[Cites 7, Cited by 0]

Jammu & Kashmir High Court

Reserved On: 03.02.2026 vs Ut Of J&K & Anr on 6 February, 2026

Author: Sanjay Dhar

Bench: Sanjay Dhar

                                                                             2026:JKLHC-JMU:190




    IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                              Bail App. No. 14/2025
                              CrlM No. 1857/2025

                                              Reserved on: 03.02.2026
                                           Pronounced on : 06.02.2026
                                             Uploaded on : 06.02.2026
                                       Whether the operative part or full
                                         judgment is pronounced: Full

Shareen Gani
                                                                 ....Petitioners

                 Through:-        Mr. Akeel Ahmed Wani, Advocate.

                                V/s

UT of J&K & anr
                                                               .....Respondents

                 Through:-        Mr. Bhanu Jasrotia, GA for R-1.
                                  Mr. P.N. Raina, Sr. Advocate with
                                  Mr. J.A Hamal, Advocate and
                                  Mr. Intikhab Hussain Shah, Advocate
                                  for R-2
\


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
                                  JUDGMENT

01. The petitioner has invoked jurisdiction of this Court

under Section 483 of BNSS seeking her enlargement on bail in

a case arising out of FIR No. 525/2013 for offences under

sections 302/364/363/120-B RPC registered with Police

Station, Rajouri, which is stated to be pending before the court

of learned Additional Sessions Judge, Rajouri.

02. As per allegations made in the chargesheet,

co-accused Imtiaz Ahmed, who happens to be the husband of

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the petitioner, is alleged to have kidnapped a minor male child

aged about nine years when the said child was on his way

back from school to his home at around 2 pm to 2.30 pm. It is

alleged that the co-accused Imtiaz Ahmed had hatched a

criminal conspiracy with his wife, the petitioner herein, for

abducting the child, namely, Saliq Mansoor from near Kheora

Danishabad Colony Link Raod and after abducting him, he

was taken to a rented room at Bela Colony where he was

wrongfully confined with the purpose of obtaining ransom from

father of the child. However, when the police came into action,

the petitioner and her husband panicked and they

strangulated the child and committed his murder. The dead

body of the child was stuffed by the petitioner and co-accused

in a big plastic bag, which was thrown in the rented room and

both the accused fled away from the spot.

03. After conducting investigation of the case, the

chargesheet was filed against the petitioner and co-accused

before the competent court and during the investigation of the

case, the petitioners came to be arrested on 12.10.2013. The

chargesheet was produced before the competent court on

06.12.2013 wherein it was alleged that offences under sections

302, 364, 363, 120-B RPC stand established against the

petitioner and co-accused.

04. Vide order dated 14.06.2014, the learned trial court

framed charges for offences under sections 302, 364, 363,

120-B RPC against the accused including the petitioner herein.

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Upon denial of charges by the accused, the prosecution was

directed to lead evidence in support of its case. As many as 81

witnesses have been cited in the challan out of which 70

witnesses are stated to have been examined by the prosecution

so far.

05. It seems that during the pendency of the challan,

co-accused Imtiaz Ahmed has been enlarged on bail by virtue

of order dated 10.07.2024 passed by this Court in Bail

Application No. 147/2022 titled "Imtiaz Ahmed Vs. UT of

J&K and anr". It also appears that the petitioner had

approached this Court for grant of bail in the year 2017 by

virtue of bail application No. 65/2017 but the said application

came to be dismissed by this Court on 18.04.2018. After the

grant of bail to the co-accused, the petitioner again moved the

learned trial court and filed a bail application before the said

court but the same has been dismissed by the learned trial

court in terms of order dated 18.12.2024. It is in these

circumstances that the petitioner has again approached this

Court for grant of bail in her favour.

06. The petitioner has primarily sought bail on the

ground that she has been in custody during trial of the case

for the last more than twelve years but the trial has not been

concluded as yet. It has been contended that there is no

likelihood of completion of trial in the near future as such, the

petitioner deserves to be enlarged on bail. It has further been

contended that the co-accused, who according to the petitioner

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is the principal accused in the case, has already been granted

bail by this Court, as such on the ground of parity also, she is

entitled to grant of bail.

07. The petition has been contested by respondent-

State as well as by the complainant. In the reply to the bail

application, the respondent-State has, after narrating the

allegations made in the chargesheet, submitted that the trial of

this case is still in progress and that the petitioner does not

deserve concession of bail.

