The Allahabad High Court has reaffirmed that bail is the rule and jail the exception, even in cases involving allegations of hurting religious sentiments. Granting bail to three applicants charged under multiple provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023, and the Information Technology Act, the Court emphasized that pre-trial detention must not be automatic and must be balanced against the right to liberty, absence of criminal antecedents, and the applicants’ willingness to cooperate.
Background & Facts
The Dispute
The applicants - Mohd. Sameer, Mohd. Ahmad Raza, and Mohd. Faizan - are accused in Case Crime No. 65 of 2026, registered at Police Station Kotwali, Varanasi, for allegedly celebrating an iftar party on a boat in the River Ganga and discarding chicken bones and other waste into the river. The prosecution alleges that this act, occurring in a sacred river, hurt religious sentiments of a section of the public, thereby attracting charges under Sections 298, 299, 196(1)(b), 279, 223(b), 308(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (B.N.S.S.), and Section 67 of the Information Technology Act.
Key Facts
- The incident allegedly occurred on or before 15.03.2026, leading to the registration of the FIR on 16.03.2026.
- The applicants were arrested on 17.03.2026 and have been in judicial custody since that date.
- No prior criminal record exists for any of the applicants.
- The case involves 14 accused persons in total.
- The applicants have not contested the factual allegations but have expressed regret and offered to apologize.
- The applicants have undertaken to file an affidavit before the trial court and police station affirming they will not repeat such acts.
Procedural History
- 16.03.2026: FIR registered at Police Station Kotwali, Varanasi.
- 17.03.2026: Applicants arrested and remanded to judicial custody.
- 15.05.2026: Criminal Misc. Bail Application No. 14740 of 2026 filed before the Allahabad High Court.
- 15.05.2026: Hearing conducted before Justice Jitendra Kumar Sinha.
The Parties' Positions
For the Applicants
The applicants’ counsel contended that they are innocent and falsely implicated due to ulterior motives. They emphasized their clean criminal record, prolonged detention since 17.03.2026, and willingness to cooperate fully with the investigation and trial. They offered to file an affidavit undertaking not to repeat the act and assured compliance with all bail conditions.
For the Respondent
The Additional Advocate General did not oppose bail outright but noted that co-accused in the same case had already been granted bail by a coordinate bench on similar terms. The State did not contest the applicants’ personal circumstances or the absence of risk of flight or tampering.
Relief Sought
The applicants sought release on bail during the pendency of trial, subject to conditions ensuring their cooperation and non-interference with the judicial process.
The Legal Issue
The central question was whether bail can be granted under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in a case involving allegations of hurting religious sentiments, where the accused have no prior record, have been in custody for over a month, and have offered unconditional cooperation and an undertaking to refrain from future conduct.
Arguments Presented
For the Appellant/Petitioner
The applicants’ counsel relied on the foundational principle that bail is the rule, jail the exception, as affirmed in State of Rajasthan v. Balchand and Sanjay Chandra v. CBI. They argued that the allegations, while serious, do not involve violence or direct threat to public order. The applicants’ clean record, prolonged detention, and voluntary undertaking to file an affidavit demonstrated their bona fides. They further cited Arnesh Kumar v. State of Bihar to underscore that arrest and custody must not be routine in non-heinous offences.
For the Respondent/State
The State did not present substantive opposition to bail. The Additional Advocate General acknowledged that a coordinate bench had already granted bail to co-accused under identical conditions, thereby implicitly accepting that the case did not warrant continued detention. The State’s position was effectively neutral, leaving the Court to assess the applicants’ conduct and the nature of the charges.
The Court's Analysis
The Court declined to evaluate the merits of the allegations, explicitly stating that its order was confined to the bail application alone. It noted that the applicants had been in custody since 17.03.2026 - nearly two months - with no criminal history. The Court observed that the charges, though invoking provisions related to religious sentiments and public nuisance, did not involve physical violence, conspiracy, or organized disruption.
"I find it to be a fit case for bail."
The Court emphasized that the applicants’ willingness to file an affidavit and their assurance of non-repetition demonstrated a responsible attitude. It further noted the absence of any allegation of witness intimidation or evidence tampering, and the fact that co-accused had already been granted bail on similar terms. The Court held that the right to personal liberty under Article 21 of the Constitution must prevail unless there is a clear risk of flight, tampering, or recurrence of offence - all of which were absent here.
The Court also underscored that the conditions imposed were not merely procedural but substantive safeguards to ensure the integrity of the trial process. The requirement to appear personally for key stages of trial, to avoid adjournments when witnesses are present, and to file an affidavit within a week were deemed reasonable and proportionate.
The Verdict
The applicants succeeded. The Court granted bail to Mohd. Sameer, Mohd. Ahmad Raza, and Mohd. Faizan on furnishing a personal bond of Rs. 50,000 each with two sureties of like amount. The applicants must file an affidavit undertaking not to repeat the act within one week of release. They are prohibited from intimidating witnesses, tampering with evidence, or seeking adjournments when prosecution witnesses are present. They must appear personally before the trial court for the opening of the case, framing of charges, and recording of statements under Section 351 of B.N.S.S., and must appear on all trial dates either personally or through counsel. Any breach of conditions shall result in immediate cancellation of bail.
What This Means For Similar Cases
Bail Is Not Denied Solely on Ground of Religious Sensitivity
- Practitioners may now argue that allegations under Sections 298, 299, or 196(1)(b) of B.N.S.S. do not automatically disqualify an accused from bail, especially where no violence or incitement is alleged.
- Courts must distinguish between offensive speech/acts and acts that threaten public order or incite violence.
- An unconditional apology and undertaking to refrain from future conduct can be a strong mitigating factor.
Affidavit Undertakings Carry Weight in Bail Decisions
- The Court’s acceptance of the affidavit undertaking as a binding condition sets a precedent for using such undertakings as enforceable safeguards.
- This reduces the need for excessive pre-trial detention in cases where the accused demonstrate remorse and cooperation.
- Legal teams should proactively draft and offer such affidavits in bail applications involving moral or religious offence charges.
Procedural Consistency Between Co-Accused Is Relevant
- When co-accused in the same case have been granted bail on identical terms, courts are likely to follow suit to avoid arbitrariness.
- This reinforces the principle of equal treatment under Article 14 in bail jurisprudence.
- Counsel should cite prior bail orders in coordinate benches as persuasive authority.
