A specific instance of a person who lied about his previous involvements in crime to get bail comes to the Supreme Court. Going by available empirical metrics, the person is by no means an ordinary accused who finds himself entangled in the Indian criminal justice system. I say this, because most accused persons are from socio-economically marginalised sections of society, whereas the person here claimed to be a lawyer and the head of educational institutions.
Now, upon seeing that this extraordinary accused person—one with a lot of social and political capital, we can assume—has gamed the system and suppressed facts to get bail, any right-thinking person would be angry, even enraged. But should the sharp practices resorted to by this specific accused person, become the basis either for making observations or passing directions, that would apply to the entire gamut of accused and convicted persons who turn to courts for bail? Probably not. As bad a case of inductive reasoning as any you might see used by partisan policymakers.
Yet, this is exactly what the Supreme Court recently did in Zeba Khan v. State of Uttar Pradesh [Crl. A. No. 825/2026 decided on 11.02.2026]. The Petitioner had challenged the bail granted to her brother-in-law by the High Court. One of the grounds for challenging the bail order was that this accused person, facing allegations of forgery and fraudulent representations, had lied about his prior criminal history before the High Court. No discussion appears to have been made in the Supreme Court's judgment as to what, if any, steps were taken by the prosecution or Petitioner in highlighting these suppressions before the High Court itself. Nevertheless, upon seeing such conduct, the Supreme Court used the chance to reiterate a feeling that the conduct of this specific accused reflected a "growing and disturbing trend of accused persons securing discretionary relief by suppressing material facts" (Para 43). The answer for the Court was to issue sweeping directions, that an accused person was under "an obligation to disclose all material particulars, including criminal antecedents and the existence of any coercive processes such as issuance of non-bailable warrants, declaration as proclaimed offender, or similar proceedings, duly supported by an affidavit, so as to promote uniformity, transparency and integrity in bail adjudication." (Para 48). An illustrative framework for disclosure was also given (Para 49), along with directions to all High Courts to make necessary rules for their respective areas.
Nobody can have any problem with the idea that courts should not be hoodwinked by a party seeking reliefs. But there are many pathways to achieve this objective of securing "transparency and integrity in bail adjudication", as the Supreme Court puts it. Sadly, the pathway adopted by the Court in Zeba Khan is arguably the worst of the lot. It places an impossibly onerous obligation upon most accused persons, and is likely to delay adjudication of bail petitions and prolong custody, proving that the medicine is definitely worse than the disease.
Firstly, let us be clear that the directions in Zeba Khan are unprecedented. The Supreme Court cites two decisions in its discussion on this aspect. Neither took this drastic a step. The first case, Kushal Duruka, required accused persons to disclose prior bail applications filed in a specific case. The second case, Kaushal Singh, referred to the Punjab & Haryana High Court's Rules which required bail petitions to detail the antecedents of an accused. Notably, the Rules also state that details are not given, an appropriate noting must be made for the bench alerting it to this absence of data. Thus, at no point had any judgment, rule, or guideline, required accused persons to swear an affidavit as to their prior antecedents as a condition for moving a plea for bail.
Since nobody apart from defence lawyers and judges care about the rights of accused persons, surely many people would have had this idea of demanding an affidavit of clean pasts. Why not do it then? Because it just doesn't work well enough given how the criminal justice system is structured. Discounting the fact of the accused persons who knowingly cheat the system, there are far more persons who simply have absolutely no idea about the specifics of their 'criminal history' as the law calls it. Whatever affidavit they may give may be incomplete. In many cases, since the accused is in custody making filing an affidavit quite difficult and time-consuming, the affidavit may be filed by their next-friend who will know even lesser. What happens in that case: Does a court assume bad faith, or not?
That accused persons are simply in the dark is down to a mixture of the fact that most accused persons are disadvantaged and disenfranchised, and the fact that the criminal justice system is premised upon a notoriously unfair balance of power where the State holds all the cards when it comes to information. It is not mere rhetoric, but a matter of rule that accused persons are not entitled to copies of even an FIR without running through hoops. They do not get a copy or alert about warrants or other coercive processes, let alone case papers which are kept with lawyers who are frequently changed during the life of a case.
Compare the ordinary, hapless, accused, with the leviathan which is the State in this scenario. A power to forcefully obtain biographic details about persons accused in offences has existed with the Indian State for more than a century. The most recent statutory version of this power, seen in the Criminal Procedure Identification Act 2022, provides for taking and retaining data for up to 75 years. All this data is then synchronised digitally using a system called the CCTNS. Which leads me to state the obvious: It is a lot easier for the State rather than an accused to provide details about criminal history in 21st Century India.
For all these reasons, I am highly skeptical that the system will make any great strides towards ensuring either greater transparency or integrity in bail adjudication by this affidavit of past antecedents being filed by accused persons. What is much more likely, as is already being seen in Delhi, is that bail applications will take longer to get heard. The courts may ask police to now verify details in this affidavit — in effect, unnecessarily wasting everyone's time because it is something that police can do at the outset. Then, if there are discrepancies, which there will be in many cases, it will give the prosecution more opportunity for time-wasting and distractions by alleging bad faith on part of an accused, requiring a court to spend time on this issue rather than the primary issue of whether a person should be in custody on allegations of having committed a crime.
The real question to probe in Zeba Khan was why did the existence of such a notorious rapsheet go unnoticed by the prosecution before all courts, and then formulating guidelines which placed a duty upon the state agencies to undertake a verification of criminal antecedents in bail cases. A step like would meet the desired objective, in a fair and reasonable manner. Instead, as has been often the case, the legal system has simply erected fresh obstacles for persons trying to restore their liberty, while making it easier for the State to continue their incarceration by default.
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