h475 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Bail App No.162/2024 Reserved on: 19.11.2025 Pronounced on: 27.11.2025 Uploaded on : 27.11.2025 Pankaj Sharma, age 31 years S/o Sh. Rajinder Kumar R/o Mahal Shah, Tehsil Ramgarh, District Samba A/p District Jail, Poonch ...Petitioner(s) Through:-Mr. Rohit Bhalwal, Advocate V/s Union Territory of J&K Through SHO Police Station, Samba ...Respondent(s) Through:- Mr. Vishal Bharti, Dy. AG with Mr. Vivek Mattoo, Advocate Coram: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT 1. This is an application by the petitioner under Section 437/439 of the Code of Criminal Procedure seeking his enlargement on bail in case FIR No.179/2014 under Sections 302, 307, 452, 212, 202 RPC and 4/25 Arms Act, who is facing trial before the Principal Sessions Judge, Samba [“the Trial Court”]. Prior to approaching this Court, the petitioner had moved a similar application before the Trial Court where the trial against the petitioner is pending adjudication. The Trial Court after appreciating the rival contentions did not find it a fit case to enlarge the petitioner on bail pending trial and as a result, rejected the 2 application for bail filed by the petitioner vide its order dated 22nd April, 2024. 2. Being dissatisfied and aggrieved by the order dated 22nd April, 2024 passed by the Trial Court, the petitioner has filed the instant petition seeking indulgence of this Court to grant him bail in the aforementioned case. 3. The petitioner seeks his enlargement on bail, inter alia, on the following grounds:- i) The petitioner is innocent and has been falsely implicated in the FIR registered for commission of offence under Section 302, 307, 452, 212, 202 RPC and 4/25 Arms Act. ii) That the petitioner has been facing prolonged incarceration since more than ten years, during which the prosecution failed to lead any incriminating evidence against him. iii) That under the mandate of law, speedy justice is the fundamental right, which flows from Article 21 of the Constitution of India and prolonged delay in the disposal of criminal case for no fault of the petitioner confers upon him right to bail. 4. Mr. Rohit Bhalwal, learned counsel appearing for the petitioner submits that prolonged incarceration without adjudication violates constitutional guarantees of personal liberty, dignity, and a fair, speedy trial. He has submitted that Courts have consistently held that prolonged under-trial 3 detention without progress in trial warrants release on bail to uphold constitutional rights and avoid miscarriage of justice. Learned counsel has referred to and relied upon a judgment of the Supreme Court in Criminal Appeal No.2237 of 2023 titled Ashwani Choudhary v. UT of J&K dated 2nd August, 2023 wherein the Supreme Court, while noting that pre-trial custody of the appellant therein has been for about nine years and the trial is still under progress, released him on bail subject to appropriate conditions being imposed by the trial Court. Learned counsel also relied upon the judgment passed by this court in Bail Application No.115/2024 titled Rahat Hafiz and others v. UT of J&K and others, decided on 19th August, 2025. 5. Per contra, in the objections filed by the official respondent the bail plea has been opposed on the count that the petitioner is involved in a serious offence and the bail application filed by him before the Trial Court has already been dismissed. Mr. Vishal Bharti, learned counsel for the respondent submits that the petitioner is involved in a heinous offence murder, as such, does not deserve concession of bail. 6. Heard learned counsel for the parties and perused the material available on record. 7. Case of the prosecution, as is pleaded by the respondent in the Objections, is that on 1st October, 2014, at about 2315 hrs, Police Post, Supwal received a DDR through Dak wherein it was stated that one Ramesh Chander S/o Gian Chand caste Ramdasi R/o Langath along 4 with Panch Ram Lal have reported that his brother Shiva Dayal, who is a BSF personnel, has a house at some distance where his family along with their mother is residing. Nephew of Ramesh Chander, namely, Nikhil, on 1.10.2014, came to his house in a fearsome condition and stated that some unknown persons entered in the house and had beaten his mother-Sunita Devi, grandmother, Shanti Devi and brother-Akhshay Kumar with sharp edge weapons. On this, FIR No.179/2014, under Sections 452 RPC and 4/25 Arms Act came to be registered at Police Station, Samba and investigation commenced. Later on, Shanti Devi and Sunita Devi succumbed to the injuries. During investigation, post- mortem of the deceased was got conducted, place of occurrence was photographed, site plan prepared, incriminating material seized and sent for chemical analysis. 8. A Special Investigation Team was constituted for further investigation. During Investigation, the SIT came to the conclusion that offence under Section 302/307/452/34 RPC and 4/25 Arms Act are established against one Sahil Digra @ Shallu S/o Parmjeet Digra and petitioner herein (Pankaj Sharma), offence under Sections 202/212 were found established against one Prem Kumar S/o Bishan Dass. Accordingly, Final Report /charge-sheet was laid. Charges were framed on 27.03.2019 for commission of offences under Sessions 302/307/452/34 RPC and 4/25 Arms Act, against the petitioner herein and Sahil Digra, and for commission of offences under Sections 202/212 RPC against 5 one Prem Kumar. The accused denied the charges and claimed to be tried. In view of the denial of charges by the accused persons, the prosecution was asked to adduce its evidence in order to prove its case against the accused person. Co-accused namely, Prem Kumar stands bailed out, whereas petitioner and co-accused Sahil Digra are in judicial custody since their arrest. Insofar as, petitioner-Pankaj Sharma is concerned, he is in custody since the date of his arrest i.e. 27th October, 2014 and has suffered incarceration of 11 years 28 days. 9. The petitioner has sought concession of bail mainly on the ground of his long incarceration of about eleven years one month. 10. Supreme Court in Union of India v. K.A. Najeeb, (2021) 3 SCC 713, held that bail can be granted on the ground of long incarceration even in serious offences, as constitutional courts cannot permit indefinite detention where trial is prolonged. Relevant portion of the judgment is reproduced hereunder:- “It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, 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 43D (5) of 6 UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.” 11. 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.” 