Transparency in bail matters: The Supreme Court’s mandate on disclosing criminal antecedents

The Supreme Court of India recently passed an order in Munnesh v. State of Uttar Pradesh that marks a significant development in bail jurisprudence by mandating the disclosure of criminal antecedents in all bail-related Special Leave Petitions (SLPs).

The right to personal liberty under Article 21 of the Indian Constitution is one of the most zealously protected fundamental rights. However, when an individual accused of a serious offence seeks bail, this right must be balanced against the interests of justice and the need for transparency in judicial proceedings.

A bench of Justices Dipankar Datta and Manmohan has drawn a firm line against the rising trend of non-disclosure of criminal antecedents in bail applications before the Supreme Court.

This decision underscores that concealment of prior criminal history is not a mere procedural lapse, but a serious attempt to mislead the court. It introduces a procedural directive that will significantly alter how bail applications are filed and reviewed by the Supreme Court.

The petitioner was arrested in 2018 in connection with a murder charge under Section 302 of the Indian Penal Code (IPC). The trial is still in progress; eight prosecution witnesses were yet to be examined. He approached the Supreme Court seeking bail, after the High Court of Judicature at Allahabad rejected his application. Notably, the petitioner failed to disclose in his SLP that he had a criminal history comprising eight cases, including a conviction under Section 379 and Section 411 IPC.

When queried by the Court, the petitioner’s counsel attributed the omission to the lack of information from the pairokar. However, the Court rejected this explanation, observing that had the antecedents been disclosed, it might not have issued notice at all.

In refusing bail, the Supreme Court made three pivotal observations:

• Suppression of material facts: The Court ruled that the non-disclosure of criminal history amounted to suppression of material facts, making the petitioner undeserving of the discretionary relief of bail.

• Institutional concerns: It emphasised that the apex court must not be taken for granted or "taken for a ride," and that such suppression undermines the sanctity of proceedings before the highest court.

• Mandatory disclosure directive: The Court directed that henceforth, all petitioners seeking relief under Sections 438 (anticipatory bail)/439 (regular bail) of the Code of Criminal Procedure, 1973 (CrPC) or under Sections 482 and 483 of the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS) must clearly disclose in the synopsis:

  • Whether they have clean antecedents; or

  • If not, full details of any criminal cases and the current stage of proceedings.

This disclosure, the Court said, must be treated as a mandatory requirement, and incorrect or incomplete disclosures may form valid grounds for dismissal of the petition.

The Supreme Court, in paragraph 13, refers to two significant previous orders to emphasise the judiciary’s ongoing concern with inadequate and misleading disclosures in bail petitions, especially before the apex court.

In Kulwinder Singh v. State of Punjab, a bench of Justices S Ravindra Bhat and Aravind Kumar pointed out the routine omission of essential facts in SLPs related to bail, such as age of the accused, number of times they appeared before authorities, charge-sheet and order on charge and status of witnesses. This order laid down the foundational rationale for requiring detailed factual disclosures, noting that their absence leads to adjournments and judicial delays. The Munnesh judgment builds upon this by formalising the requirement to disclose criminal antecedents in the synopsis itself.

In Sheikh Bhola v. State of Bihar, the petitioner failed to disclose that he had previously been arrested and granted bail in four other cases under Section 307 IPC. The Court recognised this as a serious lapse. The order passed by a three-judge bench of the Supreme Court contemplated introducing a standard proforma for anticipatory bail applications requiring disclosures about prior cases and whether the applicant had been declared a proclaimed offender. This case clearly underscores the judicial dissatisfaction with concealment of antecedents and initiated the push toward structured disclosures - reinforced as a mandate in the Munnesh case.

What distinguishes Munnesh is its unequivocal stance: suppression will no longer be tolerated, and structural changes - such as mandatory synopsis disclosures - are necessary to prevent misuse. It signals the judiciary’s shift from making mere observations to now enforcing procedural compliance as a mandatory requirement.

Duty of due diligence: Petitioners and their legal representatives must now conduct thorough checks on antecedents before filing. Ignorance, whether genuine or strategic, will no longer be excusable.

Enhanced scrutiny at the Registry stage: Registries may begin to scrutinise synopses more rigorously, and the possibility of affidavits being challenged on grounds of suppression may increase.

Deterrence against misuse: The ruling is a clear message against forum-shopping and strategic concealment of facts, especially in the context of the Supreme Court’s extraordinary jurisdiction.

Possible rule amendments: The Court has hinted that until formal amendments to the Supreme Court Rules are made, this directive shall govern practice. Hence, law firms and practitioners must adapt their drafting protocols accordingly.

The Supreme Court’s order in Munnesh reaffirms a foundational principle: justice must be based on full and fair disclosure. The concealment of criminal antecedents not only jeopardises the outcome of individual cases, but also corrodes the credibility of the judiciary. By introducing a mandatory disclosure regime, the Court has sought to reclaim the integrity of bail proceedings before it.

This directive, if implemented effectively, may well serve as a turning point in India’s bail jurisprudence, ensuring that the constitutional right to liberty is not misused under the veil of omission and misrepresentation.

Saksham Sharma is a final year law student from Vivekananda Institute of Professional Studies.