The Allahabad High Court has granted bail to an accused in a serious criminal case not on the merits of the evidence, but due to critical procedural failures in the recovery of incriminating material. The judgment underscores that compliance with statutory safeguards under the Bharatiya Nagarik Suraksha Sanhita, 2023, is non-negotiable, even in cases involving grave allegations. This ruling reinforces the principle that procedural irregularities can undermine the legitimacy of prosecution evidence and justify bail on grounds of fairness and due process.
Background & Facts
The Dispute
The applicant, Mohd. Hamid @ Saddam, is accused in Crime No. 113 of 2025 under Sections 103(1) and 238 of the Bharatiya Nagarik Suraksha Sanhita (BNS), registered at Police Station Kaptanganj, District Azamgarh. The alleged offence pertains to participation in a violent incident resulting in grievous harm. The applicant was not named in the original First Information Report (FIR). His name was added later based solely on the confessional statement of a co-accused, Mohd. Atif, who allegedly pointed out the applicant as an accomplice.
Key Facts
- The applicant was arrested on 02.05.2025 and has been in judicial custody since then.
- The prosecution claims that during the investigation, the co-accused Mohd. Atif pointed out a blood-stained kitchen knife as the weapon used in the offence.
- The recovery of the knife was allegedly conducted on the basis of this pointing out.
- No videography of the recovery process was conducted, in violation of Section 105 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which mandates audio-video recording of all recoveries made on the basis of accused’s disclosure.
- There is no record indicating that the blood-stained knife was sent to the Forensic Science Laboratory (FSL) for analysis.
- The applicant has no prior criminal record.
- The charge sheet has been filed, and no further custodial interrogation is required.
Procedural History
- 2025: Crime No. 113 registered at PS Kaptanganj, Azamgarh.
- 02.05.2025: Applicant arrested and remanded to judicial custody.
- [Date unspecified]: Charge sheet filed in the trial court.
- 13.05.2026: Criminal Misc. Bail Application No. 15421 of 2026 filed before the Allahabad High Court.
The Parties' Positions
For the Applicant
- The applicant was not named in the FIR and was only implicated based on the uncorroborated statement of a co-accused.
- The recovery of the blood-stained knife was not videographed as required under Section 105 BNSS, rendering it legally invalid.
- No evidence exists that the knife was sent to FSL for forensic testing, leaving the link between the weapon and the crime unsubstantiated.
- The applicant has no criminal antecedents and is a law-abiding citizen.
- Custodial interrogation is no longer required since the charge sheet is filed.
- Prolonged incarceration without substantive evidence violates the right to liberty under Article 21 of the Constitution.
For the Respondent/State
- The State did not dispute the factual claims regarding the absence of videography or FSL submission.
- The Additional Government Advocate (A.G.A.) conceded that, based on instructions from the Investigating Officer (I.O.), there was no documentation confirming compliance with Section 105 BNSS.
- The State did not present any evidence to rebut the applicant’s claims regarding the defective recovery.
Relief Sought
The applicant sought immediate release on bail during the pendency of trial, citing procedural violations, lack of incriminating evidence, absence of custodial interrogation needs, and prolonged detention since 02.05.2025.
The Legal Issue
Can bail be granted when the prosecution fails to comply with mandatory procedural requirements under Section 105 BNSS for the recovery of incriminating evidence, and no forensic verification of the recovered article has been conducted?
Arguments Presented
For the Appellant/Petitioner
The applicant’s counsel relied on the mandatory nature of Section 105 BNSS, which requires audio-video recording of all recoveries made on the basis of an accused’s disclosure. He argued that the absence of such recording renders the recovery suspect and inadmissible. He further cited Kapil Wadhawan v. Central Bureau of Investigation (2025 SCC OnLine SC 3038), where the Supreme Court emphasized that procedural lapses in investigation, especially those affecting evidentiary integrity, must weigh heavily in bail decisions. He also invoked Maya Tiwari v. State of U.P. (2024 SCC Online All 6765), wherein this Court held that bail should be granted where the prosecution’s case is weakened by non-compliance with statutory procedures. The counsel stressed that the applicant’s detention since 02.05.2025, without any incriminating material being substantiated, amounts to a violation of the presumption of innocence.
