# Smt. Bacchi Devi v. State of U.P. & Anr

- **Citation:** (2025) 8 ILRA 94
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-12
- **Case number:** Application U/S 528 BNSS No. 6400 of 2025
- **Bench:** Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-bacchi-devi-v-state-of-u-p-anr-53831
- **Pages:** 27

## Headnote

G.A.

Issue for consideration
Pertains to limited relief to be permitted to
appear before the trial court to face trial without
being taken into judicial custody.

Headnotes
Bhartiya
Nagrik
Sanrakshan
Sanhita,
2023- All District Judges shall ensure -in cases
where the charge- sheet has been filed without
arrest- whether because custodial interrogation
was not effected during investigation by
Investigating Officer-or the accused had secured
anticipatory bail/protective orders and duly
cooperated during investigation- the trial court
shall not remand the accused to judicial custody
upon appearance pursuant to summons-at the
stage of proceedings u/s 88, 170, 204, and 209
Cr.P.C. (corresponding sections 91, 190, 227
and 232 of BNSS)-the trial court- shall inform
the accused of his right to furnish a personal
bond at the first instance-and may require
surety
subsequently-
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.
Held:
It is hereby directed that the mandatory
requirement of two sureties are dispensed with,
and henceforth, (i) 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.
(E-9)
8 All. Smt. Bacchi Devi Vs. State of U.P. & Anr.
95
Case Law Cited

## Text

_Characters 0–39,710 of 92,153. This is a partial read: ask again with offset=39710 for what follows._

94 INDIAN LAW REPORTS ALLAHABAD SERIES
party no.2 were classmates and there was
dispute between the two, which led to
lodging of F.I.R. on 31.08.2021 under
Sections 354, 354D, 323 and 504 I.P.C. in
respect to incident dated 30.08.2021. It is
further submitted that both the applicant
and opposite party no.2 have entered into
compromise and does not want to pursue
the matter.

4. Sri Suraj Raj, learned counsel
for opposite party no.2 admitted that there
is a compromise between the parties and
contents of paragraphs-3, 4 and 5 of the
affidavit filed by opposite party no.2 reveal
that the compromise has been accepted.

5. There is no point in getting the
trial continued, when the parties have
buried their differences as the star witness
would not support the prosecution case.

6. In view of above, the charge
sheet and the proceeding arose out of case
crime number mentioned above is hereby
quashed. Consequently, the proceedings of
trial is also quashed.

7. The application under Section
528 of B.N.S.S. is allowed accordingly.
---------
(2025) 8 ILRA 94
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2025

BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Application U/S 528 BNSS No. 6400 of 2025

Smt. Bacchi Devi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sanjeev Kumar Yadav

Counsel for the Opposite Parties:
G.A.

Issue for consideration
Pertains to limited relief to be permitted to
appear before the trial court to face trial without
being taken into judicial custody.

Headnotes
Bhartiya
Nagrik
Sanrakshan
Sanhita,
2023- All District Judges shall ensure -in cases
where the charge- sheet has been filed without
arrest- whether because custodial interrogation
was not effected during investigation by
Investigating Officer-or the accused had secured
anticipatory bail/protective orders and duly
cooperated during investigation- the trial court
shall not remand the accused to judicial custody
upon appearance pursuant to summons-at the
stage of proceedings u/s 88, 170, 204, and 209
Cr.P.C. (corresponding sections 91, 190, 227
and 232 of BNSS)-the trial court- shall inform
the accused of his right to furnish a personal
bond at the first instance-and may require
surety
subsequently-
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.
Held:
It is hereby directed that the mandatory
requirement of two sureties are dispensed with,
and henceforth, (i) 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.
(E-9)
8 All. Smt. Bacchi Devi Vs. State of U.P. & Anr.
95
Case Law Cited
1. HDFC Bank Ltd. v. J.J. Mannan, (2010) 1 SCC
679

2. Satpal Singh v. State of Punjab, (2018) 13
SCC 813

3. Naresh Kumar Yadav v. Ravindra Kumar,
(2018) 1 SCC 632

4. Joginder Kumar v. State of U.P., (1994) 4
SCC 260

5. Musheer Alam v. State of U.P., (2025) SCC
OnLine SC 116

6. Siddharth v. State of U.P., (2022) 1 SCC 676

7. Satender Kumar Antil v. CBI, (2021) 10 SCC
773

8. Satender Kumar Antil v. CBI, (2022) 10 SCC
51]

9. Satender Kumar Antil v. CBI, 2025 SCC
OnLine SC 1322

10. Jasbir Singh v. State of Punjab, (2006) 8
SCC 294

11. Shiv Shyam Pandey v. State of U.P. and
Others, 2008 SCC OnLine All 1264

12. Motiram v. State of Madhya Pradesh, (1978)
4 SCC 47

13. Ramchandra Thangappan Aachari v. State of
Maharashtra, [2024 SCC OnLine SC 2629]

14. Girish Gandhi v. State of U.P. and OthersWrit Petition (Crl.) No.149 of 2024

15. Re: Policy Strategy for Grant of Bail Hani
Nishad @ Mohd. Imran @ Vicky v. State of U.P.,
SLP (Crl.) Nos. 8914-8915 of 2018

List of Acts
Bhartiya Nagrik Sanrakshan Sanhita, 2023

List of Keywords
Accused first surrenders before the Magistrate;
remand to judicial custody; deprivation of
personal liberty; right to personal liberty and the
interest of fair and effective investigation.

