Cancellation of bail only justified if retention of liberty ‘so dire’ as to undermine justice: Supreme Court

The Supreme Court said on Wednesday (July 22, 2026) that interference with bail orders is only justified where continued liberty is “so egregious as to undermine the administration of justice”. Condemning the routine practice of challenging bail orders under Article 136 of the Constitution, the court said its extraordinary discretion should be exercised only in exceptional cases.

The oral observations were made by a bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohan while hearing petitions filed by the Enforcement Directorate (ED) and the Chhattisgarh government challenging the bail granted by the Chhattisgarh High Court in January to Chaitanya Baghel, son of former Chhattisgarh scam boss Baghel.

Addressing senior advocate Mahesh Jethmalani, appearing for the state government, Justice Bagchi questioned whether the apex court, in exercise of its jurisdiction under Article 136, should examine every alleged legal defect in the bail order and curtail the liberty of an individual on that basis alone. “When a court intervenes under Article 136, it does so on the basis of whether the preservation of liberty is so serious as to affect the administration of justice. Is it the correct approach, especially for a court of last resort, to consider the jurisprudence of a bail order as the one and only test for deprivation of liberty?” Justice Bagchi said.

Expressing concern over the growing pool of petitions challenging the high court’s bail orders, the judge emphasized that the jurisdiction under Article 136 was never meant to function as an ordinary judicial power but as a “repository of justice” to interpret the Constitution.

“We should dig deeper. Regardless of any illegality in the bail order, the question is whether the standards of justice warrant depriving a person of his liberty on that basis alone… High courts should ordinarily be the final arbiters of bail appeals,” he added.

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Acknowledging the Bench’s concerns, Mr. Jethmalani nevertheless argued that the High Court’s order was “perverse” and Mr. Baghel was granted bail on “flimsy grounds”. He also objected to the Supreme Court’s adverse remarks against the state Economic Offenses Department, which is investigating the alleged liquor scam.

“He is influential, he is the son of a former chief minister… Your Lordship should at least delete these remarks, otherwise there will be great injustice on the part of the investigating agency,” he added.

The bench agreed that the remarks against the investigating agency were “unwarranted”, ordered them to be stricken from the High Court’s order, but refused to interfere with the grant of bail to Mr. Baghel.

However, the Bench clarified that all questions of law would remain open to be heard by the appropriate court at the appropriate stage.

Damn precedent

During Wednesday’s hearing, Justice Bagchi also hailed the precedent set in Union of India versus KA Najeeb, authored by CJI Surya Kant in 2021, while he was heading a three-judge bench as a Supreme Court judge at the time. Justice Bagchi noted that the decision came as a relief to courts struggling to reconcile the strict statutory limitations on bail under anti-terrorism laws with the constitutional guarantee of personal liberty under Article 21.

The Supreme Court ruled that prolonged imprisonment and undue delays in the trial could “melt down” the statutory restrictions on bail under Section 43D(5) of the Unlawful Activities (Prevention) Act (UAPA), 1967, which prohibits the granting of bail where there are reasonable grounds to believe that the allegations are prima facie true.

However, senior advocate Mukul Rohatgi, appearing for Mr. Baghel, was quick to point out that despite the “groundbreaking” decision that authoritatively settled the law, the courts continued to differentiate it instead of faithfully implementing their mandate. “The irony is that despite the landmark judgment, some courts still want to distinguish it… They did not follow the mandate of the judgment. We still have to fight, either in the high courts or, I’m sorry, my lords, sometimes in this court,” he said.

Mr. Rohatgi was referring to a May 2026 order by a division bench headed by Justice Aravind Kumar, which referred to a larger bench, asking whether prolonged imprisonment and adjournment of trial could override strict bail restrictions under anti-terrorism laws such as the UAPA. He found that the bench headed by Justice Aravind Kumar failed to properly apply the binding principles laid down by the larger bench in Najeeb.

The reference came days after another coordination committee headed by Justice BV Nagarathna expressed “serious reservations” over the January 5, 2026 judgment that refused to grant bail to Jawaharlal Nehru University scholars Umar Khalid and Sharjeel Imam in the alleged larger conspiracy case arising out of the 2020 Delhi riots. The bench observed that the January 5 decision by a bench headed by Justice Kumar failed to properly apply the binding principles laid down by the larger Bench in Najeeb’s case.

“Infallible Conviction”

Acknowledging the concerns, the CJI noted that even the Supreme Courts had started adopting increasingly strict approaches to bail. The bench also pointed out that prosecutors should focus on securing convictions rather than routinely challenging bail orders.

“If the public prosecutor and the investigating officer invest so much in pre-trial freedoms, their ultimate duty to secure a conviction is reduced. You can justify the need for continuing pre-trial detention on the basis of social responsibility, but at the same time you abdicate the higher responsibility of securing a reliable conviction,” the Bench said, noting that conviction rates in terrorism and fraud cases have fallen significantly.

Mr. Baghel was arrested by the ED on 18 July 2025 in connection with an alleged ₹2,833 crore liquor scam. On 22 December, the Chhattisgarh Economic Offenses Wing filed a chargesheet alleging that he had received ₹200-250 crore between 2019 and 2022 when his father, Mr Bhupesh Baghel, was the Chief Minister of the state. The ED, meanwhile, alleged that Mr. Baghel personally handled nearly ₹1,000 crore in criminal proceeds generated by the scam.

In addition to Mr. Baghel, the indictment names former Excise Minister Kawasi Lakhma, accused of approving the excise policy and accepting the proceeds of crime; former Deputy Secretary to the Chief Minister’s Office, Saumya Chaurasia, who allegedly coordinated the illicit cash network and directed the posting of eligible officials; and Anwar Dhebar, brother of Raipur mayor and Congress leader Aijaz Dhebar, who was described as the alleged mastermind of the scam.

In granting Mr Baghel bail in January, the High Court noted that the prosecution’s case rested largely on broad allegations of his influence and proximity to the alleged plot rather than any specific acts attributable to him. “Considered cumulatively – the absence of the complainant’s name in the FIR (First Information Report), consistent non-charge in the first charge sheet and then in the five supplementary charges, insufficient enforcement, completion of investigation, grant of bail to a similarly placed co-accused, procedural lapses on the part of the investigating authority and the inevitability of a protracted trial do not adduce any further grounds for prosecution by the complainants – this Court finds no reason to to the prosecution.Arvind Kumar Verma observed this.

Published – 22 Jul 2026 22:50 IST