At the hearing, the petitioners strongly contested the justification for re-detention, calling the State’s affidavit “vague” and insufficient, particularly in light of the fact that no bail cancellation was ever sought. The Court, signalling its concern, directed that the Union Government’s May 2, 2025 notification on deportation procedures, cited by the State as the basis for renewed custody, must be placed on record before any further hearing. The matter is now listed for July 25. CJP has been providing legal aid for these two cases.

Petitioner’s Counsel: Detention is illegal, affidavit vague

Appearing for both petitioners, Advocate Mrinmoy Dutta argued that the State’s latest affidavit, submitted pursuant to earlier directions, was “as vague as it can be”, particularly pointing to paragraph 7, which failed to provide any specific grounds or documentation justifying why the two men were re-detained.

Dutta submitted that the issue was not verification, but detention; that factual or documentary verification for deportation could easily have been undertaken without arresting and detaining individuals who were already on court-sanctioned bail. He stressed that the men had been released not merely due to COVID, but on the explicit ground of prolonged detention and that the Supreme Court order under which they were released was still binding.

“The SC order is not just a COVID-related release, it applies to those who have completed more than 2 or 3 years in detention. That order has not been recalled. This is a clear violation of that binding direction,” Dutta submitted before the division bench comprising Justices Kalyan Rai Surana and Susmita Phukan Khaund.

State Counsel: COVID-era bail was temporary, deportation now underway

Opposing the petitioners’ challenge, the FT counsel reiterated the State’s position that the detainees were previously released while they awaited deportation, but deportation was stalled due to the pandemic. With the situation having now changed, the Government of India and Assam are “initiating deportations”, and for that, verification of identity and nationality is underway.

He claimed that the individuals were “not in detention centres but in holding centres”, and that such custody was merely to complete verification before deportation could be effected.

However, the Court appeared unconvinced.

Bench seeks clarity: “Where is the notification?”

The Division pressed the State on its failure to produce any official notification along with the affidavit that would justify treating these detentions as part of a lawful deportation process.

“Where is the notification? You’ve not annexed anything to support this position,” the Court remarked during the hearing.

The Bench observed that as per UN Conventions and principles of international law, some form of verification may be necessary before deportation. However, the counsel for the petitioners emphasised that verification alone does not authorise detention, especially when the person is on standing bail under a court order.

The Court directed the Ministry of Home Affairs’ (MHA) May 2, 2025 notification on deportation to be brought on record. Advocate Dutta was also asked to prepare submissions specifically addressing the State’s claim that deportation proceedings justify the detention of bail-compliant individuals. The matter is now listed for July 25, 2025.

Previous hearings may be referred here.

Background

Both Abdul Sheikh and Majibur Rehman were declared foreigners by FTs in Assam and detained for more than two years. In 2021, they were released under the Supreme Court’s April 2020 directions, which permitted conditional release of detainees who had completed prolonged detention terms and were not facing imminent deportation.

From the time of their release, both men had been consistently appearing before their respective police stations, as required by the bail conditions. Their last attendance was recorded in May 2025, shortly before they were suddenly picked up again by police and transferred to the Kokrajhar Holding Centre — without any order cancelling their bail or citing violation of its terms.

The ongoing hearings raise a serious constitutional question — can individuals, released on binding bail orders, be re-detained without cancellation of bail, merely because the State has decided to restart deportation processes?

In earlier hearings on June 25 and June 26, the Court had already recorded the State’s admission that both Abdul Sheikh and Majibur Rehman had been fully compliant with their bail conditions. Despite this, the State continued to defend its action on the ground that deportation is now feasible, and detention is part of the “preparatory process”.

The petitioners have argued that such detentions, without any recall of prior judicial orders, are a direct breach of Article 21, and threaten to render the judicial system meaningless if State agencies can override court orders without due process.

Related:

Confusion over identity clouds ‘pushback case’ of Doyjan Bibi, Gauhati High Court directs state to verify true identity and whereabouts

Gauhati HC closes writ petition in Bakkar Ali case after his detained father, Samsul Ali, was recovered and not rearrested

India’s Stealthy Pushback: Thousands of alleged “Bangladeshi immigrants” deported without due process across states

The post Gauhati High Court demands Centre’s deportation order amid mounting legal questions over re-detention of bail-compliant individuals appeared first on SabrangIndia.

Court: Supreme Court of India

Bench: Chief Justice B.R. Gavai and Justice Augustine George Masih

Date of Order: May 22, 2025

A system on trial

In a powerful assertion of personal liberty over procedural inertia, the Supreme Court of India intervened to grant bail to Lakshya Tawar, a man whose plea for release had been adjourned an astonishing 27 times by the Allahabad High Court. Having already spent over four years in detention, Tawar’s case became a flashpoint for judicial delay. The apex court’s decision was not a commentary on the merits of the criminal allegations against Tawar but a sharp rebuke of a system that allowed a bail hearing—a matter of fundamental rights—to languish indefinitely. “In matters of personal liberty,” the bench led by Chief Justice Gavaideclared in its order, “the High Courts are not expected to keep the matter pending for such a long time and do nothing, except for adjourning from time to time.”^[1] The ruling serves as a critical case study on the judiciary’s role as the ultimate guardian of Article 21 and the dire consequences when procedural delays effectively negate the right to a timely hearing.

The factual background: A labyrinth of deferrals

Lakshya Tawar was arrested, facing serious charges of cheating, forgery, criminal conspiracy under the Indian Penal Code, and corruption under the Prevention of Corruption Act. His bail application was filed in the Allahabad High Court.

What followed was not a swift adjudication but a cycle of repeated deferrals. Over the course of his plea, the matter was adjourned 27 times. During the proceedings, the High Court took note of Tawar’s “long criminal history of thirty-three cases” and, in its order of March 20, 2025, adjourned the case for another two weeks. It directed the trial court to first record the evidence of the complainant before it would reconsider the bail plea. While this might appear as a measure of due diligence, for a man already incarcerated for four years, it represented yet another hurdle in a seemingly endless procedural maze. It was this pattern of delay that propelled the case to the Supreme Court.

The Supreme Court’s intervention: A decisive rebuke

On May 22, 2025, the Supreme Court expressed its unequivocal disapproval. “How can the high court adjourn a bail hearing 27 times in a matter related to personal liberty?” Chief Justice Gavai pointedly asked. The Court noted that it would “normally not have entertained the matter” challenging adjournments, but the “peculiar facts and circumstances” of this case, namely the extraordinary number of deferrals, demanded an exception.

The Supreme Court’s decision to grant bail was based on a confluence of factors:

1. The Egregious Delay: The 27 adjournments were the primary catalyst, which the Court viewed as a de facto denial of justice.
2. Prolonged Incarceration: Tawar had already been imprisoned for over four years.
3. Fulfilment of High Court’s Condition: The complainant’s evidence—the very reason for the High Court’s last adjournment—had since been recorded.

Finding the High Court’s inaction indefensible, the Supreme Court directly granted bail to Tawar, rendering the application pending before the Allahabad High Court “infructuous.” By doing so, it sent a powerful signal that procedural failings impinging on fundamental rights would not be tolerated.

Upholding the spirit of Article 21

This case is a potent illustration of Article 21 of the Constitution, which guarantees that no person shall be deprived of their life or personal liberty “except according to procedure established by law.” The Supreme Court’s jurisprudence, notably in Maneka Gandhi v. Union of India, has established that this procedure must be “just, fair, and reasonable.” The right to a speedy trial, articulated in Hussainara Khatoon v. Home Secretary, State of Bihar, is a cornerstone of this principle.

The Tawar judgment extends this logic forcefully to pre-trial proceedings. Indefinite detention caused by the repeated adjournment of a bail hearing is a clear violation of fair procedure. By intervening, the Supreme Court reaffirmed that judicial discretion in managing dockets is not absolute and cannot be exercised in a manner that erodes fundamental rights. The maxim “justice delayed is justice denied” is rarely more applicable than when an individual’s liberty is suspended in a state of indefinite judicial limbo. However, whether the Supreme Court and judiciary as a whole will apply this standard in dealing with the delayed bail for political prisoners, especially in the context of cases like Umar Khalid’s is a question that is yet to be answered.

(The author is part of the legal research team of the organisation)

^[1] Para 5, Lakshya Tawar v. CBI[SLP(Crl.) No. 5480/2025

Related:

“Illegal detention cannot be allowed even for a minute”: Gauhati HC orders release of Goalpara man picked up despite complying with bail conditions

SC’s denial of bail to journalist Rupesh Singh once again showcases how the Court looks at bail under UAPA, with varying consistency

The post SC intervenes for personal liberty after HC adjourns a bail application 27 times! appeared first on SabrangIndia.

Rupesh Kumar Singh, an independent journalist from Jharkhand, has been in custody since July 2022 under the Unlawful Activities (Prevention) Act (UAPA) for allegedly having links with the Communist Party of India (Maoist) and arranging funds for them. His arrest followed his journalistic work on displacement, industrial pollution, and alleged state excesses, which many believe led to his prosecution as an act of state repression against dissenting voices.

