Guest Post: Chaturvedi and the Remission Standard the Supreme Court Declined to Write

(This is a guest post by Kshitij Saruparia)

On 15 May 2026, in Rohit Chaturvedi v. State of Uttarakhand, a bench of Justices B.V. Nagarathna and Ujjal Bhuyan quashed the Ministry of Home Affairs’ refusal to concur in the premature release of a convict in the 2003 Madhumita Shukla murder case. The refusal was a three-line non-speaking order, and on that ground alone it was indefensible. The Court did not stop there. It held in paragraph 7 that the heinousness of an offence “stand[s] exhausted at the stage of sentencing” and cannot be revived to deny remission, and that to refuse remission on that ground “is to reconvert remission into a retrospective reaffirmation of guilt”.

The order quashing the MHA letter is plainly correct. The "exhausted at sentencing" formulation is not, and the judgment itself supplies the proof: the same judgment rests on two authorities that contradict it. The result will not be litigated. That sentence will be.

A Statutory Veto, and the First Test of how it may be Used

The case is decided within a frame the judgment sets out with care. The crime was investigated by the CBI, so by the Court’s own order of 31 January 2025 the State of Uttarakhand could exercise the remission power under Section 473(1) of the Bharatiya Nagarik Suraksha Sanhita only after the concurrence of the Central Government under Section 477(1). The textual change from Section 435 of the old Code appears slight, “consultation” has become “concurrence”, but the operational change is slighter still. The Constitution Bench in Union of India v. V Sriharan Murugan [(2016) 7 SCC 1] had already held, in 2015, that “consultation” under Section 435(1) meant “concurrence”, with the result that the State could not effect remission in CBI-investigated cases without the Centre’s agreement. That reading had operated as settled law for nearly a decade before the Sanhita was enacted. Section 477 does not create the Union veto; it codifies it, entrenching the stricter construction beyond judicial dispute and insulating it from future legislative attempts to restore the provision's literal meaning.

The Standing Committee on Home Affairs, which examined the Bill across twelve sittings in 2023 and submitted the 247th Report, made no observation on what became Section 477 in its clause-by-clause recommendations. The Home Secretary’s presentation of “important changes” to the Committee listed a Central Government concurrence requirement only in the context of sentences awarded by military courts, which is the subject of Section 476, a separate provision. The change at Section 477 converting a Constitution Bench interpretation of a federal power into statutory text drew no recorded scrutiny. Parliament codified Sriharan without Parliament deliberating on whether codifying it was the right choice.

For every centrally-investigated case, the Centre therefore holds a statutory veto over release that is now unambiguous on the face of the legislation and immune to the challenge that a future bench might read “consultation” more narrowly. Chaturvedi is the first judgment to test how that veto may lawfully be exercised, which is why its reasoning, and not only its outcome, matters beyond the petitioner.

The Court’s organising distinction is between sentencing and remission. Sentencing looks back and fixes punishment by the gravity of the act. Remission looks forward to conduct in custody, reform, and reintegration. Allowing the gravity of the offence to defeat remission lets the executive re-impose, through an administrative refusal, a punishment the sentencing court did not pronounce. That objection is sound. It is also not new. The Court itself cites Satish v. State of UP (2021), which held that neither the length of the sentence nor the gravity of the offence can, by themselves, be the sole basis for refusing premature release, and that the risk of reoffending must be assessed from the prisoner’s antecedents and conduct in custody.

The Contradiction is Inside the Judgment

Satish is the careful statement of the rule. Gravity is not the sole basis; it is one input, and it feeds the forward-looking question of recurrence. Chaturvedi adopts something larger. To say gravity is “exhausted” at sentencing is to say it has no residue at the remission stage at all.

That cannot be squared with the test the same judgment adopts a few paragraphs earlier. At paragraph 5.3 the Court sets out the Laxman Naskar factors as the governing criteria for premature release noting that those factors were also reproduced in Rohit Chaturvedi in paragraph 5.3.. The first factor is whether the offence is an individual act of crime without affecting society at large. That is, unavoidably, an inquiry into the nature and gravity of the offence, addressed to the remission authority.

So, the judgment instructs the executive to weigh the character of the offence and, in the same document, declares that character spent. Read literally, the two directions cannot both be operative: an authority cannot apply a factor that turns on the gravity of the offence while simultaneously treating that gravity as having no residue. A remission authority handed both has been given a contradiction, not a standard.

The way to read Chaturvedi without breaking it is to treat “exhausted” as rhetoric and the Satish rule as the holding. Heinousness cannot be a freestanding and conclusive ground of refusal, because used that way it does convert remission into re-sentencing. But the nature of the offence does not disappear. It re-enters as one input into the prognostic question the Court itself frames, the risk of recurrence and the safety of the public, exactly as Satish and Laxman Naskar contemplate.

The Court’s instinct is defensible, and worth stating at its strongest. If offence gravity is freely available at the remission stage, executive review collapses into a standing reconsideration of desert, and the sentence imposed by the court is no longer treated as settled, but is repeatedly revisited by the Ministry through successive remission decisions. Holding the line between punishment and post-conviction reform is a serious constitutional purpose, and it is plainly what the bench was reaching for. The difficulty is that the bench already had the instrument for the task. Satish keeps gravity out as a sole or dominant ground while letting it inform the prognosis, and that protects the distinction without pretending the offence has vanished. On that reading the case decides nothing the law did not already hold. “Exhausted” does no more work than Satish; it does the same work less accurately, and leaves behind a sentence the next litigant will weaponise.

The Standard the Court did not Write

The judgment’s nearest approach to a positive standard is paragraph 7.1, where the decision on remission “must emerge from a holistic assessment of the prisoner and after balancing societal interests with the prisoner’s right to be considered for release on fair and reasonable criteria”. This is not a standard. It does not tell the Ministry what a lawful refusal must contain, what evidentiary threshold attaches to a finding of dangerousness, or, most importantly, through which doorway the seriousness of the offence may legitimately enter the “societal interests” side of the very balance the Court prescribes. Having narrowed the admissible grounds on one side, the Court left the content of a permissible refusal undefined on the other.

It then demonstrated the gap instead of closing it. Rather than remit to the Ministry with directions on how to decide, the Court declined to remand at all, called a remand “an empty formality,” and performed the remission assessment itself, on parity with the released co-accused, time served, conduct in custody, and the State’s recommendation. The executive’s function was not corrected. It was substituted. That may be defensible on these facts, where the petitioner had served twenty-two years and a co-accused convicted in the same case was already free. It is no guide at all to the Ministry in the next case, where the facts are worse and the offence graver.

What is settled after Chaturvedi is what was already settled after Satish: gravity alone will not sustain a refusal. What is open, and now sharper, is the question the Centre’s Section 477 veto makes unavoidable. What must a reasoned, non-arbitrary concurrence refusal actually say, on what material, and through which doorway, if any, may the seriousness of the offence return as part of “societal interests”? The “exhausted at sentencing” line will sit at the centre of that fight, pressed by convicts to shut the offence out entirely and distinguished by the Union as loose language unsupported by the judgment’s own authorities. The Court had the materials to write the standard. It offered a philosophy of punishment where a workable standard was needed, and left that standard for another bench and another prisoner. The door it shut needed shutting. The one it left open is the one that decides cases.

Course Correction on Delays and Bail under the UAPA?

