Ambiguity in Defining 'Criminal History': Supreme Court's Directive on Disclosure

1. On 03.04.2025, in the case of Munnesh v. State of UP, SLP (Crl.) No(s). 1400/2025 (‘Munnesh’), the Supreme Court established a strict rule for those seeking regular or anticipatory bail. All bail petitioners must mandatorily disclose their criminal history/antecedents in the Special Leave Petition (‘SLP’). Failure to provide truthful information will lead to the dismissal of the petition. Justice Dipankar Dutta and Justice Manmohan directed the registry of the Supreme Court as follows:

“11…The result is that this Court, being the apex court of the country, is being taken for a ride. This Court has shown leniency in the past, but we think it is time that such state of affairs is not allowed to continue further.

12. We, accordingly, direct that henceforth each individual who approaches this Court with a Special Leave Petition (Criminal) challenging orders passed by the high court’s/sessions courts declining prayers under Sections 438/439 of the Code of Criminal Procedure, 1973 or under Sections 482/483, Bharatiya Nagrik Suraksha Sanhita shall mandatorily disclose in the ‘SYNOPSIS’ that either he is a man of clean antecedents or if he has knowledge of his involvement in any criminal case, he shall clearly indicate the same together with the stage that the proceedings, arising out of such case, have reached. Should the disclosure be found to be incorrect subsequently, that itself could be considered as a ground for dismissal of the special leave petition.”

2. Similarly, on 19.10.2023, in the case of Sheikh Bhola v. State of Bihar, SLP (Crl.) No. 2863 of 2023, the Supreme Court (three-judge bench, Justice Sanjay Kishan Kaul, Justice Sudhanshu Dhulia, and Justice Manoj Mishra) held the following:

“[W]e believe the suggestion of the learned counsel for the respondent that in the proforma for seeking anticipatory bail, a disclosure should be made of other pending cases to the knowledge of the petitioner and whether he has been declared as a proclaimed offender has some merit. The Registry to examine this aspect.”

3. A similar direction was issued by the Rajasthan High Court on 26.11.2020. The Single Bench of the Rajasthan High Court (Dr. J. Pushpendra Singh Bhati), in the case of Jugal Kishore v. State of Rajasthan (2020) 4 RLW 3386, (Jugal Kishore Supra) directed that trial courts must incorporate a chart containing the accused's antecedent details in bail orders as mandatory. The directions were contained in paragraphs 9, 10, and 11 of the decision. Paragraphs 9 to 11 read as follows:

“9. Thus, this Court directs that all learned trial courts shall, while allowing or disallowing any regular/anticipatory bail application of any accused person, give the complete details of the antecedents, if any, and also record that there are no antecedents of the accused person in case of none being there. If there are antecedents of the accused, then the complete details of the antecedents i.e. FIR Number(s) & Case Number(s), Section(s), date(s), status and date of arrest & release on any previous occasion, if any, in the chart form shall be prepared and incorporated in the learned trial courts’ order, while granting or dismissing the bail application.

10. This order shall be conveyed by the Registry of this Court to all learned District & Sessions Judges of the State, who shall ensure the immediate implementation of this order amongst all the judicial officers and all courts in their respective jurisdiction, which are hearing the bail applications. The detailed antecedents report in the aforesaid format so provided in the trial courts' order shall be the requirement for disposal of any bail application in the State of Rajasthan. It is also directed that the learned Public Prosecutors all over the State shall call for the antecedents report well in advance in every case of bail, so as to enable the courts to have a definite and correct information regarding previous criminal antecedents of the accused. A certified copy of this order be also sent by the Registry to the Director of the Prosecution Department of the State for necessary compliance, amongst the learned Public Prosecutors all over the State of Rajasthan.

11. The Registry of this Hon’ble Court shall ensure compliance of this order, in its letter and spirit, and submit such compliance before this Court on 05.01.2021.”

4. It is important to highlight that on 20.12.2022, Judicial Officer Ayub Khan, District and Sessions Judge of Rajasthan Judicial Service, while dismissing the bail application, failed to comply with the directions issued by the Rajasthan High Court in the case of Jugal Kishore (Supra) regarding the incorporation of the accused's antecedents in the prescribed tabular form, as outlined in paragraph 9 of the guidelines. Instead, the order only mentioned that the accused had 10 criminal cases registered against him at different police stations. As a result, the learned Single Judge of the High Court, in the order dated 4th April 2023, observed that the failure to adhere to the High Court’s directions amounted not only to indiscipline but also to potential contempt of court. The High Court of Rajasthan further directed that a copy of the order be sent to the Session Judge, requiring an explanation within five days, and subsequently, adverse remarks were passed.

