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Delhi HC Grants Bail in Attempted Murder Case: A Critical Analysis of Fair Investigation and Judicial Discretion

Case Citation: Bail Application 90/2026, High Court of Delhi
Date of Judgment: January 12, 2026
Presiding Judge: Justice Girish Kathpalia
FIR Details: FIR No. 471/2025, PS Jaitpur
Offence Charged: Section 109(1) of the Bharatiya Nyaya Sanhita, 2023 (Attempt to Murder)

Summary

Justice Girish Kathpalia of the High Court of Delhi granted regular bail to Avinash in a landmark judgment that emphasizes the constitutional importance of fair investigation as a fundamental right. The court found that the investigating officer failed to fairly investigate the genesis of the occurrence by not registering a cross-FIR despite eyewitness evidence showing that the complainant’s father initiated the assault with a shovel. The judgment is significant for reaffirming that bail is the rule and detention the exception, and that defective investigation can be a valid ground for granting bail even in serious non-bailable offences like attempt to murder.

Part I: Understanding the Facts and Criminal Allegations

The Incident and the Charges

The case involves a confrontation that resulted in mutual violence between Avinash (the accused/applicant) and a private complainant along with the complainant’s father. According to the prosecution’s version, Avinash inflicted knife injuries on the complainant and his father. However, this narrative forms only one side of the actual incident, as the medical evidence and eyewitness testimonies paint a more nuanced picture.^[1]

The accused was charged under Section 109(1) of the Bharatiya Nyaya Sanhita, 2023, which deals with attempt to murder. This is a non-bailable offence that provides for imprisonment up to ten years and/or a fine. If the act causes hurt to any person, the offender can be punished with imprisonment for life or the aforementioned term. This makes the crime serious under Indian criminal law, justifying the initial arrest and detention of Avinash.^[2]^[3]

The Actual Sequence of Events

The judgment reveals a critical fact that contradicts the prosecution’s narrative. A statement by Niyaz Ali, an eyewitness dated August 28, 2025, provided a completely different account of what actually occurred. According to this witness statement:^[1]

The father of the complainant initiated the violence by first slapping and then assaulting Avinash with a shovel. Only after this assault did the ensuing fight occur.

This eyewitness account is crucial because it establishes that Avinash did not initiate the violence unprovoked. Instead, he faced physical aggression from the complainant’s father using a shovel—a potentially lethal weapon. The subsequent injuries allegedly inflicted by Avinash can be understood as a response to this provocation and assault.

Medical Evidence: A Silent Witness

The medical condition of both parties provides important corroborating evidence:^[1]

The complainant de facto was discharged from the hospital on the same day as the incident occurred
The father of the complainant was discharged approximately six days after the incident

This medical information suggests that while both parties sustained injuries, the severity appeared manageable enough for immediate discharge (in the complainant’s case) and treatment that did not require extended hospitalization (in the father’s case). Such medical evidence can be significant in determining the actual severity of injuries inflicted and whether they truly constitute attempt to murder or fall under lesser offences like voluntarily causing hurt or grievous hurt.

Part II: Legal Framework – Offence of Attempt to Murder Under BNS

What Constitutes Attempt to Murder?

Section 109(1) of the Bharatiya Nyaya Sanhita, 2023 provides clear legal definition for the offence:^[4]^[2]

The essential requirements to establish attempt to murder are:^[5]^[2]

Mens Rea (Criminal Intent): The accused must act with the specific intention or knowledge that the act, if successful, would cause death.
Actus Reus (Criminal Act): There must be an overt act that directly moves towards the commission of murder.
Proximity: The act must be proximate to the completion of the offence, going beyond mere preparation.
Causation: If hurt is caused, the offender faces enhanced punishment up to life imprisonment.

