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Shekh Rafiq v. State of NCT of Delhi: Bail Jurisprudence in Murder Cases

Shekh Rafiq v. State of NCT of Delhi: A Comprehensive Analysis of Bail Jurisprudence in Murder Cases

The Delhi High Court’s judgment in Shekh Rafiq v. State of NCT of Delhi (Bail Appln. 329/2025), delivered on December 19, 2025, by Justice Ajay Digpaul, represents a significant reaffirmation of established bail jurisprudence in serious criminal offences. The decision pertains to a bail application filed under Section 439 of the Criminal Procedure Code (now Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023) in connection with FIR No. 280/2019, registered at Police Station Bhalswa Dairy, New Delhi, for offences under Sections 302/34 of the Indian Penal Code—carrying potential death sentence or life imprisonment.^[1]

The judgment addresses several critical dimensions of bail law, including the primacy of prima facie case assessment over witness credibility evaluation, the principle of parity in bail matters, the weight of incarceration duration in serious offences, and the court’s restraint in conducting what amounts to a mini-trial at the bail stage. The court’s refusal to grant bail, despite the petitioner’s prolonged judicial custody since August 2022, underscores the rigorous threshold that applies to serious non-bailable offences under Indian criminal jurisprudence.

Factual Background and Procedural History

The Incident and Initial Investigation

On May 22, 2019, an FIR was registered in connection with the death of Mukeem, alias Akash, at Police Station Bhalswa Dairy in Delhi. According to the prosecution’s version, the complainant Akhtar witnessed several persons—Ramzan, Raees, Shekh Rafiq (the present petitioner), Wahiddul, Dilshad, and Rahim alias Anvar alias Sanvar—arriving from the jhuggi (slum) side on four motorcycles, with Rahim allegedly carrying a chapad (knife). The prosecution alleged that these individuals proclaimed they had killed Akash and would kill anyone who fought with them. The complainant subsequently discovered Akash lying dead in a blood-stained condition in the hall, and the victim was declared “brought dead” at Babu Jagjivan Ram Memorial Hospital with Medical Legal Case (MLC) No. 172735/19 recorded at approximately 4 PM on the same day.^[1]

Chronology of Investigation and Arrests

The investigation proceeded in phases. On May 24, 2019, two co-accused—Ramzan and Rahim alias Anvar alias Sanvar—were arrested based on the complainant’s identification, and their disclosure statements were recorded. An initial chargesheet was filed against these two arrested accused, while the status of the remaining four co-accused (including the present petitioner) remained pending with the trial court. Subsequently, on February 21, 2022, the remaining four accused—Shekh Rafiq, Dilshad, Wahiddul, and Raees—were declared proclaimed offenders for their failure to join the investigation. On August 30, 2022, after a gap of over three years, the petitioner and co-accused Raees surrendered before the court. They were formally arrested and granted police custody remand for one day, after which the petitioner was remanded to judicial custody where he has remained since August 31, 2022. Co-accused Dilshad was arrested in a different FIR and subsequently formally arrested in the present case on May 30, 2023.^[1]

Legal Framework and Principles Governing Bail in Serious Offences

Statutory Framework

Section 439 of the Criminal Procedure Code (now Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023) confers on the High Court and Court of Sessions discretionary power to grant, refuse, or cancel bail in any case. Unlike sections 436 and 437, which apply to bailable and non-bailable offences respectively and impose specific procedural requirements, Section 439 provides the courts with broader discretion to grant bail “in any case” where it considers appropriate, subject to statutory safeguards. However, this discretion is not unstructured or arbitrary; rather, it must be exercised judiciously, taking into account a constellation of factors established through judicial precedent.^[2]

Cardinal Principles Established by Judicial Precedent

The Supreme Court has consistently held that no straight-jacket formula can be applied to bail considerations; instead, each case must be evaluated on its specific facts and circumstances. The Delhi High Court emphasized in the present judgment that while bail entails consideration of multiple factors, certain foundational principles remain constant. These include:^[2]^[1]

Prima Facie Case as the Threshold Standard: The most crucial consideration is whether the prosecution has disclosed a prima facie case—evidence that, on the face of it, establishes a chain of facts constituting the alleged offence, unless rebutted or contradicted. A prima facie case is fundamentally distinct from proof beyond reasonable doubt; it requires only preliminary scrutiny rather than detailed meticulous analysis. The Delhi High Court clarified that the court need not be satisfied about the accused’s guilt at the bail stage; rather, it must assess whether the materials placed on record disclose sufficient evidence to proceed with trial.^[3]^[2]^[1]