Singh was initially not named in the FIR but was later implicated based on alleged digital evidence obtained from co-accused individuals. His previous encounters with the authorities include a 2019 arrest under similar charges, where he was eventually released on default bail due to the failure of the police to file a chargesheet in time. His arrest came days after he posted a Twitter thread on environmental degradation in Jharkhand, raising concerns over state surveillance and retaliation against critical journalism.

His case mirrors a broader crackdown on journalists, activists, and human rights defenders under UAPA. Notably, student leader Umar Khalid, Khalid Saifi and Gulfishan Fatima remain behind bars as under trials and Father Stan Swamy, an 84-year-old tribal rights activist, died in jail while facing questionable UAPA charges. These instances reflect a growing trend of using stringent anti-terror laws to silence dissent.

The United Nations Human Rights Office has also expressed concern over the misuse of UAPA in India, urging the government to review its application and ensure that it is not being used to target dissenting voices. The UN specifically called for the dropping of charges against Arundhati Roy and Sheikh Showkat Hussain, who were prosecuted under UAPA for their comments on Kashmir.

Supreme Court’s decision

On January 27, 2025, the Supreme Court, comprising Justices M.M. Sundresh and Rajesh Bindal, dismissed Singh’s Special Leave Petition (SLP) against the Jharkhand High Court’s order denying him bail. The Court stated that it was “not inclined to interfere” with the High Court’s decision, thereby upholding the denial of bail.

The apex court’s order did not provide detailed reasoning beyond affirming the High Court’s conclusions, which raises significant concerns about judicial oversight in politically sensitive cases. This decision effectively keeps Singh incarcerated without trial, reflecting the stringent nature of UAPA bail provisions and their impact on civil liberties.

Supreme Court’s decision

On January 27, 2025, the Supreme Court, comprising Justices M.M. Sundresh and Rajesh Bindal, dismissed Singh’s Special Leave Petition (SLP) against the Jharkhand High Court’s order denying him bail. The Court stated that it was “not inclined to interfere” with the High Court’s decision, thereby upholding the denial of bail.

The order may be read here:

The apex court’s order did not provide detailed reasoning beyond affirming the High Court’s conclusions, which raises significant concerns about judicial oversight in such sensitive cases. This decision effectively keeps Singh incarcerated without trial, reflecting the stringent nature of UAPA bail provisions and their impact on civil liberties.

Legal Issues Involved

1. Application of UAPA’s stringent bail provisions:

• The High Court and Supreme Court relied on Section 43 D(5) of the UAPA, which mandates that bail cannot be granted if the court believes the allegations are “prima facie true.” The threshold for bail under UAPA is significantly higher than in regular criminal cases
• The courts have interpreted “prima facie true” broadly, often placing the burden of proof on the accused, rather than requiring the prosecution to demonstrate substantial evidence at the bail stage.

2. Lack of independent evidence against Singh:

The primary evidence against Singh appears to be electronic data allegedly recovered from an SSD card seized from a co-accused. His defence argues that:

• No direct incriminating evidence was found from Singh’s residence or personal devices.
• The alleged videos and photographs are inconclusive in proving any criminal intent or Maoist affiliation.
• Digital evidence can be easily manipulated, and its authenticity should be scrutinized before being treated as conclusive proof.

Violation of fundamental rights:

• Singh’s arrest and prolonged detention raise concerns under Article 19(1)(a) (freedom of speech and expression) and Article 21 (right to life and personal liberty) of the Indian Constitution.
• The Committee to Protect Journalists (CPJ) and United Nations Special Rapporteur on Human Rights Defenders have highlighted Singh’s case as an example of state-led suppression of press freedom
• His prosecution under UAPA fits a pattern of using anti-terror laws to target activists, journalists, and dissidents.

A slew of judgements of the constitutional courts analysed by our team below illustrate how bail under this draconian counter-terror law has been addressed. Before this, in 2020, our team had analysed how various courts dealt with the issue of bail under the stringent UAPA. That legal resource may be read here.

Precedents

Observations of the Supreme Court in Thwaha Fasal v. Union of India (2021)

The Supreme Court in Thwaha Fasal v. Union of India (2021) clarified the necessity of an independent judicial assessment in bail matters under the UAPA. The Court observed that:

1. Mere membership in a banned organisation does not amount to criminal activity: The Court ruled that the prosecution must establish a direct and substantial connection between the accused and the alleged unlawful activities. A person cannot be denied bail solely on the basis of association.

On plain reading of Section 38, the offence punishable therein will be attracted if the accused associates himself or professes to associate himself with a terrorist organisation included in First Schedule with intention to further its activities. In such a case, he commits an offence relating to membership of a terrorist organisation covered by Section 38. The person committing an offence under Section 38 may be a member of a terrorist organization or he may not be a member. If the accused is a member of terrorist organisation which indulges in terrorist act covered by Section 15, stringent offence under Section 20 may be attracted. If the accused is associated with a terrorist organisation, the offence punishable under Section 38 relating to membership of a terrorist organisation is attracted only if he associates with terrorist organisation or professes to be associated with a terrorist organisation with intention to further its activities. The association must be with intention to further the activities of a terrorist organisation. The activity has to be in connection with terrorist act as defined in Section 15. Clause (b) of proviso to sub-section (1) of Section 38 provides that if a person charged with the offence under sub-section (1) of Section 38 proves that he has not taken part in the activities of the organisation during the period in which the name of the organisation is included in the First Schedule, the offence relating to the membership of a terrorist organisation under sub-section (1) of Section 38 will not be attracted. The aforesaid clause (b) can be a defence of the accused. However, while considering the prayer for grant of bail, we are not concerned with the defence of the accused. (Para 13)

2. Independent judicial scrutiny is essential: Courts cannot mechanically accept the prosecution’s claims under Section 43D (5) of the UAPA. The judiciary must conduct a thorough review of the material evidence before concluding that the allegations are “prima facie true.”

“..By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise..” (Para 21)

3. The Court emphasised that the offences under Sections 38 and 39 require mens rea (guilty intent). Mere association or possession of Maoist literature does not satisfy the requirement of intention unless there is active participation or acts showing furtherance of terrorist activities.

“Thus, the offence under sub-section (1) of Section 38 of associating or  professing to be associated with the terrorist organisation and the offence relating to supporting a terrorist organisation under Section 39 will not be attracted unless the acts specified in both the Sections are done with intention to further the activities of a terrorist organisation. To that extent, the requirement of mens rea is involved. Thus, mere association with a terrorist organisation as a member or otherwise will not be sufficient to attract the offence under Section 38 unless the association is with intention to further its activities.” (Para 15)

4. The Court reiterated that constitutional courts retain the power to grant bail despite the strict conditions in UAPA, especially when prolonged incarceration violates fundamental rights. The accused had already been in custody for over 570 days, and the trial was unlikely to conclude soon. The Court restored the Special Court’s order granting bail to the accused.

“As held in the case of K.A. Najeeb (supra), the stringent restrictions imposed by sub-section(5) of Section 43D, do not negate the power of Constitutional Court to grant bail keeping in mind violation of Part III of the Constitution. It is not disputed that the accused no. 1 is taking treatment for a psychological disorder. The accused no. 1 is a student of law. Moreover, 92 witnesses have been cited by the prosecution. Even assuming that some of the witnesses may be dropped at the time of trial, there is no possibility of the trial being concluded in a reasonable time as even charges have not been framed. There is no minimum punishment prescribed for the offences under Sections 38 and 39 of the 1967 Act and the punishment can extend to 10 years or only fine or with both. Hence, depending upon the evidence on record and after consideration of relevant factors, the accused can be let off even on fine. As regards the offence under Section 13 alleged against accused no. 2, the maximum punishment is of imprisonment of 5 years or with fine or with both. The accused no. 2 has been in custody for more than 570 days.” (Para 42)

The judgement in Thwaha Fasal v. Union of India (2021) may be read here:

Observations in Javed Ghulam Nabi Shaikh v. State of Maharashtra (2024)

1. The appellant has been in custody as an undertrial prisoner for four years. The trial court has not yet framed charges. The prosecution intends to examine at least 80 witnesses, making the conclusion of the trial uncertain.

“Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects: 

(i)  The appellant is in jail as an under-trial prisoner past four years; 

(ii)  Till this date, the trial court has not been able to even proceed to frame charge; and 

(iii)  As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses.” (Para 7)

2. The court emphasized that howsoever serious a crime may be, an accused has a fundamental right to a speedy trial under Article 21 of the Constitution.

“Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.”  (Para 8)

3. The appellant remains an accused, not a convict.  The fundamental principle of criminal jurisprudence—that an accused is presumed innocent until proven guilty must not be ignored.

“We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.” (Para 20)

4. The court noted that jails are overcrowded, and undertrial prisoners suffer due to delayed trials. It referred to Mohd Muslim @ Hussain v. State (NCT of Delhi) (2023 INSC 311), highlighting that prolonged incarceration has severe social and psychological consequences. (Para 14)

5. The court referred to Section 19 of the National Investigation Agency Act, which mandates that trials must be conducted on a day-to-day basis.

