New Delhi, Feb 03, KDC: The Supreme Court today (February 3) came down heavily on the Union Territory of Jammu & Kashmir for keeping an undertrial prisoner in custody for seven years. It called out the prosecuting agency for examining only 7 witnesses in the past 7 years. Considering the facts and circumstances, it granted bail to the undertrial.
A bench comprising Justice JB Pardiwala and Justice KV Viswanathan has also directed the Home Secretary, Union Territory of Jammu & Kashmir, to appear online on the next date of hearing. It has also asked the Secretary to place on record the pending criminal trials where the accused has been under custody for more than 5 years.
The petitioner, accused of the offence of murder, approached the Supreme Court for the grant of bail. When the matter was heard on January 29, the bench called for an explanation from the Trial Court and the prosecuting agency on the flagrant delay. Today, the bench went through the report, which showed a sorry state of the prosecuting agency.
At the outset, when the matter was taken up, the Counsel for the UT of J&K stated that he could not find all the orders in this case. Justice Viswanathan responded that there are 86 orders to be precise. Justice Pardiwala added: “Is this a joke? You have made a mockery of Article 21. You have made a mockery of this concept of speedy trial, and in all respect, you have violated the fundamental right of this accused who is behind bars as undertrial prisoner past 7 years…You owe an explanation why this laxity in the conduct of trial on your part…What is this man doing in jail past 7 years? Look at the report of the Trial Court. The Trial Charge is exasperated. He says, what do I do. Of course, he can’t express helplessness, he could have done many things.”
The counsel responded that the delay was caused by the COVID-19 pandemic, and after that, the widow of the victim had filed a protest petition before the Sessions Court for further hearing.
“During the COVID-pandemic, are you suggesting that across the country all trials had come to a standstill for not recording oral evidence?” Justice Pardiwala questioned the Counsel.
The counsel added that since the pandemic had come during this time, his wife then assailed the Sessions Court order before the High Court in 2021, which ordered a de novo investigation. The trial was stayed, and subsequently, the supplementary chargesheet was filed in 2022.
Justice Pardiwala remarked: “Till December 2022, you had all the problems. First, you encountered COVID and then the lady preferred a protest petition, the High Court ordered. After the de novo investigation, PW2 and PW3 were kept as witnesses. In 23 hearings, no prosecution witnesses were produced.”
It ordered:
“The petitioner has been denied regular bail by the High Court of Jammu & Kashmir in connection with the first information report 18.10.2018 registered with…District Samba, State of Jammu & Kashmir for offence punishable under Section 302 of the Ranbir Penal Code, 1989. The incident in question is dated 4th October 2018. The petitioner was arrested in connection with the alleged crime, and in the end of investigation, chargesheet came to be filed for the offence of murder. In the said chargesheet, the investigating officer cited two persons as eyewitnesses to the incident. The two eyewitnesses are PW2 and PW3, respectively.
On 23 February 2019, a charge came to be framed by the Trial Court. The prosecution was directed to produce witnesses on 7.3.2019 and on a particular date; only one witness came to be examined. The Trial Court directed that PW12 and PW1 should now be summoned for recording oral evidence. On 23 March 2019, the oral evidence of PW2 came to be recorded. PW4, widow of the deceased, also appeared for her examination. However, she filed a petition with the Trial Court praying for further investigation in the matter. The Trial Court declined to entertain such an application. After a passage of time, the widow moved to the High Court. The High Court directed de novo investigation. After completion, a supplementary chargesheet came to be filed. Later trial got stalled due to the COVID pandemic. However, unfortunately, the fact remains that after 2022, there has been no further progress.
The petitioner has been in jail for the past seven years. In such circumstances referred to above, we passed an order dated 29 January 2026. In pursuance of our order, the Trial Court has forwarded its report explaining the status and why it has not attained finality. We looked into the report threadbare. The report is extremely disappointing. The report highlights the sorry state of affairs at the end of the prosecuting agency. Note that in the last seven years, the prosecution has been able to examine only seven witnesses, and it still intends to examine 17 witnesses. We wonder who these 17 witnesses and, if not examined, what would be the adverse impact.
However, the most unfortunate past of the report of Trial Court is past 82 hearings, not a single witness has been examined so far. We propose to take a very strict view of the matter. The State/prosecuting agency owes an explanation for the gross and inordinate delay in conclusion of the Trial. In such circumstances, we direct the Home Secretary, UT of Jammu & Kashmir, to file its response within a period of four weeks. The Registry shall provide one copy of the report to the learned counsel for the UT of J&K, who shall forward it to the Secretary.
In the meantime, we direct that the petitioner be released on bail subject to terms and conditions as the Trial Court deems fit. We request the Home Secretary to join online on the next date of hearing.
At this stage, the learned counsel appearing for the petitioner brought something very shocking to our notice. He submitted that this is not solitary case of an undertrial prisoner, who is languishing in jail past seven years. There are hundreds of such undertrial prisoners in the UT of J&K languishing past more than 10 years and Trials are pending. If what is told is true, this is beyond our comprehension. This is something extraordinary and calls for action. We ask the Home Secretary to place on record the all pending criminal trials where the accused has been in custody for more than 5 years..”
The petitioner is accused of murdering a woman truck driver. (Live Law)
