Constitutional Safeguards in Reverse-Burden Terrorism Trials and the Limits of Section 436‑A CrPC: Commentary on CBI v. Dayamoy Mahato

Constitutional Safeguards in Reverse-Burden Terrorism Trials and the Limits of Section 436‑A CrPC: Commentary on CBI v. Dayamoy Mahato

1. Introduction

The Supreme Court of India’s decision in Central Bureau of Investigation v. Dayamoy Mahato & Ors., 2025 INSC 1418 (decided on 11 December 2025), arises out of the infamous Jnaneshwari Express derailment of May 2010, in which 148 passengers lost their lives and around 170 were injured. The prosecution case is that members of a Maoist-linked extremist group conspired to remove pandrol clips from the tracks between Khemasuli and Sardiha railway stations, causing the derailment and collision with an oncoming goods train, in order to terrorise the public and pressurise the State to withdraw joint security forces from Jhargram.

Multiple accused were charged under serious provisions of the Indian Penal Code, 1860 (including Sections 120‑B, 302, 307, 325, 326, 440, 212), Sections 150 and 151 of the Indian Railways Act, 1989, and Sections 16 and 18 of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”). While the trial has been pending since 2010, 176 out of 204 witnesses have been examined so far.

In 2022 and 2023, the Calcutta High Court granted bail to several of the accused, relying primarily on Section 436‑A of the Code of Criminal Procedure, 1973 (“CrPC”) and the right to life and personal liberty under Article 21 of the Constitution, on the basis of their prolonged incarceration as undertrials. The Central Bureau of Investigation (CBI) challenged these bail orders before the Supreme Court.

The Supreme Court framed and addressed four interlinked issues:

  1. Whether Section 436‑A CrPC entitled the respondents to release on bail.
  2. Whether prolonged incarceration, by itself and under Article 21, warranted their release on bail.
  3. In reverse-burden statutes such as UAPA, whether and how the State and courts must ensure that accused persons can meaningfully exercise their right to rebut presumptions of guilt.
  4. Whether, in the facts and circumstances, interference with the liberty of the accused at this stage (by setting aside the bail orders) was justified.

The judgment is noteworthy for three broad reasons:

  • It gives a clear and categorical reading of Section 436‑A CrPC (and its BNSS successor) as inapplicable to offences where death is one of the prescribed punishments.
  • It refines the balance between Article 21 liberty and national security in bail adjudication, holding that Article 21 cannot be the sole basis for bail in serious terrorism and national security cases, though prolonged incarceration still remains a major factor.
  • It lays down systemic, pan-India directions to High Courts, trial courts and Legal Services Authorities to ensure speedy trials and meaningful defence in reverse-burden cases like UAPA, recognising the unique constitutional challenges they pose.

2. Summary of the Judgment

The Supreme Court (Sanjay Karol, J. and N.K. Singh, J.) allowed the CBI’s appeals “to the aforesaid extent” and delivered a nuanced ruling that corrects the High Court’s legal approach yet declines to re-incarcerate the accused. The key holdings are:

  1. Section 436‑A CrPC Inapplicable to Capital Offences
    Since the respondents are being tried for offences including Section 302 IPC and Section 16 UAPA, both of which prescribe death as one of the possible punishments, Section 436‑A CrPC is statutorily excluded. The High Court’s reliance on that provision was erroneous and is set aside to that extent.
  2. Article 21 Cannot Be the Sole Ground in National Security/Terrorism Cases
    While Article 21 applies fully to undertrials and prolonged incarceration is a serious concern, in cases involving offences that threaten national security, sovereignty or internal security, Article 21 cannot be the sole or exclusive basis for granting bail. Courts must carefully balance individual liberty with national interest and record reasons.
  3. Reverse Burden under UAPA Creates a Special Constitutional Responsibility
    In statutes like UAPA that impose a reverse burden of proof (Section 43E), undertrials face amplified difficulties in defending themselves, particularly when in custody and socio-economically disadvantaged. The Court emphasises that the State and judiciary have a positive constitutional duty to ensure that accused persons are meaningfully able to rebut the presumption of guilt through:
    • effective legal representation,
    • real access to evidence and witnesses, and
    • expeditious investigations and trials.
  4. Appellate Interference with Bail Orders Is Limited
    Reiterating settled law, the Court distinguishes between:
    • an appeal against grant of bail, and
    • a cancellation of bail based on supervening conduct.
    Appeals against bail are maintainable only on grounds such as perversity, illegality, non-application of mind, or ignoring material factors. The Court holds that although the High Court erred in its legal reasoning, subsequent events and the respondents’ conduct do not justify interference with their liberty at this stage.
  5. Heinousness and National Security Weigh Against Bail, but Delay and Conduct Weigh Against Re-incarceration
    The alleged offence—tampering railway tracks and causing mass casualties for an extremist political objective—is extremely grave and would normally militate against bail. However:
    • the undertrials have already spent roughly 12 years in custody before being bailed in 2022;
    • since release, there is no allegation of absconding, witness-tampering, or misuse of liberty;
    • the trial, despite an earlier 2016 direction to complete it within a year, still has 28 witnesses pending as of end-2025.
    In this context, the Court considers it unjustified to send the accused back to jail.
  6. Directions in Personam
    For the specific trial arising from the Jnaneshwari Express case, the Court directs:
    • the Trial Court to record reasons for the protracted delay;
    • day-to-day trial henceforth, with adjournments restricted to exceptional circumstances;
    • periodic oversight by an Administrative Judge of the High Court through four-weekly reports.
  7. Directions in Rem for UAPA and Similar Reverse-Burden Cases Nationwide
    Based on NCRB data showing thousands of UAPA cases pending investigation and trial, the Court issues binding directions to:
    • State Legal Services Authorities to ensure that every UAPA undertrial knows their right to representation and receives prompt legal-aid counsel where chosen.
    • Chief Justices of all High Courts to:
      • map pendency of UAPA and other reverse-burden cases,
      • assess adequacy of special courts and Sessions courts handling such matters,
      • strengthen judicial postings and staffing to avoid delay,
      • ensure oldest cases are listed first,
      • secure appointment of prosecutors/special public prosecutors, and
      • direct day-to-day trial and strict refusal of routine adjournments in cases pending over five years, with periodic monitoring.