[This post was updated at 6PM on 19.05.2026 to add reference to this news article and on 23.05.2026 to add reference to the SC Order dated 22.05.2026]

On 18.05.2026, a Division Bench of the Supreme Court handed down its verdict in Syed Iftikhar Andrabi [2026 INSC 503]. The bail application was allowed, which if we see the facts is not entirely surprising: the accused had been in jail for more than five years, there were many co-accused already on bail, some of them quite similarly placed, the incriminating material was largely confessional, and the trial was nowhere near completion. 

It is not because of the factual analysis that the judgment runs into 102 pages, which is quite unusual for a bail petition. The length was necessitated as the Bench felt it had to clear the legal position on a key issue affecting bail adjudication in the UAPA context, and the broader context of special crimes more generally. This, of course, was the issue of what impact does lengthy undertrial incarceration have in bail petitions under the UAPA with its additional restrictions for grant of bail under Section 43-D.

According to the Bench, a position had been set out by the Bench of Three Justices in K.A. Najeeb [(2021) 3 SCC 713], holding that the rigours of merits-based statutory restrictions for granting bail would, in the case of grave delays, be trumped by the concerns for an accused's liberty. The value of liberty and to a speedy trial was seen as grounded in Article 21 of the Constitution; lengthy undertrial detention would, in case of grave delay, be seen as causing detention in a manner contrary to these fundamental rights.

This position seemed to have been doubted and departed from in two subsequent judgments delivered by Division Benches; the first was Gurwinder Singh [(2024) 5 SCC 403], and the second Gulfisha Fatima [2026 SCC OnLine SC 10] (both were opinions of the same author). These subsequent decisions had, seemingly, held that bail was not the rule in UAPA cases owing to the restriction placed by Section 43-D UAPA which evidenced a legislative preference for jail as the default, and no relaxation or mollification of this statutory restriction was caused by delays or by the lengthy undertrial detention of an accused. 

The validity of this line of reasoning from both these opinions has been expressly doubted in Syed Iftikhar Andrabi [Paras 26 to 41]. The simplest line of critique is that the Division Benches could not have doubted or disagreed with the judgment of Three Justices in Najeeb. But the Court does not rest there, perhaps due to the manner in which both Gurwinder Singh and Gulfisha Fatima made departures. Neither said that the law laid down in Najeeb was bad; instead, the fight was about what law, if any, did Najeeb lay down in the first place. 

Gurwinder Singh and Gulfisha Fatima departed from the opinion in Najeeb by reading the latter as tightly wound to its facts. In that case there was no prospect of speedy trial whereas in Gurwinder Singh notable progress had already been made, and in Gulfisha Fatima the delays were 'natural' owing to the complexity of the case. In other words, both opinions tried to denude the opinion in Najeeb of having laid down any law at all. Having done so, both opinions offered their reading of the law, which saw the statutory bar of Section 43-D UAPA remaining unaffected by any length of delay. Even if there was delay, the detention of an accused may yet be justified in the overall facts of a case.

Syed Iftikhar Andrabi has specifically disapproved of this interpretation of Najeeb, as well as the holding of both Gurwinder Singh and Gulfisha Fatima that the statutory bar is adamantine and remains unaffected by delays. It reminds us of the very clear observation in Najeeb, that in appropriate cases the statutory bar would 'melt' in the face of the pressure created by the prolonged and unconstitutional deprivation of an accused's liberty. The statutory bar is, and remains, subservient to constitutional interests.

The verdict is a helpful course correction by the Supreme Court in the domain of bail on grounds of delay which has seen a renaissance of sorts in the past five years across multiple statutory contexts containing a clause restricting grant of bail. Whether the course correction will hold or not is something to be seen. All it takes is another Bench of Three Justices to come and doubt Najeeb, after all. And it took only a day for the State to raise the possibility. Think about this for a moment. It is not a right to release on bail, but the mere possibility for considering bail pleas slightly more favourably for those who have spent inordinately long periods in custody pending trial, is what the fight is about. And even this possibility is precarious, dependent upon how some words in a statute are read. For now though, the possibility shines brighter than it did six months ago.

At the same time, let us not overstate the usefulness of this jurisprudence of apology created by our courts. Where, after depriving individuals of their liberty for years, at some unspecified point in the future their custodial detention mysteriously burnishes their claims to liberty with greater light. In fact, Syed Iftikhar Andrabi has ironically reinforced the sheer unfairness of it all quite drastically. At paragraph 42, the Court cites data suggesting extremely low conviction rates for UAPA crimes, and rhetorically asks how can the prolonged detention be justified merely because of serious allegations if there are such high possibilities of a future acquittal. If this reasoning is good for prolonged detention and delay on grounds of bail, it is also good for demanding greater accountability for deciding bail applications on merits and seriously assailing the constitutionality of the restrictive bail clauses under the UAPA and other laws.

The allegations against the accused were serious in Syed Iftikhar Andrabi, but they were based on hardly any credible material. So why did the courts below continue to shy away from granting bail on merits for the five years that it took for this judgment to pass? That, really, is the question which deserves a lot more scrutiny going forward in bail jurisprudence under the UAPA. 

The vigour with which the Court has sought to resolve the creases within the legal fabric on delay-based bail for UAPA and other such crimes requires urgent reciprocation in the realm of merits-based bail. Only then will the proclamation of the Court in Syed Iftikhar Andrabi carry any real force: that bail remains the rule, and jail the exception, in all circumstances in our law.

UPDATE: It did not take long for the issue to get referred to a bench of larger strength. On 22.05.2026, while granting interim bail to the applicants, a bench of the Supreme Court took note of the observations in Syed Iftikhar Andrabi and requested the Chief Justice to constitute a bench of appropriate strength to "clarify or expound the position of law laid down in K.A. Najeeb's case, particularly in the backdrop of the rigour of 43D(5) which imposes restriction consciously and has received the assent of the Parliament, which obviously was brought in keeping in mind the valuable right enshrined in Article 21 of the Constitution of India." (Para 24). All eyes on the Court, then.     

[On reading of restrictive bail clauses, readers may find the six-part series 'Jail is Not the Rule' helpful]

The Prior Antecedents Practice Directions on Bail - An Unfair Burden

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.

Guest Post: Erroneous Procedures in the Law of Criminal Defamation

(This is a guest post by Rahul Machaiah)

The recent decision of a two-judge bench of the Supreme Court in State of Telangana v. Nalla Balu contains an erroneous interpretation of the procedural law governing criminal defamation. In September 2025, the Telangana High Court issued eight “operational guidelines”/directions to be followed by magistrates and the police when criminal cases are sought to be filed against political speech, particularly through social media posts. The High Court issued these directions while quashing three First Information Reports (“FIRs”) registered against Dhurgam Shashidhar Goud @ Nalla Balu under provisions pertaining to hate speech, defamation, obscenity, etc., in connection with his social media posts criticising the Chief Minister of Telangana and the ruling party.

Directions issued by the Telangana High Court

The directions issued by the High Court may be summarised as follows:

• The police must verify whether the informant is a “person aggrieved” before registering an FIR for defamation or similar offences.
• The police must conduct a preliminary enquiry before registering an FIR so as to ascertain whether the alleged act attracts the ingredients of a cognizable offence, prima facie.
• The police must not register cases under provisions pertaining to sedition, promotion of enmity or public mischief unless the social media post or speech incites violence, hatred or public disorder.
• The police must not mechanically register cases pertaining to harsh or critical political speech unless the speech incites violence.
• The police must not immediately register an FIR when defamation is alleged. Instead, the informant must be “directed to approach the magistrate” and the police may register a case only after the magistrate passes an order under Section 174 (2) of the Bharatiya Nagarik Suraksha Sanhita (“BNSS”), referring the case for investigation.
• The police must follow the Supreme Court’s directions in Arnesh Kumar vs State of Bihar (AIR 2014 SC 2756) and refrain from arresting the accused mechanically.
• The police must seek a legal opinion from the prosecutor before registering an FIR pertaining to political speech.
• The police must close frivolous cases without embarking on an investigation, by invoking Section 176 of the BNSS.

