trial guaranteed under Article 21 of the
Constitution of India; that he along with other co-accused has been falsely
implicated in the case FIR concerned which was registered under Sections
302 and 109 of the Ranbir Penal Code; that he was arrested on 29.04.2016
and has been facing continuous incarceration since then; that right to
speedy trial has been held to be a silver line of criminal justice system and
his indefinite detention is perverse to the criminal jurisprudence; that
every passing day behind the four walls of the jail amounts to his pending
trial punishment; that over the past three and a half years, between
10.09.2021 and 24.12.2024 covering nearly fifty hearings, the prosecution
has been able to examine only five witnesses out of the calendar of fifty
witnesses; that even prior to the aforesaid period, the trial against him
suffered a sluggish pace on account of COVID-19 pandemic; that the case
of the prosecution hinges on circumstantial evidence and no motive could
be attributed sustainability to the accused for the alleged commission of
the offences charged against him; that the independent civilian witnesses
mostly cited by the prosecution happen to be all the close relatives of the
deceased residing in different villages and localities from the place of
occurrence; that actually the complainants have attempted to implicate his
entire family without any substantive evidence against them; that the
prosecution witnesses themselves have stated that at the time of
occurrence when the fire broke out in his house, they were in the mosque
offering Friday prayers; that the co-accused have already been granted
bail by this Court in a Criminal Revision Petition; that the deceased died
due to the fire that occurred in the house at about 1:00 PM and there is no
whisper of any legal evidence to suggest that the death of the deceased
was homicidal in nature; that a bare perusal of the prosecution case
reveals that the investigation is unclear on the issue whether the breaking
out of the fire and death of the deceased was accidental or homicidal in
nature; that basic flaws in the case of prosecution coupled with the
protracted trial makes it a fit case for grant of bail in the interest of justice;
Bail App No. 320/2024 Page 2 of 19

that he earlier filed bail application before the trial court of Additional
Sessions Judge, Doda on 29.12.2023 which came to be dismissed by the
learned trial court vide its order dated 17.12.2024;that while dismissing
the earlier bail petition, the learned trial court has appreciated the fact of
the trial being protracted, but despite refused to enlarge him in a cryptic
and mechanical manner without returning any finding on the case; that the
learned trial court while dismissing his earlier bail application on
17.12.2024 incorrectly mentioned the number of witnesses yet to be
examined till that time as the said order incorrectly stated that only
eighteen witnesses including those related to the circumstantial evidence,
medical testimony, seizure memo, disclosure statements, identification,
Investigating Officers, patwari and Tehsildar were yet to be examined till
that time, when factually up to the dismissal of the earlier application by
the learned trial court, thirty witnesses were yet to be examined; that the
trial in the case against him is not being conducted effectively, which has
resultantly become oppressive against him; that he is presumed to be
innocent under law until proved guilty at the trial; that he shall not misuse
the concession of bail in any manner including the tampering of
prosecution evidence or absconding at the trial and that he shall be abide
by all the conditions that may be imposed by this Court while enlarging
him on bail.
2. The respondent, i.e., UT of Jammu and Kashmir through the learned
Government Advocate resisted the bail application on the grounds that
same is not maintainable as the petitioner has committed the most heinous
offence punishable under Section 302 RPC. That the heinous offence
committed by the petitioner/accused is not only against the
victim/deceased but affects the Society as well as the State.
3. That the Hon’ble Supreme Court of India has laid down various
guidelines for consideration of the courts of the Country in connection
with the consideration of bail applications especially in cases cited as
“ Kalyan Chandra Sarkar Vs Rajesh Ranjan alias Papu Yadav and
another (2004) 7 SCC 528, State Vs Captain Jagjit Singh AIR 1962 (SC)
253, Gurcharan Singh Vs State Delhi Administration AIR 1978 (SC)
Bail App No. 320/2024 Page 3 of 19

