The jurisprudence governing bail in India often requires courts to strike a delicate balance between two competing considerations: the constitutional guarantee of personal liberty under Article 21 and the broader societal interest in maintaining law and order. While prolonged incarceration and delay in trial have increasingly been recognised as grounds for granting bail, courts continue to exercise caution where the accused has a substantial criminal history and faces allegations involving grave offences.
The judgment reiterates that criminal antecedents remain a crucial factor in bail adjudication and that the constitutional right to speedy trial cannot automatically override concerns relating to public safety and the administration of justice.
Background of the Case
The applicant, Swapnil Kashikar, sought bail in connection with Crime No. 84 of 2024 registered at Ramnagar Police Station, Chandrapur. He was accused of offences punishable under Sections 143, 147, 148, 149, 302, and 120-B of the Indian Penal Code [Sections 189 (2),191(2), 191(3), 190, 103, 61 of BNS] along with Section 135 of the Maharashtra Police Act and Sections 4 and 25 of the Arms Act.
The prosecution case arose from a complaint lodged by one Nilesh Bhagwan Hiwrale. According to the prosecution, the deceased, Shiva, previously worked as a contractor with the applicant but later parted ways. A dispute allegedly emerged regarding a two-wheeler purchased in the deceased’s name and financed through a loan.
On 25 January 2024, a co-accused allegedly called the deceased to the office of the applicant. Upon arriving there, the deceased was allegedly assaulted. The prosecution specifically alleged that the applicant attacked the deceased with a knife on a vital part of the body, while other co-accused assaulted him with fists and kicks. The victim later succumbed to his injuries.
The applicant was arrested on 26 January 2024 and remained in custody thereafter.
Applicant’s Argument: Violation of the Right to Speedy Trial
The primary argument advanced on behalf of the applicant was that his continued detention violated the constitutional guarantee of a speedy trial under Article 21 of the Constitution.
Counsel pointed out that:
- The FIR was registered on 26 January 2024.
- The applicant was arrested on the same day.
- The charge-sheet was filed on 24 April 2024.
- The matter was committed to the Sessions Court on 6 May 2024.
Despite these developments, even after more than two years and four months of incarceration, charges had not been framed. It was argued that such delay amounted to a violation of the applicant’s fundamental rights and justified his release on bail.
The applicant relied upon the Supreme Court’s decision in Abhimanue v. State of Kerala (2025), where prolonged incarceration and delay in trial were considered relevant factors while granting bail.
State’s Opposition to Bail
The State strongly opposed the bail application.
The prosecution argued that:
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The applicant was accused of committing a brutal murder.
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He had allegedly inflicted fourteen injuries on the deceased.
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His earlier bail application had already been rejected on merits.
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The Supreme Court had declined to interfere with the earlier rejection.
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Most importantly, the applicant had extensive criminal antecedents demonstrating that he was a habitual offender.
The State contended that the present application sought to indirectly reopen issues that had already been considered and rejected.
Criminal Antecedents of the Applicant
A significant aspect of the judgment concerns the applicant’s criminal history.
The Court reproduced a detailed chart showing ten criminal cases registered against the applicant over the years. These cases involved offences such as:
- Voluntarily causing hurt and grievous hurt
- Attempt to murder
- Kidnapping
- Dacoity
- Assault on public servants
- Criminal intimidation
- Rioting and unlawful assembly
While the applicant had secured acquittals in four cases, six other cases remained pending. Several of those pending matters involved serious bodily offences, including attempt to murder and dacoity.
The prosecution argued that the applicant’s criminal history revealed a consistent pattern of violent conduct and demonstrated that he was not a law-abiding citizen.
Court’s Analysis: Liberty Is Not Absolute
Justice M.M. Nerlikar acknowledged that the applicant had been incarcerated since January 2024 and that charges had not yet been framed. However, the Court emphasised that delay alone could not determine the outcome of a bail application.
The Court observed that while considering bail, it is necessary to evaluate:
- The conduct of the accused.
- Criminal antecedents.
- Nature and gravity of the offence.
- Potential impact on society.
- Risk of repeating criminal conduct.
The Court noted that the applicant’s criminal history included allegations involving kidnapping, grievous hurt, attempt to murder, and dacoity. Such offences, according to the Court, could not be ignored merely because the trial had been delayed.
In one of the most striking observations in the judgment, the Court stated:
“Although personal liberty is a cherished constitutional value, it is not absolute. Liberty must give way when it threatens the collective interests of society.”