5. The discourse regarding the disclosure of 'Criminal History' and the proper manner of its disclosure reached the Supreme Court when a Sessions Judge, in the case Ayub Khan v. The State of Rajasthan (Neutral Citation: 2024 INSC 994), challenged the adverse remarks passed by the High Court. The Division Bench of Supreme Court (Justice Abhay S. Oka and Justice Augustine George Masih) held that the decision in the case of Jugal Kishore v. State of Rajasthan (2020) 4 RLW 3386 cannot be construed as mandatory directions to the Criminal Courts. The Supreme Court, in the context of the case mentioned above, noted:

“10. The presence of the antecedents of the accused is only one of the several considerations for deciding the prayer for bail made by him. In a given case, if the accused makes out a strong prima facie case, depending upon the fact situation and period of incarceration, the presence of antecedents may not be a ground to deny bail. There may be a case where a Court can grant bail only on the grounds of long incarceration. The presence of antecedents may not be relevant in such a case. In a given case, the Court may grant default bail. Again, the antecedents of the accused are irrelevant in such a case………………

16. Therefore, to conclude, we hold that the directions issued in paragraphs 9 and 10 of the decision of the Rajasthan High Court in the case of Jugal Kishore cannot be said to be binding directions…”

6. It has also been clarified by a different Division Bench (Justice Sanjiv Khanna & Justice M. M. Sundresh) in the case of Special Leave Petition (Crl.) Nos. 11675-11676 of 2022 (Rajasthan High Court v. State of Rajasthan and Anr.) that mirroring the directions given in the Jugal Kishore case cannot be construed as mandatory directions for our criminal courts. At most, it should be regarded as a suggestion, which does not necessarily need to be implemented in every case.

7. However, in a recent order Munnesh (Supra), it has been mandated that the petitioner shall mandatorily disclose in the ‘SYNOPSIS’ that either he is a man of clean antecedents or, if he has knowledge of his involvement in any criminal case, he shall clearly indicate the same together with the stage that the proceedings, arising out of such case, have reached. Otherwise, the petition may be dismissed solely on the ground of non-disclosure of criminal history. There is no doubt that the parties should give a clear picture of the case and themselves in a bail matter. The Supreme Court, in Dalip Singh v. State of UP (2010) 2 SCC 114 and Kishore Samrite v. State of U.P. (2013) 2 SCC 398, has held that a party who approaches the court by suppressing facts and attempting to mislead the court is not entitled to be heard on merits. It is the bounden duty of anyone approaching the courts to state the whole case fully and fairly, and any attempt to mislead or approach with unclean hands should be dealt with severely. However, the manner and the format in which this disclosure is to be addressed need to be examined. Sometimes, when a party may be in jail or unaware of the proceedings, or when the state deliberately withholds the FIR copy, a more liberal approach is required to disclose the criminal history before the final hearing.

8. Thus, from the various observations and discussions by different benches of the Supreme Court, it can be sensed that ‘criminal history/antecedents’ is an important factor to consider when deciding the bail of any accused. Judges often seek to consider the past records of the accused in order to issue reasoned orders that strike a balance between the individual’s rights and public safety, thereby enhancing the rule of law. However, the extent to which criminal history and what extend should influence judicial decisions remains unclear. The question of how much weight should be given to an individual’s past conduct and when it becomes irrelevant!