3. Detailed Analysis

3.1 Factual Matrix and Procedural History

The case stems from CBI Case No. RC4/S/2010‑Kol, registered on 9 June 2010, regarding the derailment of Train No. 2102 Jnaneshwari Express on the night of 27–28 May 2010. The prosecution alleges:

  • The accused—several of whom share the surname “Mahato”—were part of a criminal conspiracy to sabotage railway tracks near Rajabandh.
  • The motive was to pressure the Government to withdraw joint forces (State Police and Central Paramilitary) deployed in the Jhargram Police Station jurisdiction, in response to Maoist activities.
  • Pandrol clips on the railway tracks were removed, leading to derailment and a collision with a goods train, causing:
    • 148 deaths,
    • 170 injuries, and
    • approximate property damage of Rs. 25 crores.

The role of some key accused, as summarised in the charge-sheet, is largely founded on call detail records and intercepted conversations:

  • Dayamoy Mahato: a railway employee, allegedly in frequent telephonic contact with co-accused leading up to the incident.
  • Mantu Mahato: CDR analysis indicates constant communication with co-accused on the critical night.
  • Laxman Mahato: allegedly present at the site of track damage; call records show continuous contact with the alleged main accused, Manoj Mahato, on 27–28 May 2010.
  • Sanjoy Mahato: allegedly contacted by Manoj Mahato to make logistical arrangements for executing the plan; frequent communication with other conspirators.
  • Tapan Mahato: engaged in recorded telephonic conversations mobilising the extremist movement and coordinating with Manoj Mahato.
  • Bablu Rana: allegedly in constant telephonic contact with co-accused during the incident night.

The co‑accused in the connected appeals have broadly similar alleged roles. Charges were framed under multiple IPC provisions, the Railways Act, and crucially UAPA Sections 16 (terrorist act) and 18 (conspiracy for terrorist act).

In 2016, the accused’s bail applications were rejected by the High Court, which nevertheless directed that examination of remaining witnesses be completed within a year. This direction was not complied with. By November 2022, when the impugned bail orders were passed, 68 witnesses remained to be examined; as of the Supreme Court’s judgment, 28 witnesses were still pending.

3.2 Issues Before the Supreme Court

The Court crystallised the controversy into four questions:

  1. Section 436‑A CrPC: Whether, given this provision, the respondents had a right to release on bail based on having spent more than half of the maximum imprisonment period in pre-trial detention.
  2. Article 21 and Prolonged Incarceration: Regardless of Section 436‑A, did the lengthy incarceration of the accused—approximately 12 years—justify grant of bail on constitutional grounds (Article 21)?
  3. Reverse Burden and Fair Trial: In cases under statutes like UAPA that impose a reverse burden of proof, is the existing framework sufficient to ensure that undertrials can meaningfully assert their innocence? If not, what must be done?
  4. Interference With Liberty at the Appellate Stage: Given the time elapsed since grant of bail and the conduct of the accused, was it appropriate for the Supreme Court to interfere and re-incarcerate them?

3.3 Section 436‑A CrPC and Its Inapplicability to Capital Offences

Section 436‑A CrPC provides that where an undertrial has been detained for a period extending up to one‑half of the maximum period of imprisonment for an offence under any law, he or she shall be released on personal bond with or without sureties, except in relation to “an offence for which the punishment of death has been specified as one of the punishments under that law”.