The Court further held that no individual can claim a freedom that imperils the life or liberty of others.
Article 21 and the Limits of Personal Liberty
The judgment offers an important discussion on the scope of Article 21.
The Court clarified that the right to life and personal liberty is undoubtedly fundamental. However, it is not an unrestricted or absolute right. Courts must balance individual rights against societal interests.
The Court observed that when an accused is a history-sheeter with multiple serious criminal cases, Article 21 cannot automatically operate as a shield against continued detention. The constitutional protection must be interpreted in a manner that does not jeopardize public safety.
Thus, while delay in trial is an important factor, it does not create an automatic entitlement to bail.
Reliance on Supreme Court Precedents
The High Court drew substantial support from recent Supreme Court judgments.
State of Karnataka v. Sri Darshan (2025)
The Court referred to the Supreme Court’s decision in State of Karnataka v. Sri Darshan, where bail granted by a High Court was cancelled because criminal antecedents had been ignored.
The Supreme Court had reiterated that courts must remain vigilant while granting bail to habitual offenders and that ignoring criminal antecedents can render a bail order perverse.
The High Court relied upon this principle to underscore that antecedents are not a peripheral consideration but a central factor in bail adjudication.
Neeru Yadav v. State of Uttar Pradesh
The judgment also referred to Neeru Yadav v. State of U.P., where the Supreme Court emphasised that history-sheeters involved in heinous offences should not be enlarged on bail merely on grounds such as parity. Courts must exercise their discretion judiciously and not mechanically.
Ash Mohammad v. Shiv Raj Singh
The High Court further relied on Ash Mohammad v. Shiv Raj Singh, wherein the Supreme Court stressed that criminal antecedents and societal concerns must be weighed alongside the period of incarceration.
The Supreme Court had held that although custody is a relevant factor, courts must examine the totality of circumstances, including the nature of the offence and the accused’s criminal history. Societal concerns may sometimes outweigh individual liberty.
Rajni v. State of Punjab (2026)
The Court also referred to the recent Supreme Court decision in Rajni v. State of Punjab (2026), where it was held that delay in trial and long incarceration cannot by themselves justify bail in serious offences such as murder.
The Supreme Court observed that criminal antecedents directly influence whether an accused is likely to obey bail conditions, refrain from committing further offences, or avoid influencing witnesses.
Distinguishing the Abhimanue Decision
The applicant had relied on Abhimanue v. State of Kerala to support his plea for bail.
However, the High Court distinguished that judgment.
The Court noted that the Supreme Court in Abhimanue had observed that criminal antecedents alone cannot automatically justify denial of bail. However, the Court clarified that the decision was rendered on the merits of that specific case and not solely on the ground of delay in trial.
Accordingly, the High Court held that the applicant could not derive any benefit from that precedent.
Misuse of Earlier Liberty
A factor that significantly influenced the Court’s reasoning was the applicant’s conduct while previously on bail in other criminal cases.
The Court observed that:
- The applicant had repeatedly secured bail in earlier matters.
- Despite such liberty, he allegedly continued to commit offences.
- The pattern indicated misuse of judicial indulgence.
- His conduct demonstrated that he was not a law-abiding citizen.
The Court therefore concluded that releasing the applicant would pose a serious risk to society.
Why the Court Ultimately Refused Bail
After evaluating all circumstances, the Court concluded that:
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The applicant was facing allegations of murder.
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His criminal record was extensive and serious.
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Several cases involving violent offences remained pending.
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Earlier opportunities granted through bail had allegedly been misused.
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Public interest and societal safety outweighed the claim of personal liberty.
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Delay in trial, though relevant, was insufficient to justify release.
Consequently, the bail application was rejected.
Conclusion
The Bombay High Court’s decision in Swapnil s/o Chandrakant Kashikar v. State of Maharashtra underscores an important principle of criminal jurisprudence: personal liberty, though fundamental, is not absolute. While prolonged incarceration and delays in trial undoubtedly raise constitutional concerns, courts must also account for the gravity of the offence, the criminal history of the accused, and the broader interests of society.
By refusing bail to an accused with extensive criminal antecedents despite more than two years of custody, the Court reaffirmed that bail jurisprudence requires a careful balancing exercise. The judgment serves as a reminder that Article 21 protects individual freedom, but that freedom cannot be asserted in a manner that jeopardises public safety or undermines confidence in the administration of justice.