Relevant and Irrelevant Factor of Criminal History in Bail

9. The law regarding the primary considerations for granting bail has been well-established and is no longer res integra. It is universally recognized that in deciding whether to grant bail, the court must carefully balance the following factors: (i) the seriousness of the offence committed, (ii) the likelihood of the accused fleeing from justice, (iii) the impact of the accused’s release on prosecution witnesses, and (iv) the likelihood of the accused tampering with evidence. However, it is crucial to note that these considerations are not exhaustive, and courts are empowered to take into account any other relevant circumstances specific to the case. When a court considers these factors in its decision-making, it can be concluded that the discretion exercised has been judicious. This principle has been reinforced by the Supreme Court in cases such as Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh [(1978) 1 SCC 240], Prahlad Singh Bhati v. NCT, Delhi [(2001) 4 SCC 280], and Anil Kumar Yadav v. State (NCT of Delhi) [(2018) 12 SCC 129], where the courts have consistently emphasized that bail decisions should be made after careful consideration of the facts, ensuring fairness and the safeguarding of justice. The Supreme Court has consistently emphasized that judicial discretion is a vital aspect in determining bail applications. In this context, Madan B. Lokur, J., while elaborating on the principle of judicial discretion, highlighted its significance in the case of Dataram Singh v. State of Uttar Pradesh & Anr. (2018) 3 SCC 22. The Court asserted that a judicial officer must exercise their discretion with utmost responsibility, guided by the principles of fairness, justice, and conscience. Judicial discretion, in this regard, refers to the ability of the judge to apply their independent judgment in the context of the facts and circumstances of the case. The Court emphasized that while factors such as the seriousness of the offence, the likelihood of the accused fleeing justice, or the possibility of tampering with evidence may influence the decision, the judge’s sense of judicial conscience remains paramount. It is through the application of this conscience that the balance between individual rights and societal safety is maintained, ensuring that decisions are made in a manner that is both just and equitable. The Supreme Court held (Dataram Supra): -

“6. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India, 2017 (13) SCALE 609 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 in which it is observed that it was held way back in Nagendra v. King-Emperor, AIR 1924 Cal 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson, AIR 1924 Cal 476 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.

7. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.”

Emphasis added.

10. However, the Court also cautioned that judicial discretion should not be exercised in an arbitrary or capricious manner. Justice R. Banumathi emphasized in the case of Anil Kumar Yadav v. State (NCT of Delhi) [(2018) 12 SCC 129] in the following the principle of State of U.P. through CBI v. Amarmani Tripathi, (2005) 8 SCC 21, in this manner:

“19…[T]he law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination, of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.”

11. Over time, courts have developed and refined the jurisprudence surrounding criminal history, particularly in relation to the judicial discretion exercised in granting bail. This evolution has allowed the judiciary to evaluate the behavioural aspects of the accused, focusing on factors such as risk assessment, public safety, and the likelihood of re-offending. However, in evaluating criminal history, the Supreme Court has consistently adopted a cautious approach, emphasizing core principles such as the presumption of innocence, the potential for rehabilitation, and the relevance of the accused's criminal history to the current charge. The Court has cautioned against an overreliance on past offenses, as this could lead to prejudice and an unfair bias against the accused. Additionally, legal provisions exist to protect individual rights, ensuring that criminal history is not used inappropriately. The mere number of cases or offenses registered cannot be determinative, particularly when those numbers may be clouded by unrelated, rebutted, or outdated information. In Sushila Agarwal and Ors. v. State of NCT Delhi and Anr. (2020 SCC Online SC 98), the Supreme Court highlighted the importance of criminal history when deciding on anticipatory bail, noting that it can indicate the risk of absconding, tampering with evidence, or posing a threat to society.

12. When exercising judicial discretion, courts are compelled to consider criminal history to understand the accused's behaviour and the likelihood of habitual criminality. While the number of cases against an individual can provide some perspective on their criminality, disclosing this information during bail proceedings may introduce prejudice into the decision-making process. However, the existence of prior criminal cases does not automatically disqualify an accused from being granted bail. In Prabhakar Tewari v. State of U.P. (2020) 11 SCC 648, the Supreme Court clarified that prior criminal cases alone cannot justify a denial of bail without compelling reasons demonstrating a risk of reoffending or tampering with evidence. The Court stated:

"7…[T]he offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail."

13. The court goes further elaborating Prabhakar (Supra) in Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed: -

"We may hasten to add that when we state that the accused is a history-sheeter, we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of, regard being had to the nature of crime in respect of which he has been booked."

14. While there is no inherent issue in considering past accusations when making judicial decisions, an overemphasis on the sheer number of cases can create a preconceived bias. Often, bail applications are dismissed solely based on the existence of a criminal history, with undue weight placed on this factor by the courts or the state. In such cases, the number of prior cases is frequently treated as an indicator of criminality. The issue arises when courts fail to assess the specifics of each past case, making the mere number of cases work against the accused. Courts often fail to provide detailed reasoning for considering the criminal history, neglecting to examine the facts, circumstances, or nature of each prior case. As a result, the concept of ‘perspective criminality’ disproportionately influences such decisions. However, relying solely on the number of cases can lead to mechanical decisions that overlook the facts of the individual cases, undermining the exercise of reasoned judicial discretion. The Supreme Court has further ruled that granting bail in a mechanical manner, without recording reasons, constitutes a violation of judicial duty, rendering the order illegal. This is affirmed in cases such as Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598], Prasanta Kumar Sarkar v. Ashis Chaterjee [(2010) 14 SCC 496], and Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (Koli) [(2021) 6 SCC 230]. Therefore, when courts focus solely on the number of criminal cases and fail to examine the specific facts and circumstances of each case, it leads to mechanical orders that promote ‘perspective criminality’ and the arbitrary exercise of judicial discretion.