The Court identifies the following key features of Section 436‑A:

  • It applies only to undertrials in judicial custody.
  • It does not apply where the offence is such that death is one of the possible punishments.
  • It is triggered once the undertrial has spent at least half of the maximum sentence prescribed for the offence, excluding remissions or set-off.
  • The word “shall” confers a statutory entitlement on the undertrial and a corresponding obligation on the State, subject to reasonable conditions such as bonds or sureties.
  • The proviso permits continued detention beyond half the maximum term if, after hearing the Public Prosecutor, the court records reasons in writing.
  • In any case, the total pre-trial detention cannot exceed the maximum punishment prescribed for that offence.

The Court then notes that this provision has been carried over into Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), but with an even narrower field of application: the benefit is now excluded not only for offences punishable with death but also for those where life imprisonment is one of the punishments.

Relying on Vijay Madanlal Choudhary v. Union of India, (2023) 12 SCC 1, the Court recognises Section 436‑A as a “wholesome beneficial provision” meant to effectuate the right to speedy trial under Article 21 and to set an “outer limit” for pre-trial detention. Yet, crucially:

  • Section 436‑A is not automatic like default bail under Section 167 CrPC; courts retain discretion to continue custody with recorded reasons.
  • However, where the statutory conditions are satisfied and the offence is not excluded, the norm is release; continued detention requires special justification.

Applying this framework, the Court holds:

  • The respondents are being tried for offences under Section 302 IPC and Section 16 UAPA, both of which specify death as one of the punishments.
  • This triggers the statutory exclusion in Section 436‑A (and similarly in BNSS Section 479).
  • Therefore, Section 436‑A is simply inapplicable to these undertrials, irrespective of the duration of their pre-trial incarceration.

This is a clear and binding clarification: undertrials facing trial for offences where death is a possible sentence cannot invoke Section 436‑A CrPC at all. The High Court’s assumption that long incarceration brought the case within Section 436‑A was legally unsustainable and is set aside.

3.4 Article 21, Prolonged Incarceration, and Bail in National Security Cases

Having held that Section 436‑A does not apply, the Court turns to the High Court’s second basis: Article 21. The High Court had relied on classic precedents such as:

These decisions collectively establish:

  • the right to speedy trial as an integral part of Article 21;
  • the unconstitutionality of undue delays in investigation and trial;
  • the need for a humane bail jurisprudence, especially for undertrials languishing for long periods.

The Supreme Court emphatically reiterates that:

  • Article 21 applies fully and equally to undertrials, regardless of the nature of the allegations;
  • Even convicts retain certain Article 21 rights; undertrials, whose guilt is not yet adjudicated, cannot be treated as if they are already guilty;
  • Unduly long incarceration as an undertrial, without a verdict, is “particularly offensive” to Article 21 unless justified by “procedure established by law.”

At the same time, the Court underscores an important countervailing consideration:

  • In cases involving heinous offences, terrorism, or offences that shock the conscience of society, the State’s interest in public order, societal security and national integrity assumes immense weight.
  • Thus, individual liberty is not absolute; it is subject to legitimate restrictions grounded in national security and public interest.

The Court therefore lays down a nuanced principle:

While Article 21 rights are placed on a constitutional pedestal and must always be protected, in cases where national security or the integrity of the nation is implicated, Article 21 cannot be the sole ground for granting bail. Courts must consider the totality of circumstances, including the gravity and impact of the alleged acts, and must record reasons for their decision either way.

To illustrate this balance, the Court surveys several precedents:

  • Ranjitsing Brahmajeetsing Sharma v. State Of Maharashtra, (2005) 5 SCC 294
    Dealing with the Maharashtra Control of Organised Crime Act (MCOCA), the Court emphasised that presumption of innocence is a human right and that even stringent bail statutes must be interpreted through the lens of Article 21 and fair procedure.
  • Sanjay Chandra v. CBI, (2012) 1 SCC 40
    In an economic offence context, the Court recognised that pre-conviction detention has “substantial punitive content” and that seriousness of the charge is only one factor. Necessity, risk of absconding or tampering, and proportionality to likely sentence must also be considered.
  • Umarmia v. State of Gujarat, (2017) 2 SCC 731
    In a TADA matter involving RDX transportation, bail was granted after 12 years of incarceration, subject to strict conditions. Seriousness of the offence did not override the constitutional imperative once incarceration became unreasonably long.
  • Union Of India v. K.A. Najeeb, (2021) 3 SCC 713
    In a UAPA case, the Court held that rigorous bail conditions in special statutes are upheld constitutionally on the premise of speedy trials. Where trials are inordinately delayed and the accused has spent many years in custody with little prospect of early conclusion, constitutional courts are “ordinarily obligated” to grant bail notwithstanding statutory constraints like Section 43‑D(5) UAPA.
  • Angela Harish Sontakke v. State of Maharashtra, (2021) 3 SCC 723 and Sagar Tatyaram Gorkhe v. State of Maharashtra, (2021) 3 SCC 725
    Both involved UAPA prosecutions with dozens or hundreds of witnesses still to be examined after several years of incarceration. Bail was granted in recognition of the impracticability of timely completion of trial.
  • Javed Gulam Nabi Shaikh v. State of Maharashtra, (2024) 9 SCC 813
    The Court adopted a humanist approach, stressing that criminals are not “beyond redemption” and reiterating that Article 21 applies irrespective of the nature of the crime. If the State cannot ensure a speedy trial, it should not oppose bail solely on the ground that the offence is serious.