Problematic Order of the Supreme Court

The State of Telangana assailed the judgment by filing Special Leave Petitions (“SLPs”) before the Supreme Court. While the State did not assail the judgment on merits i.e. quashing of the cases, it was contended that the broad directions issued by the High Court were “inconsistent with each other” and warranted interference from the Supreme Court. On 2 February, 2026, the Supreme Court dismissed the SLPs. Though the order does not set out the State’s contentions in detail, it reads as follows:

“We have looked into para 29 threadbare. We are of the view that we should not interfere with the impugned judgment and order passed by the High Court including the guidelines issued by the High Court.”

The Supreme Court’s refusal to interfere has subsequently resulted in the Director General & Inspector General of Police of Karnataka issuing a circular dated 07-02-2026, endorsing and reproducing the High Court’s directions pertaining to registration of FIRs in connection with social media posts and directing compliance thereof, by all the police stations in Karnataka.

Flawed interpretation of procedural law pertaining to criminal defamation

A perusal of the Direction No.1 and Direction No.5 issued by the High Court would indicate that the High Court has recognised the power of the police to investigate cases of defamation, albeit with prior permission of the magistrate under Section 174 (2) of the BNSS. With due respect, the directions are erroneous in view of the prohibition contained in Section 222 of the BNSS which stipulates that a court shall not take cognizance of an offence punishable under Section 356 (criminal defamation) of the Bharatiya Nyaya Sanhita (“BNS”) “except upon a complaint made by some person aggrieved by the offence”. The term ‘Complaint’ has been defined under Section 2(h) of the BNSS as “any allegation made orally or in writing to a Magistrate, with a view to his taking action.. but does not include a police report”.

This clearly indicates that a case of criminal defamation may be instituted only by way of a complaint before the magistrate/competent court and the magistrate/competent court may take cognizance of the offence only if the complaint is filed by a “person aggrieved”. It precludes the police from registering an FIR in respect of defamation and the magistrate from referring the case for investigation under Section 174 (2) as such a course would nullify the mandate of Section 222 of the BNSS and lead to a police report being filed in respect of criminal defamation. At the cost of repetition, ‘complaint’ has been defined to explicitly exclude a police report.

Though Explanation to Section 2(h) of the BNSS stipulates that “A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint”, this Explanation applies to a post-investigation scenario where an investigation reveals commission of a non-cognizable offence alone. In such a case, the Explanation creates a fiction through which a police report is deemed to be a ‘complaint’ in respect of the non-cognizable offence, so as to enable the court to take cognizance of the police report. More importantly, the Explanation also stipulates that in such a case the police officer filing the report “shall deemed to be a complainant”. Consequently, if the police were to draw support from the Explanation to Section 2(h) in a case of criminal defamation, it would fall foul of the mandate of Section 222 as the police officer would be deemed to be the ‘complainant’ as opposed to the person aggrieved. Therefore, even the Explanation to Section 2(h) of the BNSS does not empower the police to file a police report in respect of criminal defamation.

To appreciate this proposition and for a broader perspective on the scheme of procedural law, it would be useful to refer to Section 186 of the Indian Penal Code (“IPC”) which criminalises the act of obstructing a public servant in discharging public functions. Section 195 of the Code of Criminal Procedure, 1973 (“CrPC”) stipulates that a court may take cognizance of an offence under Section 186 IPC only based on a ‘complaint’ filed by the public servant concerned or his senior officer. In Devendra Kumar v. State by NCT of Delhi (2025 INSC 1009) and Umashankar Yadav v. State of UP (2025 INSC 653), the Supreme Court held that the Explanation to the definition of ‘Complaint’ under Section 2 (d) of the CrPC (similarly worded as Section 2 (h) of the BNSS) would not enable a police officer to file a police report in respect of an offence under Section 186 in light of the bar imposed by Section 195 of CrPC. In Umashankar Yadav, it was contended that in a scenario where an FIR is registered under Sections 353 (cognizable offence of assaulting a public servant) and 186 of IPC, a police report disclosing the commission of an offence under Section 186 would be sustainable as a ‘complaint’ under the Explanation, even if Section 353 is quashed. The Supreme Court repelled the contention by ruling:

“Even then, the legal embargo under section 195 Cr.PC is not dispelled as the legal fiction deems the police officer and not the aggrieved public servant as the complainant.”

Section 222 of the BNSS is similar to Section 199 of CrPC. Section 199 has been interpreted authoritatively in several judgments of the Supreme Court and various High Courts. In Subramanian Swamy v. Union of India (AIR 2016 SC 2728), wherein the Supreme Court upheld the constitutional validity of Section 499 & 500 of the IPC (criminal defamation) and Section 199 of the CrPC, the Supreme Court categorically held that it would be impermissible to register an FIR in respect of defamation and even a magistrate must not refer cases of defamation for investigation by the police. These prohibitions were traced to the mandate of Section 199 of the CrPC. The Supreme Court also held that there is a “heavy burden” on the magistrate to scrutinize complaints of defamation and permit further proceedings only if the allegations attract the ingredients of the offence of defamation, as the law of defamation must not be allowed to turn into an instrument of vendetta.

Thereafter, in Arnab Goswami v. Union of India (AIR 2020 SC 2386), a three-judge bench of the Supreme Court reiterated the law laid down in Subramanian Swamy (supra). The police had registered an FIR against anchor Arnab Goswami for the offence of defamation under Section 500 of the IPC along with other provisions such as Sections 153, 153A and 295A of the IPC. The Supreme Court held that the scope of the FIR and the investigation must not extend to the offence of defamation in light of the bar contained in Section 199 of the CrPC and the Court’s decision in Subramanian Swamy.

Therefore, the Telangana High Court erred in recognizing the power of the police to register an FIR when defamation is alleged and the power of the magistrate to permit investigation in such cases, under Section 174(2) of BNSS. Strangely, the High Court arrived at this erroneous conclusion despite observing in paragraph 21 of the judgment that cognizance of defamation ought to be taken only based on a ‘complaint’ filed by an aggrieved person.

Unfortunately, the Supreme Court failed to notice Section 222 of the BNSS and engage with the law laid down in the cases of Subramanian Swamy (supra) and Arnab Gowswami (supra). Instead, the Court observed that it had examined the High Court’s directions “threadbare” and no interference was warranted.

Impact on free speech and judicial discipline

Suppose an application is filed before the magistrate under Section 174 (2) seeking investigation into allegations of defamation arising out of a political post on social media, the magistrate would be faced with conflicting propositions of law laid down by the constitutional courts. In the interest of freedom of speech and judicial discipline, it is imperative that the Supreme Court exercises its power of review and rectifies the patent error of permitting registration of an FIR in respect of defamation.