“The requirement of law as being envisaged under Section 19 of the National Investigation Agency Act, 2008 (hereinafter being referred to as “the 2008 Act”) mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008.” (Para 15)

6. In Union of India v. K.A. Najeeb (2021) 3 SCC 713, the court held that statutory restrictions on bail (like UAPA’s Section 43-D (5)) cannot override constitutional rights. The court reiterated that when trials are excessively delayed, bail should not be denied solely based on the severity of the offence. (Para 16)

7. The judgment noted that criminals are made, not born, and the criminal justice system should consider social and economic factors that may influence crime. The court emphasized that justice should be tempered with humanity, quoting the principle that “Every saint has a past, and every sinner a future.”

“Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.” (Para 18)

The judgement in Javed Ghulam Nabi Shaikh v. State of Maharashtra (2024) may be read here:

Observations in Jahir Haq v. State of Rajasthan (2022)

1. The appellant had been in custody as an undertrial for almost 8 years (since 08.05.2014). Only 6 out of 109 witnesses had been examined so far, indicating an unreasonably delayed trial. The trial court estimated that the case might take 2-3 more years for completion.
2. The Supreme Court had directed priority examination of three prosecution witnesses who had raised concerns about threats to their lives.

Among these witnesses: One (Devendra Patel) was declared hostile. The other two (Hemant and Pappuram) did not provide any deposition implicating the appellant. The State’s case was largely based on the appellant’s alleged communication (31 conversations) with a co-villager, who was accused of being a sleeper cell module head of the Indian Mujahideen.
“We are of the view that in the facts of this case, when the petitioner has already spent nearly 8 years in custody, the appropriate order to pass would be to first direct the examination of the three witnesses who have raised concerns about threat to their lives from the accused and the matter should receive attention of this Court after their evidence is adduced. However, these witnesses must be examined on a priority basis.” (Para 8)

3. The court relied on Union of India v. K.A. Najeeb (2021) 3 SCC 713, where bail was granted in cases of long incarceration. It noted that UAPA’s bail restrictions (Section 43D (5)) are comparatively less stringent than NDPS Act provisions, which demand a prima facie case of innocence before granting bail. (Para 12)

4. One co-accused, Adil Ansari, had already been granted bail by the Supreme Court in 2020. The State argued that the role of the appellant was different, but the court acknowledged this factor in deciding bail.

“No doubt, in the said case, as pointed out by the learned counsel appearing on behalf of the State, the Court was dealing with an order passed by the High Court granting bail, whereas, in this case, the converse is true, that is, the impugned order is one rejecting the application for bail. The fact remains that the appellant has been in custody as an undertrial prisoner for a period of nearly 8 years already. The appellant, it may be noted, is charged with offences, some of which are punishable with a minimum punishment of 10 years and the sentence may extend to imprisonment for life. Learned counsel for the appellant also points out that one of the co-accused namely Shri Aadil Ansari has been released on bail on 30.09.2020 by this Court. No doubt, in this regard, we keep in mind the submission of the State that the role attributed to the said accused is different.” (Para 13)

5. The impugned High Court order rejecting bail was set aside. The appellant was granted bail, subject to conditions imposed by the trial court. The judgment made it clear that these observations were only for the purpose of deciding bail and would not affect the merits of the case during trial.

The judgement in Jahir Haq v. State of Rajasthan (2022) may be read here:

Observations in Mukesh Salam v. State of Chhattisgarh (2024)

1. The Court noted that 12 out of 14 accused persons in the case had already been granted bail, either by the High Court or the Supreme Court. The number of prosecution witnesses had been reduced from 114 to 100, and only 40 witnesses had been examined so far.

Bearing in mind the above circumstances and the nature of the alleged case, we are of the considered view that the continued detention of the petitioner would not subserve the ends of justice. There is no likelihood of the early conclusion of the trial. The petitioner is in custody since 6 May 2020. We accordingly order and direct that the petitioner be released on bail, subject to such terms and conditions as may be imposed by the Special Judge (NIA Act), Kanker, in connection with FIR No 9 of 2020. (Para 5)

This ruling highlights the importance of parity in bail matters, considering that a majority of the co-accused had already been granted bail, and the prolonged trial delay was a factor in the decision.

The judgement in Mukesh Salam v. State of Chhattisgarh (2024) may be read here:

Observations in Jalaluddin Khan v. Union of India (2024)

1. The charge sheet did not contain specific material proving that the appellant participated in, abetted, or incited unlawful activities or terrorist acts. There was no evidence to suggest that the appellant was a member of a terrorist gang or organization under the meaning of Section 2(m) of the UAPA.

“We may note here that, assuming that the appellant knew that co- accused Athar Parvez was associated with PFI, it is not listed as a terrorist organisation within the meaning of Section 2(m) of UAPA. Moreover, the charge sheet does not contain any material to show any connection of the appellant with PFI before letting out first floor premises to accused no.1.” (Para 6)

2. The Court found that the statement of a protected witness (Z) had been misrepresented in the charge sheet, raising concerns about the fairness of the investigation.

“Thus, paragraph 17.16 purports to reproduce the statement of protected witness Z. In terms of our earlier order, the translated version of the statement of protected witness Z, recorded before the Additional Chief Judicial Magistrate, Patna, has been produced in a sealed envelope. We find that the statement substantially differs from what is narrated in paragraph 17.16 of the charge sheet.” (Para 10)

3. The Court reiterated that “bail is the rule and jail is an exception”, emphasizing that even under stringent statutes like UAPA, bail should not be denied when statutory conditions are met.

“…when a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. “Bail is the rule and jail is an exception” is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail..”  (Para 21)

4. The Court held that unjustly denying bail in deserving cases would violate the fundamental right to personal liberty under Article 21 of the Constitution.

“…If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution.” (Para 21)

The judgement in Jalaluddin Khan v. Union of India (2024) may be read here:

Observations in Yedala v. State (2024)

The case was related to the murder of two politicians by members of the CPI (Maoist), a terrorist organization notified under UAPA. The National Investigation Agency (NIA) took over the investigation and filed a chargesheet against 79 accused. The appellants had been in custody for over four years and seven months without the framing of charges.

The court examined whether there were reasonable grounds to believe that the accusations were prima facie true. After analysing the entire prosecution case, the court concluded that there was no strong material linking the accused to the crime. Since the prima facie case was weak, the statutory bar on bail under UAPA did not apply.

“…Taking the material against the appellants as it is and without considering the defence of the appellants, we are unable to form an opinion that there are reasonable grounds for believing that the accusations against the appellants of commission of offence under the UAPA are prime facie true. Hence, the embargo on the grant of bail under proviso to subsection (5) of Section 43D will not apply in this case. We, however, make it clear that the findings recorded in this Judgment are only prima facie observations recorded for the limited purposes of examining the case in the light of the proviso to sub section (5) of Section 43D of the UAPA. The trial shall be conducted uninfluenced by these observations.” (Para 21)  

The judgement in Yedala v. State (2024) may be read here:

Observations in Sushesh Kedia v. Union of India, 2021

1. The Court emphasized that under Section 43-D(5) of the Unlawful Activities (Prevention) Act (UAPA), an accused is not entitled to bail if there are reasonable grounds for believing that the accusations are prima facie true. However, upon scrutiny of the material placed before the Court, it was found that the primary accusation against the appellant was that he paid levy/extortion money to the terrorist organization Tritiya Prastuti Committee (TPC). The Court held that payment of extortion money does not amount to terror funding.

A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the Appellant is that he paid levy / extortion amount to the terrorist organization. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the area of operation of the organization ((Para 11 (A))

2. The Court noted that the charge sheet alleged that other accused persons, who were members of the terrorist organization, had been systematically collecting extortion amounts from businessmen in the Amrapali and Magadh areas. The appellant was in the business of coal transportation in that region and had made payments under duress. It could not be said prima facie that the appellant conspired with the other members of TPC or raised funds to promote the organization.

“…It is alleged in the second supplementary charge- sheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization.” ((Para 11 (A))

3. The prosecution argued that the appellant had been in constant touch with members of the terrorist group. The Court noted that the appellant had stated in his Section 164 Cr.P.C. statement that he was summoned to meet A-14 and other members in connection with the payments. The Court held that merely meeting the members of TPC, without further evidence of conspiracy, does not establish a prima facie case of involvement in a terrorist conspiracy.

“Another factor taken into account by the Special Court and the High Court relates to the allegation of the Appellant meeting the members of the terror organization. It has been held by the High Court that the Appellant has been in constant touch with the other accused. The Appellant has revealed in his statement recorded under Section 164 Cr.PC that he was summoned to meet A-14 and the other members of the organization in connection with the payments made by him. Prima facie, we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the Appellant met the members of the organization.”((Para 11 (B)))

4. The Court referred to National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, which set the parameters for granting bail under Section 43-D (5) of the UAPA. The Court held that while prima facie satisfaction of allegations is sufficient to deny bail under UAPA, in this case, the material did not meet the threshold to establish a clear case against the appellant.

