Safiya Malik

The High Court of Jammu & Kashmir and Ladakh, Single Bench of Justice Sanjay Dhar, granted bail to a woman accused of kidnapping and murdering a nine-year-old child, finding her continued detention of over twelve years unjustifiable given the prosecution's failure to conclude trial within a reasonable time. The Court found that trial delays were solely attributable to the prosecution's inability to produce witnesses despite repeated judicial directions, thereby infringing the accused's right to a speedy trial. It further noted that the accused's minor child had been compelled to reside with her inside prison and that continued detention could adversely affect the child's development — a ground independently supporting the grant of bail.

The petitioner approached the High Court under Section 483 of the BNSS seeking bail in connection with FIR registered at Police Station Rajouri for offences under Sections 302, 364, 363 and 120-B RPC. According to the chargesheet, the petitioner and her husband were alleged to have kidnapped a nine-year-old child, wrongfully confined him for ransom, and subsequently strangulated him when police intervention was anticipated. The child’s body was allegedly placed in a plastic bag and left in a rented room before the accused fled.

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The petitioner was arrested on 12.10.2013 and has remained in custody since then. Charges were framed in June 2014, and out of 81 cited witnesses, 70 had been examined. The petitioner sought bail citing prolonged incarceration and delay in trial. The respondents opposed the plea, attributing delay to the accused and contending that the trial was near completion.

On the legal principle governing bail in cases of prolonged incarceration, the Court drew from its earlier decision in Manzoor Ahmad Mir v. UT of J&K and recorded that "long incarceration of an undertrial without any likelihood of conclusion of trial in near future infringes upon the right of speedy trial of such undertrial."

The Court further noted that while acquittal may eventually follow, there exists no mechanism to restore lost liberty, observing that "if an accused is denied bail but is ultimately acquitted, nobody is going to compensate him for the period he has spent in custody."

On the question of whether heinousness of an offence can by itself be a bar to bail, the Court stated that "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."

Examining the trial record, the Court observed 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." It further recorded 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."

Taking a holistic view of the proceedings, the Court stated 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" and that "the prosecuting agency has been unable to procure attendance of witnesses despite repeated directions by the trial court." It accordingly concluded that "delay in prosecution of trial in the present case has occurred only due to lackadaisical approach of the prosecuting agency" and that "in such circumstances, the right of speedy trial of the petitioner stands infringed."

On the trial court's approach to dismissing the bail application, the Court observed that "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."

On the child's continued stay in prison, the Court stated that "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." It further noted that "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." The Court concluded that "on this ground also, the petitioner deserves the concession of bail at this stage."

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The Court directed, “the petition is allowed and the petitioner is directed to be released on bail subject to the following conditions: 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;”

“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; 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;” and “That she shall appear before the trial Court on each and every date of hearing; The application stands disposed of in the above terms.”

Advocates Representing the Parties

For the Petitioners: Mr. Akeel Ahmed Wani, Advocate

For the Respondents: Mr. Bhanu Jasrotia, GA for R-1; Mr. P.N. Raina, Senior Advocate with Mr. J.A. Hamal, Advocate and Mr. Intikhab Hussain Shah, Advocate for R-2

Case Title: Shareen Gani v. UT of J&K & Anr.
Neutral Citation: 2026: JKLHC-JMU:190
Case Number: Bail App. No. 14/2025
Bench: Justice Sanjay Dhar