Gravity and Nature of the Offence: Sections 302 and 307 of the Indian Penal Code carry the most severe punishments in Indian criminal law—death penalty or life imprisonment in the case of murder, and imprisonment up to 10 years or life imprisonment in the case of attempt to murder. The gravity of the offence is a material consideration, but it is not determinative per se. The Supreme Court has held that severity of punishment, while relevant, cannot serve as a blanket basis for denying bail in all cases.^[3]

Character, Antecedents, and Likelihood of Absconding: Courts must assess the accused’s background, criminal history if any, the likelihood of the accused fleeing from justice, and the risk of tampering with evidence or influencing witnesses. The conduct of the accused during investigation—such as remaining unavailable or evading the investigative process—is a relevant factor in assessing flight risk and cooperation with the judicial process.^[2]^[1]

Period of Incarceration: While the period spent in custody is a relevant consideration, the Supreme Court has cautioned that the duration of incarceration, standing alone, cannot be the sole or even primary ground for granting bail in cases involving grave offences. However, where an undertrial has undergone imprisonment for one-half of the maximum sentence prescribed for the offence (as provided under Section 436A CrPC), release on bail becomes virtually mandatory.^[3]^[1]

Stage of Trial and Examination of Witnesses: The pace and progress of the trial, particularly the number of prosecution witnesses already examined relative to the total number cited, influences the assessment of how long the trial is likely to continue. Prolonged incarceration combined with slow trial progress may weigh in favor of bail, but only when other factors do not suggest significant evidence of culpability.^[3]

Limitations on Bail Stage Inquiry: The Satish Jaggi Principle

A watershed principle, repeatedly invoked in the present judgment, derives from the Supreme Court’s decision in Satish Jaggi v. State of Chhattisgarh (2007) 11 SCC 195. The Supreme Court held that while considering bail in serious non-bailable offences, courts must restrict their inquiry to whether a prima facie case is disclosed, without entering into the credibility, reliability, and weight of prosecution witnesses’ testimony. Any premature findings regarding witness credibility at the bail stage risk transforming the bail hearing into a mini-trial or partial adjudication on merits, which is impermissible under law. The Court emphasized that such inquiries properly belong to the domain of the trial court, where evidence is tested through cross-examination and detailed appreciation.^[1]

In the present case, the Delhi High Court applied this principle to reject the petitioner’s contentions regarding inconsistencies in the complainant’s testimony, observing that while such inconsistencies may exist, they cannot be used at the bail stage to discredit the prosecution’s prima facie case or to justify bail. The weight to be attached to testimony, the impact of omissions and contradictions, and the credibility of witnesses are matters for trial adjudication, not bail determination.^[1]

Analysis of the Petitioner’s Arguments

Inconsistencies in Eyewitness Testimony

The learned counsel for the petitioner highlighted what he characterized as material inconsistencies between the FIR version and the trial testimony of PW-3 (Akhtar), the complainant. Specifically, counsel pointed out that while the FIR reflected a categorical account of six persons arriving together on four motorcycles, PW-3’s testimony indicated that he first saw three persons and thereafter two more, ultimately naming only five persons including the petitioner. Additionally, PW-3 did not support the assertion regarding four motorcycles and, upon confrontation, denied the earlier version.^[1]

Counsel argued that these were not minor discrepancies but fundamental contradictions bearing directly on the prosecution’s narrative regarding who was seen, in what strength, and in what manner.^[1]

Lack of Independent Corroboration

The defense contended that PW-8 (Ashraf), identified as the main eyewitness, failed to support the prosecution’s case during trial and could not identify the petitioner or other assailants in court. Furthermore, the CCTV footage near the incident site allegedly depicted only two persons running barefoot at 12:11 PM, a detail at variance with the prosecution’s claim of six assailants.^[1]

Statement of the Deceased’s Wife

The petitioner’s counsel relied on the testimony of PW-1 (Hasina Bibi), the wife of the deceased, who stated that the petitioner had not come to her house with co-accused Ramzan on the day of the incident. This statement was presented as evidence that the petitioner’s presence at or near the scene of the crime was doubtful.^[1]