Synthesising these authorities, the Court in Dayamoy Mahato makes two distinct points:

  1. Prolonged incarceration and slow trial are serious Article 21 concerns that favour bail, including in UAPA and other special-statute cases.
  2. However, in national security/terrorism cases, courts cannot grant bail by invoking Article 21 alone without seriously grappling with:
    • the gravity of the allegations,
    • the impact on public order and national security, and
    • the deterrent function of criminal law.

Applied to the case at hand, the Court finds that the High Court erred in simply invoking Article 21 and earlier precedents without explicitly balancing these competing considerations or recording a reasoned, case-specific analysis.

3.5 Reverse Burden of Proof Under UAPA and Constitutional Obligations

The third issue addresses the constitutional implications of reverse burden provisions under special statutes such as UAPA. Under Section 43E UAPA, once certain foundational facts are established by the prosecution, a presumption of guilt arises, which the accused must rebut.

The Court explains the conceptual shift:

  • In ordinary criminal law, the prosecution must prove guilt beyond reasonable doubt; the accused only needs to create reasonable doubt or “poke holes” in the prosecution case.
  • In reverse-burden regimes like UAPA, once the prosecution meets a lower initial threshold of foundational facts, the accused bears the burden of proving innocence or at least dislodging the presumption of guilt.

The Court recognises the legitimate rationale: UAPA deals with acts that threaten the unity, integrity, security, economic security, or sovereignty of India, often involving sophisticated networks, explosives, or hazardous materials. For such offences, Parliament has chosen to enhance prosecutorial tools, including reverse presumptions.

However, the Court is acutely aware of the severe practical and constitutional challenges this creates, especially for undertrials:

  • An incarcerated undertrial has severely limited access to:
    • evidence and documents,
    • witnesses and experts,
    • financial and legal resources.
  • The State, by contrast, enjoys superior investigative machinery, information-gathering powers, and prosecutorial capacity.
  • Poor, marginalised or socially disadvantaged accused often rely almost entirely on an overburdened legal aid system, which struggles with delays and resource constraints.

In this backdrop, the Court issues a powerful constitutional reminder:

A constitutional democracy does not legitimise burdens merely by declaring them. If the State chooses to presume guilt in serious offences, it must also deploy all its resources to create meaningful pathways for accused persons to reclaim their innocence. Otherwise, the reverse burden regime risks degenerating into a formality that converts a presumption into a de facto conviction long before trial concludes.

The judgment stresses:

  • Delay in investigation and trial, already a systemic problem in India, becomes “qualitatively different and more insidious” where reverse burdens apply because:
    • an accused remains in custody for years under a cloud of presumptive guilt,
    • while lacking practical ability to gather exculpatory material,
    • and sometimes even to secure continuous, competent legal representation.
  • Courts must act as “active guarantors of fairness” rather than passive observers:
    • by ensuring genuine access to counsel,
    • by enabling effective defence preparation,
    • by policing delay and adjournments, especially in reverse-burden cases.

This normative analysis directly underpins the Directions in Rem issued later, particularly regarding:

  • ensuring representation via Legal Services Authorities,
  • prioritising old UAPA and reverse-burden cases, and
  • mandating day-to-day trials with strict limits on adjournments in long-pending matters.

Although the Court does not “answer” the third question in a binary way, it clearly imposes a constitutional obligation on State institutions to bridge the gap between the formal imposition of a reverse burden and the practical ability of accused persons to discharge it.

3.6 Appellate Interference with Bail Orders

The fourth issue concerned the Court’s power and propriety in interfering with bail orders passed by the High Court. The appeals were filed in 2023, soon after the High Court orders, but could only be substantially heard in 2025. Crucially, this was not a cancellation of bail application based on fresh misconduct; it was an appeal/SLP against the original grant of bail.

Drawing from Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, and subsequently reaffirmed in Meena Devi v. State of U.P., (2022) 14 SCC 368, the Court reiterates the main factors in bail adjudication:

  • existence of a prima facie case;
  • nature and gravity of accusation;
  • severity of possible punishment;
  • risk of absconding;
  • likelihood of repetition of offence;
  • possibility of witness intimidation or evidence tampering; and
  • danger of justice being thwarted.

It further notes that these principles apply equally in UAPA cases, as held in NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, where the Court required UAPA bail courts to assess the prosecution case on a prima facie standard tilted in favour of the prosecution.

