Thirteen witnesses examined in five years, eighty-four still to come, and a stay obtained by somebody the police cleared
Six men have been in Model Central Jail since 2021 on a murder and atrocities case that has barely begun. The Himachal Pradesh High Court asks who the delay belongs to, and enlarges them on bail.
An objection to bail on the ground of delay is usually met by pointing at the accused: adjournments sought, witnesses not cross-examined, applications filed. Where that cannot be said, the argument shifts to whose fault it was instead — and the answer is frequently nobody’s, which is precisely the situation the law has to deal with.
On 25 September 2026 Justice Vivek Singh Thakur decided six connected bail petitions arising out of one FIR, and worked through the arithmetic of a trial that had gone nowhere in five years.
The case
The FIR was registered at Police Station Sadar Kullu on 26 August 2021, under Sections 302, 307, 323, 325, 326, 201, 147, 148, 149, 440, 354, 354B and 109 read with Section 34 of the Indian Penal Code, Section 24 of the Arms Act, and Sections 3(1)(r), (s), (w) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The six petitioners were arrested in August and September 2021 and have been in detention as undertrial prisoners since, lodged at Model Central Jail, Kanda, District Shimla. They applied under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
The status report set out the chronology. The main challan was presented in the Sessions Court, Kullu on 22 November 2021, with supplementary challans on 17 August 2022 and 24 March 2025. There are 98 witnesses in all. Thirteen have been examined and one given up, leaving 84 yet to be examined — all of whom had now been summoned, with dates fixed between 4 November and 5 December 2026.
The State’s explanation, and the answer to it
The Deputy Advocate General argued that the delay was not attributable to the prosecution. The trial could not proceed between October or November 2022 and November 2023 because of a stay granted by the High Court in a revision petition; and with evidence now fixed for all remaining witnesses, no case was made out for bail on the ground of delay.
Counsel for the petitioners answered that on two levels, and both are worth setting out.
First, the revision petition in which the stay was granted had not been filed by any of the petitioners or by any other accused against whom a challan had been presented. It was filed by a third person, against whom the police had themselves reported to the High Court that no evidence was found to implicate him. The petitioners, not being parties to that revision, were in no position to apply for vacation of the stay. The State was a party — and never asked for it to be vacated so the trial could continue.
Second, and independently of the stay, the pace before and after it tells its own story. Four witnesses had been examined before November 2022. Only nine more were examined in the three years from 2023 to 2026 after the stay was vacated. That is the whole of the thirteen, out of 98.
The distinction the argument draws is the one that decides such applications. “Not the prosecution’s fault” is not the same as “the accused’s fault”. Where neither is true, the person whose liberty is at stake is the one carrying the cost of an institutional failure, and the Court has to weigh that under Article 21 rather than allocate blame.
The other circumstances
Several further points were pressed and the judgment records them.
Some of the accused had earlier been enlarged on temporary bail on various grounds, had surrendered before the Superintendent, Jail before the period expired, and during those releases no adverse activity was noticed or reported — which meets the apprehension of absconding or influencing witnesses with evidence rather than assertion.
The main victim and complainant had already been examined as a prosecution witness on 16 June 2025, so the risk of her being influenced or threatened had substantially receded. That is the most concrete consideration in a bail application in a case of this gravity: once the principal witness has deposed, what remains to be protected is different in kind.
The petitioners also relied on an order of the same Court enlarging an accused under Section 302 IPC on bail after three years and two months in custody, and on the line of Supreme Court authority that a person cannot be kept behind bars when there is no likelihood of the trial concluding within a reasonable time — including the observation that the gravity of an offence, or the stringency of provisions in a penal law, cannot by itself answer the claim of an undertrial who has been detained for a period approaching what he would serve if convicted.
The order
The petitions were disposed of by enlarging the petitioners on bail on conditions, among them that they shall not commit any offence similar to the one they are accused of — with the express stipulation that if they do, their bail shall be liable to be cancelled. The Court recorded that the prosecution may approach the competent court for cancellation of bail in accordance with law.
The trial court was directed to comply with the High Court’s standing instructions on such matters, and the Court added the usual protection that the observations made will not affect the merits of the case in any manner and are strictly confined to the disposal of the bail applications.
The judgment does not say the charges are weak, and it says twice that it is not commenting on them. What it says is that five years of custody, thirteen witnesses, and a year lost to a stay obtained by a man the police had cleared, is not a trial proceeding within a reasonable time — and that the accused cannot be asked to serve the sentence in advance while everybody waits for the other eighty-four.