A cop skipped a DNA test. The High Court noticed. The Supreme Court had to decide: Can bail hearings turn into disciplinary trials?

A police inspector forgot to get a DNA test done in a child sexual assault case. The High Court found out during bail hearings and ordered an inquiry. The inspector went to the Supreme Court. The question: can a judge investigating a cop during a bail hearing go too far?

It started with a missing report. A forensic lab had examined evidence from a minor's sexual assault case — registered as FIR No. 424/2021 at the Sleemanabad Police Station in Katni, Madhya Pradesh — and sent its findings to the Superintendent of Police. The Superintendent forwarded it to Inspector Sanjay Dubey with one clear instruction: get the DNA testing done. Dubey did nothing. He neither sent the sample for DNA analysis nor included the forensic report in the case diary he submitted to the High Court when the accused applied for bail under Section 439 CrPC (the provision that gives High Courts and Sessions Courts special powers to grant bail).

The forensic report — a slim, stapled bundle of lab sheets that could prove or demolish the case — simply vanished from the file. The courtroom fell silent as the High Court bench reviewed the case diary and found the document absent.

When the High Court noticed the gap

The High Court of Madhya Pradesh, sitting at Jabalpur, was hearing the bail application. As the judges turned the pages of the case diary, the missing forensic report became a glaring absence. They summoned the Superintendent of Police and the in-charge of the forensic lab. The air in the courtroom grew heavy as the officers explained what had happened: the report had been sent, the instruction to test the DNA had been given, and Dubey had simply ignored it.

The High Court recorded that this was a grave dereliction of duty — a lapse that could destroy the prosecution's case and let a serious offender walk free. It made adverse remarks against Dubey, declared him unfit for any responsible police post, and directed the authorities to initiate departmental action against him. The bench's expression, observers noted, was one of barely contained disbelief.

The case itself involved serious charges: Sections 376 and 506 of the Indian Penal Code (rape and criminal intimidation), Sections 3 and 4 of the Protection of Children from Sexual Offences Act (penetrative and aggravated sexual assault), Sections 3(1)(W)(ii) and 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, and Sections 67 and 67A of the Information Technology Act (publishing obscene material in electronic form). The DNA evidence was central to proving the case.

Why the inspector fought back

Dubey did not challenge the allegation that he had failed to act. Instead, he argued that the High Court had overstepped. A bail hearing, he said through his counsel, is meant to decide one thing: whether the accused should be released on bail. It is not a disciplinary tribunal. The High Court, he argued, had no business making findings about his conduct or ordering departmental action while deciding a bail application. Those observations, he said, would prejudice him in the departmental proceedings that followed.

The State of Madhya Pradesh took a different position. The High Court, it argued, is not just a criminal court hearing bail matters. It is a Constitutional Court — a High Court established under Article 214 of the Constitution. As such, it possesses powers under Articles 226 and 227 (the power to issue writs and the power of superintendence over subordinate courts and tribunals). When it discovers a lapse that threatens the entire justice delivery system — like a police officer sabotaging a child sexual assault investigation by ignoring a DNA test — it has both the right and the duty to act.

The Supreme Court draws the line

A bench of Justice Krishna Murari and Justice Ahsanuddin Amanullah heard the appeal on May 11, 2023, in Criminal Appeal No. 1466 of 2023. They agreed with the High Court on the core issue: a Constitutional Court does not lose its supervisory powers simply because it is hearing a bail application. If grave lapses come to light during those proceedings, the High Court can — and should — address them.

But the Supreme Court also saw a problem with how the High Court had done it. The adverse remarks against Dubey had been made in the bail order itself, without giving him a separate opportunity to be heard on those specific allegations. The High Court had not framed formal charges or conducted a distinct inquiry under Article 226. It had simply recorded its findings in the bail judgment and directed departmental action.

