Central Bureau Of Investigation vs. Dayamoy Mahato

2025 INSC 1418
REPORTABLE

IN THE SUPREME COURT OF INDA
CRIMINAL APPELLATE JURISDICTION


CRIMINAL APPEAL NOs.___________ OF 2025
(Arising out of SLP(Crl) Nos. 12376-12377/2023)

CENTRAL BUREAU OF INVESTIGATION …APPELLANT(S)


VERSUS

DAYAMOY MAHATO ETC. …RESPONDENT(S)

WITH

CRIMINAL APPEAL NOs.______ OF 2025
(Arising out of SLP(Crl) Nos. 12656-12657/2023)
AND
CRIMINAL APPEAL NO.______ OF 2025
(Arising out of SLP(Crl) No. 2669/2024)

Signature Not Verified
Digitally signed by
NAVEEN D J U D G M E N T
Date: 2025.12.11
16:17:34 IST
Reason:
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 1 of 32

INDEX
THE APPEALS ......................................................................................... 2
ARGUMENTS AND ANALYSIS ............................................................ 7
APPLICABILITY OF SECTION 436-A CRPC ...................................... 8
REVERSE BURDEN OF PROOF ...................................................... 19
CURTAILING LIBERTY- JUSTIFIED? ............................................. 22
CONCLUSION AND DIRECTIONS ..................................................... 28
Directions in personam : ...................................................................... 29
Directions in rem .................................................................................. 30


SANJAY KAROL, J.
Leave Granted.
THE APPEALS
2. The present Appeals have been preferred by the investigating
th
agency against the judgment(s) and order(s) dated 9 November 2022
passed by the High Court of Calcutta in CRM No. 9431/2019 and CRM
No. 407 of 2021 whereby the Respondent(s), six in number came to be
1
released on bail, in connection with CBI Case No. RC4/S/2010 – Kol
th
registered at P.S. CBI/SCB/Kolkata on 9 June 2010. Similarly, relying
th
upon the very same order, the High Court vide order dated 28 February

1
Hereinafter ‘Subject FIR’.
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 2 of 32

2023 released eleven accused on bail in CRM (DB) 382 of 2023 and CRM
(DB) 441 of 2023. Thereafter, one more accused came to be released on
th
bail by the High Court vide order dated 13 June 2023 in CRM (DB) 2229
of 2023.
FACTUAL AND LEGAL BACKGROUND
3. The backdrop in which the High Court granted bail to the accused
respondents in the lead matter, which is the principal judgment under
challenge before us, is narrated succinctly as follows:
th
3.1 The subject FIR came to be registered on 9 June 2010
against unknown persons relating to the unfortunate
th
derailment of Train No. 2102, Jnaneshwari Express, on 28
May 2010 while passing between Khemasuli and Sardiha
railway stations, resulting in the untimely death of 148
persons and injury to 170 persons. The motive behind the
crime allegedly stemmed from the deployment of a joint
force of State Police and Central Paramilitary Force in the
jurisdiction of Jhargram Police Station to combat the capture
of Rasua village by the Maoists.
3.2 As per the chargesheet, police investigation revealed that the
accused persons with the common intention to pressurize the
Government to withdraw the Joint Forces from the Jhargram
Police Station area and create terror, hatched a criminal
conspiracy and in furtherance thereof, caused damage to the
railway tracks near Rajabandh. The conspiracy was carried
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 3 of 32

th th
out on the intervening night of 27 -28 May 2010 by the
accused persons. The pandral clips of the railway tracks were
removed, with the knowledge and intention that grievous hurt
would be caused to the passengers of a train. This action
caused the derailment of the train, which thereafter collided
with an oncoming goods train from the opposite direction,
causing widespread loss to life.
3.3 Along with loss of life and grievous injuries to persons, a
loss of 25 crores approx was caused to the Government due
to the destruction of property. The investigation revealed the
role of the accused persons who have been enlarged on bail,
as follows:

Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 4 of 32

3.4 The role ascribed to the co-accused in the connected matters
is, more or less same. Trial commenced against all the
Accused. Charges were brought under Sections 120B, 302,
307, 323, 325, 326, 440, 212 of the Indian Penal Code,
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 5 of 32

2
1860 ; Sections 150/151 of the Indian Railways Act, 1989,
and Sections 16/18 of the Unlawful Activities (Prevention)
3
Act, 1967 . As on date, 176 out of 204 witnesses stand
examined by the Trial Court.
3.5 Record reveals that the accused respondents (in the lead
matters) had earlier applied for regular bail in the year 2016
th
which was disposed of on 30 March of that year rejecting
their prayer, but at the same time directing that the
examination of the remaining witnesses should be completed
within a year and that all steps needed to be taken by the Trial
Court to ensure the same. The same could not be achieved,
hence, the respondent accused filed for bail before the High
th
Court. The date of the impugned order is 9 November 2022,
on that day the order records, 68 witnesses remained to be
examined. Even now, 28 witnesses still remain to be
examined.
3.6 The Appellant - investigating authority, aggrieved by the
order(s) granting bail, filed these appeals by special leave,
thereagainst.