In Meena Devi, the Supreme Court had also drawn a sharp distinction between:

  • Appeals against grant of bail: to be allowed only if the lower court’s exercise of discretion was arbitrary, perverse, or ignored settled principles or material factors.
  • Applications for cancellation of bail: to be decided with reference to supervening circumstances, such as breach of conditions, new incriminating material, or misuse of liberty.

In the recent decision Ashok Dhankad v. State (NCT of Delhi), 2025 SCC OnLine SC 1690 (authored by Sanjay Karol, J.), the Court summarised the principles for appellate scrutiny of bail orders:

  • Appeals against grant of bail are not equivalent to cancellation proceedings.
  • Bail orders must show application of mind to the settled factors; absence of such reasoning may justify interference.
  • Appellate courts may interfere on grounds of perversity, illegality, or non-consideration of relevant factors, including gravity and societal impact.
  • Subsequent conduct of the accused (post-bail) is generally relevant for cancellation, not for evaluating the original grant in appellate review.
  • Appeals against bail should not be used as retaliatory tools but confined to correcting legal error and ensuring proper exercise of discretion.

Applying these principles, the Court in Dayamoy Mahato assesses the three clusters of grounds raised by the CBI:

  1. Heinousness and Societal Impact
    The offence—sabotaging a passenger train for extremist political purposes, causing 148 deaths and immense property loss—is extremely grave, and would ordinarily tilt strongly against bail. The Court explicitly acknowledges that the High Court “ought not to have” granted bail if these were the only factors.
  2. Risk of Absconding
    This ground was effectively neutralised by passage of time. Since the accused have remained on bail for over three years, with no allegation of absconding or disrupting proceedings, the anticipated risk has not materialised.
  3. Advanced Stage of Trial and Overall Circumstances
    The trial has been underway since 2010. Despite a 2016 direction to complete the evidence within a year, and despite more than a decade passing, 28 witnesses still remain. The Court notes the “glacial pace” of the trial and holds that such systemic delay cannot justify re-incarceration, especially when:
    • the accused already spent about 12 years in custody, and
    • their conduct on bail has been unimpeachable.

The Court’s final recalibration is subtle but important:

  • It accepts that the High Court committed legal error in relying on Section 436‑A and in using Article 21 without a sufficiently reasoned balancing of factors.
  • However, it declines to interfere with the bail orders at this late stage, since doing so would amount to curtailing liberty where there is no allegation of misuse and where systemic delay, not the accused, is primarily to blame.

Thus, the appeals are “allowed” only to the extent of correcting the legal basis, not to the extent of cancelling liberty already enjoyed for three years without incident.

3.7 Directions in Personam and In Rem

3.7.1 Directions in Personam (Case-Specific)

Recognising the gravity of the Jnaneshwari Express case and the legitimate concern of victims’ families, the Court issues focused directions:

  1. Audit of Delay: The trial court must take stock of the case, record the current status, and set out reasons why the trial has remained pending for many years before and up to the time the matter is taken up after this judgment.
  2. Day-to-Day Hearing: From that point onwards, the case is to be taken up on a day-to-day basis.
  3. Strict Control of Adjournments: Adjournments are to be eschewed except where exceptional circumstances are shown.
  4. High Court Oversight: An Administrative Judge of the High Court (nominated by the Chief Justice) is requested to:
    • seek a report every four weeks from the trial judge, and
    • ensure compliance with these directions.

3.7.2 Directions in Rem (Systemic; Nationwide)

Citing the NCRB “Crimes in India Report, 2023”, the Court notes:

  • 3,949 UAPA cases pending trial in 2023; and
  • 4,794 UAPA cases pending investigation.

In view of the systemic challenges in reverse-burden prosecutions, the Court issues wide-ranging prospective directions:

(a) Role of State Legal Services Authorities (SLSAs)
  • SLSAs must proactively ensure that each undertrial in UAPA cases:
    • is made aware of the right to legal representation, either through a lawyer of choice or legal aid; and
    • if opting for legal aid, is promptly assigned a counsel so that proceedings may commence or continue without delay.
(b) Obligations of Chief Justices of High Courts

Chief Justices of all High Courts are “requested” (in effect, directed under Article 141/142) to:

  1. Map Pendency: Examine the number of pending cases under UAPA and other laws imposing reverse burdens in their jurisdictions.
  2. Assess Special Courts:
    • ascertain the number of designated special courts;
    • if none exist, identify Sessions Courts handling these matters; and
    • take up with the appropriate authority if the number of such courts is insufficient.
  3. Ensure Adequate Judicial Manpower:
    • assess whether judicial postings and court staffing are adequate to avoid delay and adjournments; and
    • if found lacking, issue suitable posting orders expeditiously.
(c) Listing, Prosecutors, and Old Cases

Further directions include:

