When the state of Maharashtra filed an appeal against the acquittal of 13 men recorded by a division bench of the Bombay high court in the case known commonly as the 7/11 Mumbai train blasts case, the Supreme Court  passed a strange and unusual order.

While recording that the accused had already been released and there was no question of imprisoning them again at that stage, the Supreme Court nevertheless declared that “taking note of the submissions made by learned solicitor general on the question of law, we are inclined to hold that the impugned judgment shall not be treated as a precedent in any other pending proceedings. Therefore, to that extent, there shall be a stay on the operation of the impugned judgment.”

Ultimately, the Supreme Court is the final arbiter in any legal matter including a criminal appeal, and under Article 141, the law declared by the Supreme Court shall be binding on all courts within the territory of India.

If indeed the Supreme Court was satisfied that it was a fit case to entertain an appeal, the discretion to grant an interim order did vest with it.

It should be noted though that this too is a course more in keeping with Article 134 (c) of the constitution, that is, when the high court itself has certified that its judgment is fit for appeal to the Supreme Court. The normal rule even then is to either dismiss the stay application of the state or, in extremely rare (seldom done) instances, cancel the bail bonds of those who were let out by the high court.

However, when there is no such certificate by the high court and the Supreme Court is exercising its own jurisdiction to consider whether to entertain an appeal under Article 136, commonly called a special leave to appeal, the justification for the Supreme Court to pass an interim order as it has done would appear to be unjustified in the extreme.

If and when the Supreme Court reverses the judgment of the division bench of the Bombay high court, the precedential value of the same will disappear. But in the matter under discussion, the Supreme Court was hearing an appeal against a high court judgment running to about 700 pages. No one questions its decision to entertain the appeal, but to order – at a preliminary hearing – that the “judgment of the Bombay high court shall not be treated as a precedent in any other pending proceedings” is not only strange but unheard of.

The Bombay high court by its judgment had reversed the conviction and sentence given by the special Maharashtra Control of Organised Crime Act, 1999 (MCOCA) court sentencing five persons to death and seven to life imprisonment. The high court held hearings for almost 75 days and heard the arguments of five counsel, most of them designated senior advocates.

The high court’s judgment came on July 21, 2025. The state rushed to the Supreme Court with an appeal and made a mention before the Chief Justice (CJI) on July 22. The CJI remarked: “See, what is the hurry? Eight are already released. Stay of acquittal is granted only in the rarest of rare cases.”

Yet the matter was listed on July 24 before the bench headed by Justice M.M. Sundresh. And it was during the appeal’s first hearing that the learned judges passed the strange interim order noted above.

Did the findings of the division bench of the Bombay high suffer from any glaring infirmities occasioning such a strange order?

The case was tried under MCOCA, a law passed by the state of Maharashtra.

Much earlier, in another judgment, the Bombay high court had held certain provisions of MCOCA ultra vires the Constitution; the Supreme Court reversed that view:

“… we allow the appeals of the state government, insofar as the constitutional validity of Sections 13 to 16 of MCOCA is concerned. We uphold the validity of the said provisions.” (State Of Maharashtra vs Bharat Shanti Lal Shah, 2008 (13) SCC 5)

While doing so, however, the Supreme Court held that even under MCOCA, mens rea (deliberate intent to commit the crime) was not excluded but in fact essential as in any criminal case:

“With respect to Section 3 of MCOCA, even before the high court the attack was in particular in respect of the provisions of Section 3 (3) and (5) on the ground that the requirement of mens rea is done away with, thus automatically rendering a person without any intention or knowledge liable for punishment. It is a well settled position of law insofar as criminal law is concerned that in such provisions mens rea is always presumed as integral part of penal offence or section unless it is specifically and expressly or by necessary intendment excluded by the legislature. No such exclusion is found in sub-sections (3) and (5) of Section 3.” (Bharat Shanti Lal Shah case (cited supra))

MCOCA also included a draconian provision under Section 18 whereby, departing from the Evidence Act, a confession made before a police officer of the rank of a superintendent of police was rendered admissible in evidence. The said provision reads as follows:

“18. Certain confessions made to police officer to be taken into consideration.—

(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (I of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not below the rank of the superintendent of police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator: Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together with the accused.

(2) The confession shall be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him.

(3) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same.

(4) Every confession recorded under sub-section (1) shall be sent forthwith to the chief metropolitan magistrate or the chief judicial magistrate having jurisdiction over the area in which such confession has been recorded and such magistrate shall forward the recorded confession so received to the special court which may take cognisance of the offence.

(5) The person from whom a confession has been recorded under sub-section (1) shall also be produced before the chief metropolitan magistrate or the chief judicial magistrate to whom the confession is required to be sent under sub-section (4) alongwith the original statement of confession, written or recorded on mechanical device without unreasonable delay.

(6) The chief metropolitan magistrate or the chief judicial magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a medical officer not lower in rank than of an assistant civil surgeon.”

Did the confessions upon which the prosecution rested meet with these mandatory standards? The Bombay high court found they did not.

This is the first article of a two-part series on the Supreme Court's interim order in the Maharashtra government's appeal against the Bombay high court order.

The author is a retired judge of the Madras high court.

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