The Prosecution Kept Turning Up Without Witnesses. They Get Bail.
Charge was framed in 2022. Four years later the trial is still near its beginning, and on three separate dates no prosecution witness appeared at all.
The Court held that, without commenting on the merits and applying the parameters the Supreme Court has laid down, the petitioners may be enlarged on bail at this stage. They had been in custody about five years with the trial at an initial stage. Bail was granted on a personal bond of Rs 2,00,000 each with two sureties, one of them local, to be furnished within two weeks.
- Thirteen witnesses in four years, with 84 still to be examined between November and December.
- Three consecutive dates with no witness present — May, June and July 2026.
- The Supreme Court had left the door open, dismissing an earlier plea with liberty to revive it if the trial was prolonged for reasons not attributable to the accused.
- A line of authority now supports delay-based bail, from K.A. Najeeb through Javed Gulam Nabi Shaikh and Mohd. Muslim.
- Court
- High Court of Himachal Pradesh at Shimla
- Bench
- Justice HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
- Citation
- Cr. MP(M) No. 1296 of 2026
- Case
- Cr. MP(M) No. 1296 of 2026
- Decided
- 2 September 2026
- Outcome
- Petitions allowed; bail granted on delay in trial
How slowly the trial moved
Charge was framed on 13 July 2022 and four witnesses were examined by September 2022. Proceedings were then stayed on a revision petition from October or November 2022 until the stay was vacated on 16 November 2023.
The matter has since been listed for evidence on numerous occasions, and only thirteen witnesses have been examined in all. On 2 May 2026 no prosecution witness was present and the matter was adjourned; on 27 June 2026 again none was present; and on 25 July 2026 again none.
The remaining 84 prosecution witnesses have now been fixed for examination between 4 November and 5 December 2026. The petitioners' case was that on past conduct there is no possibility of all of them being examined on those dates, and that they have languished in jail about five years with the trial at an initial stage.
Why the door was open
An earlier bail plea had been dismissed, and a Special Leave Petition against that dismissed by the Supreme Court in November 2024 — but with a request to the trial court to proceed expeditiously, and with the observation that the accused would be entitled to revive his request on a change in circumstances, or if the trial were prolonged for reasons not attributable to him or a co-accused.
The petitioners relied on that observation to maintain the present petitions.
The authorities, and the order
The Court was taken to a line of Supreme Court decisions on bail for delay — Union of India v. K.A. Najeeb, Shoma Kanti Sen, Athar Parwez, Javed Gulam Nabi Shaikh, Kapil Wadhawan, Mohd. Muslim alias Hussain, and Chandrima Das — together with recent orders granting bail after detentions of three, three and a half, and more than four years in cases under the Unlawful Activities (Prevention) Act, the Arms Act, the NDPS Act and Section 302.
Taking the entire facts and circumstances into account, without commenting on the merits, and applying the parameters propounded by the Supreme Court and by this Court, the Court was of opinion that the petitioners may be enlarged on bail at this stage.
Bail was granted on a personal bond of Rs 2,00,000 each with two sureties in the like amount, one of them local, to the satisfaction of the trial court within two weeks, on such further conditions as may be deemed fit. Violation makes the bail liable to cancellation, and the observations do not affect the merits.
Who argued it
Appearances as recorded in the judgment of the Court.
Frequently asked
Can long custody alone justify bail?
Where the trial is far from complete and the delay is not the accused's doing, yes. Five years with the trial at an initial stage sufficed here.
Does a dismissed bail plea end the matter?
Not where liberty was reserved to revive it on a change of circumstances or prolonged trial, as here.
Applying for bail on the ground of delay
- Build a dated table of the trial's progress — witnesses examined, dates lost, and who was absent.
- Count the witnesses still to come; 84 remaining is a stronger fact than any adjective.
- Show the delay is not attributable to the accused, which is the condition the Supreme Court's liberty usually carries.
- Cite the current line of authority, and recent orders on comparable periods of custody.
Source. High Court of Himachal Pradesh at Shimla, Cr. MP(M) No. 1296 of 2026, decided 2 September 2026 by Justice HON'BLE MR. JUSTICE VIVEK SINGH THAKUR. This explainer is written from the judgment text as reported.
Claw tracks High Court of Himachal Pradesh at Shimla and 24 other High Courts, reads every order handed back, and surfaces the directions that carry a deadline. clawlaw.in