KEWAL SHARMA vs UT OF J AND K TH SUPERINTENDENT DISTRICT JAIL AMBPHALLA, JAMMU AND ANOTHER

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

(Through Virtual Mode)

Bail App. No. 339/2025
CrlM No. 2303/2025
Reserved on:19.05.2026
Pronounced on: 29.05.2026
Uploaded on: 29.05.2026


Whether the operative part or full
judgment is pronounced: Full

Kewal Sharma, age 55 years S/O
Late Mohan Lal Sharma R/O Dev
Nagar Nardi Akhnoor, District,
Jammu, Presently lodged in
District Jail, Amballa, Jammu

…Petitioner(s)
Through: Mr. Udhay Singh Salaria, Adv. &
Mr. Varun Anand, Advocate

Vs.
1. Union Territory of J&K, th.
SSP P/S Ambala Jammu.
2. Incharge/Station House Officer,
P/S Akhnoor, Jammu.
…Respondent(s)
Through: Mr. Pawan Dev Singh, Dy. AG.


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
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pending before the Court of 2 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
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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.
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3. It is submitted that the petitioner was taken into custody on 6 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.
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4. This bail application was preferred on 24 November, 2025.
Notwithstanding the multiple opportunities afforded to the
respondents, they have omitted to file any response to the same. By an
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order dated 12 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,
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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.
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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 viewed in juxtaposition with the
submission preferred on behalf of the petitioner that his fundamental
right to a speedy trial has been violated.
10. A perusal of the record further discloses that the prosecution seeks to
examine mere three witnesses, viz. PWs 21, 26, and 31. By an order
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dated 15 December, 2025, a peremptory opportunity was granted to
the prosecution to produce its remaining evidence, subject to the
condition that failure to do so would result in the closure of the
prosecution evidence. Notwithstanding this direction, the order dated
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25 February, 2026, reveals that the bailable warrant issued against
prosecution witness Rajinder Khajuria was returned with a report
from the SSP Traffic, Srinagar, asserting that the witness was
unavailable owing to VIP duty. The learned Trial Court, in terms of its
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order dated 25 February, 2026, severely censured the casual
approach of the prosecution witnesses in evading court appearance,
especially in a matter where the under trial has endured incarceration
for a period exceeding a decade.
11. Admittedly, the petitioner has been in custody for nearly twelve years.
Clearly, more than a decade has not been enough for the prosecution
to conclude its evidence. Consequently, the Trial Court, in its order
dated February 25, 2026, expressed strong displeasure at the manner
in which the SSP Traffic, Srinagar, sought to excuse the absence of
witness Rajinder Khajuria.
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12. This Court finds it unnecessary to dissect the evidence led thus far by
the prosecution. 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 Hon‟ble
Supreme Court of India in Vaibhav Singh v. State of Uttar Pradesh ,
reported in 2026 Supreme (SC) 471, after adverting to the fact that the
accused had endured incarceration for a period exceeding nine years,
made the following observations while enlarging him on bail:-
“10. It appears that the High Court has not been able to
understand the true purport and ratio of the decision of this
Court, referred to, in para 8. All that the High Court ought
to have considered is the fact that the petitioner is
languishing in jail as an under- trial prisoner past nine
years. What more was required for the High Court to
consider the plea of the petitioner for bail, keeping his
right of speedy trial in mind as enshrined under Article
21 of the Constitution.
11. We believe we should not wait even for the State to
appear. This is a gross case wherein the fundamental
right of the petitioner to have a speedy trial as enshrined
under Article 21 of the Constitution could be said to have
been infringed.
12. In many of our Judgments and on many occasions, we
have said in so many words 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.”
(emphasis added)