08. The complainant in his objections to the bail

application has submitted that the delay in conclusion of the

trial is attributable to the petitioner and co-accused as in the

year 2015 they had filed a transfer petition before this Court

which came to be dismissed on 26.04.2016 and during the

pendency of said transfer petition, the trial of the case was

stayed. It has also been contended that the co-accused had

moved an application for declaring him as juvenile before the

trial court on 17.03.2017 which came to be dismissed on

29.01.2022. As a result of this trial of the case got delayed. It

has been further submitted that a revision petition against

order dated 29.01.2022 passed by the trial court is still

pending before this Court. The complainant has further

contended that this Court while dismissing the previous bail

application of the petitioner had observed that she is not

entitled to be released on bail during trial of the case,

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therefore, unless the trial of the case is completed, the

petitioner cannot be given the concession of bail.

09. During the course of arguments, learned Senior

counsel appearing for the complainant further brought to the

notice of this court that out of remaining eleven prosecution

witnesses to be examined, six are already dead and only five

witnesses remain to be examined. He has further contended

that instead of granting bail to the petitioner, the trial court

can be asked to expedite the trial of the case and conclude

examination of remaining prosecution witnesses at the

earliest.

10. I have heard learned counsel for the parties and

perused record of the case including record of the trial court.

11. A perusal of the record shows that the petitioner

was arrested on 12.10.2013. It is an admitted case of the

parties that since the arrest of the petitioner, she has

remained in custody. Thus, she has completed about 12 and a

half years in custody. A perusal of the trial court record

reveals that the petitioner has not been released from custody

even for a day. It also appears that when the earlier bail

application of the petitioner was dismissed by this Court on

18.04.2018, the trial of the case was still at its inception and

most of the prosecution witnesses were yet to be examined.

After the dismissal of the earlier application of the petitioner by

this Court, the trial of the case has progressed substantially

and till date about seventy prosecution witnesses have been

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examined by the learned trial court. However, the fact of the

matter remains that trial has not been concluded and even if

the contention of the prosecution that only five prosecution

witnesses are yet to be examined is admitted to be correct still

then it cannot be stated that prosecution evidence has been

concluded.

12. In the light of the aforesaid facts, the question that

falls for determination is as to whether a person who has been

accused of having committed a heinous offences like murder is

entitled to be enlarged on bail on the ground of her long

incarceration of more than twelve years. This Court while

considering the aforesaid issue in the case of Manzoor Ahmad

Mir vs. UT of J&K(Bail App No.109/2022 decided on

30.12.2022), after taking note of the statement of law laid

down by the Supreme Court in the cases of Hussainara

Khatoon vs. Home Secretary, State of Bihar, (1980) 1 SCC

81, Supreme Court Legal Aid Committee vs. Union of India,

(1994) SCC 731, Umarmia vs. State of Gujarat, (2017) 2 SCC

731,Union of India vs. K. A. Najeeb, (2021) 3 SCC 713,

Ashim alias Asim Kumar Haranth Bhattacharya vs.

National Investigation Agency, (2022) 1 SCC 695, and

Jagjeet Singh & Ors. Vs. Ashish Mishra @ Monu & anr.

2021 Live Law (SC) 376, has observed as under:

"From the foregoing enunciation of the law laid down by the Supreme Court, it becomes clear that long incarceration of an undertail without any likelihood of conclusion of trial in near future infringes upon the right of speedy trial of

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such undertrial. While the Supreme Court has, in some cases, gone to the extent of quashing the trial itself but consistent view of the Supreme Court has been that in case the delay in conclusion of the trial amounts to oppression or harassment, the Court can interfere in such situations and grant bail to an accused in a heinous crime like murder also. While doing so, the Court has to take into consideration several factors like, length of delay, the justification for the delay, the accused's assertion of his right to speedy trial, and prejudice caused to the accused by such delay. It is also clear that the Criminal Courts are not obliged to terminate the trial or criminal proceedings only on account of lapse of time and acquit the accused but in appropriate cases, the Court can grant appropriate relief or suitable directions in favour of the accused. Thus, in deciding bail applications, one of the important factors which should be taken into account is the delay in concluding the trial. If an accused is denied bail but is ultimately acquitted, nobody is going to compensate him for the period he has spent in custody. Therefore, long incarceration of an accused may not be by itself a ground for grant of bail but it certainly becomes a ground for grant of bail to an accused, if the delay in conclusion of trial is attributable to the prosecution."

