CENTRAL BUREAU OF INVESTIGATION v. DAYAMOY MAHATO

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.]”

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 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 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 Maharashtra10,:

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. CBI11:

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 Gujarat12, 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. Najeeb13 observed in a case involving various sections of the IPC as also the UAPA as under:

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.” 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 Maharashtra14 as under:

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 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. 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 legalaid 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 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 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 10th 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 Chatterjee15:

(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 Watali16, 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:

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:

2025 SCC OnLine SC 1690 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 @ Deepu10 ]

(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.

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 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 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.

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.

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-today 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. 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 394919 and 479420 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 https://www.ncrb.gov.in/uploads/files/TABLE10A[5].pdf https://www.ncrb.gov.in/uploads/files/TABLE10A[3].pdf 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.

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