“Liberty vs. Liability: When Must Courts Release the Accused on Bail in Serious Crimes?”
TABLE OF CONTENTS
1.
Introduction and Legal
Framework
2.
Foundational Principles
3.
Pre-Chargesheet Bail
(Anticipatory Bail)
4.
Post-Chargesheet Bail (Regular
Bail)
5.
Critical Parameters for
Judicial Decision-Making
6.
Unlawful Assembly Cases:
Special Considerations
7.
Circumstantial Evidence and
Bail Jurisprudence
8.
Recent Supreme Court Landmark
Judgments on Bail
9.
Practical Framework for Session
Judges
10.
Case Studies with Judicial
Analysis
1. INTRODUCTION AND
LEGAL FRAMEWORK
The right to bail stands as a fundamental safeguard of individual liberty under Article 21 of the Indian Constitution. The Supreme Court and High Courts have consistently held that this right is not limited to bailable offences but extends to serious offences such as murder (Section 302 IPC) and attempted murder (Section 307 IPC), subject to rigorous examination of case-specific circumstances.
The Central Question
Can courts grant bail for murder
(Section 302) and attempted murder (Section 307) when: - No specific overt act is attributed to the accused? - Evidence is
purely circumstantial in nature? - The offence was committed by an unlawful
assembly? - Trial has been delayed for years with prolonged incarceration?
The Supreme Court’s Answer: YES—in
appropriate cases.
2. FOUNDATIONAL PRINCIPLES
2.1 “Bail is the
Rule, Jail is the Exception”
In Satender Kumar Antil v. Central Bureau of Investigation,
(2022) 10 SCC 51 (decided 11th July, 2022), the Supreme Court (Justice
Sanjay Kishan Kaul and Justice M.M. Sundresh) comprehensively restated this
foundational principle:
“Bail is the rule, jail is the exception. Article 21 of the
Constitution guarantees the right to life and personal liberty. Pre-trial
detention, even for serious offences, must not become a tool of harassment.
Courts must protect this right while balancing societal interests in
prosecution.”
Key Principles Established: - Bail
provisions exist to protect individual liberty enshrined in Article 21 - The
accused enjoys a constitutional presumption of innocence at the bail stage -
Prolonged pre-trial detention without conviction is itself a violation of
fundamental rights - Courts must exercise caution not to render the bail
provisions nugatory by using seriousness of charge as blanket reason for denial
- Each case requires individualized assessment of specific circumstances
Practical Application: While courts must
be cautious with serious offences, the seriousness of the charge cannot alone
justify indefinite pre-trial detention. Instead, the court must undertake
detailed examination of all relevant circumstances specific to each accused.
2.2 The Triple Test for Bail
The Supreme Court in Satender Kumar Antil v. CBI (2022) 10
SCC 51 established that courts must consider three essential questions when
deciding bail applications:
Test 1: Risk of Absconding (Flight Risk)
Is there a reasonable apprehension that if released on bail, the accused will
flee from justice? This must be assessed individually for each accused based on
material evidence, not presumption.
Test 2: Tampering with Evidence/Witnesses Is there credible material suggesting that the accused will
interfere with evidence or intimidate prosecution witnesses? Mere vague
allegations without supporting facts are insufficient.
Test 3: Likelihood of Committing Further Offences Is there a substantial risk that releasing the accused will lead to
commission of further similar offences? This must be based on pattern of
previous conduct, not speculation.
Judicial Principle: Only when courts
have credible material suggesting affirmative answers to these questions should
bail be refused, regardless of the gravity of the offence.
2.3 The
Presumption of Innocence at Bail Stage
Every accused stands before the court with the constitutional
presumption of innocence. This presumption remains intact throughout the
investigation and bail stages until guilt is established beyond reasonable
doubt.
The Supreme Court has held that courts cannot proceed on the
assumption that the chargesheet itself represents truth. The court must
undertake an independent assessment of whether the material on record truly
supports the allegations made. Merely being named in a chargesheet does not
justify indefinite pre-trial detention.
3. STATUTORY FRAMEWORK
3.1 Anticipatory Bail:
Section 438 CrPC
When Available: Before arrest, during
investigation, when accused has reasonable apprehension of arrest.
Legal Standard: The accused must show
that there is reasonable apprehension of arrest and the applicant offers to
cooperate with investigation.
Court’s Discretion: While courts may
refuse anticipatory bail in cases involving grave offences with heinous
circumstances, there is no automatic exclusion based on offence classification
alone.
Section 438 -
Judicial Approach per Supreme Court
In Sushila Aggarwal and Ors. v. State (NCT of Delhi) and Ors.,
(2020) 5 SCC 1 (decided 29th January, 2020), the Constitution Bench
(Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice
M.R. Shah, Justice S. Ravindra Bhat) laid down comprehensive principles:
“Anticipatory bail is intended to protect individuals from arbitrary
arrest and detention. It is a pre-arrest legal relief that ensures a person is
released on bail immediately upon arrest. The nature, gravity, and
circumstances of the offence must guide the court’s decision.”
Key Holdings on Anticipatory Bail:
1.
No Blanket Prohibition: There is no blanket rule excluding grave offences from anticipatory
bail consideration. Each case depends on its facts and circumstances.
2.
Factors to Consider:
–
Nature and gravity of offence
–
Role attributed to applicant
(principal or peripheral)
–
Strength of prosecution case
–
Specific materials suggesting
guilt
3.
Duration of Anticipatory
Bail: Once granted, anticipatory bail can continue
till the end of trial unless cancelled due to:
–
Violation of conditions
–
Changed circumstances
–
New material suggesting active
guilt
–
Non-cooperation with
investigation
4.
Standard Conditions: Courts may impose conditions including:
–
Full cooperation with
investigation without evasion
–
No tampering with evidence
–
No threat to witnesses
–
Mandatory attendance at trial
–
Restricting movement without
permission
–
Periodic reporting to police
station
Critical Principle: The court does not
automatically cancel anticipatory bail when chargesheet is filed or accused is
summoned. Courts must examine whether changed circumstances warrant
cancellation.
3.2 Regular Bail: Section 439 CrPC
When Available: After arrest, during
investigation, or during trial for non-bailable offences (Sections 302 and 307
are non-bailable offences).
Court’s Discretion: Unlike Section 436
(bail in bailable offences where courts have limited discretion), Section 439
gives courts wide discretion. Courts can grant bail even in serious offences
after examining relevant circumstances.