The legislature has consciously incorporated safeguards against stifling of free speech and misuse of law of defamation, by prescribing a distinct procedure to initiate criminal defamation proceedings i.e. filing of a complaint before a magistrate, recording of the complainant’s sworn statement by the magistrate, hearing of the accused etc. before the accused is summoned for trial. The Telangana High Court’s directions, as upheld by the Supreme Court, may have a chilling effect on free speech as they enable these crucial safeguards to be circumvented.

Guest Post: The Trajectory of Credibility - Forensics, Suspicion, and the Future of Circumstantial Justice in India

(This is a Guest Post by Sumedha Edara)

Could the Supreme Court’s decision in Vaibhav v. State of Maharashtra (2025 INSC 800) mark a pivotal shift in Indian criminal law jurisprudence? The context is as such – Mangesh, a medical student, passed away from a gunshot fired by the service pistol of his friend, Vaibhav’s father who was serving as a police officer. Both the Trial Court and the Bombay High Court convicted Vaibhav of murder by relying on his conduct post the incident—removing the body, cleaning bloodstains, and feigning ignorance—which they treated as incriminating “subsequent conduct” under Section 8 of the Indian Evidence Act 1872.

While the judgment itself confines its reasoning to established doctrines (Section 8’s evidentiary logic, forensic analysis, and prosecutorial burden) this article advances an interpretive framework, reading Vaibhav as signalling a transition from “suspicion justice” to “forensic rationalism” in criminal adjudication. What follows is a conceptual structure: the “Trajectory of Credibility,” organising judicial reasoning around forensic coherence, behavioural plausibility, and probability of motive. This analytic extension draws on comparative jurisprudence and psychological insights, situating the case as both doctrinal correction and a node for broader institutional debates.

The Judgement: Three Transformative Moves

The Court’s reasoning can be distilled into three moves which, while based purely on evidentiary doctrine, benefit from a closer reading between the lines to highlight broader themes that are implied:

i. The Limits of Conduct

The first move was to restrict conduct-based inferences under Section 8 of the IEA. The Trial Court and High Court had treated the acts of concealment as determinative of guilt. Their reasoning was circular – because the conduct was incriminating, it proved guilt; but because guilt was presumed, the conduct appeared incriminating. The Supreme Court broke this cycle by reaffirming that Section 8 only establishes relevance and not sufficiency. Conduct, while it may corroborate existing proof, cannot fill evidentiary gaps.

Importantly, the Court explained that conduct is “equivocal”, meaning that the same act may admit multiple readings. A frightened teenager may conceal evidence out of panic rather than guilt too. By ignoring this duality, the High Court arguably failed to fully adhere to the time-tested principle that for any conviction on circumstantial evidence there must be one hypothesis only, and that must be one of conclusive guilt. In Vaibhav, there was no such unequivocal conclusion: no ballistic confirmation, no motive, no eyewitness, and so no singular conclusion.

In clarifying the distinction between relevance and sufficiency, the Supreme Court rejected reliance only on conduct to establish guilt. I interpret this move as a step away from "suspicion justice"- where behavioural shortcuts substitute for concrete evidence as required by the law - using the judgment as a basis for further conceptual reflection. Such an interpretation repositions Section 8 as an evidentiary aid and not a judicial crutch.

ii. Forensic Trajectory as the Decisive Narrative

The second move was to foreground the factual significance of ballistic trajectory, rather than the accused’s conduct. This fact had not been considered below, by virtue of the pistol belonging to the accused’s father, chances of it being an “accident” are irrelevant. This conflated ownership of the weapon with the authorship of the act itself. The Supreme Court treated this as a fundamental flaw and held that the witnesses’ testimony regarding the bullet trajectory was clear and trustworthy, because only such an account led to any coherence in determining the chain of events that took place. In doing so, the Court effectively established that a trajectory analysis cannot be reduced to entry and exit wounds, and that the HC’s failure to grasp this was not a technical error but one that revealed a collapse of reliance of forensic literacy. Although the Court stopped short of theorising this as a broader principle, its reasoning implicitly restores the role of scientific coherence as central to criminal adjudication.

iii. The Re-embedding of Burden of Proof

The third and perhaps most constitutionally significant move was assertion of prosecutorial burden. The High Court had held that the burden of proof lay with the accused in explaining how the pistol had reached victim's hand and why he had concealed the evidence. This approach effectively inverted the doctrine of presumption of innocence. The Supreme Court restored the doctrinal balance in its judgement, reaffirming that the burden lies on the prosecution to first establish guilt beyond reasonable doubt before one turns to the accused for explanations. The accused’s obligation is always one of plausibility, not certainty. We are reminded here that silence or implausibility on part of the accused cannot rescue a weak case for the prosecution. Proof is the State’s burden and doubt is the citizen’s entitlement.

Together, these three reasonings by the Supreme Court successfully righted the wrongs that have been committed by the lower courts in adjudicating this case, and consequently, their broader implications have also reaffirmed evidentiary law’s true nature – conduct is only corroborative, science is decisive, and burden is constitutional.

The Test of "Trajectory of Credibility"

Drawing upon the judgment, I introduce here a conceptual “Trajectory of Credibility” framework, meant as a tool for analysing circumstantial evidence cases. It demands that the credibility of evidence must be followed along several axes until it reaches its destination, much like the path of a bullet.

The first is forensic coherence. It demands that courts ask whether scientific traces like ballistics, pathology, DNA, etc., can sustain guilt independently. In this case, the prosecution story was refuted by forensic evidence which showed that the bullet's upward trajectory indicated accidental discharge rather than homicide, proving that doubt endures where coherence fails.

Plausibility of behaviour is the second axis. Human psychology, cultural background, and stress response must all be taken into consideration when interpreting post-crime behaviour. Concealment may signal guilt, but it may also reflect panic. In this case, the accused’s conduct was reinterpreted as acts of a frightened student fearing his father who was a police officer. Behaviour of such sort is punishable under Section 201 of IPC, but not probative of murder.

The third axis is probability of motive. Courts must determine if the record reveals any animosity or a legitimate motive. The cases of Anwar Ali v. State of HP (2020) and Nandu Singh v. State of MP (2022) demonstrate that while lack of motive is not always fatal per se, its complete absence in cases based on circumstantial evidence tilts the scales in favour of acquittal. The same happened in this case, where a lack of animosity between the victim and accused weakened the hypothesis of guilt pointed towards the accused.

Only when these axes converge does the judicial trajectory close around guilt. Where they diverge, as in this case, an acquittal is constitutionally mandated.

Structural Gaps Exposed

The case also exposes the fragility of India’s judicial infrastructure. The judgement revealed not only prosecutorial shortcomings but systemic deficits that simply cannot be ignored.

The most glaring one is the country’s forensic deficit. India’s Forensic Science Laboratories (FSLs) are chronically understaffed and underfunded. Reports of DNA samples lying unexamined for months or even years are common; ballistic reports are often unavailable, as in this case. The Malimath Committee Report (2003) and 239th Law Commission Report (2012) both flagged this weakness, yet capacity remains stagnant. Without timely forensic reports, cases tend to lean only on circumstantial suspicion, further raising risks of wrongful conviction.

A second gap lies in the overbreadth of application Section 8 of the IEA. While the Supreme Court in its judgement insisted on caution, trial courts remain free to overvalue conduct. The risk is amplified in a society where fear of police is pervasive, and acts like panic driven concealment or tampering of evidence is common.