  • Chronological Listing: The list of pending UAPA/reverse-burden cases is to be organised by case registration date (earliest to latest), and:
    • special courts / Sessions courts must be directed to take up earliest-registered cases first, unless special reasons warrant deviation.
  • Appointment of Prosecutors: In consultation with the appropriate executive authority, High Courts must verify the position regarding appointment/allotment of prosecutors or special public prosecutors, so that cases, once taken up, are not delayed due to prosecutorial vacancies.
  • Cases Pending Beyond Five Years: For matters pending for more than five years:
    • the concerned trial court must, when the case is taken up, record a detailed order noting reasons for past adjournments (if available);
    • routine adjournments must be firmly refused; and
    • the case must be taken up on a day-to-day basis.
  • Periodic High Court Monitoring: High Courts must periodically seek reports from courts handling such matters and address, on the administrative side, any issues hampering smooth functioning.

Finally, the Registrar (Judicial) of the Supreme Court is directed to transmit the judgment electronically to all High Courts and to Chief Secretaries of all States for necessary administrative action.

4. Precedents Cited and Their Influence

4.1 Speedy Trial and Bail: Foundational Article 21 Jurisprudence

  • Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, (1980) 1 SCC 98
    This landmark judgment exposed the plight of thousands of undertrials languishing in Bihar jails and declared that “right to speedy trial” is implicit in Article 21. It serves as the normative foundation for viewing prolonged pre-trial detention as unconstitutional unless justified.
  • Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225
    A Constitution Bench elaborated the contours of the right to speedy trial, laying down factors such as the length of delay, reasons for delay, and prejudice to the accused. The Court emphasised that relief for breach of this right could include quashing proceedings or granting bail.
  • Satender Kumar Antil v. CBI, (2022) 10 SCC 51
    This decision systematised bail jurisprudence, providing a detailed framework for arrest and bail and stressing the need to avoid unnecessary arrests and prolonged detention, consistent with Article 21.

In Dayamoy Mahato, these cases are acknowledged as authoritative on Article 21, but the Court stresses that in national security contexts, they cannot be applied mechanically without engaging with the specific gravity and impact of terrorism-related offences.

4.2 Section 436‑A and Its Limits: Vijay Madanlal Choudhary

In Vijay Madanlal Choudhary v. Union of India, (2023) 12 SCC 1, the Court held that:

  • Section 436‑A is designed to enforce the right to speedy trial and to prevent indefinite undertrial detention.
  • The provision is discretionary, unlike the mandatory default bail under Section 167 CrPC.
  • Courts may, in appropriate cases, continue detention beyond the halfway mark with recorded reasons.

Dayamoy Mahato builds on this but clarifies that none of these benefits extend to offences where death is a possible punishment—an interpretive point not always consistently applied in practice.

4.3 Balancing Seriousness and Liberty: Ranjitsing and Sanjay Chandra

  • Ranjitsing Brahmajeetsing Sharma v. State Of Maharashtra, (2005) 5 SCC 294
    The Court emphasised that even under stringent statutes like MCOCA, presumption of innocence and personal liberty remain central. Bail conditions must be interpreted to avoid excessive curtailment of liberty.
  • Sanjay Chandra v. CBI, (2012) 1 SCC 40
    In the 2G spectrum case, the Court stressed that seriousness of the offence is not the sole criterion for bail. It articulated the principle that pre-trial detention should not become a form of punishment, and that courts should avoid using denial of bail as a measure of prior moral disapproval.

Dayamoy Mahato adopts this approach but shows that even where offences are extremely serious, once incarceration becomes disproportionately long and the accused has behaved responsibly on bail, the balance may shift back towards liberty.

4.4 Bail in Terror and UAPA Cases: Umarmia, Najeeb, Angela, Sagar

  • Umarmia v. State of Gujarat, (2017) 2 SCC 731
    Bail was granted under TADA after 12 years in custody, with strict conditions, demonstrating that even under highly stringent anti-terror laws, constitutional courts will intervene when incarceration becomes unduly prolonged.
  • Union Of India v. K.A. Najeeb, (2021) 3 SCC 713
    The Court held that statutory restrictions like Section 43‑D(5) UAPA do not oust the constitutional power to grant bail where speedy trial is not forthcoming and the undertrial has already suffered extensive incarceration.
  • Angela Harish Sontakke v. State of Maharashtra, (2021) 3 SCC 723 and Sagar Tatyaram Gorkhe
    These decisions further cemented the principle that the combination of long incarceration and remote prospects of early trial completion justify bail, even when UAPA’s rigorous conditions apply.

In Dayamoy Mahato, these precedents support the idea that delay plus long incarceration is a powerful factor favouring bail, but the Court simultaneously cautions against ignoring the national security dimension.