Important Provision - Section 436A CrPC:
If an undertrial has undergone imprisonment for one-half of the maximum period
of imprisonment specified for the offence, he shall be released on bail. For
murder (Section 302), considering maximum sentence is life imprisonment
(usually 14 years), substantial periods of custody would qualify for bail.
4.
PRE-CHARGESHEET BAIL (ANTICIPATORY BAIL): CRITICAL PARAMETERS
4.1 Legal Test for
Anticipatory Bail
As
comprehensively established in Sushila Aggarwal v. State (NCT of Delhi),
(2020) 5 SCC 1, courts must examine:
Parameter
1: Nature and Gravity of Offence - Is it a serious
offence carrying severe punishment? - Are there heinous circumstances alleged?
- Does FIR contain specific averments of serious crime?
Parameter
2: Role Attributed to Applicant - Is applicant the
alleged principal perpetrator with intention to kill? - Or is applicant
peripheral/abettor with minor role? - How is applicant’s role specifically
described in FIR?
Parameter
3: Circumstances of the Case - What are specific
facts and context of allegation? - Are circumstances described in FIR vague or
specific? - What investigative materials exist at this stage?
Parameter
4: Strength of Prosecution Case - What credible
materials exist against applicant? - Has investigation revealed any specific
act by applicant? - Are eyewitnesses identified?
4.2 Specific
Considerations for Section 302/307 Anticipatory Bail Cases
Nature of the Offence: - Section 302 IPC
carries death penalty or life imprisonment - Section 307 IPC carries
imprisonment up to 10 years or life imprisonment - These are serious offences
requiring careful examination
However - Critical Caveat: The Supreme
Court in Sushila Aggarwal v. State (NCT of Delhi) clarified that
gravity alone is NOT reason for blanket refusal. The court must examine whether
specific materials indicate applicant’s actual involvement.
5.
POST-CHARGESHEET BAIL (REGULAR BAIL): CRITICAL PARAMETERS
5.1 Changed
Legal Landscape After Chargesheet
After
chargesheet is filed, courts shift focus from whether evidence might exist to what
evidence actually exists on investigation record.
Critical Principle: The chargesheet is
NOT conclusive proof. It is merely prosecution’s allegation supported by
investigative material. Courts must independently assess whether material truly
supports allegations. Mere naming in chargesheet does not justify indefinite
detention.
As
held in Satender Kumar Antil v. CBI (2022) 10 SCC 51, courts must
undertake independent evaluation of prima facie case at bail stage.
5.2 Prima Facie Case
Assessment
At bail
stage, courts must assess whether prima facie case exists. This is lower
standard than trial stage:
|
Aspect |
Bail
Stage |
Trial
Stage |
|
Standard |
Prima facie
case (credible material exists) |
Beyond
reasonable doubt (definitive proof) |
|
Examination
Depth |
Preliminary
scrutiny (not mini-trial) |
Detailed
meticulous analysis |
|
Court’s
Task |
Whether
case exists for trial |
Whether
guilt proved conclusively |
|
Binding
Effect |
Findings
NOT binding on trial court |
Findings
determine conviction/acquittal |
6. CRITICAL
PARAMETERS FOR JUDICIAL DECISION-MAKING
PARAMETER 1:
Nature and Gravity of the Offence
Judicial Principle - Satender Kumar Antil v. CBI (2022) 10 SCC 51: Seriousness of offence is one factor among many. Courts cannot use
gravity as mechanical reason for bail denial.
Assessment Requires: - Is offence
bailable or non-bailable in nature? - What is statutory punishment range? - Are
there aggravating circumstances in FIR? - Are there specific grounds suggesting
heinous crime?
Critical Distinction: Courts should
acknowledge gravity while assessing case-specific circumstances, not adopt
automatic no-bail position.
PARAMETER 2:
Strength of Prima Facie Case
Assessment Criteria: - Is credible
material against accused? - Do eyewitnesses identify accused? - Are recoveries
linking accused to crime? - Are forensic findings conclusive or merely
suggestive? - Is chargesheet specific about accused’s role or vague?
Supreme Court Guidance: In bail
applications, courts should not conduct mini-trial. Only preliminary
examination of whether prima facie materials exist.
PARAMETER 3: Severity
of Punishment
Consideration: Statute provides severe punishment (life imprisonment or death for
Section 302). However, this must be balanced against: - Duration already spent
in custody - Likelihood of trial conclusion - Whether conviction is probable or
merely possible - Accused’s age and health
Principle: Severity of punishment is relevant but NOT determinative factor per
Satender Kumar Antil v. CBI.
PARAMETER 4:
Risk of Absconding (Flight Risk)
Individual Assessment Required:
Financial Capacity: Does accused own
property/businesses in jurisdiction? Approximate financial status?
Local Roots: Family members in
jurisdiction? Duration of residence? Social/professional ties?
Foreign Connections: Relatives abroad?
Business interests abroad? Passport status?
Previous Conduct: - Has accused
previously absconded? - Violated bail conditions before? - Pattern of
non-cooperation?
Case-Specific Flight Incentive: - How
grave is charge? - If convicted, likely sentence? - Pattern of fleeing justice?
Critical Principle: Flight risk must be
assessed individually for each accused based on material evidence, NOT
presumed based on gravity of offence or other accused’s conduct.
PARAMETER 5:
Character, Antecedents, and Criminal History
Mandatory Disclosure - Per Supreme Court Jurisprudence:
All
bail petitions must disclose: - Whether accused has clean antecedents - If not,
full details of any criminal cases and current status - Previous convictions
with nature of offences
Non-disclosure Consequences: Suppression
of material facts (criminal antecedents) can be valid ground for dismissal of
bail application.
Judicial Approach: - Previous violent
crime convictions: significant negative factor - Petty criminal antecedents:
may be less relevant - Clean antecedents: favor bail consideration - Pattern of
escalation: against bail
PARAMETER 6:
Likelihood of Witness Tampering
Assessment Requires Material Evidence Of: 1. Previous attempts to intimidate witnesses 2. Threats made to
prosecution witnesses 3. Access and opportunity to witnesses 4. Associates of
accused still at large who could tamper
Critical Distinction: Vague allegations
of witness tampering without supporting material are insufficient to
deny bail. Courts must examine credible evidence, not speculation.