Third, judicial trust in science arguably remains low. The High Court’s refusal to give due weight to the bullet's trajectory despite clear expert testimony on the same, exemplifies how courts can undervalue or misunderstand scientific evidence. This is not unique to this case. In the Aarushi Talwar case too, conflicting forensic reports left trial courts confused, producing faulty inferences. And in the Uphaar fire case, lack of technical expertise hampered fact-finding. Without systemic judicial training, scientific ambiguity, which is possibly a result of the lack of investment in the science out of the distrust as discussed, will continue to be resolved through intuition rather than expertise.

Finally, this case highlights the absence of accountability for investigative failures. No sanction or consequence followed the failure to obtain ballistic verification. Without any mechanisms to discipline such lapses, investigators, obviously, face little incentive to meet forensic standards.

Together, these gaps explain why suspicion has long substituted for science in India’s criminal justice system. The implications of this judgment can mark an affirming point in jurisprudence, but without institutional reform, its jurisprudential promise risks remaining aspirational.

Broader Implications

The resonance of this case lies not just in doctrine but also in its potential ripple effects across institutions.

For police, it may signal towards the end of shortcut investigations. In a system often driven by narrative first, science later policing, the judgment redirects energy towards scene preservation, evidence collection, and expert consultation.

For prosecutors, it may raise the evidentiary threshold. Plausible narratives are no longer sufficient without forensic ballast. Prosecutions must now secure scientific backing to their claims - a burden, but also a liberation from reliance on conjecture.

For defence counsel, this precedent may be a powerful shield. It provides a doctrinal justification to dismantle prosecutions hinging on conduct or silence. It also supplies and supports a vocabulary - “trajectory,” “probability,” “alternate narratives” - that empowers defense advocacy.

For the judiciary, the case may redefine judicial satisfaction. No longer can suspicion or silence tilt the scales. Conviction now demands for the convergence of forensic coherence, plausibility of conduct, and probability of motive. Judges are required to think less as moral arbiters and more as epistemic adjudicators.

The ripple effects may extend further. Law schools may finally learn to integrate criminal law with forensic science and psychology. Forensic institutions gain visibility and pressure to expand. Civil society and rights advocates gain a powerful precedent affirming that wrongful conviction is as grave as wrongful acquittal.

Conclusion

The judgment in Vaibhav v. State of Maharashtra reconstructs the logic of evidence. The Court restored forensic centrality, reaffirmed prosecutorial burden, and curtailed excessive reliance on Section 8 in order to re-ground criminal law in constitutional principles. It enforces epistemic discipline through its framework, which tests consistency across science, conduct, and motive: divergence forces acquittal, while alignment supports conviction. Its acknowledgment of suspicion bias - that concealment may be motivated by fear rather than guilt - is equally noteworthy. However, the ruling also revealed institutional flaws, including the misuse of Section 8, judicial illiteracy, a fragile forensic system, and an impunity for investigative errors. Without reform, suspicion risks continuing to masquerade as proof.

Sanjabij Tari and More Guidelines for Speedy Disposal of Cheque Bounce Cases

Since the criminalisation of defaulting of cheque payments in 1988 by amendment of the Negotiable Instruments Act 1881, the Supreme Court has made many attempts to contain and reduce mounting arrears created by such cases. Much of that good-natured effort, it would seem going by statistics, has proved to be in vain. Nevertheless, the Supreme Court cannot be faulted for not making an effort. This indefatigable spirit is perhaps what animated a Division Bench in Sanjabij Tari v. Kishore S. Borcar & Anr. [2025 INSC 1158 (“Sanjabij Tari”)] to pass a fresh series of guidelines / directives, to curb arrears in cheque bounce cases.

Getting the Right Pendency Data

There can be no doubting the general observation that there is a deluge of cheque bounce cases in the system. The Court gives a sense of perspective to this by citing data from the National Judicial Data Grid (NJDG) to state that the figures for Delhi alone are 6.5 Lakh cases as of 01.09.2025 (Para 33).

The tenor of the judgment suggests that it is this sky-high pendency figure which has prompted the Court into giving directions. This shows us the importance of having data at hand. Unfortunately, it also shows us the difficulty in getting the “right” data which we face in India. One would think that using NJDG is as good as it can get to make a statement about caseloads. But as Prashant Reddy and Chitrakshi Jain explain in Tareekh Pe Justice, NJDG cannot be seen as that gold-standard. The website itself accepts this, and carries a disclaimer on the figures being given and requires visitors to cross check the correctness of the information.

The ordinary citizen access for NJDG does not seem to allow searching for statute-specific data and perhaps this is a unique feature that is available to those with special access, so we do not know exactly what the Court saw (it would be nice for everyone to have this access!). It is safe to assume, though, that this data was also not wholly accurate, given how the NJDG data presentation leads to double counting. In its gross figures, the NJDG often adds smaller miscellaneous applications filed within cases, besides the cases themselves, leading to an inflation of the total figures.

Given that pendency is anyway quite high in cheque bounce cases, overestimation here perhaps does not cause huge problems. There may be other situations though where uncritical reliance on NJDG data by a Bench does cause serious trouble. One hopes that day does not come to pass.

What to make of the Guidelines?

Having got the data part out of the way, we can turn our attention to the guidelines / directions itself that are issued in Paragraph 36 of Sanjabij Tari. A part of this is the Court restating / tweaking earlier directives, perhaps with a hope that their enforcement with some renewed vigour will lead to better results. The old is complemented by the new, where emphasis appears to be on pushing the system to (1) secure swift appearance of accused parties and, linked to this, (2) encourage settlements once they have appeared. Within these, I only want to deal with one part viz. the Court’s move to remove application of Section 223 of the Bharatiya Nagarik Suraksha Sanhita 2023 ['BNSS'] from these proceedings [Guideline E].

Section 223 BNSS is a new clause (unlike a lot of the statute) by which a court is now required to give the accused an opportunity to be heard before the court takes cognizance of an offence. The Court has approved the view taken by a Karnataka High Court judgment without adding any explanation. This view is that the Section 223 pre-cognizance notice part will not apply to cheque bounce cases since (i) these case are prosecuted under a special law (Negotiable Instruments Act 1881) and (ii) the offence is quasi-criminal where speed in the trial is key.

It is unfortunate that the Court has dealt with a legal issue in such a summary fashion, because on closer scrutiny neither of these reasons hold water. A special criminal law must prescribe a different method of proceeding for it to override the general procedural law in the BNSS, and there is nothing within Section 142 of the Negotiable Instruments Act 1881 which overrides Section 223 BNSS. This is why the Supreme Court itself has extended Section 223 BNSS to other special criminal laws, such as the Prevention of Money Laundering Act 2002.

Which naturally brings up the other point — you need this pre-cognizance hearing for serious crimes like money laundering, but not ‘quasi-crimes’ like cheque bouncing. The nature of the cheque bouncing crime is an issue which came up in another context recently on the blog — the right of a victim to file an appeal in such cases. While on the hand courts see the cheque bounce crime as 'quasi-criminal', a bench of the Supreme Court in Celestium Financial emphasised on the very clearly 'criminal' nature of this offence to hold that the complainant in such cases was at par with victims in other, traditional, offences. Interestingly, Sanjabij Tari neither cites nor refers to Celestium Financial. 

One may disagree with the approach in Celestium Financial and want to support the view that a cheque bounce case is really 'civil sheep in wolf's clothing'. Unfortunately though, this view is just not supported by law. There is no legally defined category of 'quasi-crime' in Indian law and when the legislature decides to deal with offending conduct by means other than criminal proceedings, it has prescribed punishments other than jail time. No matter how innocuous we make cheque bounce cases appear by likening them to civil disputes, it does not change the reality that a conviction for this offence can result in imprisonment and loss of liberty — the core component of proper crime. 