Non-Bailable Nature of the Offence

Under the criminal procedure framework (both CrPC and BNSS), attempt to murder is classified as a non-bailable offence. This classification means:^[3]^[6]^[2]^[4]

An accused charged with this offence cannot be released on bail automatically
The burden is on the accused to demonstrate grounds for bail
The court exercises discretion under Section 437(2) CrPC or similar provisions in BNSS
The severity of the offence and the circumstances of the case are critical considerations

However, the non-bailable nature does not mean bail should be denied as a rule. Rather, it means that each application must be carefully examined on its individual merits.

Part III: Bail Jurisprudence in India

The Statutory Framework for Bail

Bail in India is governed by comprehensive legal provisions:^[6]^[3]

Section 436 CrPC: Provides that when a person accused of a bailable offence is arrested, they have a statutory right to bail.
Section 437 CrPC: Permits bail in non-bailable offences, but grants discretion to the court to refuse bail if reasonable grounds exist to believe the accused committed an offence punishable with death or life imprisonment.
Section 439 CrPC: Grants special powers to the High Court or Court of Session to grant or refuse bail and impose conditions.

Constitutional Principles Underlying Bail

The right to bail is grounded in constitutional jurisprudence:^[7]^[8]

Article 21 of the Constitution of India protects the right to personal liberty and freedom. This right cannot be arbitrarily or indefinitely infringed.
Presumption of Innocence: A fundamental principle of criminal jurisprudence that every person is presumed innocent until proven guilty.
Bail as the Rule, Detention as the Exception: Indian courts have consistently held that release on bail is the general rule, and remand in custody should be the exception.^[9]

Judicial Discretion in Bail Decisions

Justice Kathpalia’s judgment highlights the important role of judicial discretion in bail matters. Courts must consider multiple factors including the nature and gravity of the offence, strength of the prosecution case, the accused’s criminal antecedents, character and reputation, risk of absconding, risk of tampering with evidence, risk of intimidating witnesses, likelihood of repeating the offence, and any special circumstances.^[10]^[8]^[7]

Part IV: Fair Investigation as a Constitutional Right

The Concept of Fair Investigation

One of the most important aspects of this judgment is Justice Kathpalia’s critical observation that “It appears that the IO has not fairly investigated genesis of the occurrence.”^[1]

This observation represents a critical invocation of the principle that fair investigation is a fundamental constitutional right of the accused. The Supreme Court and High Courts of India have repeatedly affirmed that:^[11]^[12]^[13]

Fair trial and fair investigation are constitutional rights protected under Articles 20 and 21 of the Constitution of India
The investigating agency has a statutory obligation to conduct investigations that are fair, transparent, and judicious
The minimum requirement of the rule of law is that investigation must be fair, transparent, and judicious
An investigating officer’s duty is not to bolster the prosecution’s case but to bring out the real, unvarnished truth

What Constitutes Unfair Investigation?

Fair investigation encompasses:^[13]^[11]

Honesty and Competence: The investigating officer must conduct the investigation with honesty and competence.
Impartiality: Investigation must be unbiased and neutral, not tilted towards conviction.
Complete Inquiry: Investigation must cover all aspects of the incident, including evidence favoring the accused.
Preserving Evidence: All relevant evidence, including evidence that might benefit the accused, must be properly preserved and documented.
Recording Statements: Statements of witnesses favorable to the accused must be recorded accurately and fairly.

In the present case, the Investigating Officer failed to investigate the “genesis of the occurrence”—the circumstances that led to the violence. The eyewitness statement by Niyaz Ali, which clearly established that the complainant’s father initiated the assault, appears to have been overlooked or inadequately considered in the investigation.

Part V: Failure to Register Cross-FIR

The IO’s Justification and Its Shortcomings

The Investigating Officer submitted to the court that he did not register a cross-FIR against the complainant’s father because:^[1]

“The present accused/applicant filed an application under Section 156(3) CrPC for registration of FIR and that application is pending.”

Section 156(3) CrPC and Cross-FIR

Section 156(3) of the Code of Criminal Procedure, 1973 provides that:^[14]^[15]^[16]

A Magistrate can order the police to investigate a cognizable offence upon a private complaint when the police refuse to register an FIR.