PARAMETER 7:
Danger to Administration of Justice
Consideration includes: - Risk of
evidence tampering - Risk of intimidating witnesses - Possibility of committing
further offences - Whether releasing accused would undermine trial fairness
Judicial Balance: While public
confidence is important, it cannot alone deny bail. Decisions must be based on
legal principles, not public sentiment.
PARAMETER 8:
Role of Accused and Overt Acts
Distinction in Multiple-Accused Cases:
When
offence committed by several persons, courts must examine: 1. Was accused
principal perpetrator or abettor? 2. What specific overt act attributed to
accused? 3. Is accused peripheral or central to crime? 4. How does accused’s
role differ from co-accused?
Supreme Court Principle: Mere naming in
chargesheet without specific overt act or evidence of active participation is
NOT sufficient for bail denial, particularly in group offences.
PARAMETER 9:
Duration of Incarceration
Assessment: - Under 1 year: Recent custody; seriousness still weighs
against bail - 1-2 years: Moderate custody; balance begins tilting
toward bail - 2-5 years: Significant custody; with weak evidence, bail
justified - 5+ years: Prolonged custody; bail justified unless trial
imminent
Section
436A CrPC Application: If undertrial served half of
maximum sentence, bail becomes almost mandatory unless death penalty case.
PARAMETER 10:
Likelihood of Trial Conclusion
Assessment Factors: 1. Number of
prosecution witnesses scheduled 2. How many have been examined? 3. Expected
realistic completion timeline 4. Judicial capacity and case backlog
Progress Assessment: - Trial not
commenced: Courts have wider discretion on bail - Trial recently
commenced (0-6 months): Courts cautious on bail - Trial midway (6-24
months): Balance considerations - Trial long pending (2+ years, many
witnesses): Bail more justified
Supreme Court Principle: If no
possibility of trial concluding in reasonable time, bail should be considered
more liberally, even in serious offences.
PARAMETER 11:
Parity Principle Among Co-Accused
Principle: Similarly situated co-accused
should generally receive similar bail treatment. However, parity is NOT
absolute.
Distinctions Justifying Differential Treatment: - Co-accused had more direct/active role - Other had peripheral
role - Previous criminal records differ significantly - Different flight risks
based on individual circumstances
Critical Limitation: Parity cannot be
claimed if co-accused’s case involves distinguishing circumstances warranting
different treatment.
PARAMETER 12:
Stage of Trial and Witness Examination
Pre-Trial Considerations (Before trial commences): - Courts have wider discretion - Focus on fair trial without undue
detention - Evidence not yet tested by cross-examination
After Trial Commencement: Courts should
exercise caution once trial starts and witnesses examined. However, this is NOT
absolute no-bail policy.
Exception: If trial gets delayed for 2+
years with minimal progress after commencement, bail becomes justified.
PARAMETER 13:
Circumstantial Evidence Strength
Supreme Court Test - Sharad Birdhichand Sarda v. State of
Maharashtra, (1984) 4 SCC 116 (decided 17th July,
1984):
For
circumstantial evidence to support conviction, five conditions must be
satisfied:
Condition 1: Circumstances must be fully
established, not merely alleged Condition 2: Circumstances must be consistent
only with guilt, not innocence Condition 3: Circumstances must be of
conclusive nature and tendency Condition 4: They must exclude
every possible hypothesis except guilt Condition 5: Chain of
evidence must be so complete as to exclude reasonable doubt
Application to Bail: If even one link
in circumstantial chain is missing or weak, prima facie case is
sufficiently weakened to warrant bail, particularly with prolonged custody.
PARAMETER 14:
Recovery of Weapons and Forensic Evidence
Significance: - Recovery of weapons from
accused strengthens prosecution case - Forensic evidence (blood stains, DNA)
linking weapon to injuries crucial - Absence of recovery from accused
significantly weakens case
Judicial Principle: Mere recovery is
insufficient; it must be conclusively linked through forensic or other reliable
evidence. Recovery with weak forensic link provides weak foundation for
continued detention.
7. UNLAWFUL
ASSEMBLY CASES: SPECIAL CONSIDERATIONS
7.1
Understanding Section 149 IPC - Vicarious Liability
Nature of Liability: Section 149 does
NOT create separate substantive offence. It establishes vicarious liability.
Essential Requirements for Section 149 Liability: 1. Existence of unlawful assembly (at least 5 persons with common
object) 2. Membership - Accused must be member (not mere bystander) 3. Common
object - All members share intention to commit specific offence 4. Temporal
requirement - Accused must be member at time of offence commission 5. Knowledge
- Accused knew offence was likely to be committed
7.2 The Critical
Distinction: Active Participation vs. Passive Presence
Fundamental Principle - Supreme Court Recent Cases: Mere presence at scene of crime or in unlawful assembly does NOT
automatically render person criminally liable under Sections 302 or 307 IPC,
even when invoking Section 149.
Active Participation Indicators: -
Carrying weapons or implements to scene - Directly attacking or assaulting
victim - Preventing others from intervening - Making inflammatory statements or
inciting violence - Facilitating attack (transporting attackers, holding
victim, etc.)
Passive Presence Indicators: - Simply
being at location - Not engaged in attack - No weapon carried - Attempting to
dissuade others from violence - Merely observing without active role
7.3 Bail in
Unlawful Assembly Cases Without Specific Overt Acts
Key Principle: If chargesheet merely
states accused was “member of unlawful assembly” with no specific act
attributed and no supporting evidence of active participation, bail should
be granted even in Section 302/307 cases.
Conditions Strongly Favoring Bail: 1.
Vague allegations - Chargesheet merely names as “one of members” without role
differentiation 2. No evidence of active participation - No weapon recovery, no
eyewitness identification of specific acts 3. Weak prima facie case - Mere
presence shown through circumstantial evidence only 4. Prolonged custody -
Accused in jail 2+ years, investigation complete but no specific evidence
collected 5. No witness identification - Eyewitnesses not identifying accused
specifically 6. Multiple similarly-implicated accused - Prudence requires close
scrutiny
8.
CIRCUMSTANTIAL EVIDENCE AND BAIL JURISPRUDENCE
8.1 The Sharad
Birdhichand Sarda Test
Sharad
Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 (decided 17th July, 1984):
Five
Essential Requirements for Circumstantial Evidence:
1.
Circumstances must be fully
established (not merely alleged or suspected; must
be proved through reliable evidence)
2.
Consistent only with guilt (must not be explainable on hypothesis of innocence; must exclude
alternative possibilities)
3.