Absence of Incriminating Material

Significantly, no incriminating material was recovered from the petitioner’s possession, unlike the two co-accused (Ramzan and Rahim) against whom the initial chargesheet was filed and from whose possession the alleged weapon and bloodstained clothes were recovered. The petitioner was not initially included in the chargesheet and only became an accused subsequently during the investigation process.^[1]

Prolonged Custody and Trial Delay

The petitioner had been in judicial custody since August 31, 2022—over three years at the time of the judgment. With only 8 out of 28 cited prosecution witnesses examined, the trial was likely to extend for a considerable period. Counsel urged that such prolonged incarceration, coupled with the slow pace of trial progress, warranted bail to prevent the trial process itself from becoming punishment.^[1]

Invocation of Parity and Supreme Court Precedents

The petitioner sought bail on grounds of parity, noting that co-accused Dilshad had been granted bail by the Delhi High Court vide order dated September 27, 2024, in Bail Appln. 3307/2023. Additionally, reliance was placed on recent Supreme Court decisions in Balwinder Singh v. State of Punjab (2024) and Praveen Rathore v. State of Rajasthan (2023), arguing that inordinate delay in trial conclusion infringes the right to liberty under Article 21 of the Constitution, and that bail should be granted to ensure the trial itself does not become punishment.^[1]

Analysis of the State’s Counter-Arguments

Prima Facie Identification by the Complainant

The Additional Public Prosecutor (APP) opposing the bail application submitted that the petitioner was specifically named in the FIR by PW-3 (Akhtar), the complainant, as part of the group allegedly seen in the immediate sequence of events following the victim’s death. The App emphasized that PW-3 attributed to the petitioner the role of being part of the group that proclaimed the killing and threatened further violence.^[1]

Circumstantial Evidence of Motive and Presence

The state highlighted testimony of PW-1 (Hasina Bibi), the deceased’s wife, regarding a monetary dispute of approximately ₹2,00,000 involving the deceased and co-accused Ramzan. Hot arguments had allegedly occurred 2-3 days prior to the incident, and PW-1 deposed that on the day of the incident, 2-3 persons came to the deceased’s house asking him to accompany them to settle the financial issue. Although PW-1 did not name the petitioner among the visitors, the state argued that when these circumstances were viewed together with PW-3’s identification of the petitioner, they indicated the petitioner’s presence and involvement.^[1]

Conduct During Investigation

A significant point emphasized by the state was the petitioner’s conduct during the investigation phase. He did not join the investigation and was declared a proclaimed offender on February 21, 2022, only surrendering after over six months, on August 30, 2022. The state argued that such deliberate avoidance of the investigative process was a relevant consideration in assessing flight risk and likelihood of the accused remaining available during trial.^[1]

Criminal Antecedents and Gravity of Offence

The state submitted that the petitioner possessed criminal antecedents and that, considering the nature of the allegations (murder), the grave nature of the offence, and the manner in which the petitioner remained unavailable during investigation, he did not merit the discretionary relief of bail.^[1]

Court’s Analysis and Reasoning

Restraint from Detailed Evaluation of Evidence

Justice Digpaul’s order reflects a careful balance between protecting individual liberty and upholding the sanctity of the trial process. The court acknowledged that the Supreme Court has consistently held that at the bail stage, courts are not required to undertake detailed appreciation of evidence or enter into roving inquiries regarding the reliability of witnesses—functions that properly fall within the trial court’s domain.^[1]

While the court acknowledged that certain aspects of PW-3’s deposition may reflect inconsistencies when compared with the FIR version, it explicitly stated that such inconsistencies cannot be treated as sufficient to discard the prosecution case or to justify bail at this stage. The court emphasized that the weight to be attached to witness testimony, including the impact of omissions, contradictions, or the extent of support to the prosecution version, is a matter for trial adjudication upon appreciation of evidence.^[1]

Application of the Prima Facie Standard

The court found that the record, as placed before it, discloses that the petitioner is specifically named in the FIR as part of the group allegedly seen by PW-3 in the immediate sequence of events following the victim’s death. While deeper appreciation of contradictions and reliability of witnesses are matters for the trial court, the present stage requires only satisfaction that the prosecution discloses a prima facie case, leaving detailed appreciation of evidence to the trial.^[1]