“After a detailed examination of the contentions of the parties and scrutiny of the material on record, we are not satisfied that a prima facie case has been made out against the Appellant relating to the offences alleged against him. We make it clear that these findings are restricted only for the purpose of grant of bail to the Appellant and the trial court shall not be influenced by these observations during trial.” ((Para 12))

The judgement in Sushesh Kedia v. Union of India, 2021may be read here:

Singh’s case underscores the precarious state of press freedom and the judiciary’s cautious approach in UAPA matters. While national security concerns must be addressed, an overbroad application of UAPA risks eroding fundamental rights. The denial of bail in Singh’s case, despite the legal precedents favouring a more balanced approach, raises significant questions about the selective and inconsistent application of UAPA laws. The courts must ensure that stringent bail conditions do not serve as a mechanism for prolonged incarceration without trial, which contradicts the very principles of justice enshrined in the Indian Constitution.

(The legal research team of CJP consists of lawyers and interns; this legal resource has been worked on by Shailendar Karthikeyan)

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General considerations for granting bail

Under the Code of Criminal Procedure (CrPC), bail provisions are outlined in Sections 436 to 450, with clear distinctions between bailable and non-bailable offenses. The Bharatiya Nagarik Suraksha Sannhita, 2023(BNSS) has repealed the CrPC, however crimes reported and being tried prior to July 1, 2024 will continue to be governed by IPC and CrPC.

The following factors could be broadly understood as the checklist before the court grants a Bail, or at least they should be, according to the Supreme Court as stated in the case of State of UP vs. Poosu [(1976) 3 SCC 1] and later reiterated in Inder Mohan Goswami vs. State of Uttarakhand [2007 (12) SCC 1] and recently in Ajwar vs. Waseem [2024 INSC 438].

• Securing appearance at trial: The primary objective of arrest and detention is to ensure the accused’s presence during the trial and to guarantee their availability to receive the sentence if found guilty. If the accused’s presence can be reasonably ensured without arrest and detention, it is unjust to deprive them of their freedom.
• Nature and seriousness of the offence: Courts consider the nature and seriousness of the alleged offense, the character of the evidence, and circumstances unique to the accused when deciding on bail.
• Interests of society: The larger interests of the public and the state are also crucial. Factors such as previous convictions, criminal records, and the likelihood of repeating the offense if released on bail are taken into account. Recently, the Supreme Court had denied bail to a person in a case after it observed that the same person has been an accused in multiple heinous crimes (Sushant Kumar Dhalsamanta vs. State of Odisha).[1]
• Judicial discretion: Granting bail involves judicial discretion, which must be exercised judiciously; mechanical rejection should be avoided.

Specific considerations for certain accused

• Minors and Women: Courts may direct the release on bail of any person under 16 years of age, any woman, or any sick or infirm person accused of an offense (Section 437, CrPC).

Conditions for bail:

• Conditions to ensure justice: Courts granting bail have the power to set any condition they consider necessary in the interest of justice.
• Deposit of money: Courts can permit an accused person to deposit a sum of money in lieu of executing a personal bond and providing surety.
• Reporting to authorities: Directing the applicant to report to the investigating officer is a common condition to ensure cooperation with the investigation.

Background:

The bail application was filed by Tejas Shamsunder Shinde, a 20-year-old student pursuing a Bachelor of Management Studies, who had a good academic record. Shinde was seeking bail in connection with an offence punishable under Section 302 of the Indian Penal Code (IPC) — murder. The victim in this case was Shinde’s 69-year-old father, who was unwell and bedridden at the time of the incident, which occurred on February 22, 2023, at approximately 5:00 p.m.

Facts:

• The victim was unwell and bedridden, requiring assistance for his basic needs, which Shinde, having returned from college at 1:30 p.m., provided.
• The father and son had a history of verbal altercations, with the father often abusing Shinde and his mother.
• An altercation occurred at 5:00 p.m. when Shinde opposed his father taking certain un-prescribed medications.
• The altercation escalated, and Shinde inflicted blows on his father with a millstone and then used a kitchen knife to inflict a fatal wound on his neck.
• Shinde then went to the police station and confessed to the crime.

Arguments:

• Applicant: Applicant’s counsel argued that Shinde was a young student with a bright future and that the incident was not premeditated. She emphasised Shinde’s academic achievements and the circumstances leading to the incident. Granting bail would allow him to continue his education and prevent him from becoming a hardened criminal.
• Respondent (State of Maharashtra): Respondent’s counsel argued against the application, pointing to the medical report and the nature of the injuries, contending that it was a cold-blooded murder. She highlighted the cruelty of the act, where Shinde initially inflicted blows with a millstone and then used a kitchen knife to ensure his father’s death.

Court’s observations and reasoning:

The court acknowledged the gruesome nature of the murder, the victim’s medical condition, and the fact that Shinde had been assisting him. The trigger for the incident was identified as the father’s constant abuse towards Shinde and his mother. The court observed that Shinde’s mind “crossed the threshold” due to the repeated abuse, leading to the fatal act (Para 16). The court considered Shinde’s age (20 years) and his status as a student. The court referenced a Delhi High Court judgment in Siddharth Jain v. Shaheed Sukhdev College of Business Studies [2015 SCC Online Del 1342], emphasizing the wide powers of the court to deal with young offenders and the importance of preventing recidivism. The court also cited Ishar Das v. State of Punjab [1973 (2) SCC 65], highlighting the purpose of the Probation of Offenders Act to reform offenders. The court noted that Shinde voluntarily confessed to the crime, indicating contrition. The court recognised that exclusion from education would be an added punishment for a student. The court expressed hope that Shinde would reform and rehabilitate himself. The court viewed the situation as a result of grave provocation due to the victim’s repeated abuse.

Decision

The court granted bail to Shinde, emphasising the opportunity for him to complete his management degree studies. Shinde was directed to be released on furnishing a P.R. Bond of Rs.25,000/- with one or two sureties. Conditions were imposed, including reporting to the investigating officer, cooperating with the trial, and not influencing witnesses. The court hoped Shinde would continue his studies and become a good citizen. The observations, as per the court, were prima facie and for the purpose of granting bail only and should not influence the trial. The bail application, thus, was allowed and disposed of.

Consideration of loss of educational opportunity

In Tejas Shamsunder Shinde, the judge’s consideration of the loss of educational opportunity as factor in granting bail is an innovative tool to ease the restrictions on bail, especially in offences like murder and particularly in patricide cases.

• Rehabilitation and reintegration: The judge recognized that allowing the accused to continue their education supports their rehabilitation and reintegration into society. This aligns with the principle that punishment should aim to reform, not just penalize.
• Preventing hardened criminality: By facilitating the continuation of education, the court aimed to prevent the accused from becoming hardened criminals. This proactive approach addresses the root causes of crime and focuses on positive development.
• Balancing justice and humanity: The decision reflects a balanced approach, considering the seriousness of the offense (Section 302 of IPC) while also acknowledging the accused’s potential for reform and the long-term benefits of education.
• Avoiding double punishment: Depriving an undertrial of educational opportunities effectively imposes a double punishment: first, the deprivation of liberty, and second, the loss of a crucial developmental phase of life.

The court stated as follows in relation to the loss of education and how it affects the individual:

“It should also be noted that in a case where an offender is undergoing studies, his exclusion from education for a period of time is an added layer of punishment over and above what a non-student accused may be subjected to. This is because a student undergoing incarceration suffers loss of precious academic time which cannot be bartered for any wealth in the world. He also constantly witnesses his peers moving ahead in life than compared to him and when the frustration becomes insurmountable such frustration can create an emotion of rebellion, which, coupled with the exposure to criminality in prison, can easily gain traction and push him to become a hardened criminal.”

The court essentially gave a sort of primacy to the fundamental right to education under Article 21A of the Constitution without explicitly mentioning it. This could open doors to approaches where, even in purportedly serious offences, bail could be sought—in addition to the established grounds— on the ground of violation of fundamental rights in a disproportionate manner.

This judgment serves as a reminder that the law is not static and that courts have the discretion to adapt their rulings to the evolving needs of society. It highlights the importance of preventing recidivism by addressing the root causes of criminal behavior and fostering positive development in young offenders.

(The author is part of the legal research team of the organisation)

[1] Special Leave to Appeal (Crl.) No(s). 17256/2024

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The division bench of Justices Surya Kant and Ujjal Bhuyan upheld the bail granted by the special court, while pronouncing its judgement in Arvind Kejriwal v. Central Bureau of Investigation, [SLP (Crl) No. 11023/2024], had heard the matter and reserved verdict on September 5.

Both the judge’s pronounced separate judgements while affirming bail to Delhi CM unanimously. Notably, Justice Bhuyan went one step further and unjustified the CBI arrest and he also observed that the arrest was only meant to frustrate the grant of bail in the ED case against him (Kejriwal).  He added that he is in complete agreement with the conclusion and direction stated by Justice Surya Kant that the appellant should be released on bail but on the necessity and timing of the arrest, he stressed that “I have a definite point of view”.