Conclusive nature and
tendency (evidence must point definitively to
guilt, not tentatively)
4.
Exclusion of all other
hypotheses (must eliminate every possible
hypothesis except guilt)
5.
Complete chain of evidence (chain must not have missing links; every link must be established)
Application
to Bail: These same principles govern bail
assessment. If even one link is missing or weak, prima facie case is
sufficiently weakened to warrant bail, particularly with prolonged custody.
8.2 Application
to Bail: Lower Standard Than Conviction
Critical Distinction:
|
At Bail Stage |
At Trial/Conviction Stage |
|
Standard: Prima facie case |
Standard: Beyond reasonable doubt |
|
Examination: Preliminary scrutiny |
Examination: Detailed meticulous analysis |
|
Missing links: May indicate weakness |
Missing links: Defeat conviction |
|
Court’s task: Whether case exists |
Court’s task: Whether guilt proved conclusively |
Supreme Court Principle: Even where
prima facie case exists at bail stage, if evidence is circumstantial and
appears weak, courts should consider granting bail, particularly with prolonged
incarceration and trial delays.
8.3 When Courts
Should GRANT Bail Despite Circumstantial Evidence
Scenario 1:
Incomplete Circumstantial Chain
Judicial Principle: If prosecution
evidence has gaps or weak links in circumstantial chain, courts should grant
bail, especially with prolonged custody.
Examples of Weak Links: - Forensic
report not confirming weapon was murder weapon (merely “staining consistent
with blood”) - Blood-stained items not conclusively linked to injuries -
Last-seen evidence with insufficient proximity to crime time - Weapon recovery
after substantial delays with unexplained gaps - Motive unclear or insufficient
to justify murder
Scenario 2: Weak
“Last Seen” Theory
Judicial
Principle: “Last seen” evidence alone is
insufficient when: - Significant time gap between last-seen and discovery of
body - No clear proximity between last-seen time and approximate death time -
Alternative possibilities exist for third-party involvement
Scenario 3:
No Forensic Evidence or Recoveries
Principle: Absence of forensic evidence
significantly weakens circumstantial cases. Without forensic link, recovery
provides weak foundation for continued detention.
Scenario 4: Weak or
Unclear Motive
Principle: While motive is significant, absence or weakness creates reasonable
doubt. Weak motive in circumstantial case should favor bail.
Scenario 5:
Hostile or Un-Examined Eyewitnesses
Principle: Credible eyewitness testimony
essential to support circumstantial evidence. Absence or hostility weakens
case.
Prosecution
case significantly weakened if eyewitnesses not testified or turned hostile.
Prolonged custody in such circumstances is unjustified.
Scenario 6:
Case Relies Entirely on Circumstantial Evidence + Prolonged Custody + Trial
Delay
The Combined Weakness Test:
When
all three factors coexist: 1. Evidence is purely circumstantial (no direct
eyewitness) 2. Accused in prolonged custody (2-5+ years) 3. Trial progress
minimal (few witnesses examined, years more needed)
Courts
should grant bail as matter of protecting constitutional liberty under
Article 21.
8.4 When Courts
Should REFUSE Bail Despite Circumstantial Evidence
Conditions Against Bail: 1. Strong prima
facie case with complete circumstantial chain clearly established 2. Trial
recently commenced with eyewitnesses being examined 3. Eyewitnesses support
prosecution establishing accused’s presence and role 4. Recoveries conclusively
linked through forensic evidence 5. Active criminal antecedents showing pattern
of similar violence
9. RECENT
SUPREME COURT LANDMARK JUDGMENTS ON BAIL
9.1 Satender
Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51
Citation: (2022) 10 SCC 51, 2022 INSC
606 Decided: 11th July, 2022 Bench: Justice Sanjay Kishan Kaul
and Justice M.M. Sundresh
Parties: Satender Kumar Antil v. Central
Bureau of Investigation
Nature: Special Leave Petition on bail
in serious criminal matter
Most Comprehensive Bail Judgment by Supreme Court:
Key Holdings:
1.
Bail is Rule, Jail is
Exception - Fundamental principle governs all bail
jurisprudence
2.
Categorization of Offences - Different approaches for:
–
Category A: Minor offences (non-bailable warrant replaced by bailable warrant
or summons)
–
Category B: Serious offences like Section 302/307 (bail application decided on
merits once accused appears)
–
Category C: Special Acts offences (NDPS, UAPA, PMLA - bail decided on merits
with statutory compliance)
–
Category D: Economic offences (bail on merits with consideration of
seriousness)
3.
Three Essential Tests for
Bail:
–
Risk of absconding (flight
risk)
–
Tampering with
evidence/witnesses
–
Likelihood of committing
further offences
4.
Strict Adherence to Arrest
Procedures - Sections 41 and 41A CrPC compliance
mandatory
5.
Time-Bound Disposal:
–
Regular bail applications:
Within 2 weeks
–
Anticipatory bail applications:
Within 6 weeks
6.
Section 436A Implementation: Mandatory release after serving half maximum sentence
7.
Undertrial Rights: Special attention to those unable to meet bail conditions
Impact on Section 302/307 Bail: This
judgment fundamentally altered approach by requiring individualized assessment
of each case rather than mechanical application of “seriousness of offence.”
9.2 Sushila
Aggarwal and Ors. v. State (NCT of Delhi) and Ors., (2020) 5 SCC 1
Citation: (2020) 5 SCC 1, SLP(Crl.) Nos.
7281-7282 of 2017 Decided: 29th January, 2020 Bench: Constitution
Bench - Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran,
Justice M.R. Shah, Justice S. Ravindra Bhat
Parties: Sushila Aggarwal and Ors. v.
State (NCT of Delhi) and Ors.
Nature: Anticipatory bail in serious
criminal matter
Anticipatory Bail in Grave Offences - Leading Judgment:
Key Holdings:
1.
Nature, Gravity, and
Circumstances must guide court’s decision on
anticipatory bail
2.
No Blanket Rule - Each case on its own facts and circumstances; grave offences not
automatically excluded
3.
Factors to Consider:
–
Strength of prosecution case
–
Role attributed to applicant
–
Specific circumstances
suggesting guilt
4.
Anticipatory Bail Duration: Can continue till trial ends unless cancelled due to:
–
Violation of conditions
–
Changed circumstances
–
New material suggesting guilt
5.