Appearances of parties
Counsel for Applicant: Sanjeev Kumar Yadav,
Counsel for Opposite Party: G.A.

(Delivered by Hon'ble Vinod Diwakar, J.)

1. Heard Shri Satyaveer Singh, learned
Amicus Curiae, along with learned counsel
for the applicant, learned A.G.A. for the
State-respondent, and perused the material
available on record.

2. The applicant has challenged the
summoning order dated 29.04.2022 passed
in Case No. 10849 of 2022, which is
pending trial before the learned Chief
Judicial
Magistrate,
Gorakhpur.
The
applicant has also prayed to quash the
impugned charge-sheet no. 1/2021, filed in
connection with Case Crime No.0395 of
2021, registered under Section 420 IPC,
read with Sections 63 and 65 of the
Copyright Act, 1957.

3. In brief, the prosecution's case is
that the applicant is the proprietor of a
retail paint shop operating under the name
Krishna Hardware Paints Centre, located at
Shanti Nagar, Bichhiya, District Gorakhpur
and on spot inspection by the officers of the
authorised company, the applicant was
found selling counterfeit Asian Paints
products, and huge quantity of counterfeit
paints have been recovered from the
applicant's shop. Whereas the applicant's
case is that she had procured paint products
from a wholesale distributor, namely Force
Trading, situated at Dharamshala Bazar,
Gorakhpur,
through
valid
tax
invoices/receipts issued at the time of
purchase. The paints were sold from the
applicant's retail outlet in the ordinary
course of business.
96 INDIAN LAW REPORTS ALLAHABAD SERIES
4.
Learned
counsel
for
the
applicant submitted that the applicant had
no knowledge or reason to believe that the
paint products or packaging received from
the
wholesaler
were
counterfeit
or
adulterated. The alleged presence of
counterfeit paint boxes only came to light
during a raid conducted by the authorised
representative
of
the
complainant's
company at the applicant's shop.

4.1 Even assuming the allegations
to be true on their face, the essential
ingredients
required
to
constitute
an
offence under Section 420 IPC read with
Sections 63 and 65 of the Copyright Act,
1957, are not satisfied. There is no
dishonest intention or mens rea attributable
to
the
applicant,
nor
any
act
of
infringement knowingly committed by her.
Thus, the continuation of the criminal
proceedings against the applicant is a gross
abuse of the process of law, as the statutory
prerequisites for invoking the said penal
provisions are clearly absent in the present
case.

5. Per contra, learned A.G.A.
submitted that during a spot inspection
conducted at the applicant's premises by the
authorised representative of SGS IPR
Consultancy- the complainant- a substantial
quantity
of
counterfeit
Asian
Paints
products was recovered, indicating that the
applicant was deriving significant illegal
profit.
As
regards
the
applicant's
knowledge and intention to earn such
profit, these matters are to be examined
during trial and can only be determined
after the prosecution witness has deposed.
At this stage, the veracity and probative
value of the prosecution's evidence cannot
be assessed and placed reliance on the
principle laid down in State of Haryana v.
Bhajan Lal1.
6.
In
the
given
facts
and
circumstances, the applicant was afforded
an opportunity to address the merits of the
case. However, learned counsel for the
applicant has submitted that unless the trial
court proceedings are stayed at the very
outset during the pendency of the present
petition, the applicant would be compelled
to surrender before the trial court, be
remanded to judicial custody, and only
thereafter her bail application would be
considered
on
merits.
Although
the
applicant was not arrested during the
investigation. Such a course of action, it is
submitted, 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.

7. To address the issue raised
herein, Shri Satyaveer Singh, learned
Advocate present in court, voluntarily
offered to assist. Accordingly, he has been
appointed as Amicus Curiae to assist the
court in facilitating a just and logical
conclusion of the matter.

8. The present petition is one
among several wherein the applicant(s)
seek a limited relief- namely, to be
permitted to appear before the trial court to
face trial without being taken into judicial
custody. Alternatively, the applicant(s)
prays that the application(s) 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.