2
Hereinafter referred to as ‘IPC’.
3
Hereinafter referred to as ‘UAPA’.
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 6 of 32

ARGUMENTS AND ANALYSIS
4. We have heard the parties at length. Mr. K.M. Natraj, learned
Additional Solicitor General of India, and Mr. Shailesh Madiyal, learned
Senior Counsel, who appeared for the Appellant. The Respondent(s),
accused persons, were heard through Mr. Archit Krishna, Advocate, and
Mr. N. Sai Vinod, Advocate-on-Record.
5. The learned Senior Counsel for the Appellant have prayed for the
bail granted by the High Court to be set aside on the ground that the High
Court has erroneously interpreted Section 436-A of the Criminal
4
Procedure Code, 1973 , which cannot be applied uniformly to heinous
offences and offences which are punishable by death. Meanwhile, the
Respondent(s) submits that the High Court rightly granted bail, upon
consideration of the indefeasible right to life, enshrined under Article 21
of the Constitution. Section 436-A of the CrPC will not stand in the way
of granting bail to the accused persons, in view of the prolonged
incarceration suffered by them.
6. In these facts, four vital aspects warrant consideration of this Court.
Firstly, whether in view of Section 436-A of the CrPC, the Respondents
ought to have been released on bail? Secondly, in any event, did the
prolonged incarceration of the Respondent-accused warrant their release
on bail, in view of Article 21 of the Constitution? Connected with the
second question is a third to the effect that in cases arising out of statutes
that impose a reverse burden of proof, whether the safeguards already in

4
Hereinafter referred to as ‘CrPC’.
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 7 of 32

place, are made sufficiently available and effectively feasible, giving the
accused persons a chance at establishing innocence? Fourthly, whether
interference with the liberty of the accused, in the facts and circumstances,
at this stage, would be justified?

APPLICABILITY OF SECTION 436-A CRPC
7. We proceed to examine the first issue. At the outset, we find it
appropriate to reproduce Section 436A of the CrPC for ready reference. It
reads as follows:
“ 436-A . Maximum period for which an undertrial prisoner can
be detained.—Where a person has, during the period of
investigation, inquiry or trial under this Code of an offence
under any law (not being an offence for which the punishment
of death has been specified as one of the punishments under
that law) undergone detention for a period extending up to one-
half of the maximum period of imprisonment specified for that
offence under that law, he shall be released by the Court on his
personal bond with or without sureties:

Provided that the Court may, after hearing the Public
Prosecutor and for reasons to be recorded by it in writing, order
the continued detention of such person for a period longer than
one-half of the said period or release him on bail instead of the
personal bond with or without sureties:

Provided further that no such person shall in any case be
detained during the period of investigation, inquiry or trial for
more than the maximum period of imprisonment provided for
the said offence under that law.

Explanation.—In computing the period of detention under this
section for granting bail, the period of detention passed due to
delay in proceeding caused by the accused shall be excluded.”

(emphasis supplied)
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 8 of 32

8. The above section has been included in the Bharatiya Nagarik
5
Suraksha Sanhita, 2023 as Section 479, which reads as:

“479. Maximum period for which undertrial prisoner can be
detained.-

(1)Where a person has, during the period of investigation,
inquiry or trial under this Sanhita of an offence under any law
(not being an offence for which the punishment of death or life
imprisonment has been specified as one of the punishments
under that law) undergone detention for a period extending up
to one-half of the maximum period of imprisonment specified
for that offence under that law, he shall be released by the
Court on bail;

Provided that where such person is a first-time offender (who
has never been convicted of any offence in the past) he shall
be released on bond by the Court, if he has undergone
detention for the period extending up to one-third of the
maximum period of imprisonment specified for such offence
under that law;

Provided further that the Court may, after hearing the Public
Prosecutor and for reasons to be recorded by it in writing, order
the continued detention of such person for a period longer than
one-half of the said period or release him on bail bond instead
of his bond;

Provided also that no such person shall in any case be detained
during the period of investigation, inquiry or trial for more than
the maximum period of imprisonment provided for the said
offence under that law.

Explanation.-In computing the period of detention under this
section for granting bail, the period of detention passed due to
delay in proceeding caused by the accused shall be excluded.

(2)Notwithstanding anything in sub-section (1), and subject to
the third proviso thereof, where an investigation, inquiry or

5
Hereinafter ‘BNSS’.
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 9 of 32

trial in more than one offence or in multiple cases are pending
against a person, he shall not be released on bail by the Court.