Standard Conditions for
Anticipatory Bail:
–
Cooperation with investigation
–
No tampering with evidence
–
No threat to witnesses
–
Court attendance
Critical Principle: Court does NOT
automatically cancel anticipatory bail when chargesheet filed or accused
summoned. Courts must examine changed circumstances.
Impact on Section 302/307 Bail: This
judgment clarified that grave offences are not automatically excluded from
anticipatory bail consideration. Courts must examine specific circumstances.
9.3 Shambhu Debnath v. The State of Bihar & Ors., 2024 INSC 1032
Citation: 2024 INSC 1032, SLP(Crl.)
No. 961 of 2024 Decided: 20th December, 2024 Bench: Justice
Vikram Nath and Justice Prasanna B. Varale
Parties: Shambhu Debnath v. The State of
Bihar & Ors.
Nature: Special Leave Petition against
anticipatory bail grant in murder case
Cryptic Anticipatory Bail Orders Set Aside in Murder Cases:
Facts: High Court granted anticipatory
bail in murder allegation without detailed reasoning. Prosecution challenged
grant.
Key Holdings:
1.
Anticipatory bail in Section
302 cases should NOT be granted cryptically without
considering materials on record
2.
Specific Averments in FIR
Matter - When FIR contains specific allegations
that accused committed heinous crime of murder with intention to kill, courts
should be cautious
3.
Reasons Must Be Recorded - Bail orders must address:
–
Nature and gravity of
allegations
–
Role attributed to applicant
–
Evidence available at that
stage
4.
Mechanical Grant of Bail
Inappropriate - Each case requires individual
assessment
5.
Renewed Scrutiny Justified where:
–
Allegations are grave
–
Intention to commit murder
alleged
–
FIR contains specific averments
Court’s Critical Observation: > “The
bail has been granted in a cryptic and casual manner without applying mind to
materials on record… Where FIR contains specific averments that accused
committed heinous offence of murder with intention to kill, court cannot grant
anticipatory bail routinely.”
Impact on Section 302/307 Bail: While
this judgment cautions against routine anticipatory bail grants in murder
cases, it does not establish absolute prohibition. Courts must examine
circumstances while recording detailed reasons.
9.4 X v. State
of Rajasthan & Anr., 2024 INSC 909
Citation: 2024 INSC 909, SLP(Crl.)
No. 13378 of 2024 Decided: 30th November, 2024 Bench:
Supreme Court of India
Parties: X v. State of Rajasthan &
Anr.
Nature: Bail in serious offence once
trial commences
Extreme Caution After Trial Commencement in Serious Offences:
Key Holdings:
1.
Courts must exercise extreme
caution in serious offences like murder once trial
commences
2.
Prosecution witnesses should
be allowed to complete examination without bail
orders disrupting trial flow
3.
Exception Exists: If trial gets unduly delayed for no fault of the accused
4.
Timing of Bail Consideration
Matters:
–
Before trial: Wider discretion
–
During trial: Extreme caution
–
After trial reaches conclusion:
Different considerations
5.
Bail Disrupts Trial
Continuity - Once trial starts with witnesses
examined, mid-trial bail orders can prejudice trial course
6.
Continued Detention
Justified in serious cases pending trial conclusion
unless delay is extraordinary
Important Clarification: This does NOT
mean absolute no-bail policy during trial. It means courts should be cautious
and require strong circumstances.
Impact on Section 302/307 Bail: Session
Judges should exercise caution in granting bail once trial commences and
witnesses being examined, but cannot use principle as blanket refusal.
9.5 Brijmani
Devi v. Pappu Kumar & Anr., (2022) 4 SCC 497
Citation: (2022) 4 SCC 497, SLP(Crl.)
No. 6335/2021 Decided: 7th December, 2021 Bench: Justice L.
Nageswara Rao, Justice B.R. Gavai, Justice B.V. Nagarathna
Parties: Brijmani Devi v. Pappu Kumar
& Anr.
Nature: Bail order; prima facie findings
and criminal antecedents
Prima Facie Findings in Bail Orders; Criminal Antecedents Must Be
Considered:
Key Holdings:
1.
Prima Facie Findings Must Be
Reasoned - Cannot be cryptic or conclusory
2.
Criminal Antecedents
Critical - Cannot be ignored or minimized at bail
stage
3.
Vital Facts of Case Must Be
Addressed - Not mere mechanical application of law
4.
Reasons Requirement - Must support prima facie conclusion with material on record
Court’s Statement: > “Prima facie
conclusion must be supported by reasons and must be arrived at after having
regard to the vital facts of the case brought on record… The Court has to
ensure that the criminal antecedents of the accused are seriously considered.”
Impact on Section 302/307 Bail: Courts
must record detailed reasons addressing criminal antecedents. Cryptic orders
will be set aside by higher courts.
10. PRACTICAL
FRAMEWORK FOR SESSION JUDGES: STEP-BY-STEP BAIL DECISION PROCESS
Step 1: Preliminary
Classification
Identify
the type of bail application: - Pre-chargesheet
(Anticipatory Bail): Section 438 CrPC - Apply Sushila Aggarwal test - Post-chargesheet
(Regular Bail): Section 439 CrPC - Apply prima facie case test
Identify
offence severity: - Section 302 IPC: Murder
(non-bailable; maximum punishment: death or life imprisonment) - Section 307
IPC: Attempt to murder (non-bailable; maximum punishment: up to 10 years or
life imprisonment)
Identify
case type: - Individual perpetrator OR - Unlawful
assembly case with multiple accused OR - Conspiracy case with
multiple accused
Step 2: Examine
Chargesheet/FIR Specificity
For cases with multiple accused:
Question 1: Is accused specifically named or merely mentioned as one
of many? - Specifically named with particular role
described → Moderate concern - Mentioned among many without role
differentiation → Significant weakness
Question 2: Is specific overt act attributed or only generic “member
of assembly” allegation? - Specific act alleged
(inflicted injuries, carried weapons, restrained victim) → Moderate concern -
Only “present at scene” or “member of assembly” → Significant weakness
Question 3: For unlawful assembly cases, is common object clearly
alleged? - Chargesheet specifically alleges common
object to commit murder with supporting facts → Moderate concern - Common
object vague or merely “group assembled and violence occurred” → Significant
weakness
Step 3: Evidence
Assessment (Prima Facie Case)
Create evidence inventory:
Direct Evidence: - Eyewitness
identification (credible? examined? corroborated?) - Confessional statement
(reliable? voluntary? corroborated?) - Video/CCTV footage - Audio recordings
Circumstantial Evidence: - Last-seen
evidence (proximity to crime? time gap?) - Recovery of weapons (recovered from
whom? forensically linked?) - Motive (clear? strong enough?) - Presence at
scene (established how? by whom?)
