The Patna High Court has clarified that mere mention of an accused in a co-accused’s confessional statement, without any direct attribution in the FIR or eyewitness account, is insufficient to justify continued judicial custody. This order reinforces the principle that bail must be the norm, not the exception, particularly where the prosecution’s case lacks independent corroboration.
Background & Facts
The Dispute
The petitioner, Ashish Kumar S/o Ravinder Kumar, resident of Village Bhavdeva, P.S. Balwahat, District Saharsa, is accused in connection with a homicide case registered under PS Case No. 493 of 2024 at Simri Bakhtiyarpur Police Station. The case involves allegations of murder under Section 103(1) and Section 3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023, and unlawful possession of a firearm under Section 27 of the Arms Act.
Key Facts
- The informant, the wife of the deceased, filed the FIR alleging that her husband was shot dead by five named individuals, including Santosh Kumar.
- The petitioner’s name does not appear in the original FIR.
- The petitioner’s name emerged only in the confessional statement of Santosh Kumar, one of the named accused.
- Santosh Kumar was granted regular bail by a Coordinate Bench of this Court on 03.09.2025 in Cr. Misc. No. 43769 of 2025.
- The informant is not an eyewitness to the occurrence.
- The petitioner has two prior criminal cases in his antecedents.
- The petitioner has been in custody since 01.11.2025.
- No independent evidence or material has been disclosed linking the petitioner directly to the commission of the offence.
Procedural History
- 01.11.2025: Petitioner taken into custody.
- 2024: FIR registered at Simri Bakhtiyarpur PS, Case No. 493 of 2024.
- 03.09.2025: Co-accused Santosh Kumar granted regular bail by this Court.
- 06.05.2026: Petitioner filed present Criminal Miscellaneous Application No. 14744 of 2026 seeking regular bail.
The Parties' Positions
For the Petitioner
- The petitioner’s name is not mentioned in the FIR, indicating no prima facie link to the crime.
- His inclusion stems solely from the uncorroborated confession of Santosh Kumar, who has already been granted bail.
- The petitioner has no history of absconding and will cooperate in trial.
- Continued custody is unjustified where the prosecution’s case lacks direct evidence.
For the Respondent/State
- The petitioner has two prior criminal cases, indicating a propensity for criminal conduct.
- Granting bail may risk absconding, especially given the gravity of the charges under BNS and Arms Act.
- The confession of a co-accused, even if uncorroborated, provides sufficient ground for custody pending trial.
Relief Sought
The petitioner seeks regular bail on furnishing a bail bond of Rs. 25,000 with two sureties, one of whom shall be his father, Ravinder Kumar.
The Legal Issue
Can an accused be denied bail solely on the basis of being named in the confessional statement of a co-accused, when the name does not appear in the FIR, the informant is not an eyewitness, and the co-accused has already been granted bail?
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on the principle that bail is the rule and jail the exception, as affirmed in Arnesh Kumar v. State of Bihar. He emphasized that the absence of the petitioner’s name in the FIR and the lack of eyewitness testimony render the case against him speculative. He further pointed out that since Santosh Kumar, whose confession implicated the petitioner, had been granted bail, the continued detention of the petitioner without independent corroboration was arbitrary and violative of Article 21 of the Constitution. He submitted that the petitioner’s antecedents, while present, do not establish a risk of flight or tampering with evidence.
For the Respondent/State
The Additional Public Prosecutor contended that the gravity of the offence under Section 103(1) BNS - which carries a potential sentence of life imprisonment - warrants caution. He argued that confessional statements, even if uncorroborated, form part of the investigation record and justify custody. He also stressed the petitioner’s two prior cases as indicative of a criminal tendency, and warned that granting bail might encourage witness intimidation or evidence destruction.
The Court's Analysis
The Court undertook a careful review of the factual matrix and the legal standards governing bail in non-bailable offences. It noted that the prosecution’s case against the petitioner rests entirely on a confession made by Santosh Kumar, who is himself a co-accused and has already been released on bail. The Court observed that the informant, who is the sole complainant, did not identify the petitioner at the time of filing the FIR or during initial investigation.
"The name of the petitioner transpired in the confessional statement of Santosh Kumar, who has been granted regular bail. There is no direct allegation against the petitioner in the FIR, nor is there any eyewitness account linking him to the occurrence."
The Court held that the mere fact of a co-accused’s confession, without independent corroboration or direct involvement established by the prosecution, cannot be the sole basis for denying bail. It further noted that the State had not adduced any material to suggest that the petitioner posed a threat to witnesses, tampered with evidence, or was likely to abscond. The Court distinguished this case from those involving active participation, recovery of weapons, or forensic links, which would justify continued custody.
The Court also emphasized that the co-accused’s own grant of bail under similar factual circumstances undermines the State’s argument that the petitioner’s detention is necessary for the integrity of the investigation. The Court concluded that the petitioner’s antecedents, while relevant, do not override the absence of a prima facie case against him.
The Verdict
The petitioner succeeded. The Court directed his release on bail on furnishing a personal bail bond of Rs. 25,000 with two sureties, each of the same amount, to the satisfaction of the Trial Court in PS Case No. 493 of 2024. One of the sureties must be his father, Ravinder Kumar. The Court further warned that if the petitioner attempts to delay the framing of charges or the trial after release, the Trial Court may cancel the bail bonds.
What This Means For Similar Cases
Confessional Statements Alone Are Insufficient for Denial of Bail
- Practitioners must challenge custody where the accused’s name appears only in a co-accused’s confession and not in the FIR or witness statements.
- The grant of bail to a co-accused whose confession implicated the applicant is a strong factor in favor of bail.
- Courts must not treat confessions as standalone evidence for custody decisions without corroboration.
Antecedents Must Be Balanced Against Prima Facie Evidence
- Prior criminal history cannot override the absence of direct evidence linking the accused to the current offence.
- The burden remains on the prosecution to demonstrate a real risk of flight or tampering - not merely speculative concerns.
- In cases under BNS or Arms Act, courts must still apply the triple test (nature of accusation, likelihood of absconding, risk to investigation) rigorously.
Procedural Fairness Requires Transparency in Accusation
- If an accused is not named in the FIR, the prosecution must explain why and provide a credible reason for subsequent inclusion.
- Delayed or post-facto naming through confessions requires heightened scrutiny before denying liberty.
- This judgment reinforces that Article 21 protects against arbitrary detention even in serious cases.