The Supreme Court, drawing on a body of precedents including Sangitaben Shaileshbhai Datanta v. State of Gujarat, State Represented by Inspector of Police v. M. Murugesan, B S Hari Commandant v. Union of India, State of Gujarat v. Kishanbhai, Sidhartha Vashist v. State (NCT of Delhi), Manoj v. State of Madhya Pradesh, Sreenivasa General Traders v. State of Andhra Pradesh, and M/s Amar Nath Om Prakash v. State of Punjab, held that this was not the proper procedure. When a High Court discovers serious investigative lapses during bail proceedings, it should not turn the bail hearing into a disciplinary trial. Instead, it should direct the institution of separate proceedings under Article 226, formulate specific reasons and points for consideration, refer the matter to the Chief Justice for placement before an appropriate bench, and afford full opportunity to the person proceeded against.

The Supreme Court made its reasoning explicit. It held that "the High Court, being a Constitutional Court under Article 214, possesses powers under Articles 226 and 227 that enable it to issue directions in the interest of justice even while hearing a bail application under Section 439 CrPC, particularly when grave lapses threatening the justice delivery system are discovered during such proceedings." This single sentence captured the tension at the heart of the case: the High Court had the power to act, but it had to act in the right way.

The Court went further, laying down the proper course. It stated that "when the High Court discovers grave investigative lapses during bail proceedings, the proper course is to direct institution of separate proceedings under Article 226, formulate reasons and points for consideration, and refer the matter to the Chief Justice for placement before an appropriate bench, affording adequate opportunity to persons proceeded against." This was not a criticism of the High Court's concern — it was a procedural roadmap for how to channel that concern into a fair process.

The precedents that shaped the judgment

The Supreme Court's reasoning drew strength from a line of cases that had grappled with similar questions. In Sangitaben Shaileshbhai Datanta v. State of Gujarat, the Court had examined the limits of judicial observation during proceedings. In State Represented by Inspector of Police v. M. Murugesan, the Court had warned against making adverse remarks against officers without giving them a hearing. In B S Hari Commandant v. Union of India, decided just weeks before this judgment, the Court had reiterated that observations in one proceeding should not prejudge another.

In State of Gujarat v. Kishanbhai, the Court had held that courts should avoid expressing final opinions on matters not directly in issue. In Sidhartha Vashist v. State (NCT of Delhi), the Court had discussed the scope of supervisory jurisdiction. In Manoj v. State of Madhya Pradesh, decided earlier in 2023, the Court had addressed the limits of bail proceedings. In Sreenivasa General Traders v. State of Andhra Pradesh and M/s Amar Nath Om Prakash v. State of Punjab, the Court had established principles about the binding nature of judicial observations and the need for procedural fairness.

Each precedent added a brick to the wall the Supreme Court was building: a wall that protected the High Court's power to act while also protecting the individual officer's right to a fair hearing.

The judgment that protects both sides

The Supreme Court dismissed Dubey's appeal — meaning the High Court was right to act. But it added a crucial caveat: the observations made by the High Court in the bail order dated September 21, 2022, would not be treated as findings against Dubey in the departmental proceedings. Those proceedings would have to proceed independently, in accordance with law, after giving Dubey a full and effective opportunity to defend himself. The interim order dated November 23, 2022, was vacated.

The court also clarified that its own observations in this appeal would not prejudice Dubey or be used against the accused in the underlying criminal case. The bail proceedings, the departmental inquiry, and the criminal trial would each run on their own tracks — three separate streams of justice, each with its own rules and its own safeguards.

THE PLAY: If you discover investigative lapses during a bail hearing, do not record findings in the bail order — direct the institution of separate proceedings under Article 226 and refer the matter to the Chief Justice for placement before an appropriate bench.

The inspector's appeal was dismissed. But the departmental inquiry against him will start fresh, without the High Court's words hanging over it. The DNA test that was never done — that question remains unanswered for the child who is still waiting for justice. The case citation, 2023 LiveLaw (SC) 435, now stands as a reminder that even the most well-intentioned judicial intervention must follow its own procedural discipline.