Why the Supreme Court upheld a bail-order direction against a police officer.

One missing DNA test. One bail hearing. One Police Inspector’s career on the line.

Sanjay Dubey was a Police Inspector at Sleemanabad Police Station in Katni, Madhya Pradesh. In July 2021, an FIR was registered against one Shiv Kumar Kushwah for a string of grave offences: rape, penetrative sexual assault under the POCSO Act, offences under the SC/ST Atrocities Act, and violations of the Information Technology Act. A forensic report was sent to the Superintendent of Police, Katni, who forwarded it to Dubey with a clear instruction: get the DNA examination done. Dubey didn’t. The accused applied for bail before the High Court of Madhya Pradesh at Jabalpur. The court called for the case diary. The FSL report was missing. The High Court summoned the SP and the forensic lab in-charge. They appeared and explained the lapse. The SP had already line-attached Dubey and was initiating a major penalty inquiry. The High Court, in its bail order, recorded prima facie findings of dereliction of duty against Dubey and directed action. Dubey challenged this before the Supreme Court. The stakes were simple: could a High Court, while deciding a bail application under Section 439 CrPC, issue directions against a police officer for investigative lapses? The Supreme Court said yes — but with a crucial procedural caveat.

What the High Court actually did

The High Court was hearing MCRC No. 43998/2022 — a bail application filed by the accused, Shiv Kumar Kushwah. During the hearing, the court noticed that the FSL report, which had been sent to the police station, was not on record. The court summoned the Superintendent of Police, Katni, and the in-charge of the Forensic Science Laboratory. Both appeared. The SP informed the court that he had already line-attached Dubey and was in the process of initiating a major penalty inquiry against him for the lapse. The High Court, in its order dated 21 September 2022, recorded that there was a prima facie case of dereliction of duty against Dubey and directed that action be taken against him. The bail application itself was not finally decided.

Dubey moved the Supreme Court by way of a Special Leave Petition, which was converted into Criminal Appeal No. 1466 of 2023. He argued that the High Court had exceeded its jurisdiction under Section 439 CrPC, which is meant only for grant or refusal of bail. He relied on two precedents: Sangitaben Shaileshbhai Datanta v. State of Gujarat (2019) 14 SCC 522, where the Supreme Court had held that the High Court cannot order scientific tests on the accused and victim during bail proceedings, and State Represented by Inspector of Police v. M Murugesan (2020) 15 SCC 251, where the Court had held that the High Court’s jurisdiction under Section 439 ends when the bail application is finally decided.

The argument that almost worked

Dubey’s counsel argued that the High Court had gone beyond the scope of Section 439 CrPC. The provision, they said, is a procedural vehicle for deciding bail — not a roving commission to investigate investigative lapses. The High Court, they contended, had effectively conducted a parallel inquiry into Dubey’s conduct without giving him an opportunity to be heard. The directions to take departmental action, they argued, were issued without any formal proceedings under Article 226 or 227 of the Constitution.

The Supreme Court acknowledged the force of this argument. Justice Ahsanuddin Amanullah, writing for the Bench, observed that the High Court could have taken a more procedurally refined approach. The proper course, the Court said, would have been to direct the 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 the person proceeded against. That is the ideal procedure.

Why the Supreme Court still dismissed the appeal

But the Court did not stop there. It noted a critical fact: the Superintendent of Police had already, suo motu, decided to initiate departmental proceedings against Dubey and had stated so before the High Court. The High Court’s directions, therefore, were merely reiterative of what the SP had already said he would do. They were not an independent exercise of judicial power that required interference.

The Court also drew a sharp distinction between the High Court and a Court of Session. In obiter, Justice Amanullah noted that had the impugned judgment been rendered by a Court of Session rather than the High Court, the factors that would have weighed with the Supreme Court would be starkly different. The High Court, being a Constitutional Court under Article 214, possesses powers under Articles 226 and 227 that are not circumscribed by the procedural vehicle through which a matter comes before it. The Court followed B S Hari Commandant v. Union of India (2023 SCC OnLine SC 413), which held that Article 226 is a succour to remedy injustice and any limit on exercise of such power is only self-imposed.

The Court distinguished Sangitaben and M Murugesan on facts. In Sangitaben, the High Court had ordered scientific tests on the accused and victim — a substantive direction that contravened first principles of criminal law. In M Murugesan, the High Court had retained files after finally deciding the bail application to constitute committees on reformation — a direction that went beyond the scope of the proceeding. Here, the bail application was not finally decided, and the directions were merely reiterative of what the SP had already stated.

The doctrine that mattered

The ratio decidendi of this judgment is threefold. First, the High Court, being a Constitutional Court under Article 214, possessing powers under Articles 226 and 227, has the power to issue directions in the interest of justice even while deciding a bail application under Section 439 CrPC, particularly when it encounters grave lapses on the part of the police or investigative machinery that may have fatal consequences on the justice delivery system. Second, the proper course for a High Court encountering investigative lapses during bail proceedings 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. Third, where the superior officer has already suo motu decided to initiate departmental proceedings against the delinquent officer and stated so before the court, the High Court’s directions to take action are merely reiterative and not an independent exercise of judicial power requiring interference.

The Court also issued a crucial limiting principle: the judgment is not to be misread to imply that High Courts should delve into the efficacy of investigation at the stage of bail in all cases. The observations were specific to the facts — a missing FSL report in a POCSO case, a superior officer who had already acted, and a High Court that merely reiterated what the SP had said.

THE PLAY: If you are a police officer facing adverse observations in a bail order, check whether the superior officer had already initiated proceedings. If yes, the High Court’s directions are likely reiterative and not independently challengeable. But if the High Court issues substantive directions without giving you a hearing, move the Supreme Court — the proper procedure requires separate Article 226 proceedings with notice.

Why this matters in practice

For advocates, this judgment is a reminder that the High Court’s constitutional powers under Articles 226 and 227 are not confined by the procedural label on the file. A bail application under Section 439 CrPC can become a vehicle for broader directions if the court encounters systemic lapses. But the judgment also provides a clear procedural roadmap: if the High Court wants to issue directions against a person who is not a party to the bail proceeding, it should direct separate Article 226 proceedings, formulate points for consideration, and give the person an opportunity to be heard.

For CFOs and founders, the takeaway is different. This case is about accountability in public office. A police officer who fails to carry out a DNA examination in a POCSO case — a lapse that could have derailed the prosecution — cannot hide behind procedural technicalities. The Supreme Court made it clear that the High Court can take note of such lapses even in a bail proceeding. The message is simple: if you are in a position of responsibility, your failure to act can have consequences, and the court can call you out.

For the accused in the underlying case, the Supreme Court clarified that its observations shall not be used against him. The departmental proceedings against Dubey will continue independently, and he is entitled to raise all grounds there.

The bottom line

When a High Court encounters investigative lapses during a bail hearing, it can issue directions — but the proper procedure is to initiate separate Article 226 proceedings with notice to the person proceeded against. If the superior officer has already acted, the directions are merely reiterative and not independently challengeable.