13. This Court in “ Raman Kumar vs. Union Territory of Jammu and
Kashmr through, SHO P/S Chagwal,2025 (1) JKJ[HC] 396”, had
granted the bail to the accused after he had remained in custody for
nearly 13 years and while granting bail to the accused this Court
observed in paragraphs 10,11 and 13 as under:-
“10.This is admitted fact that the petitioner has been in custody
for the last more than l3 years. The manner, in which the trial
has been conducted in this chargesheet isquite shocking and
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disturbing. Whereas the prosecution has delayed the trial
without any justification, the leaned trial court too has
miserably failed to ensure that the trial is completed within
reasonable time frame. The evidence of the prosecution was
closed initially on 15.09.2014. After exhausting almost 80 dates
of hearings to conclude its evidence initially, the prosecution took
further 2 ½ years to examine two witnesses, though they were
permitted to examine three witnesses during the calendar fixed by
the trial court vide order dated 22.11.2016. Though it was
ordered that evidence shall be deemed to have been closed in
the event of failure of the prosecution to examine three
witnesses during the calendar fixed by the trial court, but the
trial court granted adjournments in routine manner, oblivious
to the timeline fixed by none other than the trial court. The
trial court not only stretched beyond the time limit framed for
the prosecution to examine those three witnesses not only by
couple of months but by 2 ½ years. Thereby adjourning the
hearings just on the asking of the prosecution. The Hon'ble
Supreme Court of India has deprecated this practice of adjourning
the matters in routine manner and has proceeded to observe in
" Islrwarlal Mali Rathod v. Gopal", (2021) 12 SCC 612 , as under:-
“9. Today the judiciary and the justice delivery system is
facing acute problem of delay which ultimately affects the
right of the litigant to access to justice and the speedy
trial. Arrears are mounting because of such delay and
dilatory tactics and asking repeated adjournments by the
advocates and mechanically and in routine manner
granted by the courts. It cannot be disputed that due to
delay in access to justice and not getting the timely justice
it may shaken the trust and confidence of the litigants in
the justice delivery system. Many a time, the task of
adjournments is used to kill justice. Repeated
adjournments break the back of the litigants.The courts
are enjoined upon to perform their duties with the object
of strengthening the confidence of common man in the
institution entrusted with the administration of justice.
Any effort which weakens the system and shake the faith
of the common man in the justice dispensation has to be
discouraged. Therefore the courts shall not grant the
adjournments in routine manner and mechanically and
shall not be a party to cause for delay in dispensing the
justice. The courts have to be diligent and take timely
action in order to usher in efficient justice dispensation
system and maintain faith in rule of law.
11. The expeditious disposal of the criminal case is not
only in the public interest, as the guilty may be punished
quickly but it would also protect the fundamental right of
the accused to speedy trial. This Court has not even an
iota of doubt that the prosecution has protracted the trial
without any justification and the trial court too has
miserably failed to keep a proper check on the
prosecution to ensure the protection of the right of the
accused to speedy trial as guaranteed under Article 21 of
the Constitution of India. The Hon'ble Supreme Court of
India in „ Sheikh Javed Iqbal vs. State of Uttar Pradesh’, 2024
INSC 534 , has held as under:
“22. It is trite law that an accused is entitled to a speedy
trial.This Court in a catena of judgments has held that an
accused or an undertrial has a fundamental right to
speedy trial which is traceable to Article 21 of the
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Constitution of India. If the alleged offence is a serious
one, it is all the morenecessary for the prosecution to
ensure that the trial is concluded expeditiously. When a
trial gets prolonged, it is not open to the prosecution to
oppose bail of the accused-undertrial on the ground that
the charges are very serious. Bail cannot be denied only
on the ground that the charges are very serious though
there is no end in sight for the trial to conclude.
23. This Bench in a recent decision dated 03.07.2024 in Javed
Gulam Nabi Shaikh Vs. State of Maharashtra, Criminal Appeal No.
2787 of 2024, has held that howsoever serious a crime may be, an
accused has the right to speedy trial under the Constitution of India.
That was also a case where fake counterfeit Indian 8 i currency notes
were seized from the accused-appellant. He was investigated by the
National Investigating Agency (NIA) under the National
Investigating Agency Act, 2008 and was charged under the UAP
Act alongwith Sections 489B and 489 C IPC. He was in custody as
an undertrial prisoner for more than four years. The trial court had
not even framed the charges. It was in that context, this Court
observed as under:
“9. Over a period of time, the trial courts and the High Courts