Conclusion

There is no disputing the fact that cheque bounce cases contribute hugely to arrears within the legal system, making it a natural target for attention by the Supreme Court. Prior to Sanjabij Tari, multiple attempts have been made by issuing directives and guidelines but without lasting or measurable success, and whether this most recent round of efforts will meet a different fate is something only time can tell. 

At the same time though, if we look deeper, perhaps there is a different lesson to be learnt here, especially with the repeated reference by the Supreme Court to the idea that cheque bounce are not real crimes but 'quasi-criminal' in nature. Why not actually take that step and conjure a set of remedies that deliver on this premise by changing the infraction in question from being a crime with possible jail time to something which can be dealt with outside of the proper legal system by means of penalties and other, non-penal, sanctions. The judiciary cannot take that step, as much as it may want to. 

It is soon going to be four decades since Parliament decided to experiment with levying penal sanctions for dishonour of cheques. The experience of these past four decades suggest that whatever benefits the move has brought to financial transactions, it is significantly outweighed by the harm that it has caused to the integrity and stability of the judicial system. Maybe it is time to call it a day on the offence of cheque bouncing altogether? 

Gujarat, Anticipatory Bail, and Police Custody: A Peculiar Practice

Almost a year ago now, on 07.08.2024 the Supreme Court delivered its judgment in a contempt petition titled Tusharbhai Shah v. Kamal Dayani [2024 INSC 588 ("Tusharbhai")]. The only reason to cover the judgment is because it offered a window into a highly peculiar practice, and in turn offered a timely lesson about the sheer degree of variety in how criminal law works across India. A lesson which, sadly, falls on deaf ears more often than not.  

After giving a brief about why Tusharbhai Rajnikantbhai Shah went to the Supreme Court, the post takes a brief detour to give a quick explainer about how anticipatory bail works in India, since that is the heart of the case. I then go into the peculiar practice of enforcing anticipatory bail in Gujarat which the Supreme Court was confronted by in Tusharbhai — a practice which the Court has declared was contrary to law. I did not find any other jurisdiction as having imported this condition of permitting remand while dealing with anticipatory bail. It would be interesting to examine whether having this condition made courts in Gujarat more hesitant in granting anticipatory bail or made them more liberal.  

The Facts in Tusharbhai 

A commercial dispute about the sale of property led to registration of a criminal case against Tusharbhai Rajnikantbhai Shah. He sought anticipatory bail fearing his arrest but his plea was rejected by both the Sessions Court and the High Court of Gujarat. This led to his first petition before the Supreme Court, and he finally got some reprieve as the Court gave him interim protection of being released on anticipatory bail if arrested till his petition was finally decided, so long as he cooperated with the investigation.

Shah went to the police to offer his cooperation. He was formally arrested and released on bail in line with the Supreme Court's orders, and directed to come again. On his second visit to the police station, he was given a notice to appear before the concerned local court on 13.12.2023 "for the matter of remand". On this day, police filed an application before the court asking to take Tusharbhai Shah into police custody for seven days. The magistrate was seemingly shown the Supreme Court's order granting Shah his temporary reprieve. It would seem that the magistrate did not think this reprieve came in the way of granting custody of Shah to the police, and directed him to be sent to police custody for three days. Shah was confined in police custody and, according to him, was tortured. When the three days ended, he was brought before the court, and now was granted regular bail by the court. Shah filed a detailed complaint later on about the ill-treatment he faced in custody which the court did not entertain.

All this took place in the shadow of the Supreme Court petition that Shah filed, which was still pending. With good reason, he perceived the acts of the police and the judge to be in contempt of the Supreme Court's orders. Shah now filed his second petition before the Supreme Court, for contempt. What interests me here is not the allegations about police torture and how that was first handled by the trial court and later the Supreme Court in the contempt, but the police having asked for his custody in spite of granting him anticipatory bail and the magistrate not only being fine with the request but granting it. To understand  these aspects, we need to deal a little bit with anticipatory bail. Readers familiar with the concept can skip the next part.

The Mechanics of Anticipatory Bail 

The blog has covered anticipatory bail on many an occasion and a brief recap would do. Normally, 'bail' as a concept refers to being released from actual custody. 'Anticipatory Bail' by contrast refers to a remedy in which a person can apply for bail in anticipation of being arrested and taken into custody. A person must demonstrate a reasonable apprehension of arrest in a case where she does not have a right to bail (termed a 'non-bailable' offence), and show that permitting the arrest and custody will be unjust. If a court agrees, it can pass a directive to police that, in the event of arresting the person, he must be released on bail. 

Any bail, whether regular bail which is sought after arrest, or a direction for anticipatory bail sought prior to arrest, means a release from custody that continues till a court permits the re-taking of a person into the custody of law by cancelling bail (or a superior court finding that the bail order was perverse). Normally, bail is granted on the promise of fulfilling various conditions, the most important of which is continued participation with the legal process. If an accused fails to do so, or meet any other condition, then bail can be cancelled. But without this cancellation, you can't send the accused into custody even while you are on bail. These concepts do not overlap.       

Explaining the Gujarat Model of Anticipatory Bail 

Well, it would seem they did overlap in Gujarat, which is why the police had no qualms in seeking police custody of Tusharbhai Shah, and the magistrate no qualms in granting it, even though he had been granted bail and no cancellation of his bail was sought. In the hearing before the Supreme Court, lawyers for many of the contemnors confirmed this: In Gujarat, they said, it was a "long prevailing practice" for courts to grant anticipatory bail with an express stipulation that at any point of time the police can make a request for custody of an accused where felt necessary for an investigation. They cited a 2014 decision of that High Court in support of their claim. In this case as well, police claimed non-cooperation by Tusharbhai Shah, and the magistrate upon reviewing the record agreed and decided it was a fit case for custody.

The explanation did not cut it for the Supreme Court as a justification for the conduct of the police officer and the magistrate in question in the facts and circumstances of this case because the Supreme Court's order never had any such stipulation permitting custody in the first place. It also specifically held that this "long prevailing practice" of Gujarat was contrary to law and condemned it. But in doing so, the Court did not go into the practice much, which is precisely what piqued my curiosity when I read about it.

Was this claim of a long standing practice true? Absolutely. And it has a fascinating history that goes much further back than 2014. The practice appears to have been birthed in the first few years of anticipatory bail. At this juncture court were, to put it mildly, extremely reticent about this concept and worried deeply about its negative impact on a successful police probe. The broad ambit of the provision invited courts to invent guidelines to prevent misuse, and one saw different High Courts come up with ideas for controlling arbitrary judicial discretion. The Gujarat High Court made such an attempt in Somabhai Patel (1976) where the Court laid down 12 guidelines for courts to exercise anticipatory bail. One of these guidelines was that:

The power cannot be allowed to be invoked in order to defeat, thwart, stall, or render impotent, the provisions relating to remand to police custody for the purposes of facilitating investigation. It may, therefore, be specified in the order that the accused is to be released on anticipatory bail provided he is not required to be remanded to police custody and that if he is so required the police officer would be at liberty to obtain suitable orders from the Court in that behalf either before the arrest or within a reasonable time of the arrest. [Emphasis supplied]

Now, a trend of High Courts placing restrictive covenants upon exercise of judicial discretion for grant of anticipatory bail was stopped in its tracks by the Supreme Court in Gurbaksh Sibbia (1980). But as I have argued earlier, the inherent tension between liberal grant of anticipatory bail and its negative impact on the police investigation was never quite resolved. So it would seem that at least this guideline of Somabhai Patel continued to be followed. I came across one such order in Pankaj D. Suthar v. State (1991) where the High Court granted anticipatory bail in an atrocities act case on a condition that the accused report to the police to cooperate with the probe and "thereafter also for the purposes of being taken on remand in the event of necessities so felt by the Investigating Officer, which the learned magistrate shall decided the same on merits without being influenced by the fact that the petitioner is ordered to be released on an anticipatory bail by this Court on usual terms and conditions." (Interesting aside: Justice J.B. Pardiwala appears to have been the counsel appearing for the petitioner).