The IO’s justification for not registering a cross-FIR is problematic for several reasons:^[17]

Lack of Initiative: The IO should have suo moto registered an FIR based on the eyewitness statements and medical evidence indicating that the complainant’s father assaulted Avinash with a shovel. The existence of an application under Section 156(3) does not absolve the IO of the duty to investigate all aspects of the incident.
Selective Investigation: By not registering a cross-FIR, the IO effectively conducted a one-sided investigation that focused only on allegations against Avinash while ignoring evidence of assault by the complainant’s father.
Violation of Principles of Fair Investigation: A truly fair investigation would have examined all evidence and registered cases against all persons against whom prima facie evidence exists.

The Court’s Implicit Criticism

Justice Kathpalia’s observation that “the IO has not fairly investigated genesis of the occurrence” is an implicit but clear criticism of the IO’s failure to register a cross-FIR and to properly investigate the sequence of events.

Part VI: Self-Defense and Criminal Responsibility

The Doctrine of Self-Defence in Indian Criminal Law

While the judgment does not explicitly discuss the right of self-defence under the BNS, the facts strongly suggest that Avinash’s actions might fall within the scope of lawful self-defence. The principles of self-defence include:^[18]

Necessity: The force must have been necessary to defend against the aggression.
Proportionality: The force used must be reasonable and proportionate to the threat faced.
Immediacy: The threat must be imminent, not anticipated or future.
No Provocation: The person defending must not have provoked the attack.

In Avinash’s case:

He faced an immediate assault with a shovel (a potentially lethal weapon) from the father of the complainant
He did not initiate the violence
His response came in direct reaction to this assault
The proportionality of his response would need to be established at trial

Part VII: The Judgment and Bail Grant

Court’s Reasoning for Granting Bail

The court granted regular bail to Avinash based on the following considerations:^[1]

Defective Investigation: The investigating officer failed to fairly investigate the genesis of the occurrence. This unfair investigation deprives the accused of proper protection of his interests.
Medical Evidence: Both the complainant and the father were discharged from hospital relatively quickly, with the complainant being discharged on the same day. This suggests the injuries, while present, were not of the utmost severity that would justify charge under attempt to murder.
Eyewitness Evidence: The statement of Niyaz Ali clearly establishes that the father of the complainant initiated the assault. This evidence, if accepted, would completely change the character of the offence from unprovoked attack by Avinash to a retaliatory response.
Excessive Incarceration: Avinash had already spent more than five months (from August 3, 2025, to January 12, 2026) in jail without trial. Such extended incarceration while awaiting trial constitutes a form of punishment without conviction.
Constitutional Protections: Article 21 of the Constitution protects personal liberty. The court must ensure that this right is not unjustifiably violated.

Terms and Conditions of Bail

The court directed that:^[1]

Avinash shall be immediately released on bail subject to:

Personal Bond: Rs. 10,000/-
Surety: One surety in the same amount (Rs. 10,000/-)
Jurisdiction: The bond is to be executed to the satisfaction of the learned Trial Court

These are relatively modest terms, reflecting the court’s assessment that Avinash does not pose a serious flight risk or danger to society.

Part VIII: Broader Implications and Significance

Reaffirmation of Fair Investigation Rights

This judgment represents a strong reaffirmation of the principle that fair investigation is a constitutional right of the accused. Courts cannot turn a blind eye to unfair investigation methods, and such unfairness becomes a relevant consideration in bail adjudication.^[12]^[13]

Judicial Scrutiny of Police Conduct

The judgment emphasizes that courts must exercise vigilance over police conduct. The fact that:^[1]

The IO had not produced the original investigation file (only a photocopy was presented)
The IO had not registered a cross-FIR despite evidence of assault by the complainant’s father
The IO had focused the investigation only on allegations against the accused

…all suggest a pattern of investigative conduct that falls short of constitutional standards.