The Supreme Court’s division bench pronounced its verdict against Kejriwal’s challenge to the Delhi High Court order of August 5, whereby his petition challenging the CBI arrest on June 26, 2024 and seeking bail were dismissed with liberty to approach the trial court for bail.

Brief background and a time-line:

In the ED case, it is alleged that Arvind Kejriwal is the main conspirator of the Delhi excise scam and is directly involved in the use of corruption money of over Rs. 100 crores. The ED’s case claims that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12% to certain private companies, although such a stipulation was not mentioned in the minutes of the meetings of the Group of Ministers (GoM). 

He became the first sitting Chief Minister to be arrested while in office. His arrest came after months of non-compliance with nine summonses from the ED, which he had labelled “illegal.”

AAP Chief & Delhi CM Arvind Kejriwal was arrested by the Enforcement Directorate (ED) on March 21, 2024, in connection with a money laundering case and his alleged indulgence in Delhi Excise Policy Scam 2021-22. 

Later, on May 10, the Supreme Court granted Kejriwal interim bail until June 1, in the money laundering case, and highlighted that Kejriwal, as Chief Minister and leader of a national party, posed no threat to society and had no criminal background.

On June 2, Kejriwal surrendered at Tihar Jail as Supreme Court Registry on May 29, refused to list Delhi CM’s plea for extension of interim bail.

On June 20, 2024, Delhi’s Judge Nyay Bindu of Rouse Avenue Court granted bail to CM Kejriwal in the money laundering case.

In a dramatic shift in CM Kejriwal’s bail, on June 21, the Delhi High Court stayed the order granting bail to Kejriwal in the money laundering case connected to the liquor policy case. The High Court stayed the operation of the bail order till the final order is passed on the stay application filed by the ED.

On June 25, the Delhi High Court finally stayed the trial court’s order granting bail to CM Kejriwal. Justice Sudhir Jain while staying the bail, observed that trial court didn’t properly appreciate ED’s case & materials. He opined that the vacation judge failed to discuss the requirement of section 45 of PMLA while passing the bail order.

On June 26, 2024, in a significant move, the AAP chief was formally arrested by the CBI while he was in custody of the ED in the excise case. The CBI was investigating this case on corruption and bribery involvement. Delhi Court on same day, remands CM Kejriwal for 3 days CBI custody.

On July 12, 2024, the Supreme Court granted Kejriwal interim bail in the ED case, questioning the validity and timing of his arrest by the ED in March, 2024. Despite the bail in the ED case on June 20, Kejriwal remained in custody under CBI’s separate charges.

On August 5, the Delhi High Court upheld the CBI’s decision to arrest Kejriwal, directing him to approach trial court to seek regular bail.

On August 12, 2024, Kejriwal challenged the Delhi High Court’s decision before the Supreme Court in which, the Supreme Court after hearing the arguments and submission made by the Kejriwal’s Counsel and CBI’s response, reserved the verdict on September 5, 2024.

And, significantly on September 13, the division bench of Supreme Court set aside the arrest made by CBI in June 26 and ordered the release of Delhi CM Arvind Kejriwal. 

Submissions made by Arvind Kejriwal

Senior Advocate Abhishek Manu Singhvi appeared for Delhi CM Kejriwal. He submits that Kejriwal was arrested illegally, in violation of the procedure enumerated in Sections 41(1) and 41A of the CrPC. He further added that High Court erred in misapplying the provision of Section 41(2) of the CrPC to justify the noncompliance’s of Section 41(1)(b)(ii) of the CrPC and consequential arrest of the Appellant. He highlighted that Section 41(2) is attracted only non-cognizable offences and arrest of the Kejriwal was made in a case of cognizable offence. Singhvi also submits that the arrest was made against the dictum of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

Singhvi also emphasized that Kejriwal has been granted both interim and regular bail in the ED matter by this Court, where the conditions are stricter and submits that the trial was not likely to be concluded in the near future, as the FIR was registered on 17.08.2022, with one chargesheet and three supplementary chargesheets having been filed, 17 accused persons arraigned, as many as 224 witnesses cited and the physical and digital records running into lakhs of pages. Further he added that the fourth supplementary charge sheet was filed on 29.07.2024.

Submissions made by CBI

For CBI, Additional Solicitor General of India, S.V. Raju appeared before the bench and contended that arrest of the Kejriwal had been conducted in due compliance with the statutory procedure as contemplated in Section 41(1) and 41A of the CrPC. He strenuously urged that the pre-requisites set out in Section 41(1)(b)(ii) had been fulfilled as the CBI deemed it imperative to conduct the custodial interrogation of the Appellant to unearth a larger conspiracy hatched amongst the accused persons and to establish the money trail of ill-gotten proceeds. He argued that the CBI had obtained permission from the Trial Court, under whose custody the Appellant was.

ASG Raju referred, Section 41A (4) of the CrPC, which outlines the procedure for situations where an accused fails to comply with a Section 41A notice. He submits that, Kejriwal is already in jail, the conditions envisaged under Section 41A (4) becomes inapplicable and therefore, the requirement of notice thereunder was not necessary. He submits that Kejriwal should be relegated to the Trial Court.

Decision of the Supreme Court 

The division bench Justices Surya Kant and Ujjal Bhuyan of Supreme Court, granted bail to Arvind Kejriwal without going into the merits of the case. The bench affirmed the grant of bail to Kejriwal in concurrent view.

The observations made by Justice Surya Kant in its separate judgement shifted more to procedural grounds and technical aspects of the arrest. He affirmed the lawfulness of CBI arrest but on the other hand Justice Bhuyan expressed its different opinion with regards to the dramatic and hasty arrest made by CBI just after Kejriwal granted bail in ED case. 

The bench also imposed bail bonds for a sum of Rs. 10,00,000/- against bail and made restriction Kejriwal from making any public comments on the merits of the CBI case. (Para 47)

Justice Bhuyan questions need and necessity of CBI arrest

Pertinently, Justice Ujjal Bhuyan in his separate judgment, has expressed displeasure with CBI and said that Kejriwal’s arrest by the agency after secured bail in the ED case was only to frustrate Kejriwal’s release from prison.

Justice Bhuyan while playing active role in pronouncing of judgement in CM Kejriwal’s CBI arrest and unjustified the CBI arrest and said that the CBI did not arrest Kejriwal for 22 months and arrested Kejriwal just after the bail granted by ED. 

Justice Bhuyan while questions the timing of CBI arrest, observed that “it is evident that CBI did not feel the need and necessity to arrest the appellant from 17.08.2022 till 26.06.2024 i.e., for over 22 months. It was only after the learned Special Judge granted regular bail to the appellant in the ED case that the CBI activated its machinery and took the appellant into custody. Such action on the part of the CBI raises a serious question mark on the timing of the arrest; rather on the arrest itself. For 22 months, CBI does not arrest the appellant but after the learned Special Judge grants regular bail to the appellant in the ED case, CBI seeks his custody. In the circumstances, a view may be taken that such an arrest by the CBI was perhaps only to frustrate the bail granted to the appellant in the ED case.” (Para 23)

“Power to arrest is one thing but the need to arrest is altogether a different thing”

Justice Bhuyan more specifically underlined the need and necessity of power to arrest while expressing his displeasure with CBI’s impugned arrest. He stated that “Power to arrest is one thing but the need to arrest is altogether a different thing. Just because an investigating agency has the power to arrest, it does not necessarily mean that it 16 should arrest such a person.” He further added that the existence of the power of arrest is one thing but justification for the exercise of it is quite another. (Para 27).

Justice Buyan relied upon the decision in Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1 and emphasized that investigation must be fair and effective. He stressed that investigation should be conducted in a manner so as to draw a just balance between a citizen’s right under Articles 19 and 21 of the Constitution of India and the expansive power of the police to make investigation. Concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India. (Para 28)

“Investigations are not used as a tool of harassment”

Notably, Justice Bhuyan pointed out the observation made in the case of Mohd. Zubair and Arnab Goswami, and reiterated that the existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly and proper enforcement of criminal law on the one hand and the need to ensure that the law does not become a ruse for targeted harassment on the other. He further added that “courts must ensure that they continue to remain the first line of defence against the deprivation of liberty of the citizens. Deprivation of liberty even for a single day is one day too many.” (Para 30)

The bench placed reliance in case of Mohd. Zubair Vs. State (NCT of Delhi), (2022) SCC Online SC 897, and emphasized that the existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly. He pointed out that “this Court reiterated the role of the courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment.” (Para 30)

“CBI must dispel the notion of being a caged parrot” 

Justice Bhuyan underlines that the CBI must dispel the notion of being a caged parrot and must show it is an uncaged parrot, he also reminded the CBI of its duty to ensure that its investigations are fair. Justice Bhuyan lambasted the CBI, pointing that as a premier investigating agency of the country, it should not perceive as making arrests in a high-handed manner.