Forensic Evidence: - Blood analysis
(linked to injuries? DNA conclusive?) - Weapon analysis (conclusively murder
weapon? or merely “could be”?) - Fingerprints, shoe impressions, fiber evidence
Witness Evidence: - Eyewitnesses
examined? Credible? Corroborated? - Have hostile witnesses surfaced? - Chain of
custody witnesses
Step 4: Identify
Weak Links in Prosecution Case (if Circumstantial)
Apply Sharad Birdhichand Sarda test per (1984) 4 SCC 116:
For
each element of circumstantial evidence, ask: 1. Is it fully established (not
merely alleged)? 2. Is it consistent only with guilt? 3. Does it point
conclusively to accused? 4. Does it exclude other hypotheses? 5. Forms complete
chain with no missing links?
Mark each element as: - ✓ STRONG (fully
established, credible, conclusive) - ⚠ MODERATE (partially established, some
questions) - ✗ WEAK (only alleged, lacks corroboration, alternative
explanations exist)
Count the weak links: - 0-1 weak links:
Case has strength; caution on bail - 2-3 weak links: Case has weaknesses;
consider bail - 4+ weak links: Case is significantly weak; bail clearly
justified
Step 5: Evaluate
Flight Risk Individually (Per Satender Kumar Antil Test)
Financial Capacity: - Does accused own
property/businesses in jurisdiction? - What is approximate financial status? -
Can accused afford to flee and hide?
Local Roots: - Family members in
jurisdiction? - How long has accused lived here? - Social/professional ties?
Foreign Connections: - Relatives abroad?
- Business interests abroad? - Passport status? - Previous travel history?
Previous Conduct: - Any history of
absconding? - Violations of previous bail conditions? - Pattern of
non-cooperation with authorities?
Case-Specific Flight Incentive: - How
grave is charge? - If convicted, what sentence likely? - Does this case show
pattern of fleeing justice?
Record Finding: Flight risk: HIGH /
MODERATE / LOW
Step 6: Assess
Witness Tampering Risk
Material
Evidence Required: - Previous attempts to threaten
witnesses? - Associates of accused interfering with witnesses? - Pattern of
witness intimidation in accused’s history? - Are potential witnesses accessible
to accused or at distance?
Distinction: - Credible material evidence of tampering likelihood → Risk
justified - Mere vague allegations without supporting facts → Risk not
established
Step 7: Examine
Criminal Antecedents (Per Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497)
Mandatory Disclosure Check: - Did bail
petition disclose antecedents? - If not disclosed, this may be suppression of
material facts
Review Antecedents: - Any previous
violent crime convictions? - Nature of previous offences? - How long ago?
Recency matters - Pattern of escalation?
Record Finding: - Clean antecedents
→ Favors bail - Minor antecedents → Neutral/slightly against bail - Violent
antecedents → Against bail
Step 8: Calculate
Incarceration Period
Duration
Calculation: - Date of arrest to date of bail
application - Calculate years, months, days
For
Section 302 IPC: - Maximum sentence: Life
imprisonment (usually 14 years) or death - Half of 14 years = 7 years (under
Section 436A CrPC) - If accused served this period, bail becomes almost
mandatory
Assessment: - Under 1 year: Recent custody; gravity still weighs against
bail - 1-2 years: Moderate custody; balance begins tilting toward bail -
2-5 years: Significant custody; with weak evidence, bail justified - 5+
years: Prolonged custody; bail justified unless trial imminent
Step 9: Evaluate Trial
Progress
Get
complete data: - Date trial commenced (if
applicable) - Number of prosecution witnesses scheduled - How many have been
examined? - Number of defense witnesses - Expected completion timeline
Progress
Assessment: - Trial not yet commenced:
Courts have wider discretion - Trial recently commenced (0-6 months):
Courts cautious on bail (per X v. State of Rajasthan) - Trial midway (6-24
months with 30-50% witnesses examined): Balance consideration - Trial
long pending (2+ years, still many witnesses): Bail more justified
Realistic
Timeline Estimate: - If 20 witnesses remaining and
court hears 1-2 per month = 10-20 months more - Then multiply by typical trial
duration realities = Often 2-3+ years
Step 10: Assess
Prima Facie Case Strength
Overall Assessment: For each major
element of prosecution case, rate:
|
Element |
Rating |
|
Identification of accused |
STRONG / WEAK |
|
Motive |
STRONG / WEAK |
|
Opportunity |
STRONG / WEAK |
|
Weapon link |
STRONG / WEAK |
|
Eyewitness evidence |
STRONG / WEAK |
|
Forensic evidence |
STRONG / WEAK |
|
Recovery from accused |
STRONG / WEAK |
|
Absence of alternative theory |
STRONG / WEAK |
Calculation: - 7-8 STRONG: Prima facie
case clearly established - 5-6 STRONG: Prima facie case moderately established
- 3-4 STRONG: Prima facie case weakly established - 0-2 STRONG: Prima facie
case not established
Step 11: Apply
Balancing Test (Per Satender Kumar Antil v. CBI)
Create Decision Matrix:
|
Factor |
Impact on Bail |
|
Gravity of offence |
AGAINST bail (but not determinative) |
|
Prima facie case strength |
AGAINST (if strong) / FOR (if weak) |
|
Duration of custody |
FOR (if prolonged) |
|
Trial progress |
FOR (if slow/delayed) |
|
Flight risk |
AGAINST (if high) |
|
Witness tampering risk |
AGAINST (if material) |
|
Criminal antecedents |
AGAINST (if violent) |
|
Specific overt act |
AGAINST (if established) / FOR (if absent) |
|
Unlawful assembly |
FOR (if no specific role) / AGAINST (if active participant) |
|
Circumstantial evidence |
FOR (if weak/incomplete) / AGAINST (if strong/complete) |
Final Balance: - 4+ factors FOR bail,
few factors AGAINST: GRANT BAIL - 3 factors FOR, 3 AGAINST: Close
call; examine seriousness of each factor - 2 factors FOR, 5+ AGAINST:
REFUSE BAIL
Step 12: Record
Detailed Reasoned Order
MANDATORY ELEMENTS:
1.
