Allahabad HC Terms Arrest After Chargesheet An ‘Unusual’ Practice That ‘Makes No Sense’ | Directs UP Courts To Release Accused On Single Surety And Appearance | No Remand If No Prior Arrest
Sanchayita Lahkar
The High Court of Allahabad, Single Bench of Justice Vinod Diwakar held that where a charge-sheet has been filed without arrest, an accused who appears on summons shall be permitted to furnish a personal bond at the first instance, and the trial court shall not remand the person to judicial custody or insist on filing regular or anticipatory bail applications. The Court directed that appearance and furnishing of a bail bond will suffice, dispensed with the need for a separate bail application, and set aside any non-bailable warrant issued before or during the proceeding. In addition, the Bench issued system-wide directions to ensure uniform adherence by trial courts and prosecuting agencies, and ordered the Registrar (Compliance) to transmit the judgment for statewide circulation. The application was disposed of on these terms.
The application challenged a summoning order dated 29 April 2022 in Case No. 10849 of 2022 pending before the Chief Judicial Magistrate, Gorakhpur, and sought quashing of charge-sheet no. 1/2021 in Case Crime No. 0395 of 2021. The offences cited were Section 420 of the Indian Penal Code and Sections 63 and 65 of the Copyright Act, 1957.
The prosecution version, as recorded, stated that the applicant was proprietor of a retail outlet, Krishna Hardware Paints Centre, at Shanti Nagar, Bichhiya, Gorakhpur. On a spot inspection by officers of the authorized company, the applicant was allegedly found selling counterfeit Asian Paints products; a large quantity of such products was recovered from the premises.
The applicant’s position was that paint products were procured from a wholesale distributor, Force Trading, Dharamshala Bazar, Gorakhpur, against valid tax invoices/receipts, and then sold in the ordinary course of retail business. It was contended there was no knowledge or reason to believe that the goods or packaging were counterfeit or adulterated; discovery of counterfeit boxes occurred during a raid by the complainant’s authorized representative. On this basis, counsel argued that the essential ingredients of Section 420 IPC read with Sections 63 and 65 of the Copyright Act were not satisfied; dishonest intention or mens rea was denied, and continuation of criminal proceedings was said to be an abuse of process.
The State’s response recorded that a substantial quantity of counterfeit Asian Paints products was recovered in a spot inspection by the authorized representative of SGS IPR Consultancy, indicating significant illegal profit. As to knowledge and intention, the State submitted these questions were for trial after deposition of prosecution witnesses; at the threshold, the veracity of the material could not be examined, with reliance placed on State of Haryana v. Bhajan Lal.
During the hearing, the Court afforded an opportunity to address merits; however, the applicant’s counsel confined the prayer to process-related relief, submitting that absent interim protection, the applicant would have to surrender, be remanded, and only thereafter seek bail, despite no arrest during investigation. The submission was that such a course would contradict the applicable framework once a charge-sheet is filed without arrest and would frustrate the purpose of the petition. To assist on the systemic issue, Shri Satyaveer Singh volunteered assistance and was appointed Amicus Curiae.
The judgment situates the case within a wider pattern seen in applications under Section 482 CrPC (now Section 528 BNSS), noting that many petitions are filed immediately after cognizance and summoning, often before supply of the police report and documents, and frequently without statements recorded under Sections 161/164 CrPC (now Sections 180/183 BNSS), seizure memos, site plans, or other incriminating materials. The Court recorded that such petitions commonly seek to avoid immediate judicial custody or to secure interim protection against coercive steps like non-bailable warrants or attachment proceedings.
On working days, the Court noted a recurring concern put forward in oral mentions: that if petitions are not urgently taken up, trial courts may issue NBWs or remand accused to custody even in matters where the charge-sheet was filed without arrest and the accused cooperated; some accused obtain “no coercive action” orders under Article 226 pending investigation.
The judgment outlines three procedural routes typically taken in cases where the police file the charge-sheet without arrest: (i) appearance and surrender leading to custody pending regular bail; (ii) fresh anticipatory bail before the Sessions Court or the High Court; and (iii) an application under Section 528 BNSS limited to avoiding remand and facilitating appearance. In Sessions-triable cases, the process may involve sequential applications and appeals, and if anticipatory bail is refused, surrender followed by remand is common.
Consequences noted include prolonged pendency with repeated summons, bailable and non-bailable warrants, and attachment proceedings; the stage of supplying police reports and committal may take “approximately five years or more,” affecting Article 21 rights. The Court also recorded the impact on dockets: daily hours spent on bail-related matters, multiple rounds of litigation across forums, and staggered approaches by co-accused that delay progress.
Turning to the merits of this case after reserving broader issues, the Court recorded that the charge-sheet was filed without arrest; that the applicant confined submissions to a limited prayer to prevent remand absent anticipatory bail; and that, upon consideration, appearance with a bail bond would suffice. The Court set aside any non-bailable warrant issued before or during the proceeding, clarified that no separate bail application was required, and preserved liberty to raise merits at the appropriate trial stage.
The Bench recorded the recurring pattern that emerges on daily cause lists and the apprehension of coercive steps even where the charge-sheet was filed without arrest. As the Court “observed”: “approximately 350 to 500 cases are listed before this Court, and nearly 50 to 75 learned advocates make oral mentions… expressing apprehensions that… trial courts may issue Non-Bailable Warrants (NBWs)… or commit them to judicial custody. This concern is frequently raised even in cases where the charge-sheet has been filed without arresting the accused.”
That backdrop, the Court recorded, persists despite cooperation during investigation or interim protections obtained in writ jurisdiction. The judgment notes: “in such cases, the investigating agency often either chooses not to arrest the accused at all, or the accused secures anticipatory bail till the filing of the charge-sheet… [and] also obtains… a ‘no coercive action’ order… until the conclusion of the investigation.”
Addressing the nature of petitions filed at the Section 528 stage, the Court “stated” that many arrive prematurely and predominantly seek to avoid custody upon first appearance: “most of such applications are filed prematurely… [and] the primary concern appears to be securing an order… granting… protection to the accused from being taken into judicial custody upon appearance… for a limited period of a couple of weeks or so. However, this relief… neither fulfils the requirements of law nor provides any substantive benefit.”
On trial-stage practice after cognizance where no arrest was made, the Court recorded: “the prevailing practice in the trial courts is to require the accused, nonetheless, to undergo, even if briefly, judicial custody in order to obtain regular or anticipatory bail after cognizance is taken.” It added that this “persists regardless of the fact” that the accused was on bail or that the police deemed arrest unnecessary during investigation.
The judgment sets out the broader constitutional and precedential framework. It recorded that the entrenched practice of insisting on custody has continued “despite the settled legal position” and is “neither sanctioned by law nor aligned with the principles consistently laid down by the Supreme Court in Gurbaksh Singh Sibbia… Sushila Aggarwal… Siddharth… and Satender Kumar Antil.”
The Court detailed the procedural consequences: repeated rounds across courts, extensive time on bail hearings, and case delays. It “stated”: “In practice, it often takes approximately five years or more for the matter to reach the stage contemplated under Sections section 228 of Cr.P.C. (corresponding section 251 of the BNSS, 2023)… defeating the spirit of speedy trial enshrined under Article 21 of the Constitution of India.” The Court added: “In effect, it’s a no-win situation for all stakeholders – a judicial stalemate that continues unchecked.”
As to the legal position governing appearance when charge-sheets are filed without arrest, the judgment cites Supreme Court authority that a formal bail application need not be insisted upon at the cognizance/committal stages; instead, recourse may be had to the personal bond framework. The Court quoted the principle that: “There is not even a need for filing a bail application… If the Court is of the view that there is no need for any remand, then the Court can fall back upon Section 88 of the Code… Suffice it to state that for due compliance of Section 170 of the Code, there is no need for filing of a bail application.”
The Court also recorded the correction of a recurring misinterpretation of Section 170 CrPC, noting the Supreme Court’s view that custody there does not equate to arrest. The judgment states that the higher court held there is “no need to send an accused to judicial custody at the stage of 170 Cr.P.C., especially in cases where the police themselves saw no reason to arrest during the investigation.”
Linking established precedent to trial-level practice, the Bench consolidated the position: “We are, in fact, faced with a situation where… the trial courts are stated to be insisting on the arrest of an accused as a prerequisite formality to take the charge-sheet on record in view of the provisions of Section 170 Cr.P.C. We consider such a course misplaced and contrary to the very intent of Section 170 Cr.P.C.” It further recorded: “There need not be any insistence of a bail application while considering the application under Sections 88, 170, 204 and 209 of the Code.”
Applying these principles to the present case, the Bench summarized the narrow relief sought and the course to be followed: “it stands admitted that the charge sheet has been filed without the arrest of the applicant… [and] the trial court be directed not to remand the applicant to judicial custody in the absence of anticipatory bail.” The Court then recorded the specific direction for appearance and bond and the setting aside of any NBW.
The judgment concludes its reasoning with an institutional response: drawing on Supreme Court directions addressed to the State of Uttar Pradesh and the High Court, it records the need for reporting, training, and accountability mechanisms to ensure field-level adherence. The extracts reproduced include: ensuring prosecutors state the correct legal position as per Siddharth and Satender Kumar Antil, circulations of those judgments, and periodic training updates.
The Bench’s first directive addresses the precise scenario raised in this case. It mandates that in matters where the charge-sheet has been filed without arrest, trial courts are not to remand an appearing accused and are not to insist on bail applications; appearance with a personal bond shall be accepted first, with surety to be considered later if necessary. In the Court’s words: “the trial court shall not remand the accused to judicial custody upon appearance pursuant to summons, nor insist upon filing of regular or anticipatory bail applications. The accused shall be permitted to appear and furnish a personal bond at the first instance… The requirement of surety under Section 91 BNSS may be considered subsequently at the court’s discretion to ensure appearance of the accused.”
A second direction governs what must occur at the threshold stages across forums when an accused appears in response to summons. The Court directs that, at proceedings corresponding to Sections 88, 170, 204 and 209 CrPC (now Sections 91, 190, 227 and 232 BNSS), the accused shall be informed of the right to furnish a personal bond first, with surety to follow if later warranted. As recorded: “the trial court… shall inform the accused of his right to furnish a personal bond at the first instance, and may require surety subsequently, if necessary.”
Third, upon appearance in response to summons, courts must move the case forward promptly to the next procedural stage, including committal when sessions-triable, and avoid unnecessary delay. The directive reads: “Immediately after appearance of accused in response to summons, the court shall comply with Sections 230 and 231 of BNSS, 2023, committing the case to the court of session when exclusively triable by it, and proceed to the next trial stage without unnecessary delay.”
Fourth, the judgment clarifies the continuation of prior protective orders. Where anticipatory bail or writ-based protections specify coverage until filing of the charge-sheet or include “no coercive action” formulations, such protections are to “be deemed to continue until the conclusion of trial… unless supported by… cogent reasons, making out an exceptional case.”
Fifth and sixth, the Bench installs district-level oversight. It directs the Joint Director (Prosecution) in each district to maintain detailed records of remand orders passed despite charge-sheets filed without arrest, and requires all Jail Superintendents to maintain a corresponding register of such cases and remand orders. The judgment states these obligations in terms: “detailed records of all such cases… where an accused has been sent to jail… despite not being arrested during the investigation…” must be maintained.
Seventh, centralized collation is ordered. The Additional Director General of Police (Prosecution) shall compile an annual, centralized record based on district data and submit it for periodic review to higher authorities, including the Registrar General of the High Court, and use it for assessing the conduct of Judicial and Prosecuting Officers. The direction explains the objective as creating “an additional layer of oversight at the zonal and regional levels, complementing the centralised data maintained by the Directorate of Prosecution.”
Eighth and ninth, the Court requires capacity-building and sensitization. It directs the Director, Judicial Training & Research Institute, Lucknow, to ensure sustained training programmes “to secure compliance with this order,” and directs the Secretary, District Legal Services Authority, in coordination with Bar Associations, to conduct regular legal awareness camps to educate and sensitize advocates on these directions.
Finally, the Court records case-specific relief: the applicant shall appear before the trial court on the next date and may directly furnish a bail bond, without filing a separate bail application; any non-bailable warrant issued before or during the pendency of the application “shall stand set aside.” The Registrar (Compliance) is directed to transmit the judgment to District Judges for circulation to Judicial Officers, and to the Director General of Police, Additional Director General (Prosecution), and the Director, JTRI, “for record and ensuring effective compliance.” With these observations and directions, the application stands disposed.
Advocates Representing the Parties
For the Petitioners: Sanjeev Kumar Yadav, Counsel for Applicant.
For the Respondents: G.A., Government Advocate.
Case Title: Smt. Bacchi Devi v. State of U.P. and Another
Neutral Citation: 2025:AHC:136034
Case Number: Application U/S 528 BNSS No. 6400 of 2025
Bench: Justice Vinod Diwakar