While questioning the manner in which CBI made arrested of CM Kejriwal he emphasized that “CBI is a premier investigating agency of the country. It is in public interest that CBI must not only be above board but must also be seem to be so. Rule of law, which is a basic feature of our constitutional republic, mandates that investigation must be fair, transparent and judicious. This Court has time and again emphasized that fair investigation is a fundamental right of an accused person under Articles 20 and 21 of the Constitution of India. Investigation must not only be fair but must be seem to be so. Every effort must be made to remove any perception that investigation was not carried out fairly and that the arrest was made in a high-handed and biased manner” (Para 32)

Justice Bhuyan reprimands the CBI and observed that in functional government by the rule of law, perception matters. He added that “not so long ago, this Court had castigated the CBI comparing it to a caged parrot. It is imperative that CBI dispel the notion of it being a caged parrot. Rather, the perception should be that of an uncaged parrot” (Para 33)

Justice Kant stands on procedural grounds and technical aspect of the arrest

Justice Surya Kant while affirming the legality of the CBI arrest, primarily shifted towards procedural and technical aspect of the arrest and held that the arrest of Kejriwal was legal and did not suffer from any procedural irregularity. There is no merit in the submission that the CBI failed to comply with the statutory mandate of Section 41 of the Code of Criminal Procedure (CrPC) while arresting him (Kejriwal).

Justice Kant held that arrest was valid and in compliance with relevant procedural laws.

“There is no impediment in terms of arresting a person already in custody for the purposes of investigation, whether for the same offence or for an altogether different offence.3 The Appellant’s arrest by the CBI was thus entirely permissible, in light of the Trial Court’s order dated 25.06.2024.” (Para 26)

Justice Kant procedural centric verdict also justified the procedure adopted by CBI during arrest of CM Kejriwal and held that Section 41A (3) allows for arrest, provided the reasons are recorded, justifying the necessity of such a step, and the police officer is satisfied that the individual should be arrested and Section 41A (1), when read with Section 41A (3) CrPC, does not impose an absolute prohibition on the arrest. (Para 27 & 28 of Justice Kant’s Judgement)

Justice Kant held that Kejriwal’s arrest does not suffer from any procedural flaw and was valid and said “in view of these considerations, we do not find any merit in the Appellant’s contention that the CBI failed to comply with Section 41A CrPC, in its true letter and spirit”. (Para 29) 

The bench unanimously grants bail to CM Kejriwal

Notably, despite the separate order passed by Justice Ujjal Bhuyan, the bench unanimously affirmed the bail to Arvind Kejriwal, while setting aside the impugned judgment of the High Court dated 05.08.2024, subject to the terms and conditions in para 47 of the order, authored by Justice Surya Kant.

However, Justice Ujjal Bhuyan has also doubted the correctness of the bail condition imposed by a bench headed by Justice Sanjiv Khanna in the ED case that Kejriwal will not sign papers and enter CM office. The bench also dismissed the criminal appeal challenging the legality of arrest.

The judgement of can be found here:

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In positive development concerning bail jurisprudence, the Supreme Court on August 22 said that courts should not impose excessive bail conditions which would be impractical to comply with. The verdict notes that “From time immemorial, the principle has been that the excessive bail is no bail. To grant bail and thereafter to impose excessive and onerous conditions, is to take away with the left hand, what is given with the right.” The court clarified that as to what constitutes “excessive” needs to be decided on a case-to-case basis, taking into consideration the facts and circumstances of the case.

The bench of Justices BR Gavai and KV Vishwanathan delivered the verdict on the plea filed by one Girish Gandhi requesting the court to consider joint sureties against multiple bail orders issued to him by the courts across several states. In the present case, bail orders were secured against 13 FIRs filed against Gandhi under IPC Sections 406 (criminal breach of trust), 420 (cheating) and 506 (criminal intimidation), across the states of Uttar Pradesh, Haryana, Punjab, Rajasthan, and Uttarakhand.

The court noted that “The substratum of the allegation is that the Company which was to give space to open store on rent in some cases; 5% commission on monthly sale in some; 10% margin on goods sales in some others; 12% interest as dividend on investment in a few and minimum 24% profit in certain agreements, failed in its promise.”

While Gandhi secured bail orders in several FIRs across the states, the conditions imposed therein required him to furnish separate surety in each case, which he was unable to find. He managed to arrange sureties against the FIR registered in Kerala and in one of the two FIRs filed in Haryana, but did not find in other cases. At the same time, the states of Uttar Pradesh (UP), Rajasthan, and Uttarakhand opposed the plea, arguing that separate sureties must be furnished against the FIRs registered in their respective states. Explaining the objection from the state of UP, the judgement reads, “According to the State, for each crime number, separate surety is required and a particular surety cannot be made liable to pay the amount in excess of the amount of bond that the surety has furnished. In view of that, according to the State, bond of one surety cannot be mixed up with the bond executed or to be executed in other cases against different crime numbers.”

The judgement observes that “…where the court is faced with the situation where the accused enlarged on bail is unable to find sureties, as ordered, in multiple cases, there is also a need to balance the requirement of furnishing the sureties with his or her fundamental rights under Article 21 of the Constitution of India. An order which would protect the person’s fundamental right under Article 21 and at the same time guarantee the presence, would be reasonable and proportionate.”

The bench relied on Satender Kumar Antil vs. Central Bureau of Investigation & Anr. [(2022) 10 SCC 51] and quoted that “imposing a condition which is impossible of compliance would be defeating the very object of release”. It further cited Hani Nishad @ Mohammad Imran @ Vikky vs. The State of Uttar Pradesh [SLP (Criminal) Nos. 8914-8915 of 2018] in which the court had granted relief to the petitioner by ruling that “the personal bond so executed by the Petitioner and the bond so executed by the two sureties shall hold good for all the 31 cases”.

Furthermore, the apex court said that courts cannot compel the person to furnish only local surety as it is very difficult in most cases and noted that “The petitioner herein hails from Haryana and to secure a local surety will be an arduous task for him”. Relying on the authoritative Justice Krishna Iyer in Moti Ram and Ors. vs. State of Madhya Pradesh [(1978) 4 SCC 47], the bench waived off the requirement for local sureties, implying that such requirements are parochial and divisive.

The court ruled that “in each of the States of Uttar Pradesh, Rajasthan, Punjab and Uttarakhand, in each state, the petitioner will furnish his personal bond for Rs. 50,000/- and furnish two sureties who shall execute the bond for Rs. 30,000/- each which shall hold good for all FIRs in the concerned State, for cases mentioned in the chart set out hereinabove. The same set of sureties is permitted to stand as surety in all the States.”

In the separate order passed by the Supreme Court on August 6 [Satender Kumar Antil v. Central Bureau of Investigation and anr – MA 2034/2022], the Bench of Justices MM Sundresh and Aravind Kumar issued directions to the states/UTs, Union of India, several High Courts, and Central Bureau of Investigation, asking them all to comply with the SOP issued by the apex court in February 13, 2024 to help accelerate release of undertrial prisoners from jail who have secured bail but are unable to furnish bond/sureties.

The SOP was initially formulated by the Central Government but the Supreme Court gave it a legal shape and issued the following directives in its February 13 order:

Undertrial Prisoners –

1. If the undertrial prisoner is not released from the jail within a period of 7 days of order of grant of bail, then the jail authority would inform Secretary, District Legal Services Authority (DLSA).
2. Secretary, DLSA would inquire and examine whether the undertrial prisoner is not in a position to furnish financial surety for securing bail in terms of the bail conditions. For this, DLSA may take the assistance of Civil Society representatives, social workers/ NGOs, District Probation officers or revenue officer. This exercise would be completed in a time bound manner within a period of 10 days.
3. Secretary, DLSA will place all such cases before the District Level Empowered Committee every 2-3 weeks.
4. After examination of such cases, if the Empowered Committee recommends that the identified poor prisoner be extended the benefit of financial benefit under ‘Support to poor prisoners Scheme”, then the requisite amount upto Rs. 40,000/- per case for one prisoner, can be drawn and made available to the Hon’ble Court by way of Fixed Deposit or any other method, which the District Committee feels appropriate.
5. This benefit will not be available to persons who are accused of offences under Prevention of Corruption Act, Prevention of Money Laundering Act, NDPS or Unlawful Activities Prevention Act or any other Act or provisions, as may be specified later.
6. If the prisoner is acquitted/convicted, then appropriate orders may be passed by the trial Court so that the money comes back to the Government’s account as this is only for the purposes of securing bail unless the accused is entitled to the benefit of bail U/s. 389 (3) Cr.P.C. in which event the amount can be utilised for bail by Trial Court to enable the accused to approach the Appellate Court and also if the Appellate Court grants bail U/s. 389 (1) of Cr.P.C.
7. If the bail amount is higher than Rs. 40,000/-, Secretary, DLSA may exercise discretion to pay such amount and make a recommendation to the Empowered Committee. Secretary, DLSA may also engage with legal aid advocate with a plea to have the surety amount reduced. For any amount over and above Rs. 40,000/-, the proposal may be approved by the State level Oversight Committee.