No Define Definition of Criminal History

15. The terminology ‘Criminal History’ is gaining significant influence across various domains, including Criminal Law, Employment Law, Election Law, Policy Making, and Public Perception, often resulting in biases. The Supreme Court has ordered political parties to publish the criminal history of their candidates. When disclosing criminal antecedents, details such as the nature of the offenses, charges framed, the court concerned, and case numbers should be included. The Supreme Court in the cases of WP (C) No' 784 of 20 I 5 ('Lok Prahari vs. Union of lndia and others and in W.P(. C)No.536 of 2012 (Public Interest Foundation & Ors. Vs. Union of India & Anr.) and in contempt petition (c) no.2192 of 20l8 in WP(C) no.536 of 2011 has highlighted the right of voters to know the criminal antecedents of candidates since 2002, directing candidates to publish this information on their websites, television channels, and newspapers, and to submit details through an affidavit to the poll panel. In the context of Indian legal terminology, ‘criminal history’ generally refers to an individual’s past record of criminal activities, encompassing the entire trajectory from the registration of cognizable and non-cognizable FIRs to arrests, charges, cognizance, discharge, convictions, acquittals, and sentences. As an umbrella term in criminal jurisprudence, ‘criminal history’ encompasses all stages of a crime—beginning with its reporting and extending through to the completion of the punishment, if applicable. The widespread use of this term across legal processes necessitates careful consideration to avoid misuse or misunderstanding, particularly when assessing an individual’s criminal background in legal, professional, and societal contexts. Therefore, the umbrella term ‘criminal history’ need to classifications of antecedents are required and each cash merits need to be assessed. The mere existence of multiple cases registered during the Petitioner’s judicial custody does not necessarily indicate any predisposition towards criminality, and therefore, should not be the sole basis for denying the Petitioner’s right to a fair legal process, including the consideration of bail.

16. Although the Supreme Court of India has not provided a precise definition of "criminal history" or outlined its exact boundaries in terms of when it begins and ends, the Punjab and Haryana High Court has elaborated on the concept in a simpler: -

“[W]hile considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the anthesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge, or when Courts quashed the FIR; the prosecution stands withdrawn, or prosecution filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.

8. As per paragraph 17 of the bail petition, the petitioner has surrendered before the Court on 03.10.2023 and is in custody since then. Given the allegations involved viz-a-viz pre-trial custody, coupled with the primacies’ analysis of the nature of allegations, and the other factors peculiar to this case, he voluntarily surrendered before the trial Court, there would be no justifiability for further pre-trial incarceration at this stage. Thus, the previous criminal history of the petitioner is not being considered strictly at this stage as a factor for denying bail. Furthermore, a prima facie perusal of paragraph 19 of the bail petition reveals sufficient grounds for granting bail.”

17. However, the court have prioritized an objective assessment of the facts and merits of every individual accusation rather than relying on an overgeneralized perception of the Petitioner’s criminal history. The absence of a clear definition for "criminal history" from the Supreme Court has resulted in the concept of "perceptive criminality," where an individual’s past involvement in any criminal case becomes an enduring part of their identity, etched in the memory of the state, society, and the judiciary. Once someone is accused of a crime, it inevitably becomes a part of their criminal history, a record that is never erased or de-tagged at any stage, regardless of the outcome of the case. If someone is tagged with a criminal history, it remains a permanent part of their record, potentially lasting beyond their lifetime. In India, there is currently no provision that allows an individual to be fully removed or 'expunged' from their criminal history once it is established. This enduring record follows the individual beyond death, creating long-lasting consequences that can impact future generations as well. The inability to fully erase or clear such a record raises significant concerns about fairness, rehabilitation, and the right to move forward or right to forgotten without being perpetually defined by past accusation. This perpetuation of criminal history can, in some sense, be likened to the "soul" of an individual within the framework of criminal jurisprudence. The idea of an individual's criminal history as something indelible is captured metaphorically in the Bhagavad Gita, which states: “नैनं छिन्दन्ति शस्त्राणि नैनं दहति पावकः। न चैनं क्लेदयन्त्यापो न शोषयति मारुतः ॥" (Translation: "Weapons cannot cut it, fire cannot burn it, waters cannot wet it, and wind cannot dry it"). This speaks to the perishability of the soul, akin to the indelibility of one's criminal record, which remains part of an individual’s life long after the case is concluded. The court must establish at what stage an individual’s involvement in a criminal case is officially deemed part of their criminal history, and, more importantly, when they may be allowed to be "de-tagged" or freed from this label, through a process defined by the law. Clear legal guidelines are necessary to address this concern, ensuring that an individual is not perpetually defined by accusations and providing a structured approach for when an individual may overcome this stigma, respecting both the principles of justice and personal rehabilitation.

