On December 30, a single judge's bench of the Jammu and Kashmir and Ladakh High Courts, led by Justice Sanjay Dhar, granted bail to a man accused of murdering his wife, observing that a long period of incarceration of an accused without any hope of completion of trial leads to a breakdown of the rigour of the 1st Proviso to Section 437 CrPC. The court stated that the accused has "carved out a case for bail" based on his more than 12-year incarceration and the fact that, based on the prosecution's and police department's conduct, there is little chance of the trial being completed in the near future.

The court cited Hussainara Khatoon vs. Home Secretary, State of Bihar, in which the Supreme Court condemned the delay in starting trials, which it said would contribute equally to long pendency of trials. “In the said case, the Supreme 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”

It also referred to Union of India vs. K. A. Najeeb, the case in which the Supreme Court first stated that “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 harmonised. 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 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.."

The court also stated that a speedy trial will always be a distant dream without the cooperation and assistance of the prosecuting agency and the police department. The court went on to say that, while there is no argument that long incarceration cannot be the sole basis for bail, the accused can certainly be released on bail even in a murder case where the trial has been extended indefinitely due to the prosecution's and police department's lack of cooperation. "As already discussed hereinbefore in the case of long incarceration of an accused without any hope of conclusion of trial in near future, the rigour of 1st Proviso to Section 437 of the Cr. P. C would melt down. If the argument of learned Government Advocate is accepted, then the respondent and its officials can very well avoid appearance in the Court for another ten years thereby ensuring that the petitioner does not come out of jail for next one decade," said the bench.

Case Title: Manzoor Ahmad Mir Vs UT of J&K
Citation: Bail App No.109/2022
Link: https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=zDLovBVSUw02H8XukOjXfMs1sMFf%2BUVSEOtM5f07GF00vacJ12rKF6i6BYs1s1Xy&caseno=Bail%20App/109/2022&cCode=2&appFlag=