Convicted Prisoners –

1. If a convicted person is unable to get released from the jail on account of non- payment of fine amount, the Superintendent of the Jail would immediately inform Secretary, DLSA (Time bound manner: 7 days).
2. Secretary, DLSA would enquire into the financial condition of the prisoner with the help of District Social Worker, NGOs, District Probation Officer, Revenue Officer who would be mandated to cooperate with the Secretary, DLSA. (Time bound manner: 7 days)
3. The Empowered Committee will sanction the release of the fine amount up to Rs. 25,000/- to be deposited in the Court for securing the release of the prisoner. For any amount over and above Rs. 25,000/-, the proposal may be approved by the State level Oversight Committee.

In the present order, the bench issued further directions for compliance of the aforementioned SOP. These directions are as follows:

1. Every Magistrate and/or Sessions Judge shall inform its jurisdictional Principal District Judge about any form of non-compliance of Para.100.2 or Para.100.3 of Satender Kumar Antil vs. CBI & Anr. (2022) 10 SCC 51, within 1 week of recording such non-compliance;
2. Every Principal District Judge shall maintain a record of details of such non-compliances received from the concerned Magistrates;
3. Every Principal District Judge upon receipt of details of non-compliance by the concerned Magistrate shall, on a monthly basis, forward the same to the Registrar General of the concerned High Court and to the Head of Police in the concerned District;
4. The Head of Police of the concerned District shall, upon receipt of details of non-compliance of Para.100.2, take action against the erring officer as soon as possible and inform the concerned Principal District Judge;
5. The Registrar General of each High Court shall, upon receipt of details of such non-compliance of Para.100.2 and/or Para.100.3, place the same before the Committee for “Ensuring the Implementation of the Decisions of the Apex Court” for further action and forward it to the higher Police Authority. In those High Courts where such a committee is not currently in place, the same shall be constituted by the respective High Court.

The order also asked state governments to ensure full compliance of para. 100.8 and para. 100.9 of Satender Kumar Antil vs. CBI & Anr. [(2022) 10 SCC 51] and provide details as to what steps have been undertaken to facilitate the release of the said UTPs as directed in Para. 100.8. It also instructed states to train its prosecutors on periodic basis to keep them abreast about correct position of law and asked them to circulate the judgements passed by the apex court in Siddharth vs. State of UP [(2022) 1 SCC 676] and Satender Kumar Antil.

The court said that it aims to take up this matter (ensuring compliance with the SOPs) in a phased manner, keeping in view the large number of parties, and scheduled the next hearing on October 15, 2024.

The copy of the August 22 judgement concerning excessive bail conditions can be found here:

The copy of the SC order dated August 6 concerning the compliance directives can be found here:

The copy of the SC order dated February 13 concerning the SOP can be found here:

Related:

Between Bail and Jail, how authorities bypass law and jurisprudence | SabrangIndia

Understanding the PMLA & its bail conditions | Legal Insights | CJP

PMLA Bail Conditions: Relaxation for Women, Sick & Infirm | CJP

Bail under PMLA: Part 2 | CJP

The post Apex court says excessive bail conditions, amounts to no bail appeared first on SabrangIndia.

Recently, in the case of Jalaluddin Khan vs. Union of India (Cr. A. 3173 of 2024), the apex court bench of Justice Abhay Oka and Augustine George Masih reiterated 8-point prepositions as first identified in NIA v. Zahoor Ahmad Shah Watali judgement [(2019) 5 SCC 1] for considering the bail plea of an accused.

These include:

1. Meaning of “prima facie true”: On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence.
2. Degree of satisfaction at pre chargesheet, post chargesheet and post-charges — compared: Once charges are framed, it will be safe to assume that a very strong suspicion was found upon the materials before the Court. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet do not make out reasonable grounds for believing that the accusation against him is prima facie true.
3. Reasoning, necessary but no detailed evaluation of evidence: The exercise to be undertaken by the Court at this stage—of giving reasons for grant or non-grant of bail—is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage.
4. Record a finding on broad probabilities, not based on proof beyond doubt: The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.
5. Duration of the limitation under Section 43-D (5) of UAPA: Section 43-D of the UAPA applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the Act until the conclusion of the trial.
6. Material on record must be analysed as a “whole”; no piecemeal analysis: The totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.
7. Contents of documents to be presumed as true: The Court must look at the contents of the document and take such document into account as it is.
8. Admissibility of documents relied upon by prosecution cannot be questioned: The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by other evidence.

The bench said that through Thwaha Fasal vs. Union of India [(2022) 14 SCC 766] the court clarified that the grounds for believing that the accusation against the accused is prima facie true must be “reasonable grounds.” In the present case, the court granted bail to Jalaluddin, who was accused by the NIA of renting out his property to Popular Front of India member to carry out the activities of the Front and himself participating in their meeting.

The bench said “There is nothing in the chargesheet which shows that the appellant has taken part in or has committed unlawful activities as defined in the UAPA. There is no specific material to show that the appellant advocated, abetted, or incited commission of any unlawful activities.” It further noted that “Assuming that the co-accused were indulging in terrorist acts or were making any act preparatory to the commission of terrorist acts, there is absolutely no material on record to show that there was any conspiracy to commit any terrorist act to which the appellant was a party.” The court pointed out that even the chargesheet does not mention any allegation as to the affiliation of the accused with a terrorist gang, and further explained that PFI is not a terrorist organisation under the UAPA.

Significantly, the bench highlighted that the NIA had attributed a witness statement in the chargesheet which the witness had not made, and said that the agency owes an explanation. The verdict reads that “The investigating machinery has to be fair. But, in this case, paragraph 17.16 indicates to the contrary.”  The judgement further mentions that “‘Bail is the rule and jail is an exception’ is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good.” While granting the bail to the accused the bench noted that “The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail,” and if the courts start denying bail in deserving case, that would constitute violation of Article 21.

 Bail and then jail again: circumventing due process

In other cases, too, the courts have granted bail to the accused, but the agencies in such cases have bypassed the due process of law and have subverted the judicial outcome. Article 14 reported that Jammu and Kashmir High Court has quashed 4 detention orders against Kashmiri Lawyer Zahid Ali, however, the police rearrested him in a separate UAPA case linked 2019 prison riots incident occurring inside Srinagar Central Jail.

Notably, while quashing the fourth detention order against Ali, Justice Rahul Bharti of J&K High Court had pulled up the police and magistrate for circumventing previous court orders and ordered the state to pay 5 lakh compensation. In his verdict he remarked that “Read between and behind the lines the dossier and the grounds of detention, the SSP Pulwama and the respondent No.2-District Magistrate Pulwama are literally meaning to debunk the three judgments of this court.”

Similarly, in another order delivered by Justice Bharti, he noted that “A district magistrate acting under the regime of J&K Public Safety Act, 1978, or for that matter even the Government of UT of J&K, is not supposed to parrot the police dictated version in the dossier and serve detention order on a platter,” Indian Express reported.

The verdict further stated that “In India, which is a democratic country governed by rule of law, it cannot be heard to be said by the police and the district magistracy that a citizen was picked up to be interrogated without any registration of a criminal case against him, and from that purported interrogation, a case for preventive detention was found to be made out against the petitioner”.

In the recent case of Delhi CM Arvind Kejriwal, the CBI arrested Kejriwal on June 25, 2024, even as the ED had already registered the case and taken his custody in the matter pertaining to alleged irregularities in Delhi Excise Policy. The CBI registered another case on the same subject and secured his custody. Thus, while he got interim bail from the apex court in the ED case on July 12, he continues to be behind the bars due to the case registered against him by the CBI. His lawyer Abhishek Manu Singhvi had called his arrest by the CBI as insurance arrest to prevent his release from the jail.

Related:

Understanding the PMLA & its bail conditions | Legal Insights | CJP

PMLA Bail Conditions: Relaxation for Women, Sick & Infirm | CJP

Bail under PMLA: Part 2 | CJP

Supreme Court grants bail to Manish Sisodia in excise policy case after 17 months of incarceration | SabrangIndia

The post Between Bail and Jail, how authorities bypass law and jurisprudence appeared first on SabrangIndia.

The Mumbai Police had reportedly made 6 teams to find him and had also given an order barring him from leaving the country.  

According to police reports, Mihir Shah’s father, Rajesh Shah, a Shiv Sena leader from Palghar. Rajesh Shah reportedly even helped his son escape and planned to remove the vehicle from the scene. Kaveri was reportedly brutally dragged by the car for over a distance of 1.5 kms. Her husband Pradeep was also injured in the incident. The police have told in court, as per NDTV, that the driver was ‘well aware’ of his actions. 

As per News18, Kaveri’s husband, Pradeep had told the media that he was shouting at the scene of the incident to stop the car, ‘but he did not listen to me.’ 

Reports have stated that the Mumbai Police told the court that Kaveri Nakhwa was pulled off the bonnet of the BMW car and placed on the road by Bidawat and Shah. The car also reportedly ran over her again as they reversed the car.  

As per a report by Hindustan Times, Rajesh Shah arrived at the scene in a Mercedes, spoke briefly with Mihir Shah, and advised him to escape. Later, Rajesh Shah arranged to take the BMW away from the location. Rajesh Shah is a member of the Eknath Shinde faction of the Shiva Sena. He was also arrested after the incident for not cooperating with the police but was soon granted bail by a Mumbai court. 