9. This court has observed a
recurring
and
concerning
trend
in
applications filed under Section 482
8 All. Smt. Bacchi Devi Vs. State of U.P. & Anr.
97
Cr.P.C. (corresponding section 528 of
BNSS, 2023), wherein, barring a few
instances where arguments are addressed
on merits, most of such applications are
filed prematurely. These applications are
accompanied only by the FIR, bail orders,
and the police report filed under Section
173 Cr.P.C. (corresponding section 193 of
the BNSS, 2023), but are notably deficient
in essential documents such as the
statements of witnesses recorded under
Sections 161 and 164 of the Cr.P.C.
(corresponding sections 180 & 183 of the
BNSS), seizure memos, site plans, or other
incriminating material evidence relied upon
by the police. This appears to be a
consequence of such petitions being
instituted before the stage contemplated
under
Section
207
of
Cr.P.C.
(corresponding section 230 of the BNSS,
2023)- i.e. supply to the accused(s) of the
copy of police report and other documents.

10.
It
has
been
consistently
observed that applications under section
482 Cr.P.C. (corresponding section 528 of
the BNSS, 2023), are routinely filed before
this Court immediately after the trial court
takes cognisance and issues summoning
orders. In such applications, litigants
primarily seek quashing of the charge-sheet
and setting aside of the cognizance order
passed upon its filing. The underlying
objective behind such applications appears,
more often than not, to be the avoidance of
judicial custody during trial or the securing
of interim relief aimed at staying NonBailable Warrants (NBWs) or proceedings
initiated under Sections 80 to 83 of Cr.P.C.
(corresponding sections 82(1) to 85 of the
BNSS, 2023) - reliefs which, in substance,
are in the nature of final reliefs.

11. It is further observed that, on any
given working day, approximately 350 to 500
cases are listed before this Court, and nearly
50 to 75 learned advocates make oral
mentions
of
their
matters,
expressing
apprehensions that, if their petitions are not
taken up on that very day, the concerned trial
courts may issue Non-Bailable Warrants
(NBWs) against their clients 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,
and where the accused has fully cooperated
during the investigation. It is pertinent to note
that, 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. In some
instances, the accused also obtains interim
protection in the form of a "no coercive
action" order by invoking the writ jurisdiction
of this Court under Article 226 of the
Constitution of India, until the conclusion of
the investigation - a routine practice.

12. Surprisingly, there is another
disturbing trend, in most of such cases,
learned counsel do not press for quashing of
the charge-sheet on merits. Instead, the
primary concern appears to be securing an
order from this Court that the petition be
disposed of with liberty to the accused to
raise all permissible legal and factual
contentions at the stage of arguments on the
application for discharge before the trial
court. Such liberty is, as a matter of practice,
invariably sought and granted by the High
Court, along with protection to the
accused from being taken into judicial
custody upon appearance before the trial
court in compliance with a summons
issued pursuant to cognizance, for a
limited period of a couple of weeks or so.
However, this relief, though commonly
granted, neither fulfils the requirements of
law nor provides any substantive benefit
to the litigants.
98 INDIAN LAW REPORTS ALLAHABAD SERIES
13. It is also commonly observed
that in cases where the police have not
arrested the accused during investigation
and have filed the charge-sheet without
custodial
interrogation,
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. As a result, to avoid incarceration,
the accused is compelled to file a fresh
anticipatory bail application- either 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 practice
persists regardless of the fact that the
accused was either on bail during the
investigation or that the investigating
agency did not find it necessary to arrest
the accused at any stage before the filing of
the charge-sheet.

14. 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 Punjab2, Sushila Aggarwal v. State
(NCT of Delhi)3, Siddharth v. State of U.P.4
and Satender Kumar Antil v. CBI5. Despite the
settled legal position discouraging unnecessary
pre-trial incarceration, this deviation has
continued unabated and remains widely
prevalent across district courts in Uttar Pradesh,
without
effective
checks
or
corrective
intervention.
15. In order to appreciate the gravity of
the issue, it is essential to examine the
procedural framework followed by trial courts
in cases where the charge-sheet has been filed
without the arrest of the accused during
investigation, regardless of the reasons for such
non-arrest. At this juncture, the learned Amicus
Curiae's submission offers a comprehensive
overview of the procedure followed by the trial
courts. Upon submission of the charge sheet,
the trial court issues a summons to ensure the
accused's presence. In accordance with district
court practices, the accused has three procedural
options, which are outlined as follows:

15.1 First Option- Appearance and
Surrender: The accused may choose to appear
before the court in response to the summons
and surrender. Upon surrender, the accused is
invariably taken into custody. A regular bail
application is then filed. The court, in turn, calls
for objections from the prosecution, hears the
matter on the merits, and thereafter passes an
order. In cases triable by the court of session, it
is commonly observed that bail is denied at the
Magistrate level, and the accused is left to
approach the sessions court. In non-session
triable cases, bail is usually granted after 15 to
30 days, depending on the stage of the hearing
and the court's discretion. In the interim, the
accused remains in judicial custody, with the
only recourse being to move a regular bail
application before the sessions court.