Brief Facts - What offence, who is accused, basic allegations
2.
Applicant’s Submissions - What arguments for bail
3.
Prosecution’s Submissions - What arguments against bail
4.
Court’s Findings on Each
Factor:
–
Prima facie case strength?
–
Flight risk assessment?
–
Witness tampering likelihood?
–
Criminal antecedents review?
–
Duration of custody
calculation?
–
Trial progress assessment?
5.
Application of Law - Which judicial principles apply?
6.
Conclusion - Why bail granted or refused
7.
Conditions (if bail granted) - Specific terms
Avoid: - Cryptic orders without
reasoning (per Shambhu Debnath v. State of Bihar) - Mechanical application of
“seriousness” - Ignoring individual circumstances - Conclusory statements
without analysis
Good Practice: - Quote relevant judicial
principles - Cite specific cases with full citations (per this guide) - Explain
application to facts before you - Distinguish distinguishable cases
11. CASE STUDIES WITH
JUDICIAL ANALYSIS
CASE STUDY 1:
Circumstantial Evidence Case with Prolonged Custody
Case Scenario - Based on Delhi High Court Bail Pattern (January
2025):
Facts: - Offence: Murder under Section
302 IPC - Evidence Base: Entirely circumstantial - Duration in Custody: 4 years
8 months 28 days - Trial Status: 14 of 45 prosecution witnesses examined
Evidence Analysis:
Prima Facie Case Elements: 1. Last-seen
evidence: No eyewitness, large time gap possible = ✗ WEAK 2. Motive:
Alleged property dispute, not serious enough = ⚠ MODERATE 3. Weapon
recovery: None from accused = ✗ WEAK 4. Eyewitness testimony:
Witnesses not examined yet = ✗ WEAK 5. Forensic evidence: Not mentioned
as strong = ✗ WEAK 6. Flight risk: No evidence of absconding tendency =
LOW 7. Criminal antecedents: Not mentioned as significant = NEUTRAL
Weak Links Count: 4-5 significant weak
links
Trial Progress: Only 14 of 45 witnesses
examined over 4+ years = Extremely slow progress
Circumstantial Chain Assessment (Sharad Birdhichand Sarda Test): 1. Circumstances fully established? NO 2. Consistent only with
guilt? NO - other hypotheses possible 3. Conclusive nature? NO 4. Exclude other
hypotheses? NO 5. Complete chain? NO - missing critical links
Decision Matrix Analysis: - ✓
Weak/incomplete circumstantial evidence - ✓ Prolonged custody (4+ years) - ✓
Minimal trial progress (31% witnesses examined) - ✓ No direct eyewitness - ✓ No
forensic evidence - ✗ Grave offence
Factored Result: 4-5 FOR, 1 AGAINST = BAIL
GRANTED
Reasoned Order (as Judge Would Write):
“The
applicant has been in custody for 4 years 8 months 28 days. Applying the
principles laid down in Satender Kumar Antil v. CBI (2022) 10 SCC 51,
this Court must examine whether prima facie case is made out and whether
continued detention is justified.
Examining
the evidence on record, this Court notes that:
(1)
The prosecution case rests
entirely on circumstantial evidence, specifically the last-seen theory. There
is no direct eyewitness testimony.
(2)
The last-seen evidence lacks
proximity to the time of death, as a significant time gap exists between
last-seen and discovery of body.
(3)
No forensic evidence has been
presented linking the accused to the alleged crime.
(4)
No weapon has been recovered
from the accused.
(5)
Motive, as alleged, is
insufficient to justify murder.
(6)
Applying the test laid down in Sharad
Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, the chain of
circumstantial evidence is incomplete with multiple weak links.
(7)
Trial progress has been
extremely slow, with only 14 of 45 prosecution witnesses examined over 4 years
8 months of custody.
(8)
There is no material evidence
suggesting flight risk, and accused has cooperated with the system by remaining
in custody.
In
these circumstances, further detention of the applicant pending trial
conclusion, which may take years more, would constitute a violation of Article
21 of the Constitution. Bail is the rule, not the exception, per Satender
Kumar Antil v. CBI.
Accordingly, BAIL is GRANTED to the applicant on the following
conditions:
1.
Applicant shall furnish
personal bond of Rs. [X] and sureties of Rs. [X] each from two reliable
persons.
2.
Applicant shall not leave India
without written permission of this Court.
3.
Applicant shall appear before
this Court on all dates fixed for trial.
4.
Applicant shall not tamper with
evidence or witnesses in any manner.
5.
Applicant shall report to
[Police Station] once a week on [specified day and time].”
CASE STUDY 2:
Unlawful Assembly Case Without Specific Overt Acts
Case Scenario - Based on Zainul Pattern:
Facts: - Offence: Murder under Section
302 IPC read with Section 149 IPC (unlawful assembly) - Accused: One of 10
charged with murder - Chargesheet: Names accused as “member of unlawful
assembly” - Allegation Specificity: No differentiation of roles or specific
overt acts - Evidence: Vague witness testimony naming “around 10 people”
Analysis:
Chargesheet Specificity Issues: -
Generic allegations: “accused formed unlawful assembly” - No role
differentiation: All 10 treated identically - No specific overt acts: Did not
specify who: - Carried weapons - Directly attacked victim - Prevented
intervention - Common object vague: Merely alleged “assembly formed”
7-Factor Test for Unlawful Assembly Membership (Per Supreme Court
Recent Cases):
1.
Time and place of assembly
formation: Not precisely established for this
accused
2.
Conduct and behaviour: All described identically; no specific conduct
3.
Collective conduct: Not distinguished from individual conduct
4.
Motive: Generic motive alleged, not specific to this accused
5.
Manner of occurrence: Not linked to this accused’s specific actions
6.
Nature of weapons: Not specified who carried weapons
7.
Injuries and nature: Not attributed to this accused specifically
Prima Facie Case Assessment: - No
specific evidence against this accused individually - Evidence “omnibus”
(applicable equally to all 10) - Merely presence alleged, not active
participation
Decision Matrix: - ✓ No specific overt
act attributed in chargesheet - ✓ Vague/omnibus allegations in chargesheet - ✓
Multiple similarly-implicated accused - ✓ No evidence of active participation -
✗ Section 302/149 grave offence
Factored Result: 4 FOR, 1 AGAINST = BAIL
GRANTED
Reasoned Order (as Judge Would Write):
“The
applicant is charged with murder under Section 302 read with Section 149 IPC
(unlawful assembly). The critical question for this Court at the bail stage is
whether prima facie material exists establishing that this accused
specifically:
(1)
Was a member of unlawful
assembly (or merely present);
(2)
Shared the common object to
commit murder; and
(3)
Actively participated in
furtherance of that object.