(3)The Superintendent of jail, where the accused person is
detained, on completion of one-half or one-third of the period
mentioned in sub-section (1), as the case may be, shall
forthwith make an application in writing to the Court to
proceed under sub-section (1) for the release of such person
on bail.”
(emphasis supplied)

9. A perusal of Section 436A extracted above, reveals the following
aspects:
9.1 For this section to apply, the accused must necessarily be an
undertrial, in judicial custody;
9.2 Excluded from the application of this section are those
offences in which death is one of the possible punishments
prescribed;
9.3 The accused must have spent at least half of the maximum
possible punishment for the offence for which he is being
tried. When calculating the time spent in prison, any
remission or set off granted to the accused, is excluded;
9.4 The use of the word ‘shall’ indicates a right bestowed upon
the accused - an entitlement to be set at liberty and an
obligation on part of the State to comply therewith;
9.5 This right, however is not unbridled, and the court may
impose reasonable conditions such as a personal bond or
sureties. At the same time, it is also permissible that this right
or entitlement may be given a go-by, if the Court concerned
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 10 of 32

after hearing the prosecutor, records reasons, for continued
detention beyond the half of the prescribed period;
9.6 This section also guarantees that in no circumstance can the
detention of an undertrial exceed the maximum prescribed
sentence for the offence for which he is being tried.

10. While considering the nature of relief under Section 436-A, this
6
Court in Vijay Madanlal Choudhary v. Union of India had observed:

6
(2023) 12 SCC 1
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 11 of 32

(emphasis supplied)

11. At the cost of repetition, it be stated that all of the accused
respondents are being tried for offences such as Section 302 IPC and
Section 16 UAPA. For these offences, one of the possible punishments
prescribed is death. That, in and of itself, excludes these offences from the
ambit of Section 436A-IPC. On that count, the impugned judgments
requires interference and are set aside to that extent.

ARTICLE 21- LIBERTY AS A SOLE CONSIDERATION?
12. The next ground considered by the High Court was the
application of Article 21 of the Constitution of India. By merely referring
and relying upon the decisions rendered by this Court in Hussainara
7
Khatoon & Ors (IV) v. Home Secretary, State of Bihar ; Abdul Rehman
8
Antulay & Ors. v. R.S. Nayak & Anr. and Satinder Kumar Antil v. CBI
9
& Anr. , the High Court invoking Article 21 let loose the accused. The
approach adopted by the High Court is fallacious, and the impugned orders

7
(1980) 1 SCC 98
8
(1992) 1 SCC 225
9
(2022) 10 SCC 51
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 12 of 32

would, to that extent warrant interference. However, given that, proceed
to examine the issue independently.
13. The rights enshrined under Article 21 and their application to
undertrials has often been the subject of consideration before this Court
and, in one voice it has been held that the rights of fairness, dignity and
liberty apply to each and every prisoner, irrespective of the nature of
offence that they stand charged for. If this is not maintained then
essentially, it would render a difference between an undertrial and a
convict, obsolete to a certain extent. We say, to a certain extent because
certain facets of Article 21 apply even to those who have been convicted
under law. In the case of the former, should these rights not be granted to
them or be available to them in their full extent, it would in a sense render
them guilty without it being so. To state the obvious, such a position is
wholly impermissible.
14. The jurisprudence of Article 21 has, as it develops, recognised
various facets to be intrinsic to the right to life and liberty such as speedy
trial, timely completion of investigation, fair trial etc. Unduly long
incarceration especially as a undertrial when, the crucial aspect of guilt is
yet to be decided, is particularly offensive to this sacrosanct right, if not
sustainable as per procedure established by law. Circumspection in
granting the relief of bail in heinous offences and more so offences that
shock the conscience of the society such as in this case, stems from a place
of concern, understandably legitimate at that, about public order, societal
security, overall peace and the general deterrent force in criminal law. The
scales of Lady Justice must balance on the one hand-the constitutionally
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 13 of 32

consecrated and jealously guarded right under Article 21 and on the other,
the recognition that individual liberty is not absolute and is subject to just
exceptions i.e. the paramount considerations of national interest,
sovereignty and integrity of the nation.
15. In this case, the loss of lives and public property has been
immense and there is grave impact upon the lives of the people connected
to those who have died as a consequence or have been injured because of
the ulterior motives in carrying out this alleged offence against the State.
It is this grave and serious impact that has to be balanced against the
guarantees of Article 21- for these offences by whomsoever committed
strike at the nation’s security and are an effort to undermine its sovereign
authority. The Courts are duty bound to scrutinise claims for bails in such
cases with heightened but fair-minded vigilance. This Court has rich
jurisprudence of displaying this fine act of balancing. Below are a few
instances:
15.1 In the context of Maharashtra Control of Organised Crime
Act, 1999 this Court in terms of a three-judge bench in Ranjitsing
10
Brahmajeetsing Sharma v. State of Maharashtra ,:
“35. Presumption of innocence is a human right.
(See Narendra Singh v. State of M.P. [(2004) 10 SCC 699 :
2004 SCC (Cri) 1893] , SCC para 31.) Article 21 in view of its
expansive meaning not only protects life and liberty but also
envisages a fair procedure. Liberty of a person should not
ordinarily be interfered with unless there exist cogent grounds
therefor. Sub-section (4) of Section 21 must be interpreted
keeping in view the aforementioned salutary principles.
Giving an opportunity to the Public Prosecutor to oppose an
application for release of an accused appears to be reasonable

10
(2005) 5 SCC 294
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 14 of 32

restriction but clause ( b ) of sub-section (4) of Section 21 must
be given a proper meaning.”