179, which prominently include the nature and seriousness of the offences
committed by the accused, character of the evidence, circumstances which
are peculiar to the accused, reasonable possibility of the presence of the
accused not being secured at the trial, reasonable apprehension of the
witnesses being tempered with and above all, larger interests of the public
and the State.
That the evidence recorded during trial cannot be appreciated while
adjudicating a bail application.
That having regard to the seriousness of the allegations against the
petitioner/accused; the grant of concession of bail in his favour would not
serve the ends of justice.
That it is a settled legal position that bail can be refused if there is
likelihood of the applicant interfering with the witnesses for the
prosecution or otherwise polluting the process of justice. That the
petitioner/accused along with other co-accused, who happened to be his
family members have committed the murder of the daughter of the
complainant on 29.04.2016, who was married to the petitioner/accused.
That pursuant to the report of the complainant case FIR No. 19/2016 came
to be registered with Police Station, Thathri under Section 302 read with
109 RPC. That a SIT was constituted to investigate the matter. That
during investigation, the petitioner/accused Hamid Hussain confessed in
police custody that on the day of occurrence at about 1:00 PM on Friday
he pressed the neck of his wife leading to her half consciousness and then
burnt her to death by pouring kerosene oil over her. That pursuant to his
disclosure his clothes bearing traces of kerosene oil came to be recovered.
That other co-accused Nagina Begum also made some disclosure
regarding the theft of ornaments of the deceased which also came to be
recovered and seized in the case.
That during investigation, it was found that the deceased was
married to the petitioner/accused and in the month of March, 2016 a
dispute arose between them. That the deceased alleged that her husband,
i.e., the petitioner/accused used to talk to other ladies. That the
petitioner/accused on the day of occurrence i.e. on 29.04.2015 Friday at
Bail App No. 320/2024 Page 4 of 19

about 1:00 PM with criminal intention to murder the deceased pressed her
throat, made her unconscious and poured kerosene oil over her and burnt
her to death. That the commission of the offences under Sections 302 and
109 RPC were found against the petitioner/accused as well as the co-
accused, Khurshid Ahmed, Nagina Begum, Hayat Mohd., Mohd. Jafar
and Azgar Hussain. That the investigation in the case culminated into the
filing of the charge sheet which was produced before the learned trial
court.
4. I have heard learned counsel for the parties.
5. The learned counsel for the petitioner/accused while reiterating his stand
taken in the instant bail petition submitted that the petitioner has been
languishing in custody for the last nine years and despite lapse of
significant time, the trial in the case has not progressed meaningfully,
reflecting the failure of the prosecution to conduct the trial expeditiously.
The learned counsel while placing reliance on the authoritative
judgment of the Hon’ble Supreme court passed in “sangram
sadashivsuryavanshi v. state of Maharashtra (criminal Appeal
No. 4758 of 2024” contended that prolonged incarceration without
substantial progress in trial constituted a valid ground for granting bail.
He contended that the Hon’ble Apex Court inter alia held in the referred
case, “in law and on facts, an accused is entitled to bail on the ground of
long incarceration without the trial making any progress, the court must
grant bail. Option of expediting trials is not the solution.”
He further contended that the Hon’ble Supreme Court while
deciding the Criminal Appeal No. 5387 of 2024 titled “Athar Parwez Vs
Union of India” held that, “long incarceration and unlikely likelihood of
trial being completed in near future has also been taken as a ground for
exercising its constitutional role by the Constitutional Courts to grant
bail on violation of Article 21 of the Constitution of India which
guarantees trial to be concluded within a reasonable time. Gross delay
in conclusion of the trial would justify such invocation leading to a
conclusion of violation of Part III of the Constitution of India, which may
be taken as a ground to release an under trial on bail”.
Bail App No. 320/2024 Page 5 of 19