The Balance Between Prosecution and Defence

This judgment demonstrates the court’s effort to maintain a balance between:^[9]

The state’s interest in prosecuting crimes
The accused’s right to fair treatment and protection

While serious crimes like attempted murder must be prosecuted vigorously, this prosecution must occur within the framework of constitutional rights and procedural fairness.

Part IX: Critical Analysis and Legal Interpretation

Strength of the Prosecution Case

One reading of the judgment suggests that the court found the prosecution case weak for several reasons:

Contradictory Evidence: The prosecution’s narrative (that Avinash unprovoked attacked the complainant and father) is contradicted by eyewitness evidence.
Medical Evidence Inconsistency: The quick discharge of both victims from the hospital is inconsistent with the severity suggested by a charge of attempted murder.
Lack of Details: The prosecution did not provide compelling evidence of the mens rea required for attempt to murder—the specific intent to kill.
Self-Defense Plea: There appears to be a viable self-defense plea available to the accused, which would amount to a complete acquittal.

The Role of Eyewitness Evidence

The judgment gives significant weight to the statement of eyewitness Niyaz Ali. In criminal jurisprudence, eyewitness evidence carries considerable weight, but it must also be evaluated for:^[19]^[20]^[1]

Credibility: Is the witness reliable?
Proximity: Did the witness actually see the events?
Consistency: Is the statement consistent with the witness’s other statements?
Corroboration: Is the evidence corroborated by medical evidence or physical evidence?

The court appears satisfied that Niyaz Ali’s statement meets these criteria of reliability and, combined with medical evidence, provides a strong counter-narrative to the prosecution’s case.

Part X: Potential Trial Outcomes and Future Considerations

Possible Defences Available to the Accused

Based on the judgment and the facts, Avinash has several potential defences:

Self-Defence: He can claim he was defending himself against unlawful assault by the father with a shovel.
Absence of Mens Rea: He can argue that he lacked the specific intention to kill required for attempt to murder.^[2]^[5]
Lower Offence: Even if convicted of some offence, it might be under a less serious provision dealing with voluntarily causing hurt or grievous hurt rather than attempt to murder.

Expected Trial Dynamics

At trial, several key issues will likely emerge:

Sequence of Events: The court will need to establish clearly who initiated the violence.
Weapon Analysis: The significance of the shovel assault by the father and knife injuries alleged against the accused will be compared.
Mens Rea Examination: The prosecution must prove that Avinash had the specific intention to kill. Reactive violence in self-defense might not satisfy this requirement.^[5]^[2]
Witness Testimony: The statement of Niyaz Ali and any other eyewitnesses will be crucial.^[21]^[20]^[19]

Conclusion

Justice Girish Kathpalia’s judgment in Bail Application 90/2026 represents an important assertion of judicial power to protect fundamental rights in the face of defective investigation. The court granted bail to an accused facing a serious non-bailable offence of attempt to murder, critiqued the investigation for failing to fairly investigate the genesis of the occurrence, and weighted medical evidence and eyewitness testimony to determine the strength of the prosecution case.^[1]

This judgment is significant for several reasons:^[11]^[12]^[13]^[9]

It reaffirms that fair investigation is a constitutional right of the accused. It demonstrates that courts must exercise vigilance over police conduct and cannot remain passive observers of unfair investigative practices. It illustrates how bail can serve as a protection against unfair investigation when other remedies might not be immediately available. It shows how judicial discretion, when properly exercised, can balance the interests of justice with the rights of the individual.

The judgment ultimately reflects the wisdom of the Indian constitutional framework: that the right to personal liberty is fundamental, and that the state cannot impair this right even while prosecuting serious crimes unless it does so in a manner that is fair, transparent, and consistent with the rule of law. Avinash’s release on bail does not mean he is innocent. It means that he deserves a fair trial on the basis of a fair investigation, free from the procedural defects that marred the police investigation in this case. Until the trial determines his guilt or innocence based on the evidence presented, the constitutional presumption of innocence stands, and the right to personal liberty must be protected.^[9]