15.2 In an economic offence wherein the appellant herein was
also the party while releasing the accused on bail, a co-ordinate
11
bench of this Court observed in Sanjay Chandra v. CBI :
“ 22. From the earliest times, it was appreciated that detention
in custody pending completion of trial could be a cause of great
hardship. From time to time, necessity demands that some
unconvicted persons should be held in custody pending trial to
secure their attendance at the trial but in such cases,
“necessity” is the operative test. In this country, it would be
quite contrary to the concept of personal liberty enshrined in
the Constitution that any person should be punished in respect
of any matter, upon which, he has not been convicted or that
in any circumstances, he should be deprived of his liberty upon
only the belief that he will tamper with the witnesses if left at
liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of
refusal of bail, one must not lose sight of the fact that any
imprisonment before conviction has a substantial punitive
content and it would be improper for any court to refuse bail
as a mark of disapproval of former conduct whether the
accused has been convicted for it or not or to refuse bail to an
unconvicted person for the purpose of giving him a taste of
imprisonment as a lesson.
24. In the instant case, we have already noticed that the
“pointing finger of accusation” against the appellants is “the
seriousness of the charge”. The offences alleged are economic
offences which have resulted in loss to the State exchequer.
Though, they contend that there is a possibility of the
appellants tampering with the witnesses, they have not placed
any material in support of the allegation. In our view,
seriousness of the charge is, no doubt, one of the relevant
considerations while considering bail applications but that is
not the only test or the factor: the other factor that also requires
to be taken note of is the punishment that could be imposed
after trial and conviction, both under the Penal Code and the

11
(2012) 1 SCC 40
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 15 of 32

Prevention of Corruption Act. Otherwise, if the former is the
only test, we would not be balancing the constitutional rights
but rather “recalibrating the scales of justice”.”

12
15.3 In Umarmia v. State of Gujarat , while dealing with a case
arising out of Terrorist and Disruptive Activities (Prevention) Act,
1987 wherein the accused had played an important role in securing the
delivery of highly explosive material such as RDX to a certain district
in Maharashtra, this Court granted bail on account of him having spent
more than 12 years in custody but imposed certain justified conditions
such as surrendering the passport, restricting movement to one
particular district and daily reporting to the concerned police station
etc.
15.4 Writing for a bench of three judges, Surya Kant, J. (as the
present Chief Justice of India, then was) in Union of India v. K.A.
13
Najeeb observed in a case involving various sections of the IPC as
also the UAPA as under:
“ 12. Even in the case of special legislations like the Terrorist
and Disruptive Activities (Prevention) Act, 1987 or the
Narcotic Drugs and Psychotropic Substances Act, 1985 (“the
NDPS Act”) which too have somewhat rigorous conditions for
grant of bail, this Court in Paramjit Singh v. State (NCT of
Delhi) [ Paramjit Singh v. State (NCT of Delhi) , (1999) 9 SCC
252 : 1999 SCC (Cri) 1156] , Babba v. State of
Maharashtra [ Babba v. State of Maharashtra , (2005) 11 SCC
569 : (2006) 2 SCC (Cri) 118] and Umarmia v. State of
Gujarat [ Umarmia v. State of Gujarat , (2017) 2 SCC 731 :
(2017) 2 SCC (Cri) 114] enlarged the accused on bail when
they had been in jail for an extended period of time with little
possibility of early completion of trial. The constitutionality of

12
(2017) 2 SCC 731
13
(2021) 3 SCC 713
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 16 of 32

harsh conditions for bail in such special enactments, has thus
been primarily justified on the touchstone of speedy trials to
ensure the protection of innocent civilians.
13. We may also refer to the orders enlarging similarly-situated
accused under UAPA passed by this Court in Angela Harish
Sontakke v. State of Maharashtra [ Angela Harish
Sontakke v. State of Maharashtra , (2021) 3 SCC 723] . That
was also a case under Sections 10, 13, 17, 18, 18-A, 18-B, 20,
21, 38, 39 and 40(2) of the UAPA. This Court in its earnest
effort to draw balance between the seriousness of the charges
with the period of custody suffered and the likely period within
which the trial could be expected to be completed took note of
the five years' incarceration and over 200 witnesses left to be
examined, and thus granted bail to the accused
notwithstanding Section 43-D(5) of the UAPA. Similarly,
in Sagar Tatyaram Gorkhe v. State of Maharashtra [ Sagar
Tatyaram Gorkhe v. State of Maharashtra , (2021) 3 SCC 725]
, an accused under UAPA was enlarged for he had been in jail
for four years and there were over 147 witnesses still
unexamined.
…
15. This Court has clarified in numerous judgments that the
liberty guaranteed by Part III of the Constitution would cover
within its protective ambit not only due procedure and fairness
but also access to justice and a speedy trial. In Supreme Court
Legal Aid Committee (Representing Undertrial
Prisoners) v. Union of India [ Supreme Court Legal Aid
Committee (Representing Undertrial Prisoners) v. Union of
India , (1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39] , it was
held that undertrials cannot indefinitely be detained pending
trial. Ideally, no person ought to suffer adverse consequences
of his acts unless the same is established before a neutral
arbiter. However, owing to the practicalities of real life where
to secure an effective trial and to ameliorate the risk to society
in case a potential criminal is left at large pending trial, the
courts are tasked with deciding whether an individual ought to
be released pending trial or not. Once it is obvious that a timely
trial would not be possible and the accused has suffered
incarceration for a significant period of time, the courts would
ordinarily be obligated to enlarge them on bail.”

Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 17 of 32

15.5 While dealing with a case under UAPA and ultimately
releasing the accused on bail, it was held by this Court in Javed
14
Gulam Nabi Shaikh v. State of Maharashtra as under:
“16. Criminals are not born 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.
17. If the State or any prosecuting agency including the court
concerned has no wherewithal to provide or protect the
fundamental right of an accused to have a speedy trial as
enshrined under Article 21 of the Constitution then the State or
any other prosecuting agency should not oppose the plea for
bail on the ground that the crime committed is serious. Article
21 of the Constitution applies irrespective of the nature of the
crime.”

16. There can be no manner of doubt on the proposition that Article
21 rights are placed on a pedestal, and rightly so, at the same time, though,
the individual cannot always be the centre of attention. Certain cases such
as the instant one demand, by their very nature and effect that the issue
presented is looked at from a much wider point of view i.e., national
security. We observe, therefore, that while Article 21 rights must always
be protected, but however, in cases where the security or integrity of the

14
(2024) 9 SCC 813
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 18 of 32

nation is called into question, that cannot be the sole ground of
consideration. The act of the accused persons must be looked at, on the
whole, and all relevant factors must be given due consideration while
granting or denying bail. Needless to add, any Court seized of bail
application(s) arising out of such offences must record, in their order the
reasons and factors that weighed with them in the ultimate outcome. The
second question arising in these appeals, is thus answered.

REVERSE BURDEN OF PROOF
17. Moving on to the third question, a reverse burden of proof
essentially means that at the outset of trial, the prosecution is only required
to establish certain foundational facts. Once these foundational facts are
established, the presumption of guilt kicks in and the accused then is to
dispel/rebut the presumption in order to establish innocence, as opposed
to the ordinary standards where a prosecution is to establish its case
beyond reasonable doubt and accused is only to poke sufficient holes
therein, to bring in the possibility of him not having committed the act in
question. One of the main charges against the accused persons is under the
UAPA for having committed a terrorist act. A terrorist act is an act done
with intent or likely intent to threaten the unity, integrity, security,
economic security or sovereignty of India. Such an act when done with
explosives, firearms, toxic chemicals, biological, radioactive or nuclear
substances, or any hazardous means, thereby causing death, injury,
destruction of property, disruption to monetary stability etc. qualifies so.
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 19 of 32

Since this legislation provides for the procedure to deal with, and
consequences of such act, it imposes a reverse burden for poof on the
accused as per Section 43E thereof.
18. It is a well-recognised position that given the nature of the offence
involved, that is, offences against the state and society, bail is a slightly
difficult relief to obtain. A necessary consequence thereof, an undertrial in
custody faces several difficulties in rebutting the presumption drawn by
law, against them. An incarcerated accused would have severely limited
access to evidence, witnesses and investigative material. This becomes all
the more pronounced because the opposite party is the State which has all
the means and resources at its disposal. Prolonged incarceration in cases
where the accused is socio-economically disadvantaged, amplifies the
inequalities for it becomes exceedingly difficult to forward
legal/financial/expert assistance that is required to dispel the presumption.
There is nearly complete dependence on an otherwise overburdened legal-
aid system which struggles with delays, inadequate resources and
inconsistent quality. In these cases, true it is that the burden of proving
innocence is on the accused, as already discussed, a burden is also on the
Courts to make it possible for them to do so. It is here that the role of the
judiciary becomes significant. A constitutional democracy does not
legitimise burdens by simply declaring them; it must ensure that those
burdened are meaningfully equipped to bear them, even those who are
accused of the worst offences imaginable. If the State, in spite of all its
might presumes guilt, then the same State must also, with the employment
of all the resources at its command, create pathways through which the
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 20 of 32

accused can reclaim their innocence. Needless to say, procedural
formalities do not suffice. If it is only those, it falls grossly short of the
grandeur of a constitutional democracy. It demands a justice system that
is alive to human vulnerability, that recognises that liberty is not a
privilege for the powerful but a right inherent in every individual.
Delay is an un-ignorable reality of the Indian criminal adjudication
system which on its own raises significant issues, but when this delay is
in cases such as the UAPA, where a reverse burden of proof is in place, it
acquires a qualitatively different, and more insidious, character. Courts,
bound by legislative intent and statutory language, ask for, even before the
trial begins, the accused to be able to establish preliminarily, that they will
be able to rebut the presumption against them. This doctrinal inversion
becomes all the more pernicious on account of procedural delays and very
liberty of a person becomes hostage to clogged dockets, overworked
judges, a lax prosecution, repeated adjournments by members of the bar
and much more.
19. The institutions of justice must, therefore, act not as passive
observers but as active guarantors of fairness: ensuring real access to
counsel, enabling effective preparation of defence, and preventing the
presumption from hardening into an irreversible verdict long before the
trial ends. For if the system imposes an extraordinary burden yet denies
the tools to discharge it, the promise of constitutionalism fades into
symbolism. Ultimately, a democracy is judged not by how it treats the
unquestionably innocent, but by how it safeguards the rights of those it
suspects. In that moral balance, the justice system must ensure that even
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 21 of 32

under a reverse burden regime, the accused is not abandoned to the weight
of presumptive guilt but supported in the pursuit of truth and justice. The
third issue does not lend itself to a direct ‘answer’ as such for it is a
question to be ascertained at the ground level. As such, in the concluding
paragraphs of this judgment, we have issued certain directions.