For the Respondent/State
The Additional Government Advocate did not contest the factual assertions regarding the absence of videography or FSL submission. He acknowledged that the Investigating Officer had not provided any documentation to confirm compliance with Section 105 BNSS. While the State opposed bail on the gravity of the offence, it offered no counter-evidence to refute the applicant’s claims. The State’s position effectively conceded the procedural defect.
The Court's Analysis
The Court examined the statutory mandate under Section 105 BNSS, which requires that any recovery made on the basis of an accused’s disclosure must be recorded by audio-video means. The Court noted that the failure to comply with this provision is not a mere technicality but a fundamental breach of procedural fairness, as it deprives the accused of the opportunity to challenge the authenticity of the recovery and exposes the investigation to the risk of fabrication.
"There is nothing on record that shows that videography of the aforesaid recovery of blood stained knife on pointing out of the applicant has been conducted or whether the blood stained knife has been sent for FSL."
The Court emphasized that the absence of such documentation creates reasonable doubt about the integrity of the evidence. It further observed that the Supreme Court in Kapil Wadhawan had directed that bail should not be denied merely on the basis of the nature of the offence when procedural irregularities cast doubt on the prosecution’s case. The Court also referenced its own precedent in Maya Tiwari, which held that bail is warranted where the prosecution’s case is undermined by non-compliance with statutory safeguards.
The Court acknowledged the overcrowding in jails and the heavy pendency of criminal trials, noting that prolonged detention without substantiated evidence is contrary to the spirit of Article 21. It held that the applicant’s detention since 02.05.2025, coupled with the absence of any forensic or videographic corroboration of the recovery, justified the grant of bail. The Court explicitly stated that it was not expressing any opinion on the merits of the case, but was acting on the basis of procedural non-compliance.
The Verdict
The applicant, Mohd. Hamid @ Saddam, is granted bail. He shall be released on furnishing a personal bond and two sureties, each in the same amount, to the satisfaction of the trial court. The bail is subject to four conditions: (i) no intimidation or tampering with witnesses or evidence; (ii) full cooperation in trial without seeking adjournments; (iii) no commission of any further offence; and (iv) attendance as per bond conditions. The trial court must verify identity, residence, mobile number, and Aadhaar details of the applicant and sureties before accepting bonds. The release order shall be implemented via the Bail Order Management System (BOMS) within 24 hours of this order. A certified copy of the order must be filed within 15 days. The Superintendent of Azamgarh Jail shall receive the order via e-prison portal within 24 hours. The Superintendent of Police, Azamgarh, is directed to conduct an inquiry into the failure of the SHO to comply with Section 105 BNSS and take appropriate action.
What This Means For Similar Cases
Procedural Compliance Is Non-Negotiable in Recovery Cases
- Practitioners must now insist on videography and FSL reports for every recovery under Section 105 BNSS.
- Any bail application where recovery lacks audio-video documentation should be argued as procedurally defective.
- Prosecution’s failure to produce such records creates reasonable doubt sufficient to justify bail, even in serious cases.
Bail Cannot Be Denied Solely on Gravity of Offence When Evidence Is Compromised
- Courts must prioritize procedural integrity over the perceived seriousness of the crime.
- The Kapil Wadhawan precedent now binds trial courts to grant bail where statutory safeguards are breached.
- Defence counsel should routinely file applications seeking production of recovery videos and FSL reports as part of bail hearings.
Accountability for Investigative Lapses Is Now Judicially Mandated
- The Court’s direction to the SP of Azamgarh to conduct an inquiry sets a precedent for institutional accountability.
- Investigating Officers who fail to comply with BNSS protocols may face departmental action.
- This judgment transforms procedural lapses from technicalities into grounds for judicial censure and corrective action.