In the 2000s, this condition was fully part of the system, so much so that you can find lawyer's suggesting it as a means to convince a court to grant anticipatory bail in an otherwise unfavourable case. For instance, the counsel for the petitioner in Yazdi Icchaporia (2003) the lawyer suggested that stringent conditions may be imposed while granting bail including "specific condition giving liberty to the prosecution to move remand application in the event of grant of anticipatory bail" (the petition failed regardless). The same submission, with the same result, was made in Jitendra Rajgor (2004). An example of just how entrenched a view it was that custodial remand was permissible for persons on anticipatory bail can be seen in Pragnesh H. Parikh (2007) where when the magistrate denied a remand request for an accused who was on anticipatory bail, the sessions judge set aside this observation in a revision petition stating there was no such bar on seeking custody. Where anticipatory bail was being granted, especially in financial crimes, the bail order would carry a standard stipulation at the end — "it would be open to the investigating officer to file an application for remand if he considers it proper and just"

The first ripples in this otherwise placid pond of the Gujarat Model of anticipatory bail were seen after the Supreme Court's decision in Mhetre (2010). This judgment emphasised that there was no difference in the effect of an order for bail and anticipatory bail, and also deprecated a practice of passing anticipatory bail orders of a limited duration of time. As one can see, treating anticipatory bail and bail as different was the crux of how Gujarat was enforcing anticipatory bail. This was the logical justification for conditions where the life of anticipatory bail orders was restricted, and the remand condition imposed. 

A petitioner naturally challenged such conditions soon thereafter, and in Jashuben (2011) the Court had to decide the issue. It held that a limited time period for an anticipatory bail was clearly contrary to how the Supreme Court had explained the law, and the condition could not continue. But for the other condition about remand, the Court upheld the condition and gave insight into why the approach had come to be so popular:

Uptil now, under the order of anticipatory bail, an accused would be, immediately, upon his arrest, released on bail. For the purpose of seeking remand, during such a period, he would be treated as if in custody, but, under the protective umbrella of the Court, under an order of anticipatory bail. Right of the prosecution to seek remand of an accused, who has been granted anticipatory bail, deletion of the said condition, without any substitution would create serious complication. In a given case, when the prosecution is desirous of seeking police remand, question would arise whether the anticipatory bail order should be granted and if it is required to be granted on merits, what would be the position of the remand application, which the prosecution may file, later on. Obviously, if an order of anticipatory bail is granted, the accused immediately upon his arrest shall have to be released on bail. As long as he remains on bail, the prosecution cannot seek his remand. The prosecution, therefore, shall have to seek cancellation of the bail, before it can apply for remand. This situation would create two complications. Firstly, parameters for cancellation of bail are entirely different from those, for granting or refusing bail. Secondly, any such application by the police seeking cancellation of bail, may consume considerable time during which period the evidence may be destroyed or lost. [Emphasis supplied]

The High Court lays bare for us the tension between too wide an ambit for anticipatory bail and successful police investigations, which continue to remain hinged upon securing custodial interrogations as the ideal form of cooperation. Legitimising a cumbersome process — of seeking cancellation — before police can go seek remand would tilt the system too far in favour of the accused. Permitting police to seek remand struck a balance because it effectively required a judge to decide the question, safeguarding liberty against the threat of immediate arrest. 

Another challenge to this long prevailing practice came in 2014. This time, the Single Judge referred the issue to a Division Bench, as he did not agree with the conclusions in Jashuben. It would appear that this Division Bench did not explicitly overrule the practice either, which continued to flourish till 2024.

Conclusion: A Complicated Set of Lessons from History

The Supreme Court has now declared a practice of permitting police remands for persons who are granted anticipatory bail as being contrary to law. From past experience, it is fair to expect some time before this decades-long practice is finally uprooted, and the message from on high to trickle down to the remotest districts in Gujarat. 

In declaring the practice as contrary to law, the Supreme Court emphasised the idea of personal liberty and held that allowing the police to seek remands in this fashion rendered anticipatory bail nugatory. But as we saw with a deeper scrutiny of the Gujarat approach, the condition imposed was not to render anticipatory bail nugatory but strike a balance between liberty and effective investigations, which remains the heart of anticipatory bail jurisprudence since the topic entered the lexicon. If anything, we saw that lawyers were actively batting in favour of this condition as a means to get anticipatory bail in otherwise difficult cases. 

One wonders whether the outright removal of this condition will make courts in Gujarat more reticent in giving anticipatory bail in those cases where, previously, this condition may have convinced them that the grant of relief will not hamper an effective investigation. I suspect that it may well prove to make courts a bit more hesitant, initially at least, and end up with a situation where the Supreme Court's avowedly pro liberty intervention ends up actively having a negative impact for personal libery. The entire episode is a reminder that the lessons from history are not as simple as we might think.

Guest Post: LIberty 'Defaulted' — The Unraveling of Section 167(2) in Our Lower Courts

(This is a guest post by Raunaq Jaiswal and Eesha Mohapatra. Views are personal)

That procedure is the handmaiden of justice, and any interpretation of a rule of procedure which eludes substantive justice is not to be followed is a now well settled principle of law. Procedural Law can never be a tyrant. So naturally, when a person is arrested on mere suspicion, procedure dictates they have to be produced before a magistrate. But when the handmaiden of justice metamorphosizes into a tyrant, it is difficult to tell, because understanding procedure and applying it to do substantive ‘justice’ is easier said than done. Procedure was arguably there as a letter of law when ADM Jabalpur is being decided, yet justice is arguably not. When procedure is a handmaiden, and when it is a tyrant is definitely a case of blurred lines.

One such statutory provision which encapsulates this blurring of line is Section 167(2) of the Code of Criminal Procedure, 1973. This provision encapsulates one of the most important handmaidens of justice—the procedure for ‘default bail’. The procedure for default bail sits uncomfortably with the principle of presumption of innocence to begin with, but both these procedures are meant to serve the dialectics of Lady Justice. It sits at odds with the principle of presumption of innocence because a strict reading of the principle would iterate that an accused person should not be spending even a day behind the bars as this would be an unconscionable interfere with their guarantee of presumption of innocence. This balance between the State’s duty to protect, against the individual’s right to liberty has not always been there, and it arguably took a state of emergency for the Government to reform the law of pre-trial detention.

Consider if such a procedure is allowed to be circumvented, as in the case of Mantoo Majumdar [AIR 1980 SC 487] — where Justice Krishna Iyer famously wrote that Art. 21 of the Constitution and s. 167(2) of the Criminal Procedure Code, are dead letter for each petitioner, two people who were kept behind the bars for nearly eight years. Their personal liberty was “subverted by the police, prison officials and the magistracy…[and the] State did not even furnish the basic facts about the imprisonment of the petitioners, the offences for which they were kept in judicial custody…”. 

