2025 INSC 1418 Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 1 of 32

REPORTABLE

IN THE SUPREME COURT OF INDA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO s.___________ 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 NO s.______ 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)

J U D G M E N T

Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 2 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

agency against the judgment(s) and order(s) dated 9

th

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

released on bail, in connection with CBI Case No. RC4/S/2010

1

– Kol

registered at P.S. CBI/SCB/Kolkata on 9

th

June 2010. Similarly, relying

upon the very same order, the High Court vide order dated 28

th

February

1

Hereinafter ‘Subject FIR’.

Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 3 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

bail by the High Court vide order dated 13

th

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:

3.1 The subject FIR came to be registered on 9

th

June 2010

against unknown persons relating to the unfortunate

derailment of Train No. 2102, Jnaneshwari Express, on 28

th

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 4 of 32

out on the intervening night of 27

th

-28

th

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:

Accused Person Role

Dayamoy Mahato A railway employee who was receiving and

making calls to the accused persons, leading

up to the incident.

Mantu Mahato Investigation of his mobile records revealed

that he was constantly in touch with the co-

accused persons on the intervening night of the

incident.

Laxman Mahato Telephonic conversations revealed he was at

the spot of the damaged railway tracks, before

the incident. Upon search of his house, his

mobile records revealed that he was constantly

in touch with the main accused, Manoj

Cr. Appeal @ SLP (Cr) No. 12376-12377 of 2023 Page 5 of 32

Mahato, and other accused persons on the

intervening night of 27

th

May 2010-28

th

May

2010.

Sanjoy Mahato Investigation revealed that on 27

th

May 2010

he was contacted by the main accused Manoj

Mahato, to make arrangements for the

implementation of the plan. Thereafter, he was

constantly in touch with other accused persons

for carrying out of the conspiracy.

Tapan Mahato On 27

th

May 2010, he was involved in a

telephonic conversation with other accused

persons for mobilizing the extremist

movement. The conversation was recorded.

His call records revealed that he was in touch

with the main accused, Manoj Mahato, for

carrying out of the conspiracy.

Bablu Rana Investigation of his mobile records revealed

that he was using constantly in touch with the

co-accused persons on the intervening night

of the incident.

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 6 of 32

1860

2

; Sections 150/151 of the Indian Railways Act, 1989,

and Sections 16/18 of the Unlawful Activities (Prevention)

Act, 1967

3

. 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

which was disposed of on 30

th

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

Court. The date of the impugned order is 9

th

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 7 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

Procedure Code, 1973

4

, 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 8 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 9 of 32

8. The above section has been included in the Bharatiya Nagarik

Suraksha Sanhita, 2023

5

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 10 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 11 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

Court in Vijay Madanlal Choudhary v. Union of India

6

had observed:

“324. Section 436-A of the 1973 Code, is a wholesome

beneficial provision, which is for effectuating the right of

speedy trial guaranteed by Article 21 of the Constitution and

which merely specifies the outer limits within which the trial

is expected to be concluded, failing which, the accused ought

not to be detained further. Indeed, Section 436-A of the 1973

Code also contemplates that the relief under this provision

cannot be granted mechanically. It is still within the discretion

of the court, unlike the default bail under Section 167 of the

1973 Code. Under Section 436-A of the 1973 Code, however,

the court is required to consider the relief on case-to-case basis.

As the proviso therein itself recognises that, in a given case,

the detention can be continued by the court even longer than

one-half of the period, for which, reasons are to be recorded by

it in writing and also by imposing such terms and conditions

so as to ensure that after release, the accused makes

himself/herself available for expeditious completion of the

trial.

325. However, that does not mean that the principle enunciated

by this Court in Supreme Court Legal Aid Committee

Representing Undertrial Prisoners [Supreme Court Legal Aid

Committee Representing Undertrial Prisoners v. Union of

India, (1994) 6 SCC 731 : 1995 SCC (Cri) 39] , to ameliorate

the agony and pain of persons kept in jail for unreasonably

long time, even without trial, can be whittled down on such

specious plea of the State. If Parliament/legislature provides

for stringent provision of no bail, unless the stringent

conditions are fulfilled, it is the bounden duty of the State to

6

(2023) 12 SCC 1

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

ensure that such trials get precedence and are concluded within

a reasonable time, at least before the accused undergoes

detention for a period extending up to one-half of the

maximum period of imprisonment specified for the offence

concerned by law. [Be it noted, this provision (Section 436-A

of the 1973 Code) is not available to the accused who is facing

trial for the offences punishable with death sentence.]”

(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

Khatoon & Ors (IV) v. Home Secretary, State of Bihar

7

; Abdul Rehman

Antulay & Ors. v. R.S. Nayak & Anr.

8

and Satinder Kumar Antil v. CBI

& Anr.

9

, 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 13 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 14 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

Brahmajeetsing Sharma v. State of Maharashtra

10

,:

“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 15 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

bench of this Court observed in Sanjay Chandra v. CBI

11

:

“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 16 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”.”

15.3 In Umarmia v. State of Gujarat

12

, 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.

Najeeb

13

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 17 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 18 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

Gulam Nabi Shaikh v. State of Maharashtra

14

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 19 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 20 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 21 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 22 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

the challenge to the grant of bail on 10

th

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.

20.1 Prasanta Kumar Sarkar v. Ashis Chatterjee

15

:

“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 23 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

Watali

16

, which was a case involving allegations of terror

funding, waging war against the State and damaging security

establishments.

[

20.2 In Meena Devi v. State of U.P.

17

, 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 24 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.),

held as under in Ashok Dhankad v. State (NCT of Delhi)

18

:

“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 25 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

Rajasthan (Supra); Jaibunisha v. Meherban

9

and Bhagwan

Singh v. Dilip Kumar @ Deepu

10

]

(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 26 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 27 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 28 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 29 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 30 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

UAPA to be 3949

19

and 4794

20

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 31 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 32 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

December 11

th

, 2025