4.5 Humanist Article 21 in Serious Crime: Javed Gulam Nabi Shaikh

In Javed Gulam Nabi Shaikh v. State of Maharashtra, (2024) 9 SCC 813, the Court underlined that:

  • “Criminals are not born but made”; even serious offenders have a potential for reform.
  • Article 21’s guarantee of speedy trial and fair procedure applies irrespective of the nature of the charge.
  • If the State cannot ensure a speedy trial, it should not oppose bail solely on the seriousness of the crime.

This philosophy strongly informs Dayamoy Mahato’s insistence that the State’s failure to complete the trial within a reasonable time weighs heavily in favour of maintaining bail, despite the gravity of the alleged acts.

4.6 UAPA Bail Threshold: Zahoor Ahmad Shah Watali

In NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, dealing with alleged terror funding and waging war, the Court held that:

  • At the bail stage under UAPA, courts must not conduct a meticulous examination of evidence.
  • The prosecution case must be accepted on its face to assess whether accusations are prima facie true, tilting the standard heavily against bail.

Dayamoy Mahato acknowledges this, but simultaneously invokes later decisions (like Najeeb) and Article 21 principles to show that even this rigorous standard cannot legitimize indefinitely prolonged undertrial detention with no realistic prospect of early conclusion.

4.7 Appellate Review of Bail: Prasanta Kumar Sarkar, Meena Devi, Ashok Dhankad

The Court relies on a line of authority clarifying:

  • Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496: lists the core factors relevant for bail; recognises that appellate courts may interfere with perverse or unreasoned bail orders.
  • Meena Devi v. State of U.P., (2022) 14 SCC 368: reiterates the distinction between appeals against bail and cancellation proceedings; cancellation typically requires supervening circumstances.
  • Ashok Dhankad v. State (NCT of Delhi), 2025 SCC OnLine SC 1690: synthesises principles on appellate scrutiny; warns against using appeals as retaliatory devices; emphasises the need for application of mind in bail orders.

These precedents shape the Court’s caution in Dayamoy Mahato: although it finds the High Court’s reasoning legally flawed, it declines to extinguish liberty at a late stage where no misuse is alleged.

5. Complex Concepts Simplified

5.1 Undertrial

An “undertrial” is a person who has been charged with an offence and is facing trial, but whose guilt or innocence has not yet been finally determined by a court.

5.2 Section 436‑A CrPC vs Default Bail (Section 167 CrPC)

  • Section 167 CrPC (“default bail”): If the police fail to file a charge-sheet within the prescribed maximum period (usually 60 or 90 days), the accused gains a right to bail, regardless of the gravity of the offence.
  • Section 436‑A CrPC: Applies after charge-sheet and during trial; if an undertrial has spent half of the maximum sentence in detention (excluding death-penalty offences), they are ordinarily entitled to release, subject to court’s discretion and recorded reasons for continued custody.

5.3 Article 21: Right to Life and Personal Liberty

Article 21 of the Constitution states that no person shall be deprived of life or personal liberty except according to “procedure established by law.” Judicial interpretation has expanded this to include:

  • the right to speedy trial;
  • the right to fair and reasonable procedure;
  • the right to legal representation; and
  • protection against arbitrary or excessively prolonged detention.

5.4 Reverse Burden of Proof

In normal criminal cases, the prosecution must prove that the accused is guilty. In reverse-burden regimes like UAPA:

  • Once the prosecution shows certain basic facts (foundational facts), the law presumes the accused is guilty.
  • The accused must then disprove or rebut this presumption to show he or she is not guilty.

This makes defence preparation more difficult, especially if the accused is in custody and has limited access to resources.

5.5 Bail vs Cancellation of Bail

  • Grant of bail: Courts decide whether to release an accused from custody before trial is over, based on factors like seriousness, evidence, risk of absconding or tampering, and length of detention.
  • Cancellation of bail: After bail is granted, it can be revoked if:
    • the accused misuses liberty,
    • violates bail conditions,
    • commits new offences, or
    • new facts emerge.
    The threshold for cancellation is higher; courts are more reluctant to re-incarcerate someone who has already been released.

5.6 Day-to-Day Trial

“Day-to-day trial” means that once the trial begins, the court hears the case on consecutive days without long intervals, until the evidence and arguments are completed. This is intended to:

  • prevent undue delay;
  • reduce the burden on undertrials;
  • preserve the freshness of witness testimony.

5.7 Legal Aid and State Legal Services Authorities

Under Article 39‑A of the Constitution and the Legal Services Authorities Act, the State is required to provide free legal aid to persons who cannot afford lawyers. State Legal Services Authorities (SLSAs) coordinate this by:

  • assigning legal-aid counsel to eligible undertrials;
  • ensuring that they are represented during trial and bail hearings;
  • monitoring the quality and continuity of representation.