The learned counsel further contended that the statutory restrictions
do not oust the ability of the Constitutional Courts to grant bail on the
grounds of violation of Part III of the Constitution. While referring to the
judgment of the Hon’ble Apex Court passed in “Union of India Vs
K.A.Najeeb”, the learned counsel contended that the restrictions under a
Statute as well as the powers exercisable under the Constitutional
Jurisdiction can be well harmonized. He contended that it has been held
by the Hon’ble Apex Court in the afore-referred case that whereas at the
commencement of the 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 the trial being
completed within a reasonable time and the period of incarceration
already undergone had exceeded a substantial part of the prescribed
sentence.
The learned counsel further contended that it has also been held by
the Hon’ble Supreme Court in “ SHEIKH JAVED IQBAL
@ASHFAQ ANSARI @ JAVED ANSARIVs STATE OF UTTAR
PRADES, Criminal Appeal No. 2790 of 2024,“If the State or any
prosecuting agency including the court concerned has no wherewithal to
provide or protect the fundamental right of an accused to have a speedy
trial as enshrined under Article 21 of the Constitution then the State or
any other prosecuting agency should not oppose the plea for bail on the
ground that the crime committed is serious. Article 21 of the Constitution
applies irrespective of the nature of the crime”.
The learned counsel further contended that the Hon’ble Apex Court
in several landmark judgments emphasized that the option of merely
expediting the trial is not a sufficient solution to address the infringement
of the fundamental rights of the accused due to extended detention.
6. The learned counsel for the petitioner submitted that he prays for grant of
bail in favour of the petitioner/accused mainly on account of his long
incarceration of about eleven years without completion of trial against
him. He contended that the co-accused have already been bailed out in the
case.
Bail App No. 320/2024 Page 6 of 19

The learned counsel for the petitioner in support of his arguments
also 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) Nos. 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
Khatoonand Ors Vs Home Secretary, State of Bihar, Pattna, Writ
Petition 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 of1993decidedon07.10.1994;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 and ors bail app. No. 30/2024 decided on
03.07.2024.
The learned counsel 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 counsel 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
Bail App No. 320/2024 Page 7 of 19

guaranteed under Article 21 of the Constitution of India which stands
compromised due to their long incarceration without expeditious trial
against them.
7. Per contra, the learned State counsel vehemently opposed the bail
application on the grounds that the same does not merit any consideration
having regard to the heinousness of the crime committed by the petitioner
and other co-accused. He submitted that most of the witnesses have been
examined at the trial, who have incriminated the petitioner/accused. That
the petitioner/accused is facing charge for the offence of murder of his
wife. That the motive behind the crime and the circumstances in which he
committed the crime is gruesome.
8. That the offence of murder punishable under Section 302 RPC already
charged against the petitioner carries a punishment of death with alternate
punishment of imprisonment for life, thereby attracting the bar in terms of
the provisions of the Code/BNSS.
9. That the enlargement of the petitioner/accused will flash a bad signal to
the Society and will encourage the like-minded persons. That the
petitioner/accused is likely to misuse the concession of bail by influencing
the remaining prosecution witnesses and also by absconding at the trial
under the fear of conviction.
The learned Government Advocate, 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.”
10. I have perused the instant successive bail 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.
11. I have also accorded an in-depth consideration to the rival arguments
Bail App No. 320/2024 Page 8 of 19

advanced on both the sides.
12. The petitioner/accused is facing trial on the charge of murder of his
wife on 29.04.2016. That after the culmination of the investigation in
FIR No. 19/2016 of Police Station, Thathri, Doda, the final
report/challan came to be presented before the leaned trial court against
the petitioner and co-accused. The petitioner and co-accused came to be
charged in the case vide order dated 22.02.2017 of the learned trial
court for the commission of offences under Sections 302 and 109 RPC.
The prosecution evidence was called by the learned trial court on
the same date, i.e., 22.02.2017, when the accused persons including the
present petitioner pleaded not guilty and claimed to be tried. So the
prosecution evidence is in the process of being recorded at the trial
since last more than ten years. The petitioner is reported to be facing
detention in the case since last more than ten years.
13. As on the date of the rejection of earlier regular bail application of the
petitioner/accused by the learned trial court i.e. 17.12.2024, out of fifty
listed prosecution witnesses, only nineteen witnesses had been
examined.
14. Till now a total of twenty three prosecution witnesses are reported to
have been examined at the trial of the case and, as such, more than
twenty five witnesses are yet to be examined. The examination of the
left over witnesses and the further trial proceedings is likely to take a
considerable time.
15. 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 eleven years with no hope of conclusion of trial at
an earliest.
16. This Court has gone through the evidence recorded by the trial court so
far which is merely of circumstantial nature. The Court hesitates 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. 320/2024 Page 9 of 19