CURTAILING LIBERTY- JUSTIFIED?
20. We now proceed to examine the fourth issue. The appellant filed
th
the challenge to the grant of bail on 10 July 2023. It is not a cancellation
of bail. Before appreciating the merits of these grounds, let us look to the
parameters of considering an SLP against grant of bail by way of a brief
foray into past precedents.
15
20.1 Prasanta Kumar Sarkar v. Ashis Chatterjee :
“9. We are of the opinion that the impugned order is clearly
unsustainable. It is trite that this Court does not, normally,
interfere with an order passed by the High Court granting or
rejecting bail to the accused. However, it is equally
incumbent upon the High Court to exercise its discretion
judiciously, cautiously and strictly in compliance with the
basic principles laid down in a plethora of decisions of this
Court on the point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:
( i ) whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence;
( ii ) nature and gravity of the accusation;
( iii ) severity of the punishment in the event of conviction;
( iv ) danger of the accused absconding or fleeing, if released
on bail;
( v ) character, behaviour, means, position and standing of the
accused;

15
(2010) 14 SCC 496
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 22 of 32

( vi ) likelihood of the offence being repeated;
( vii ) reasonable apprehension of the witnesses being
influenced; and
( viii ) danger, of course, of justice being thwarted by grant of
bail.
[See State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21 :
2005 SCC (Cri) 1960 (2)] (SCC p. 31, para 18), Prahlad
Singh Bhati v. NCT of Delhi [(2001) 4 SCC 280 : 2001 SCC
(Cri) 674] , and Ram Govind Upadhyay v. Sudarshan
Singh [(2002) 3 SCC 598 : 2002 SCC (Cri) 688] .]”

Similar factors as above, have been held to be applicable in
cases arising out of UAPA in NIA v. Zahoor Ahmad Shah
16
Watali , which was a case involving allegations of terror
funding, waging war against the State and damaging security

establishments.
[
17
20.2 In Meena Devi v. State of U.P. , while referring to
Prasanta Kumar Sarkar (supra) it was observed that the
factors laid down above have been consistently followed in a
number of judgments as follows :
“25. The aforesaid principles have been underscored in several
decisions rendered by this Court including Kalyan Chandra
Sarkar v. Rajesh Ranjan [ Kalyan Chandra Sarkar v. Rajesh
Ranjan , (2004) 7 SCC 528 : 2004 SCC (Cri) 1977] , Narendra
K. Amin v. State of Gujarat [ Narendra K. Amin v. State of
Gujarat , (2008) 13 SCC 584 : (2009) 3 SCC (Cri) 813] , Dipak
Shubhashchandra Mehta v. CBI [ Dipak Shubhashchandra
Mehta v. CBI , (2012) 4 SCC 134 : (2012) 2 SCC (Cri) 350]
, Abdul Basit v. Mohd. Abdul Kadir Chaudhary [ Abdul
Basit v. Mohd. Abdul Kadir Chaudhary , (2014) 10 SCC 754 :
(2015) 1 SCC (Cri) 257] , Neeru Yadav v. State of U.P. [ Neeru
Yadav v. State of U.P. , (2014) 16 SCC 508 : (2015) 3 SCC (Cri)
527] , Anil Kumar Yadav v. State (NCT of Delhi) [ Anil Kumar

16
(2019) 5 SCC 1
17
(2022) 14 SCC 368
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 23 of 32

Yadav v. State (NCT of Delhi) , (2018) 12 SCC 129 : (2018) 3
SCC (Cri) 425], Mahipal v. Rajesh Kumar [ Mahipal v. Rajesh
Kumar , (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] , and as
recently as in Jagjeet Singh v. Ashish Mishra [ Jagjeet
Singh v. Ashish Mishra , (2022) 9 SCC 321 : (2022) 3 SCC
(Cri) 560] , Y v. State of Rajasthan [ Y v. State of Rajasthan ,
(2022) 9 SCC 269] and P. v. State of M.P. [ P. v. State of M.P. ,
(2022) 15 SCC 211 : 2022 SCC OnLine SC 552]
26. At the cost of repetition, it may be highlighted that the
considerations that weigh with the appellate court when called
upon to examine the correctness of an order granting bail is not
on the same footing when it comes to examining an application
moved for cancellation of bail. The yardstick for testing the
correctness of an order granting bail is whether the court below
has exercised its discretion in an improper or arbitrary manner
thereby vitiating the said order. When it comes to assessing an
application seeking cancellation of bail, the appellate court
looks out for, amongst others, supervening circumstances or
any violation of the conditions of bail imposed on the person
who has been accorded such a relief.”