Conclusion

18. Criminality and punishment have been at the heart of the sovereign power since the beginning of the institution of the State. Thomas Hobbes, in Leviathan (1651) attesting to the power of the sovereign, writes, “Covenants, without the sword, are but words and of no strength to secure a man at all”, highlighting that a state with no power to exercise the monopoly use of violence on a body for the crimes committed is no sovereign at all. Crime and punishment took a more subtle form with the birth of modernity as Foucault also describes in his Discipline and Punish (1975), through institutions like the prison and mechanisms like the panopticon. The same can be argued about the perceived criminality of an individual. The judiciary, in its quest to ensure a fair and just bail process, often finds itself compelled to examine the past criminal history of an accused individual as part of the bail jurisprudence. This desire to understand the accused's history is driven by the need to assess risk factors, potential threats to public safety, and the likelihood of re-offending. However, there remains a significant debate over the manner in which this information should be disclosed and the implications it carries. While it is crucial that the accused approach the court with "clean hands," fully disclosing their criminal history, there are valid circumstances in which failure to do so may be excused. For example, the accused might be unaware of certain pending cases, or they might not have access to the relevant information while in custody. These genuine reasons for non-disclosure should not be overlooked or treated as a deliberate attempt to mislead the court. One of the critical challenges in the judicial process is the way in which criminal history is evaluated. Judges may rely heavily on the number of cases against an individual, which can inadvertently result in biased or mechanical decision-making. The focus on the mere number of registered cases often overshadows a deeper examination of the nature, facts, and circumstances of those cases. In many instances, the statement that "several cases have been registered" is made without providing a detailed context or explanation, which can be problematic. It gives the impression of a cursory, almost formulaic evaluation, rather than a thoughtful, reasoned approach. Moreover, the term "criminal history" itself remains ambiguous. It is unclear at what stage a past accusation becomes relevant, and when it should no longer be considered. This lack of clarity can lead to inconsistent interpretations and applications of the law. To avoid such confusion, there is a compelling argument for defining "criminal history" more precisely and considering replacing it with a clearer term such as "accusation history." Such a shift would ensure that courts focus not just on prior convictions or arrests, but on all relevant allegations and their status in the legal process. By clarifying these concepts, the legal system can better balance the need for risk assessment with the protection of individual rights, ensuring that judicial discretion is exercised in a fair and consistent manner. When a crime is committed, FIR, evidence collection, witness statement, and trial, among other things, become integral to the process. But when a person is acquitted, the process still lives in the perpetual memory of the state through its criminal register and in the people’s memory. A person is bound to reveal his status of perceived criminality despite not being a criminal. The repeated process of disclosing the past status of criminality reproduces itself and reifies, reinforcing the perpetual memory of the state at the cost of the person, now clean with no crime registered against him/her but living with perceived criminality. This perceived criminality goes against the very grain of Article 21 of the Indian Constitution, which promises every person a life of dignity. Therefore, the criminality of any person should not be regarded as an immutable part of their identity, akin to the Atman (soul) in certain philosophical beliefs, where an individual is eternally defined by their past actions. In the realm of criminal jurisprudence, there must be a provision for the de-tagging or removal of an individual's criminal label, especially when they have undergone rehabilitation or have demonstrated significant positive change or process of law acquitted. The core tenet of criminal justice acknowledges the possibility of human transformation — even the most flawed individual has the potential to reform and reintegrate into society. This aligns with the principle of rehabilitation, which seeks to provide every individual with the opportunity for a fresh start, regardless of their past. The law should therefore ensure that no person is forever shackled by the stigma of their criminal history, recognizing that the possibility of redemption and change is inherent in human nature. This approach not only promotes fairness but also reflects a compassionate and restorative vision of justice.