have forgotten a very well settled principle of law that bail is not
to be withheld as a punishment.
23.1. After referring to various other decisions, this Court further
observed as follows:
19. 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.
20. We may hasten to add that the petitioner is still an accused; not a
convict. The overarching postulate of criminal jurisprudence that an
accused is presumed to be innocent until proven guilty cannot be
brushed aside lightly, howsoever stringent the penal law may be.
21. We are convinced that the manner in which the prosecuting
agency as well as the Court have proceeded, the right of the accused
to have a speedy trial could be said to have been infringed thereby
violating Article 21 of the Constitution.
24. Earlier, in Supreme Court Legal Aid Committee (Representing
Undertrial Prisoners) Vs. Union of India2, this Court had issued a
slue of directions relating to undertrials in jail facing charges under
the Narcotic Drugs and Psychotropic Substances Act, 1985 (briefly,
the „NDPS Act‟ hereinafter) for a period exceeding two years on
account of the delay in disposal of the cases lodged against them. In
respect of undertrials who were foreigners, this Court directed that
the Special Judge should impound their passports besides insisting
on a certificate of assurance from the concerned Embassy/High
Commission of the country to which the foreigner accused belonged
and that such accused should not leave the country and should
appear before the Special Court as required.
25. Similarly, in Shaheen Welfare Association Vs. Union of India3,
this Court was considering a public interest litigation 2 (1994) 6 SCC
731 3 (1996) 2 SCC 616 15 wherein certain reliefs were sought for
undertrial prisoners charged with offences under the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (TADA Act)
languishing in jail for considerable periods of time. This Court
observed that while liberty of a citizen must be zealously
safeguarded by the courts but, at the same time, in the context of
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stringent laws like the TADA Act, the interest of the victims and the
collective interest of the community should also not be lost sight of.
While balancing the competing interest, this Court observed that the
ultimate justification for deprivation of liberty of an undertrial can
only be on account of the accused-undertrial being found guilty of
the offences for which he is charged and is being tried. If such a
finding is not likely to be arrived at within a reasonable time, some
relief(s) becomes necessary. Therefore, a pragmatic approach is
required.
xxxxxx
13. The embargo for grant of bail in the Code of Criminal procedure
in respect of offences punishable with death or life imprisonment,
has been provided in public interest so as to ensure that such
offenders, who are guilty of commission of offences punishable with
death or life imprisonment exclusively do not roam open in the
society, thereby endangering the life and liberty of the common
citizens but the Article 21 of the Constitution of India also includes
in its ambit the right of the accused to speedy trial. While
considering the bar for grant of bail in offences punishable with
death or life imprisonment, a proper balance is required to be
maintained to ensure that the right of the accused to speedy trial is
not violated. The jail not bail is a rule in such cases, but where the
accused has been in long incarceration for 13 years, the prosecution
is guilty of protracting the trial without justifiable reasons and where
the trial court has miserably failed to dispose of the chargesheet for a
considerable long period without any fault on the part of the accused
more particularly when the same has been pending for final
arguments for considerable period of time, this Court is of the
considered view that the accused deserves concession of bail
notwithstanding the embargo contained in Code of Criminal
Procedure.”
(emphasis added)


14. In view of above, this Court is of the considered view that
notwithstanding the bar contained in Section 437/497 Cr.P.C/
480 BNSS, the petitioner deserves to be enlarged on bail.
Accordingly, the present petition is allowed, and the petitioner is
enlarged on bail subject to following conditions:-
(i) He shall furnish two solvent sureties to the tune of
Rs.50,000/- each and personal bond of like amount to the
satisfaction of the learned Trial court.
(ii) He shall appear before the Trial court on each and every date
of hearing.
(iii) He shall not leave the Union Territory of J&K without prior
permission of the learned Trial court.
(iv) He shall not seek unnecessary adjournments.
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(v) In the event of violation of any of the conditions mentioned
above, the respondents can lay a motion for cancellation of
bail of the petitioner before the trial court.
15. The trial court is directed to dispose of the case as expeditiously as
possible.
16. Copy of this order be sent to the learned trial court for information
and compliance.
17. Disposed of.

(RAJNESH OSWAL)
JUDGE
SRINAGAR:
29.05.2026
“Ab. Rashid”
Whether the judgment is reportable: Yes/No.

9
KARAM CHAND
2026.05.29 13:01
I attest to the accuracy and
integrity of this document
Bail App. No. 339/2025