20.3 Recently, this Court (through one of us, Sanjay Karol J.),
18
held as under in Ashok Dhankad v. State (NCT of Delhi) :
“ 2. The grant of bail constitutes a discretionary judicial remedy
that necessitates a delicate and context-sensitive balancing of
competing legal and societal interests. On one hand lies the
imperative to uphold the personal liberty of the accused-an
entrenched constitutional value reinforced by the presumption
of innocence, which remains a cardinal principle of criminal
jurisprudence. On the other hand, the court must remain
equally mindful of the gravity of the alleged offence, the
broader societal implications of the accused's release, and the
need to preserve the integrity and fairness of the investigative
and trial processes. While liberty is sacrosanct, particularly in
a constitutional democracy governed by the rule of law, it
cannot be construed in a manner that dilutes the seriousness of
heinous or grave offences or undermines public confidence in
the administration of justice. The exercise of judicial discretion

18
2025 SCC OnLine SC 1690
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 24 of 32

in bail matters, therefore, must be informed by a calibrated
assessment of the nature and seriousness of the charge, the
strength of the prima facie case, the likelihood of the accused
fleeing justice or tampering with evidence or witnesses, and
the overarching interest of ensuring that the trial proceeds
without obstruction or prejudice.
xxx
19. The principles which emerge as a result of the above
discussion are as follows:
(i) An appeal against grant of bail cannot be considered to be
on the same footing as an application for cancellation of bail;
(ii) The Court concerned must not venture into a threadbare
analysis of the evidence adduced by prosecution. The merits
of such evidence must not be adjudicated at the stage of bail;
(iii) An order granting bail must reflect application of mind
and assessment of the relevant factors for grant of bail that
have been elucidated by this Court. [See: Y v. State of
9
Rajasthan (Supra); Jaibunisha v. Meherban and Bhagwan
10
Singh v. Dilip Kumar @ Deepu ]
(iv) An appeal against grant of bail may be entertained by a
superior Court on grounds such as perversity; illegality;
inconsistency with law; relevant factors not been taken into
consideration including gravity of the offence and impact of
the crime;
(v) However, the Court may not take the conduct of an accused
subsequent to the grant bail into consideration while
considering an appeal against the grant of such bail. Such
grounds must be taken in an application for cancellation of
bail; and
(vi) An appeal against grant of bail must not be allowed to be
used as a retaliatory measure. Such an appeal must be confined
only to the grounds discussed above.
(emphasis supplied)

21. The law being well-settled as above, we now examine the grounds.
The grounds that have been urged in this challenge total to nine but can be
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 25 of 32

divided with fair ease into three heads, one - heinousness of the offence/
large loss of life; two - the possibility of absconding to evade the trial
process; three -ancillary grounds such as failure to consider totality of
circumstances and advanced stage of trial.
21.1 Examined independently, the catastrophic consequences of
the act i.e., the loss of almost a hundred and fifty lives while
they were undertaking, what can be considered one of the
most common activities of life in our country, a train journey,
the damage to public property as also the alleged ulterior
motive for doing so - not only an act against the deployment
of a joint force in the nearby area, but to strike fear in the
society at large, in our view is a compelling indicator against
them being released on bail.
21.2 However, it is settled law that circumstances for or against a
particular outcome are not to be weighed or assessed in
isolation, but on the whole. The second ground, urged in
challenging the bail granted was the possibility of absconding
to evade trial. The lapse of time has itself extinguished this
ground. It is true that the appellant filed the special leave
petition within a few months of the High Court order, but on
account of systematic delays, the matter could only be heard
in 2025 substantially. Neither during the course of arguments
nor in the written submissions has the appellant averred that
in more than three years that the respondent-accused have
been out on bail, they have misused the liberty granted by the
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 26 of 32

High Court, that they have attempted to influence or
intimidate witnesses, nor has it been brought on record that
trial has been delayed on their account- otherwise be it for
whatever reason.
21.3 Lastly, when it comes to the sum total of circumstances not
being considered, we are not particularly impressed by that
ground. It is a matter of record that an earlier application for
bail, about a decade ago in the year 2016, had been rejected
with the High Court recording that examination of the
remaining witnesses should be completed within a year. If in
2022, the Court finds that despite such direction and also the
passage of nearly six years, the same could not be achieved,
it cannot be said to have not considered the case in its proper
light. Second, the trial being at an advanced stage is also not
something that can be, in this case, a ground to send the
respondent-accused behind bars. The trial is of the year 2010,
and as we stand at the end of 2025, still 28 witnesses are to be
examined. We may note the glacial pace at which the trial has
proceeded cannot justify the incarceration of the accused,
particularly when they have already been in prison for a dozen
years, and once out, have not given the authorities reason to
seek urgent cancellation, or even stay on the impugned
judgment when this Court issued notice, or even anytime
thereafter.

Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 27 of 32

22. In spite of these grave circumstances as discussed in Para 21.1, the
High Court granted bail which, we are of the view, it ought not to have. It
is clear that the alleged acts of the accused were to register opposition to
the manner in which an internal security situation was dealt with by the
forces of the State. While the Constitution permits the members of the
public, be at whichever group/section of society they belong to, to oppose,
within the permits of the law a stand taken by the State- such acts of
barbarity cannot be excused. Even more so when unsuspecting humans are
given the most horrific, painful deaths. In view of the discussion made
above that the rights of an individual are always subservient to the nation’s
interest, the High Court fell in error in granting bail. It is a well-established
position however that this Court does not interfere against the grant of bail
unless circumstances warranting such an exercise of power are plainly
present in a given set of circumstances. In view of the discussion made in
Paras 21.2 and 21.3 we are of the view that interfering with the liberty of
the accused, at this stage, particularly when nothing else holds against
them, would not be justified. At the cost of repetition, we may state that
the appellant could not bring to our notice subsequent development which
would justify this interference as serving any fruitful purpose.

CONCLUSION AND DIRECTIONS
23. Consequently, the criminal appeals are allowed to the aforesaid
extent.
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 28 of 32

24. Before parting with the matter, we may observe that the nature of
the offence, its gravity and the loss of life caused thereby has been given
due consideration by us. We are also cognizant of the emotions of the
families affected by this unfortunate incident and the likes thereof. It is in
recognition of these aspects that it is important that the State, while
employing the full force of the law against those persons who carry out
such acts, also ensures that the process of law against them, starts and
concludes with efficacy and expediency, be it investigation or trial. As
such, specifically for those cases involving legislations imposing reverse
burden of proof, find it fit to issue directions both in personam and in rem .
Directions in personam :
1. The Trial Court shall take stock of the matter and record in
its order, the status thereof and the reasons for the trial having
remained pending for many years, prior to the matter having
been taken up after this judgment.
2. From that day forth, the matter shall be taken up on a day-to-
day basis.
3. The granting of adjournments shall be eschewed unless
exceptional circumstances are shown.
4. We request the learned Administrative Judge of the High
Court, as nominated by the learned Chief Justice, to seek a
report, every four weeks, from the Trial Judge and ensure that
the directions are being complied with.

Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 29 of 32

Directions in rem
The Crimes in India Report, 2023 published by the National
Crimes Records Bureau shows total number of cases pending for trial
and total number of cases pending for investigation in year 2023 under
19 20
UAPA to be 3949 and 4794 respectively. The State Legal Services
Authority shall take steps to make aware, each undertrial of his right to
representation, either by counsel of their own choice or through a legal
aid counsel. For those who choose the latter, assignments to their cases
to the counsel should be made expeditiously so that the proceedings
can start/continue at the earliest.
The learned Chief Justices of all High Courts are requested:
(a) to examine the number of cases pending within their States
under laws such as the UAPA, posing a reverse burden of proof
on the accused;
(b) to ascertain the number of special courts designated to try the
said offences, and if special courts have not been designated, the
number of Sessions courts dealing with matters under these
legislations and to take up the matter with the appropriate
authority if it is found that they are not sufficient;
(c) to discern, whether posting of judicial officers in these courts as
also staffing is sufficient, thereby foreclosing a ground for delay

19
https://www.ncrb.gov.in/uploads/files/TABLE10A5.pdf
20
https://www.ncrb.gov.in/uploads/files/TABLE10A3.pdf
Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 30 of 32

and adjournment, and if not, then suitable order for posting be
issued expeditiously;
Further, it is hereby directed:
(a) that the list prepared in accordance with (a) shall be organised in
order of case registered, to the extent possible and permissible,
from the earliest to latest. Requisite directions be issued to the
special courts/sessions courts to take up the matters registered
earliest, first, unless otherwise warranted.

(b) In consultation with the appropriate authority, the High Court to
ascertain the position with respect to appointment/allotment of
prosecutors/special public prosecutors, as may be applicable, to
ensure that the matters, once taken up, are not further delayed on
that count;
(c) For those cases that have been pending for more than five years,
the concerned court be directed to take stock of the situation as
and when they are taken up, record detailed order taking note of
the previous reasons for adjournment if available, refrain from
granting adjournments on routine requests and take up the matter
on a day-to-day basis.
(d) The High Court concerned will periodically, seek reports from
the concerned Courts dealing with these matters and take up
issues that may be confronting the said courts, on the
administrative side so as to ensure smooth functioning.

Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 31 of 32

25. The Registrar (Judicial) is directed to transmit electronically, a
copy of this judgment to the Registrars General of each of the High Courts
who shall then place the same before the learned Chief Justices and solicit
requisite orders in accordance with the directions issued hereinabove. Let
a copy also be sent to the Chief Secretaries of the States for necessary
information/compliance and necessary actions.
Pending application(s) if any shall stand disposed of.


………….……..……………..J.
(SANJAY KAROL)


……….………..……………..J.
(NONGMEIKAPAM KOTISWAR SINGH)

New Delhi
th
December 11 , 2025

Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 32 of 32