If what happened in Mantoo Majumdar continues to happen today, then a person may be accused of a crime and subsequently arrested on mere suspicion—and procedures such as investigation and chargesheet are not submitted on time, then the accused person’s liberty are abrogated indefinitely, i.e., a person is assumed to be guilty without being tried.

Liberty after Mantoo Majumdar

Mantoo Majumdar’s case could very well have been our own ‘never again’ moment, and we should have had better procedural safeguards against abuse of government machinery then and there. However, as a recent report published in this forum would indicate, that has not been the case. In theory at least, the rule of default bail imbibes a sense of necessity and urgency on the investigating officers to finish an investigation on time—which may result in a person being in custody (read behind the bars) for 60/90-day period on basically a mere assertion by the police—and if during this time the investigating officers cannot file the chargesheet, then the procedure dictates that after the 60/90-day period is over, and the chargesheet has not been filed, the accused person should be give default bail.

In practice, this simple rule has encountered quite a few interpretative difficulties, and different benches of the Supreme Court have added some variations to its interpretation over time. Illustratively, these relate to the matter and form of interpretation—relating to the principles for the computation of time in the 60/90-day clause; the meaning of ‘chargesheet’ and so forth. The point to note here is that a simple procedural rule, meant to aid justice has been made difficult in practice. Sanjay Dutt’s case (1994) had sought to rectify these muddied waters of the procedure to obtain default bail. They held that the accused’s right to default bail is indefeasible, and an accused can avail their right of default bail, if the investigating officers have not filed charge sheet (challan) before the end of the 60/90-day period. If they have filed the chargesheet by this period, then the accused can apply for other kinds of bail as per the CrPC.

The true meaning of “availed off” in Sanjay Dutt was the next ground of contestation. These lead us to some specific instances where the investigating agencies are filing the chargesheet at the very last moment of the 60/90-day period—and the contention of the public prosecutor in these circumstances is that since the chargesheet has been filed, it should have more weight than the application to enlarge the accused on default bail. In Uday Mohanlal Acharya, the Supreme Court had to adjudicate in one such case. In this matter, the Court held that the expression “if not already availed of… must be understood to mean…when the accused files an application and is prepared to offer bail on being directed.” It is however from the dissenting opinion of Justice Agarwal in Uday Mohanlal Acharya that a small lacuna in interpretation is created. Justice Agarwal suggests that Sanjay Dutt’s ‘if not availed off’ should be interpreted to connote “that if the challan is filed before any order directing release on bail is passed and before the bail bonds are furnished, the right under Section 167(2) would cease to be available to the accused”.

On a plain reading of the dissent, the personal liberty of an accused could be constrained beyond the 60/90-day period if a magistrate, for example, had not heard the default bail even on the 97th day, and in the meanwhile, a chargesheet has subsequently been filed. What is important to note in Justice Agarwal’s dissent is the constraining effect it would have on personal liberty of the construct of procedure is the handmaiden of justice, and it is meant to serve substantive justice. This dissenting opinion, based on a personal liberty constraining interpretation, was impliedly accepted by the Court in Pragyna Thakur (2011). By accepting this proposition, Pragyna Thakur’s ratio automatically came in conflict with Sanjay Dutt’s ratio.

Overturning Liberty Through a Flawed Precedent

The flawed interpretation of default bail procedure in Pragnya Thakur persisted for nearly a decade, during which numerous courts denied default bail to accused persons, relying on the incorrect reasoning (of the Pragyna Thakur ruling). In the meantime, another two-judge bench of the Supreme Court in Union of India v. Nirala Yadav (2014) had observed that the law laid down in Pragnya Thakur was incorrect and bad. However, it wasn’t until 2020, when a three-judge bench in the case of M. Ravindran v. Intelligence Officer, DRI, rectified this error and declared the Pragyna Thakur decision to be per incuriam, reaffirming the legal position established in Sanjay Dutt: that once the 60/90-day period for filing the chargesheet expires, the accused’s right to default bail becomes automatic, and the subsequent filing of the chargesheet does not invalidate this right.

However, despite the Supreme Court’s clear ruling in Ravindran, this correction has not fully permeated the district judiciary which continues to apply the erroneous Pragyna Thakur interpretation, thus creating a significant gap between Supreme Court doctrine and the trial court practice. This has resulted in denial of default bail unjustly leading to prolonged incarceration of individuals who should have been granted bail as a matter of right.

For instance, the Guwahati Hight Court in 2021 and various other district courts across the nation such as the Additional Sessions Judge, Bombay (2021), Chief Judicial Magistrate, Prayagraj (2022), the Judicial Magistrate, Allahabad (2022) appear to have denied default bail to the accused persons relying on Pragnya Thakur. This troubling pattern indicates that despite clear and authoritative guidance on the correct interpretation from the Supreme Court, lower courts are either unaware of per incuriam rulings or choose to disregard the careful application of the applicable legal precedents. To wit, the rule has been that procedure is the handmaiden of justice. Here there is a clear pattern where the ends of substantive justice are being defeated by procedure.

This brings us to an important problem which currently overwhelms the Indian Supreme Court, namely how their judicial opinions are not percolating down to the district court level again. Previously in Shreya Singhal (2015), the Supreme Court had held Section 66-A of the IT Act to be unconstitutional—only to find later that fresh cases were still being instituted under the said unconstitutional statute. These cases were essentially being filed and argued in ignorance of the law laid down in Shreya Singhal. In a similar fashion, the Supreme Court had held a part of Pragyna Thakur to be per incuriam—but we saw a similar pattern of misapplication emerging again.

This misapplication creates inconsistency, uncertainty and catalyses the metamorphosis of handmaiden of justice into tyrannical deprivation of the accused person’s liberty beyond the procedure established by law. Resultantly, we have a paradoxical bail jurisprudence—where the right to obtain default bail has been iterated to be a part of right to life under art. 21, yet the procedure to obtain default bail has been made a marketplace of uncertainty.

Where Do We Go from Here?

In a country like India, where the judicial process is often slow and cases can drag on for years, the denial of default bail can mean years of imprisonment without trial. This attacks the very essence of justice, as individuals who have not yet been proven guilty are effectively punished by the system. The persistence of this issue raises a fundamental question: where do individuals turn when the courts themselves are responsible for perpetuating injustice? Not every accused has the resource or the privilege to approach the top court when the lower courts fail to uphold their indefeasible right to bail. It is hardly a surprise that the plaintiffs in most authoritative bail cases are what one would term as elites, who have employed the legal doyens of the day. Not everyone has the privilege to do that.

This issue certainly calls for internal introspection, and stronger mechanisms of judicial accountability, especially in cases where personal liberty is at stake; and ideally greater efforts to ensure that Supreme Court rulings are uniformly applied across the country. One potential solution is for the Supreme Court to take a more proactive role in monitoring the implementation of its rulings through a judicial audits. This could involve issuing specific directives to lower courts or creating mechanisms for reviewing cases where lower courts are found to be applying outdated or incorrect precedents. Additionally, the National Judicial Academy as well as all State Judicial Academies through regular training of judges at all levels shall ensure that they are aware and updated of the recent Supreme Court rulings. It is as bleak a situation as it gets for a person who is accused of an offence. However, we hope that we may have our ‘never again’ moment soon, and hopefully, the future generations may not have to encounter a matter like Mantoo Majumdar or ADM Jabalpur.