Earlier this year, a similar incident took place in Pune where a juvenile in a Porsche was accused of hitting two IT professionals while driving. The accused was the son of a prominent builder named Vishal Agarwal. Agarwal reportedly made huge efforts to make sure that his son was not prosecuted for the case of alleged rash driving and hitting the two people. The case raised a huge uproar about corruption and how the rich and famous are exempt from the rule of law. 

Related

June 2024: 10 violent attacks against cattle transporters and 14 cases of communal violence in various states across India

New Criminal Laws: Future risks for democracy and rights in India

IR filed against relative of winning candidate in mumbai north west election over alleged protocol breach

Corruption as an issue in Indian Election Campaigns: the 2024 story

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In its order passed on February 19, Justice Amit Mahajan observed that the object of granting bail and suspending sentence is to release the accused/convict from imprisonment and it was beyond the Court’s understanding as to why jail superintendents were taking one to two weeks for accepting the bail bonds.

The court therefore sought an immediate response from the Director General of Prisons and Standing Counsel (Criminal) of Delhi government on the issue and has posted the matter for March 7. Justice Mahajan took cognisance of the issue while dealing with a modification application filed by a convict whose sentence was suspended on February 8. Despite this the prisoner has not been released!

 “In certain cases, interim bails are granted on medical grounds or some other exigencies, as expressed by the applicant. In such a scenario this Court fails to understand why the period of one to two weeks be taken by the Jail Superintendent for accepting the bail bonds,” the Court said.

 “The Court while passing bail order at times directs that the Bails bond be directly furnished to the Jail Superintendent. The prisoner is not remitted to the Trial Court in order to facilitate the immediate release. The delay at the instance of the Jail Superintendent in accepting Bail Bonds is not acceptable to the conscience of this Court. Let the matter be registered as sou moto petition and numbered,” the Court ordered.

The Court noted any order passed by the Court directing release of prisoner from jail is sent directory to the jail authorities through Fast and Secured Transmission of Electronic Records (FASTER) cell and yet delays were happening.

Facts of the case:

“By order dated 08.02.2024 in CRL.REV.P. 1362/2023, the sentence awarded to the petitioner therein was suspended and he was directed to be released on bail on certain conditions and on furnishing a bail bond to the satisfaction of the Jail Superintendent. (Para 1)

“An application was filed pointing out that the bail bond which was directed to be furnished to the satisfaction of the Jail Superintendent, has not been processed. The grievance raised by the learned counsel for the petitioner was that, despite the sentence being suspended by this Court by the order dated 08.02.2024, the petitioner has not yet been released.” (Para 2)

“The petitioner was compelled to approach this Court seeking modification in the order dated 08.02.2024 to the extent that the petitioner be directed to furnish the bail bond to the satisfaction of the learned Trial Court instead of the concerned Jail Superintendent.” (Para 3)

“It was alleged that the formalities in relation to the acceptance of bail bond by the Jail Superintendent takes this is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/02/2024 at 18:04:38 approximately one to two weeks.” (Para 4)

“The object of granting bails and suspending sentences is to release the accused/convict from imprisonment. In certain cases, interim bails are granted on medical grounds or some other exigencies, as expressed by the applicant. In such a scenario this Court fails to understand why the period of one to two weeks be taken by the Jail Superintendent for accepting the bail bonds.” (Para 5)

Quoting from repeated pronouncements of the Supreme Court on the principle that  “Deprivation of Liberty for a single day is a day too many..”, the Delhi High Court also referred to the Guidelines for Compliance of Bail Orders by the apex court in Suo Moto Writ Petition (Civil) No.4/2021.

These are:

1) The Court which grants bail to an undertrial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison Department].

2) If the accused is not released within a period of 7 days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release.

3) NIC would make attempts to create necessary fields in the e-prison software so that the date of grant of bail and date of release are entered by the Prison Department and in case the prisoner is not released within 7 days, then an automatic email can be sent to the Secretary, DLSA.

4) The Secretary, DLSA with a view to find out the economic condition of the accused, may take help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socio-economic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition (s) of bail/surety.

5) In cases where the undertrial or convict requests that he can furnish bail bond or sureties once released, then in this is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/02/2024 at 18:04:38 an appropriate case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties.

6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation.

7) One of the reasons which delays the release of the accused/ convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety.” We order that the aforesaid directions shall be complied with” (emphasis supplied)

Further, the Delhi High Court also referred to the Supreme Court order in Suo Moto Writ Petition (Civil) No.4/2021 in which the apex court had also passed directions to adopt the procedure termed as ‘FASTER’ for Fast and Secured Transmission of Electronic Records, in order to reduce the delay caused in forwarding the orders granting bail to the Jail Authorities.

In the February 19 order, the Delhi HC pointed out that the Rule 7 (mentioned above) is also incorporated in part E of the Chapter 14 of the Delhi High Rules & Orders, the same reads as under: I. The following Rule shall be introduced as Rule 7 after the existing Rule 6 of Part E of Chapter 14 of Delhi High Court Rules & Orders, Volume I: – “7. Fast and Secured Transmission of Electronic Records (FASTER): The e-authenticated copies of the interim orders, stay orders and record of proceedings of the courts transmitted through Fast and Secured Transmission of Electronic Records (FASTER) System shall be valid for compliance of the direction contained therein.”

Therefore, the Court held that “any order passed by this Court thereby directing the release of the prisoner from jail is sent directly to the concerned jail authorities through FASTER cell,” and the “Court while passing bail order at times directs that the Bails bond be directly furnished to the Jail Superintendent. The prisoner is not remitted to the Trial Court in order to facilitate the immediate release.” (Para 10)

Hence, the court stated that, “the delay at the instance of the Jail Superintendent in accepting Bail Bonds is not acceptable to the conscience of this Court. Let the matter be registered as Sou Moto petition and numbered.”

Notice was thereafter issued to the Director General of Prisons and Standing Counsel (Criminal), Government of NCT of Delhi.

Ms. Nandita Rao, learned Additional Standing Counsel, who was present in Court, submitted that the petitioner’s case is possibly an aberration and delay normally does not occur on the part of the Jail Superintendent.

The Order of the Delhi HC may be read here

Related:

Bail not Jail: SC tells Bombay HC to decide bail applications on priority, cites violations of personal Liberty, violation of Article 21

Bail For Kashmiri Journalists: What Does It Mean For Freedom Of Expression?

Punjab & Haryana HC: Duty of the court to be more onerous, bail cannot be denied just because serious allegations

The post ‘Why are jail superintendents taking a week to a fortnight for accepting jail bonds?” Delhi HC asks, registers suo moto case on delay by jail authorities appeared first on SabrangIndia.

In this case, on which an order was passed on February 26, Monday, the accused, had been in custody for over seven years, and had preferred a bail application before the Bombay High Court. However, the Bombay High Court without hearing the application on merit has asked the applicant to approach the trial court to seek bail.

Challenging the decision of the High Court, the accused had filed a criminal appeal before the Supreme Court, citing a previous order dated 29.01.2024, the Supreme Court expressed concern over the non-exercise of jurisdiction vested in the High Court to decide the bail application on merits. The Supreme Court thereafter restored the case with the High Court while setting aside the impugned order. Besides, it also requested the High Court to decide the matter on merits within two weeks.

Although the Bombay High Court had granted bail to the accused-appellant on merits in compliance with the Supreme Court’s order, in January 2024, the Supreme Court still noted that “We have also come across numerous matters wherein the learned Judges are not deciding the matter on merits but find an excuse to shunt the case on different grounds.”

“We have come across various matters from the High Court of Bombay where the bail/anticipatory bail applications are not being decided expeditiously. We have also come across one matter SLP Crl….@ Diary No.1540/2024 (Ashok Balwant Patil v. Mohan Madhukar Patil and Ors), wherein the application for anticipatory bail was not decided for a period of more than four years.”, the Supreme Court stated.

The Supreme Court further observed that the non-deciding of bail application expeditiously deprives the accused of fundamental rights guaranteed under Article 21 of the Constitution.

“Needless to state that Article 21 of the Constitution of India is the soul of the Constitution as the liberty of a citizen is of paramount importance. Not deciding the matter pertaining to liberty of a citizen expeditiously and shunting away the matter on one or the other ground would deprive the party of their precious right guaranteed under Article 21 of the Constitution of India.”

The Supreme Court directed its Registrar (Judicial) to communicate this order to the Registrar (Judicial) of the High Court, who shall place the same before the Chief Justice of High Court of Bombay.

The Order of the Supreme Court may be read here:

Related:

Bail For Kashmiri Journalists: What Does It Mean For Freedom Of Expression?

Unjust detention: Gautam Navlakha’s bail victory highlights insufficient evidence

The post Bail not Jail: SC tells Bombay HC to decide bail applications on priority, cites violations of personal Liberty, violation of Article 21 appeared first on SabrangIndia.