6. Impact and Implications

6.1 For Bail in Capital and Terrorism Offences

  • It is now authoritatively settled that Section 436‑A CrPC cannot be invoked by undertrials facing offences where death is one of the prescribed punishments (e.g., Section 302 IPC, Section 16 UAPA).
  • With BNSS Section 479 extending the exclusion to life imprisonment offences, the statutory right to release after half the maximum sentence is significantly curtailed in serious cases.
  • High Courts and trial courts must therefore look primarily to Article 21, general bail principles, and case law—not Section 436‑A—when considering bail for such accused.

6.2 For Article 21 and National Security

  • The judgment refines the balance between individual liberty and national security by:
    • affirming that prolonged incarceration cannot be ignored, and
    • insisting that Article 21 cannot be the sole basis for bail in terrorism/internal security cases without addressing gravity and societal impact.
  • Court orders granting bail in UAPA and similar cases must henceforth contain carefully reasoned analyses of:
    • the seriousness and factual background of the alleged acts;
    • the extent of delay, and who is responsible for it;
    • the accused’s conduct in custody and risk of misuse of liberty.

6.3 For Reverse-Burden Statutes and Systemic Reforms

  • The Court’s extended discussion on reverse burden highlights a constitutional concern: without systemic support (speedy trials, proper courts, prosecutors, legal aid), a reverse-burden regime risks becoming structurally unfair.
  • The Directions in Rem have potential to:
    • push High Courts to rationalise dockets and prioritise old UAPA and similar cases;
    • ensure adequate designation of special courts and staffing;
    • plug gaps in availability of public prosecutors;
    • strengthen legal-aid mechanisms so that socio-economically disadvantaged undertrials are not left to fend for themselves.
  • If implemented in earnest, these measures could significantly reduce:
    • pre-trial delays,
    • incarceration periods, and
    • the risk that presumptions of guilt harden into effective convictions without full adjudication.

6.4 For High Courts and Trial Courts

  • High Courts are now expected to:
    • maintain structured data on UAPA and reverse-burden cases;
    • exercise administrative oversight to ensure older cases are not lost in the system;
    • regularly interact with trial judges (through reports) to identify bottlenecks.
  • Trial courts must:
    • eschew routine adjournments, especially in long-pending cases;
    • record reasons for past and future delays;
    • conduct day-to-day hearings once a case is taken up, particularly after five years of pendency.

6.5 For Investigating Agencies and Prosecution

  • Agencies like the CBI and NIA must recognise that:
    • failure to complete investigations and trials expeditiously weakens their case for opposing bail, even in serious offences; and
    • courts may favour bail if systemic delays are attributable to investigative or prosecutorial lapses.
  • The emphasis on appointing sufficient prosecutors and avoiding prosecutorial delays reinforces that investigations and trials cannot be open-ended merely because UAPA or similar statutes are invoked.

6.6 For Undertrials and Defence Counsel

  • Undertrials in UAPA and reverse-burden cases now have:
    • a clearer basis to demand effective legal representation via Legal Services Authorities;
    • a stronger argument to insist on day-to-day hearings in long-pending matters;
    • precedent to challenge systemic delay as a violation of Article 21, even where Section 436‑A does not apply.
  • Defence counsel can invoke this judgment to:
    • press for court-monitored scheduling and refusal of casual adjournments;
    • demand that High Courts and trial courts implement the structural directions laid down by the Supreme Court.

7. Conclusion

CBI v. Dayamoy Mahato is a significant decision at the intersection of bail, terrorism offences, reverse-burden statutes, and systemic criminal justice reform. The Court:

  • clarifies the law by holding that Section 436‑A CrPC (and its BNSS counterpart) is wholly inapplicable to undertrials facing offences punishable with death, thus narrowing the statutory entitlement to release for such accused;
  • reaffirms Article 21 as a powerful protection against unduly long undertrial detention but insists that, in cases engaging national security and sovereignty, courts must undertake a nuanced, reasoned balancing exercise rather than invoking Article 21 in the abstract;
  • confronts the constitutional challenges of reverse-burden regimes like UAPA, recognising that procedural fairness requires more than formal presumptions and that the State must actively facilitate meaningful defence;
  • maintains the respondents’ liberty despite finding fault with the High Court’s reasoning, on the pragmatic and principled basis that they have already suffered lengthy incarceration, have not misused bail, and are victims of systemic delay;
  • issues far-reaching structural directions aimed at expediting UAPA and other reverse-burden cases nationwide, strengthening legal aid, ensuring adequate courts and prosecutors, and prioritising old matters through day-to-day trials and high-level monitoring.

The judgment thus sets an important precedent: harsh anti-terror laws and reverse burdens may be constitutionally permissible, but they come with a reciprocal constitutional responsibility on the State and the judiciary to ensure speedy trials, effective defence, and a bail jurisprudence that remains firmly anchored in human dignity and the presumption of innocence.

Case Details

Year: 2025
Court: Supreme Court Of India

Judge(s)

Justice Sanjay KarolJustice N Kotiswar Singh

Advocates

ARVIND KUMAR SHARMA

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