17. 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
eleven years. The matter has been the subject matter of the discussion
before the Hon’ble Apex Court in a number of cases.
18. 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 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
Bail App No. 320/2024 Page 10 of 19

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….”
19. 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 emphasized in a series of
decisions that Articles 14, 19 and 21
sustainandnourisheachotherandanylawdeprivingapersonof
"personalliberty"mustprescribeaprocedurewhichis just,
Bail App No. 320/2024 Page 11 of 19

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 visualized 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. 320/2024 Page 12 of 19

20. Again, in 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 16-6-2010in
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 Cr P C 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 Cr P C 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- 1-1995in 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 charge sheet 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.
Bail App No. 320/2024 Page 13 of 19

11. This Court has consistently recognized the right
of the accused for a speedy trial. Delay in criminal
trial has been 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 condi tions…….”
21. 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 harmonized. 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
Bail App No. 320/2024 Page 14 of 19

provisions like Section 43-D (5) of the UAPA being used as
the sole metric for denial of bail or for wholesale breach of
constitutional right to speedy trial.”
22. 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 only100 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 under trials 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.”
23. Again, in the case of Jagjeet Singh & Ors. Vs. Ashish Mishra @
Monu &anr. 2021 Live Law (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
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
Bail App No. 320/2024 Page 15 of 19

after a reasonably long period of incarceration, such stringent
provision will melt down.
24. The Hon’ble Supreme Court in Saudan Singh vs. State of Uttar
Pradesh (Criminal Appeal No. 308/2022) while deciding bunch
of petitions granted bail to the petitioners who were suffering
from incarceration during different periods ranging from 5 to
10/15years.The petitioner also has been suffering detention in the
case FIR since last about eleven years and still the trial of the
case is likely to take some more time to conclusion. The co-
accused has already been enlarged on bail.

25. The Hon’ble Supreme Court in case titled Tapas Kumar Palit vs.
State of Chhattisgarh Crl Appeal No.738/25 decided on
14.02.2025 enlarged 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.

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 State has no 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.
Bail App No. 320/2024 Page 16 of 19

10. However, many times we have made ourselves very clear
that howsoever serious a crime maybe 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 that any other
witnesses might have deposed earlier. We may
sound as if laying some guidelines, but time has
come to consider this issue 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
Bail App No. 320/2024 Page 17 of 19

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.”
26. 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.
27. Accordingly, the petition is allowed and the petitioner, namely,
Hamid Hussain S/o Khurshid Ahmed R/o Tehsil Thathri, District
Doda is admitted to bail in the case FIR No. 19/2016subject to
his furnishing of surety and personal bonds each in the amount
of Rs.2/- lacs respectively to the satisfaction of the Registrar
Judicial, Jammu Wing 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 India
without permission of the trial court.
ii) That he shall not cause any threat, intimidation or undue
Bail App No. 320/2024 Page 18 of 19

influence on un-examined prosecution witnesses so as to dissuade
them from making their statements before the trial court.
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.
28. 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 the right to approach this Court seeking
cancellation of bail. It is needless to mention that the learned trial
court is within its powers to proceed against the
petitioner/accused in terms of the provisions of Sections 491 and
492 of the BNSS, in the event of violation of any of the bail
conditions.
29. In case the requisite surety bond is furnished on behalf of the
petitioner/accused to the satisfaction of the Registrar Judicial of
Jammu Wing, the Registry shall issue a formal release order
directing the Superintendent of the Jail concerned to release the
petitioner/accused from his custody in the instant case FIR No.
19/2016 of Police Station, Thathri, Doda after obtaining the
requisite personal bond from him to the tune of Rs. 2 lacs.
30. Disposed of.




(Mohd. Yousuf Wani)
Judge
SRINAGAR:
14.10.2026
Pawan Chopra/Secy


Whether the Judgment is reportable? Yes
Whether the Judgment is speaking? Yes

Pawan Chopra
2026.10.21 12:19
I attest to the accuracy and
integrity of this document
Bail App No. 320/2024 Page 19 of 19