When PW-1’s testimony regarding the monetary dispute and hot arguments between the deceased and Ramzan, coupled with the deposition that 2-3 persons came to the house asking the deceased to accompany them, is viewed together with the specific naming of the petitioner by PW-3 as one of the persons seen immediately after the incident, the court could not overlook the circumstances indicating the petitioner’s presence. Whether the petitioner’s alleged link with the arrested co-accused is ultimately proved, and what evidentiary value is to be attached to oral and CCTV material, were matters left for the trial court.^[1]

Rejection of the Parity Argument

The court rejected the parity argument advanced by the petitioner. The Supreme Court’s recent judgment in Sagar v. State of UP (2025 SCC OnLine SC 2584) was cited with approval, emphasizing that parity is not a ground on which bail can be granted as a matter of course, particularly in cases involving serious offences like murder.^[1]

The critical distinction drawn by the court was that while co-accused Dilshad was not identified by PW-3 during his examination-in-chief (and PW-3 expressly indicated that he did not know Dilshad despite Dilshad being present in court), the petitioner’s case stood on an entirely different footing. The petitioner was specifically identified by PW-3 and was named in the initial version as part of the group allegedly proclaiming that the deceased had been killed. In these circumstances, the court held that parity cannot be claimed as a matter of course, as the nature of identification and the role attributed to each accused differed substantially.^[1]

This reasoning aligns with the Supreme Court’s principle that parity in bail matters is fundamentally role-based, not charge-based. As the Supreme Court reiterated in Sagar v. State of UP, similarity must exist in the nature of participation and culpability, not merely in the fact that accused persons are charged in the same crime. An instigator, an assailant, and a mere member of an unlawful assembly cannot be treated identically for bail purposes.^[1]

Weight of Incarceration Duration in Grave Offences

The court explicitly stated that having regard to the gravity of the offence (Section 302 IPC carrying death penalty or life imprisonment), the petitioner’s period of incarceration, by itself, could not be treated as a determinative ground for grant of bail in the facts of the present case. While the court acknowledged the principle established in Balwinder Singh v. State of Punjab—that inordinate delay in trial conclusion infringes rights under Article 21—it clarified that this principle does not operate with equal force in cases involving grave offences where strong prima facie evidence exists against the accused.^[1]

The court noted that the right to speedy trial, while a fundamental constitutional protection, cannot be mechanically invoked to grant bail in cases involving serious non-bailable offences where the prosecution has presented a prima facie case. The balance between individual liberty and societal interest in ensuring trial of serious crimes tilts differently when the offence involves taking of human life.^[1]

Relevance of Conduct During Investigation

The court noted the petitioner’s conduct during investigation—specifically, the declaration as a proclaimed offender on February 21, 2022, followed by surrender over six months later—as a relevant circumstance while assessing the risk of absconding and the likelihood of the accused remaining available to face trial. Such conduct is indicative of a deliberate attempt to evade the process of law, which is a material consideration in bail applications involving grave offences.^[1]

Prospective Clarification on Merits

In keeping with settled practice, the court clarified that nothing stated in the judgment shall be construed as an expression of opinion on the merits of the case. This clarification is essential to ensure that the bail order does not prejudice the trial or create an impression that the court has formed preliminary views on the accused’s guilt or innocence.^[1]

Broader Jurisprudential Implications

The Primacy of Prima Facie Case Assessment

The judgment reinforces a fundamental principle: at the bail stage, courts need not be satisfied about the accused’s guilt (which requires proof beyond reasonable doubt) but merely whether materials disclosed by the prosecution, if accepted at face value, constitute a prima facie case. This significantly lower threshold operates as a gateway to trial rather than an adjudication on guilt. The court’s refusal to delve into inconsistencies in witness testimony reflects this approach—inconsistencies may ultimately be decisive at trial, but they cannot, standing alone, vitiate a prima facie case at the bail stage.

The Inadequacy of Incarceration Duration as a Standalone Ground

While the Supreme Court has recognized that prolonged incarceration coupled with slow trial progress can justify bail, particularly under the rubric of Article 21 protections, such considerations operate primarily in cases where the evidence of guilt is weak or circumstantial. In cases involving serious crimes with prima facie strong evidence, duration of custody remains a secondary consideration. The present judgment clarifies that the right to speedy trial cannot become a mechanism to subvert the trial of serious crimes by extracting accused from custody based merely on passage of time.