13. Thus, it is clear from the foregoing analysis of the

legal position that the delay in conclusion of trial is one of the

important factors which has to be considered while deciding

the plea of bail of an accused even if the said accused is facing

trial in a heinous offence like murder.

13. In the light of the aforesaid legal position, let us

now analyze the facts of the present case. A perusal of the

trial court record would show that out of 81 prosecution

witnesses cited in the challan, only 70 prosecution witnesses

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have been examined so far. Eleven prosecution witnesses are

yet to be examined. According to the complainant, out of these

prosecution witnesses, six have died and only five more

prosecution witnesses are required to be examined. With

reference to the contention of the respondents that the

petitioner is responsible for delay in conclusion of trial, the

record does show that for about a year or so, the trial

remained stayed because of the pendency of the transfer

application filed by the co-accused before this Court. The

minutes of proceedings of the trial court show that during

these three years on most of the occasions the case was

adjourned on account of non-production of prosecution

witnesses by the State.

14. It also appears from the perusal of the record that

co-accused had made an application before the trial court for

declaring him as a juvenile. The said application was made in

the month of March, 2017 and by that time, more than three

years had already elapsed from the date of framing of the

charges. The record tends to show that despite filing of

application by co-accused seeking his declaration as a

juvenile, the trial before the court below did not come to a halt.

In fact, during the pendency of the aforesaid application filed

by the co-accused, a good number of prosecution witnesses

were examined before the trial court. So it is not a case where

on account of pendency of application filed by the co-accused,

any delay was caused in the progress of the trial. The minutes

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of proceedings bear testimony to the fact that despite repeated

directions by the trial court to produce prosecution witnesses

and despite fixing calenders for the said purpose, the trial of

the case progressed at a snail's pace.

15. When we take a holistic view of the matter, in the

light of the proceedings recorded by the trial court, it appears

that delay in conclusion of the trial is solely attributable to the

prosecution and there is no contribution in this regard on the

part of the petitioner. It appears that the prosecuting agency

has been unable to procure attendance of witnesses despite

repeated directions by the trial court. Thus, there is no

hesitation in holding that delay in prosecution of trial in the

present case has occurred only due to lackadaisical approach

of the prosecuting agency. In such circumstances, the right of

speedy trial of the petitioner stands infringed.

16. Learned trial court while dismissing the bail

application of the petitioner has not at all adverted to the

contention regarding long incarceration of the petitioner and

its effect on her right to speedy trial. The Court below has

been swayed by the heinousness of the offence alleged to have

committed by the petitioner without even adverting to the

effect of delay in conclusion of the trial. Another factor on the

basis of which learned trial court has declined the concession

of bail to the petitioner is that at the time of declining the

concession of bail to the petitioner in the previous application,

this Court had directed that she is not entitled to bail during

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trial of the case. It is true that such an observation was made

by this Court while dismissing application of the petitioner on

18.04.2018 but at that time, the trial of the case was at his

inception and the petitioner had not completed even five years

behind the bars at the relevant time. The Court had not

visualized that even after another seven years the trial of the

case would not conclude. The situation has changed now

inasmuch as even after the lapse of more than seven years of

passing of order dated 18.04.2018, there appears to be no

prospect of conclusion of trial at least in near future. The said

observations, as such, would not come in the way of

considering the application of the petitioner for grant of bail on

the grounds of long incarceration and infringement of her right

to speedy trial.

17. Apart from the above, the co-accused who is alleged

to be the principal offender has already been granted bail by

this court in terms of order dated 10.07.2024. Thus, on the

ground of parity also, the petitioner deserves the concession of

bail. Besides this, the petitioner happens to be the mother of a

small child who, in fact, due to incarceration of her mother

was forced to stay with her in the jail. By now the child must

have reached the age of discretion and, as such, if the child

continues to remain with her mother inside the jail, the same

may be prejudicial to the growth of his personality. On this

ground also, the petitioner deserves the concession of bail at

this stage.

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18. For what has been discussed hereinbefore, this

Court finds that the petitioner has carved out a case for grant

of bail. Accordingly, the petition is allowed and the petitioner

is directed to be released on bail subject to the following

conditions:

(I) That she shall furnish personal bond to the satisfaction of the In-charge of the concerned Jail, along with two local sureties in the amount of Rs.50,000/- (rupees fifty thousand) each to the satisfaction of the trial court;

(II) That, in case she has a passport, she shall surrender the same before the trial court and she shall not travel out of the Union Territory of Jammu and Kashmir without permission of the trial court;

(III) That she shall not tamper with the prosecution evidence and she shall not indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial;