Release Accused On 'Single' Surety; Don't Remand Them To Custody If Chargesheet Filed Sans Arrest: Allahabad HC Directs UP Courts

Exercising its power under Article 227 of the Constitution and Section 528 BNSS, a bench of Justice Vinod Diwakar on Tuesday directed that in all cases where the chargesheet has been filed without arrest, whether because custodial interrogation was not affected during investigation or the accused had secured anticipatory bail/protective orders under Article 226 or Section 528 BNSS and duly cooperated, the following practices should be adopted across the state:

• The trial court shall not remand the accused to judicial custody upon appearance pursuant to summons.
• The trial court shall not insist upon the filing of regular or anticipatory bail applications.
• The accused shall be permitted to appear and furnish a personal bond at the first instance, in terms of the Supreme Court's Judgment in Musheer Alam v State of Uttar Pradesh 2025 LiveLaw (SC) 83 and Satender Kumar Antil vs. Central Bureau of Investigation and another 2022 LiveLaw (SC)577.
• The requirement of surety under Section 91 BNSS may be considered subsequently at the court's discretion to ensure appearance.

The Court also added that at the stage of proceedings under Sections 91, 190, 227 and 232 BNSS (corresponding to Sections 88, 170, 204 and 209 CrPC), the trial court, whether presided over by a District Judge, Additional District and Sessions Judge, or Magistrate, shall inform the accused of his right to furnish a personal bond at the first instance, and may require surety.

Subsequently, if necessary, immediately after the accused appears in response to summons, the court shall comply with Sections 230 and 231 BNSS, commit the case to the Court of Session if exclusively triable by it, and proceed to the next trial stage without unnecessary delay, the Court added.

The Court also clarified that where anticipatory bail or protective orders under Article 226 or Section 528 BNSS specify protection until the filing of a charge sheet or direct that “no coercive action”/”stay on arrest shall operate until filing of charge sheet”, these protections shall be deemed to continue until the conclusion of the trial.

In its 42-page order, the Court also noted the long-standing requirement in all districts for two sureties, often with substantial amounts.

Observing that it obstructs justice, especially for litigants outside the district or State, leading to prolonged incarceration despite the grant of bail, which is a travesty of justice, the Court directed that mandatory two sureties be dispensed with. It said:

• The accused(s)/convict(s), as the case may be, shall be released on a 'single surety', subject to the satisfaction of the Magistrate or the court concerned. The satisfaction shall drive from the socio- economic condition of the accused and that the surety bond amount be fixed in accordance with the financial strength of the accused.
• In case, the accused(s) is unable to produce sound surety within seven days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, DLSA who may depute from para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release,
• If the accused has been booked in multiple cases (FIRs) even across many states, the court shall forthwith release the accused, if he secures bail in all cases.

The Court issued these directions while hearing a Section 528 BNSS plea moved by one Bacchi Devi, challenging the summoning order and chargesheet in connection with a case of Cheating lodged against her on the allegations that she was selling counterfeit Paint products.

During the hearing, the applicant's counsel pressed for the stay of the trial court proceedings during the pendency of the present petition.

He submitted that unless this is done, the applicant would be compelled to surrender before the trial court, be remanded to judicial custody, and only thereafter would her bail application be considered on the merits.

A limited relief was also sought that the accused be permitted to appear before the trial court to face trial without being taken into judicial custody.

Alternatively, it was prayed that the plea be disposed of with an observation or direction permitting the applicant(s) to file an application for discharge before the trial court, without the risk of being remanded to custody during the pendency or consideration of such application

The single judge noted that when the applicant was not arrested during the investigation, there was no point in her being compelled to surrender before the trial court and be remanded to judicial custody for the bail application to be considered on the merits.

“…such a course of action runs contrary to the established jurisprudence governing bail post-filing of a charge sheet within the criminal justice system and the whole purpose of filing the present petition would be frustrated,” the bench observed.

Court takes note of similar instances

The bench noted that it is dealing with such routine applications under section 482 CrPC (section 528 of the BNSS) where the accused move the HC immediately after the trial court takes cognisance and issues summoning orders, seeking quashing of the charge-sheet and setting aside of the cognizance order passed upon its filing.

The Court further noted that the underlying objective behind such applications is to avoid judicial custody during trial or the securing of interim relief aimed at staying Non-Bailable Warrants (NBWs) or proceedings initiated under Sections 80 to 83 of CrPC (corresponding sections 82(1) to 85 of the BNSS, 2023). These reliefs, the Court noted, are, in substance, final reliefs.

Importantly, the Court also took note of another practice where even if the police have not arrested the accused during investigation and have filed the charge sheet without custodial interrogation, the trial courts require the accused to undergo judicial custody (even if briefly) to obtain regular or anticipatory bail after cognizance is taken.

“As a result, to avoid incarceration, the accused is compelled to file a fresh anticipatory bail applicationeither before the Court of Sessions or the High Court. If such anticipatory bail is not granted, the accused is then left with no option but to surrender before the trial court, whereupon they are remanded to judicial custody until a regular bail order is passed or approach the High Court under section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for limited purpose discussed herein above, generally…This prevailing practice, which often results in the accused being compelled to spend anywhere from a month to several years in judicial custody, is neither sanctioned by law nor aligned with the principles consistently laid down by the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab 2 , Sushila Aggarwal v. State (NCT of Delhi) 3 , Siddharth v. State of U.P. 4 and Satender Kumar Antil v. CBI,” the Court observed.

Against this backdrop, the court issued the aforementioned guidelines. Importantly, the following directions have also been issued by the HC:

• The Joint Director (Prosecution) in each district shall maintain detailed records of all such cases where trial courts remanded accused persons to custody, despite charge-sheets being filed without prior arrest, contrary to the Supreme Court directives
• All Jail Superintendents shall maintain corresponding records of such cases. The record shall be maintained in a register documenting cases along with a remand order where an accused has been sent to jail by the trial court despite not being arrested during the investigation and the judicial remand is contrary to the judgments mentioned in preceding paragraph.
• The Additional Director General of Police (Prosecution), Directorate of Prosecution, Lucknow, shall compile an annual, centralised record of all such instances, based on data from Joint Directors (Prosecution), and Jail Superintendents.
• This record shall be reviewed periodically, submitted to higher authorities, including the Registrar General of the High Court. It shall be used to assess the conduct of Judicial and Prosecuting Officers.
• The Director, JTRI, Lucknow, shall ensure sustained training programmes for judicial officers to secure compliance with this order.
• The Secretary, District Legal Services Authority, in coordination with District Court Bar Associations, shall conduct regular legal awareness camps to educate and sensitise advocates on these directions.
• District Judges shall submit monthly reports to the High Court containing:

(a) the number of cases in which judicial remand was ordered despite no prior arrest; (b) feedback on judicial training and compliance with these directions; and

(c) details of legal awareness camps conducted.

Importantly, the Court directed that the District Judges shall endorse: “Read, understood, and discussed with fellow judges of the district”, and, after deliberating on this judgment with their fellow judges, submit a report to this effect to the Registrar General of this Court immediately upon receipt of a copy of this order.