3 Answers
Dear Client,
Your father's situation is precisely the kind of case that constitutional courts intervene in.
On the legal strength of your father's position, the facts you have described are remarkable in his favour. There is no dead body. There is no postmortem report. Not a single witness has testified against your father specifically. No witness claims to have personally seen him do anything. These are not minor gaps, they go to the very root of the prosecution's case. Under Section 105 of BSA the burden of proving an offence always rests on the prosecution, and in a murder case with no body and no eyewitnesses, that burden is almost impossible to discharge. The Supreme Court in State of West Bengal v. Mir Mohammad Omar held that conviction cannot be based on suspicion, however strong, there must be legal proof.
On the question about the grounds of most urgent remedy , default bail and prolonged detention of your father since 2008, which is 17 years shall be the strength of your pleading.
Murder charges carry life imprisonment or death as punishment, which unfortunately means Section 479 BNSS (default bail for undertrials who have served half the maximum sentence) does not directly apply because death and life imprisonment are among the specified punishments. However, the Supreme Court in Hussainara Khatoon v. State of Bihar specifically held that the right to a speedy trial is a fundamental right under Article 21, and that detention for an unreasonably prolonged period without trial completion itself becomes unconstitutional. File an urgent bail application before the Sessions Court citing 17 years of undertrial detention, the prosecution's repeated failure to produce witnesses, and the complete absence of any evidence against your father specifically. Courts have granted bail in such circumstances.
On the prosecution's repeated failures to produce witnesses over 40 listed witnesses, only 5 remaining, the Public Prosecutor repeatedly filing applications and failing, you shall file an application before the trial court requesting that the evidence of the prosecution be closed and the case posted for arguments on the basis of evidence already recorded. Courts have the power to close prosecution evidence after sufficient opportunity has been given and repeatedly wasted. This will dramatically accelerate the path to judgment. Simultaneously, file a writ petition before the High Court under Article 226 of the Constitution citing violation of Article 21, seeking directions to the trial court to conclude the case on a day to day basis within a fixed time frame.
The State Human Rights Commission should also receive a formal complaint about 17 years of undertrial detention without any evidence against this specific accused.
I hope this helps, and if you have any further issues, do not hesitate to contact us.
Dear Client,
Your case needs immediate criminal trial defence action and a bail/expedite strategy, because an undertrial cannot be kept in jail for an indefinite period merely because the prosecution keeps seeking adjournments. On the facts you gave, the defence should press that the prosecution has failed to produce key evidence (no dead body, no post‑mortem, no eye‑witnesses against your father, 5 witnesses still pending after 18 years) and ask the trial court to close the prosecution evidence if they continue to default, then hear final arguments without further delay. At the same time, your lawyer should file a bail application / regular bail or a renewed bail plea (if already rejected earlier) and, if the trial court is not moving, approach the High Court seeking directions for time bound conclusion of trial and/or bail on the ground of prolonged incarceration and denial of speedy trial.
Also, the prosecution’s repeated “I will bring witnesses” but failure to do so can be challenged by asking the judge to fix a final and last opportunity with costs, and then close prosecution evidence if they still do not produce them. In a case that is almost 18 years old, your counsel should prepare a short note highlighting: absence of corpus (dead body), absence of post‑mortem, absence of direct ocular evidence, long custody, and prejudice caused by delay. If your father has already undergone a very long period of detention and the case is not near conclusion, the High Court is the proper forum to seek relief on constitutional grounds of speedy trial, while the trial court remains the place to push for closure of evidence and discharge of the case on the record as it stands.
I hope this helps and if you have any further issues do not hesitate to contact us.
Dear Sir,
You should also strongly consider filing a bail application on the ground of prolonged custody and delay. The Supreme Court and subsequent judgments has made it clear that indefinite detention of undertrials is unconstitutional. Even in serious offences like murder, courts have granted bail when trials are unduly delayed and the accused has already spent many years in custody without conclusion.