12. The Apex Court in case titled Satender Kumar Antil v. Central Bureau of Investigation and another reported as (2022) 10 SCC 51 has laid down certain guidelines for the courts to be followed while determining the bail applications. The paragraphs 12 and a portion of paragraph 13 being relevant are reproduced hereunder: "BAIL IS THE RULE 12. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India. This court in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, held that: "19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465], the purpose of granting bail is set out with great felicity as follows: (SCC pp. 586-88 , paras 27-30) 7 '27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti, In re [ Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476 : 1924 Cri LJ 732] , AIR pp. 479-80 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the "Meerut Conspiracy cases" observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [ K.N. Joglekar v. Emperor, 1931 SCC OnLine All 60 : AIR 1931 All 504 : 1932 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard-and-fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence. 28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. State [Gudikanti Narasimhulu v. State, (1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para'1) '1.... the issue [of bail] is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. ... After all, 8 personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The last four words of Article 21 are the life of that human right.' 29. In Gurcharan Singh v. State (UT of Delhi) [ Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the Court, that: (SCC p. 129, para 29) '29. ... There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.' 30. In AMERICAN JURISPRUDENCE (2 nd, Vol. 8, p. 806, para 39), it is stated: 'Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.' It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail." 24. Article 21 is the Ark of the Covenant so far as the Fundamental Rights Chapter of the Constitution is concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is the only article in the Fundamental Rights Chapter (along with Article 20) that cannot be suspended even in an emergency [see Article 359(1) of the Constitution]. At present, Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] ." 13. Further this Court in Sanjay Chandra v. CBI (2012) 1 SCC 40, has observed that: "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a 9 punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty." 13. In a recent judgment in the case of Tapas Kumar Palit v. State of Chhattisgarh, 2025 SCC OnLine SC 322, Supreme Court enlarged the appellant therein on bail on account of his incarceration for more than five years by observing that howsoever serious a crime may be the accused has a fundamental right of speedy trial as enshrined in Article 21 of the Constitution. Relevant extract of the judgment is set out below:- “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. 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.” 14. Again, in the case of Jagjeet Singh & Ors. v. Ashish Mishra @ Monu & anr., (2022) 9 SCC 321, the Hon'ble Supreme Court, relying up the ratio laid down in K. A. Najeeb's case (supra), observed that no 10 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 after a reasonably long period of incarceration, such stringent provision would melt down. 15. Indisputably, the petitioner is involved in a heinous offence of murder, however, it is still at the accusation stage because the trial could not be concluded even after a long period of more than eleven years, which infringes right of the petitioner to speedy trial. 16. From the above, it manifests that an accused is entitled to bail on account of long incarceration, as prolonged pre-trial detention undermines the fundamental principles of the criminal justice system. When an individual remains in custody for an extended period without the trial reaching conclusion, it effectively converts pre-trial detention into punishment, contrary to the presumption of innocence. Such delay also violates the right to a speedy trial, a constitutional guarantee designed to prevent oppression and ensure fairness. Courts have consistently held that when the prosecution or systemic delays cause undue and unreasonable continuation of custody, continued detention becomes unjust and disproportionate to the stage of the proceedings. In these circumstances, bail is warranted to uphold the rights of the accused and safeguard the integrity of the judicial process. 11 17. In the instant case, the nominal roll submitted by the jail authorities reflects that the petitioner is in custody for more than eleven long years, as such, deserves concession of bail on account of his long incarceration, as there is no likelihood of conclusion of the trial in near future on account of the fact that till date only 17 prosecution witnesses, out of 31 have been examined by the prosecution before the trial Court. The delay is not attributable to the petitioner, his continued detention without likelihood of early conclusion of trial offends Article 21 of the Constitution of India. 18. Before concluding the matter, I would like to observe that I have consciously avoided consideration of the rival contentions touching merits of the matter as the gravity of the offence that can be said to have been committed is better to be left for appreciation of the Trial Court. The only apprehension projected by the learned counsel for the respondent, that the petitioner may try to win over the prosecution witnesses if bail is granted in his favour can be well taken care of by imposing stringent conditions while granting bail. 19. For all that has been discussed above, the petition is allowed and the applicant/accused is admitted to bail subject to the following conditions: i) That he shall furnish personal bond in the amount of Rs.1,00,000/- with one surety of the like amount to the satisfaction of the Trial Court. 12 ii) That he shall appear before the Trial Court on each and every date of hearing; iii) That he shall not leave territorial limits of Union Territory of J&K, without seeking prior permission of the Trial Court; iv) That he shall not directly or indirectly try to influence the prosecution witnesses in any manner whatsoever; v) If the petitioner has a passport, he shall surrender the same before the trail Court; vi) In the event of violation of any of the conditions imposed while granting bail, the respondent may approach this Court for cancellation of the concession bail granted to the petitioner under this order. 20. The bail application shall stand disposed of on the above lines. (Moksha Khajuria Kazmi) Judge Jammu. 27.11.2025 Vinod. Whether the order is speaking : Yes Whether the order is reportable: No