Examining
the chargesheet, this Court notes:
(1)
The chargesheet names 10
accused as members of “unlawful assembly” but fails to differentiate their
individual roles.
(2)
No specific overt act is
attributed to this applicant. The chargesheet does not specify whether
applicant carried weapons, directly attacked the victim, restrained the victim,
or prevented intervention.
(3)
The chargesheet does not
establish that THIS applicant specifically shared the common object to commit
murder. The allegation is omnibus, applicable equally to all 10.
(4)
No eyewitness testimony
specifically identifies this applicant as an active participant.
(5)
No recovery has been made from
this applicant linking him to the weapon used or any other incriminating
material.
(6)
The evidence is vague and
omnibus as regards this applicant specifically.
Applying
the principles laid down in Satender Kumar Antil v. CBI (2022) 10 SCC 51,
this Court must examine whether prima facie case is made out against this
accused individually. Mere presence in an unlawful assembly does not establish
criminal liability under Section 149 IPC. Active participation and shared
common object must be established through credible material.
In
the instant case, the prosecution has failed to establish any of these elements
against this applicant specifically. The chargesheet is replete with omnibus
and vague allegations applicable equally to all 10 accused.
Accordingly, BAIL is GRANTED on the following conditions:
1.
Furnish personal bond of Rs.
[X] and two sureties of Rs. [X] each.
2.
Not to leave India without
Court’s permission.
3.
Appear before this Court on all
trial dates.
4.
Not tamper with evidence or
witnesses.
5.
Weekly reporting to Police
Station.”
CONCLUSION: THE
JUDICIAL PHILOSOPHY FOR BAIL IN SECTION 302 AND 307 OFFENCES
Fundamental
Principle - Satender Kumar Antil v. CBI, (2022) 10 SCC 51
The
Supreme Court has established that despite the seriousness of murder and
attempted murder charges, bail cannot be indefinitely denied on gravity
alone. Instead, courts must undertake multi-dimensional analysis
considering:
1.
Nature of charge and
evidence - Is prima facie case strong or weak?
2.
Individual circumstances - What is unique about this accused?
3.
Duration and consequences - How long in custody? What trial timeline?
4.
Constitutional protection - Does prolonged detention violate Article 21?
5.
Trial fairness - Can fair trial occur from detention?
Balanced Approach Required
Session Judges
must balance: - Societal interest in prosecuting serious crimes - Individual
liberty of accused presumed innocent - Justice efficiency in not
keeping innocents in prolonged detention - Witness protection from
tampering - Public confidence through reasoned decision-making
Modern Bail
Jurisprudence Standards (2020-2024)
Recent
Supreme Court judgments have established that:
1.
“Bail is rule, jail is
exception” is NOT merely rhetoric—it has real teeth
(Satender Kumar Antil v. CBI, (2022) 10 SCC 51)
2.
Vague chargesheet
allegations with no specific overt acts warrant
bail
3.
Weak circumstantial evidence with trial delays warrant bail (per Sharad Birdhichand Sarda
v. Maharashtra, (1984) 4 SCC 116)
4.
Unlawful assembly cases without individual role differentiation warrant bail
5.
Prolonged custody (3-5+ years) warrants bail unless trial imminent (per X v.
State of Rajasthan, 2024 INSC 909)
Final Judicial Philosophy
The Supreme
Court in Satender Kumar Antil v. CBI, (2022) 10 SCC 51
established the principle that must guide every bail decision:
“The
Constitution guarantees right to liberty. Pre-trial detention, even for serious
offences, must not become a tool of harassment. Bail is an interim relief that
protects fundamental rights while trial proceeds. Courts must ensure bail
jurisprudence serves justice, not injustice.”
APPENDIX: KEY
CASE CITATIONS - COMPLETE REFERENCE FOR JUDICIAL ORDERS
Supreme Court Bail
Decisions:
1.
Satender Kumar Antil v.
Central Bureau of Investigation (2022) 10 SCC 51,
2022 INSC 606 | 11th July, 2022
–
Bench: Justice Sanjay Kishan
Kaul, Justice M.M. Sundresh
–
Subject: Comprehensive bail
jurisprudence; Triple Test for bail
2.
Sushila Aggarwal and Ors. v.
State (NCT of Delhi) and Ors. (2020) 5 SCC 1,
SLP(Crl.) Nos. 7281-7282 of 2017 | 29th January, 2020
–
Bench: Constitution Bench (5
Judges) - Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran,
Justice M.R. Shah, Justice S. Ravindra Bhat
–
Subject: Anticipatory bail in
grave offences; duration of anticipatory bail
3.
Shambhu Debnath v. The State
of Bihar & Ors. 2024 INSC 1032, SLP(Crl.)
No. 961 of 2024 | 20th December, 2024
–
Bench: Justice Vikram Nath,
Justice Prasanna B. Varale
–
Subject: Cryptic orders in
anticipatory bail; need for detailed reasoning in serious cases
4.
X v. State of Rajasthan
& Anr. 2024 INSC 909, SLP(Crl.) No. 13378
of 2024 | 30th November, 2024
–
Bench: Supreme Court of India
–
Subject: Extreme caution in
bail during trial; but not absolute no-bail policy
5.
Brijmani Devi v. Pappu Kumar
& Anr. (2022) 4 SCC 497, SLP(Crl.)
No. 6335/2021 | 7th December, 2021
–
Bench: Justice L. Nageswara
Rao, Justice B.R. Gavai, Justice B.V. Nagarathna
–
Subject: Prima facie findings
must be reasoned; criminal antecedents must be considered
Classic Supreme
Court Precedent on Circumstantial Evidence:
6.
Sharad Birdhichand Sarda v.
State of Maharashtra (1984) 4 SCC 116, 1984 AIR
1622 | 17th July, 1984
–
Bench: Justice Syed Murtaza
Fazalali, Justice A. Varadarajan, Justice Sabyasachi Mukharji
–
Subject: Five-point test for
circumstantial evidence; applicable to bail assessment
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