Parity as Role-Specific, Not Charge-Specific

The judgment contributes to the ongoing jurisprudential refinement regarding parity as a ground for bail. The Supreme Court’s recent pronouncements in Sagar v. State of UP have emphasized that courts cannot grant bail mechanically based on other co-accused being enlarged, without examining the specific role, nature of participation, and culpability attributed to each accused. This principle prevents the absurd outcome where an instigator or primary assailant could claim bail merely because a peripheral participant has been released.

Constraints on Judicial Inquiry at Bail Stage

By adhering to the Satish Jaggi principle, the present judgment demonstrates the judiciary’s commitment to preventing bail hearings from becoming mini-trials. The moment courts begin undertaking detailed assessments of witness credibility and the weight of evidence, the bail hearing transforms into a surrogate trial on merits, premature findings on which could prejudice the actual trial. This constraint—while sometimes appearing to disadvantage accused persons—serves the larger objective of maintaining the integrity of trial proceedings and the presumption of innocence.

Critical Observations and Limitations

Balancing Liberty and Gravity

A potential criticism of the judgment is that it may appear to prioritize the gravity of the offence over individual liberty, particularly given that prolonged incarceration without conviction offends principles of justice. However, the court’s position is defensible: where the prosecution presents a prima facie case that the accused was part of a group that collectively murdered someone, the demand for trial cannot be dismissed merely because the trial progresses slowly. The accused’s right to bail must be balanced against society’s right to have serious crimes tried and adjudicated.

The Inconsistency Question

While the court dismissed inconsistencies in PW-3’s testimony as matters for trial adjudication, one may ask whether prima facie case assessment requires at least some minimal scrutiny of whether the alleged evidence is internally coherent and not manifestly unreliable. The strict application of Satish Jaggi may, in certain cases, permit the trial of accused on the basis of evidence that is demonstrably incoherent or fabricated. However, the Supreme Court’s approach is premised on the belief that trial courts, upon detailed appreciation of evidence through cross-examination, are better positioned to assess such matters than bail courts.

The Proclaimed Offender Status

The court’s reliance on the petitioner’s status as a proclaimed offender and subsequent delayed surrender as evidence of flight risk and lack of cooperation may warrant scrutiny. The petitioner’s explanation for the delay (if any) is not recorded in the judgment, and it is possible that circumstances beyond the accused’s control necessitated the delay. However, for a court assessing flight risk, the bare fact of avoidance of investigative process is a relevant consideration, even if it may not be fully determinative.

Conclusion

The Shekh Rafiq judgment represents a careful and measured application of settled principles governing bail in serious criminal offences. The Delhi High Court has reinforced that bail considerations in murder cases require a multifactorial assessment where gravity of the offence, prima facie evidence of involvement, likelihood of absconding, and trial progress all play roles. No single factor—not even prolonged incarceration—can override all others in cases involving grave crimes.

The judgment’s broader significance lies in its contribution to jurisprudential clarity regarding the limits of bail stage inquiries. By adhering strictly to the Satish Jaggi principle, the court has signaled that bail hearings are not forums for detailed evidence appreciation or credibility assessment. Such inquiries belong to the trial stage and are essential to maintaining the presumption of innocence as an operative principle rather than a mere theoretical postulate.

The decision also clarifies the jurisprudence on parity, emphasizing that it is a role-specific rather than a charge-specific principle. This prevents the anomalous situation where accused persons with markedly different levels of culpability could claim identical relief based on the denomination of the offence alone.

While the judgment prioritizes the prosecution’s interest in bringing serious crimes to trial, it does not foreclose bail in cases involving murder. Rather, it establishes that bail will be granted only where the accused has demonstrated either that no prima facie case exists or that exceptional circumstances—such as extremely weak evidence, prolonged custody without meaningful trial progress, or changed circumstances—substantially outweigh the gravity of the offence and the evidence of involvement.

For practitioners and legal scholars, the judgment serves as an important reminder that bail jurisprudence in India, while recognizing individual liberty as fundamental, operates within a framework where serious crimes are not lightly dismissed and where trial courts retain significant roles in evidence evaluation. The balance struck by the Delhi High Court reflects an understanding that justice requires both protection of individual freedom and accountability for grave crimes—objectives that do not always move in tandem but must be reconciled through principled judicial application.^[2]^[3]^[1]

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