15.2 Second Option- Anticipatory
Bail: Alternatively, the accused may
choose to apply for a fresh anticipatory bail
either before the Court of Sessions or the
High Court. This process, however, is
often
lengthy,
cumbersome,
and
procedurally complex, especially in cases
involving serious offences, and until the
accused obtains anticipatory bail, they
continue to avoid appearing before the
trial court.
8 All. Smt. Bacchi Devi Vs. State of U.P. & Anr.
99
15.3 Third Option - The course
adopted in the present case, namely, filing
an application under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023
(BNSS), for the limited purpose discussed
hereinabove.

16. In cases triable by the Sessions
Court, the procedure becomes even more
intricate and onerous:

16.1 The accused first surrenders
before the Magistrate and is remanded to
judicial custody. A regular bail application
is then moved before the Magistrate. Upon
rejection- which is common in cases triable
by the Sessions Court- the accused is
required to file a fresh application before
the Sessions Court. If bail is granted, the
accused is released; however, if it is denied,
the accused must then approach the High
Court by filing a regular bail application,
and thereafter Supreme Court as has been
done in Musheer Alam case (supra).

16.2 If the accused opts not to
surrender, they must first apply for
anticipatory bail before the Sessions Court.
If the bail is granted, the accused must
comply by furnishing the required bail
bonds. If the application is rejected, the
accused is required to approach the High
Court for anticipatory bail to avoid judicial
custody during the trial.

16.3
This
procedural
labyrinth,
especially in cases where the investigating
agency has not felt it necessary to arrest the
accused during the investigation, results in
avoidable incarceration and undue hardship,
contrary to the spirit of the law and the
constitutional guarantee of personal liberty.

17. Learned Amicus Curiae further
invited the attention of the Court to the
glaring consequences of the aforesaid mode
of procedural options highlighted herein
above.

17.1 The decision on an application
for anticipatory bail, when successively
filed before both the Sessions Court and the
High Court, may take several years. In the
meantime, proceedings before the trial
court remain effectively paralysed, with the
court
continuously
issuing
summons,
bailable warrants, non-bailable warrants,
and
even
initiating
proceedings
for
declaring the applicant as an absconder.

17.2
To
circumvent
the
cumbersome
and
coercive
procedural
framework outlined above, the accused
often resorts to filing a petition under
Section 528 of the BNSS, 2023, seeking the
limited reliefs discussed herein before-
primarily to avoid judicial custody upon
appearance before the trial court and to
secure liberty to pursue remedies such as
discharge or bail without the risk of
incarceration.

17.3 This vicious cycle recurs in
virtually every case where the police have
filed the charge-sheet without arresting the
accused,
leading
to
an
unwarranted
procedural
burden
and
an
avoidable
deprivation of personal liberty. Such a
practice
not
only
undermines
the
constitutional mandate of fairness and due
process but also poses a serious threat to
the rule of law and judicial propriety.

17.4 In this process, the accused is
often compelled to engage in multiple
rounds of litigation- typically 4 to 5
separate
proceedings-before
both
the
Sessions Court and the High Court, seeking
protection from arrest or relief against
coercive measures. Simultaneously, trial
100 INDIAN LAW REPORTS ALLAHABAD SERIES
courts become overburdened with the task
of hearing regular and anticipatory bail
applications in such cases, where the police
have
filed
the
charge-sheet
without
arresting the accused. As a result, each trial
court may spend approximately 2 to 2.5
hours daily solely on bail-related hearings
of such a nature of cases. The High Court's
docket, in turn, becomes increasingly
congested with repetitive, routine, and
largely innocuous prayers, leading to
inefficient use of judicial time and
resources. In cases where there is more
than one accused, they often approach the
court one after another, at their own
convenience, with the intention of delaying
the trial and waiting until a favourable
order is obtained. This practice further
hampers the functioning of the courts,
leaving the system virtually choked.

17.5 During this period, the trial
court continues to proceed with coercive
measures- beginning with the issuance of
summons, followed by bailable warrants,
then non-bailable warrants, and eventually
initiating
attachment
proceedings
under
Sections 80 to 83 of Cr.P.C. (corresponding
sections 82(1) to 85 of the BNSS, 2023). 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), which pertain to the supply of
police reports and accompanying documents
to the accused, and the committal of the case
to the Court of Session for trial, defeating the
spirit of speedy trial enshrined under Article
21 of the Constitution of India.

17.6 As a result, this futile and
repetitive process consumes significant
judicial time at both the trial and High
Court levels, while simultaneously draining
the resources of litigants.
18. In effect, it's a no-win situation
for all stakeholders- a judicial stalemate
that continues unchecked, despite its
apparent inconsistency with established
principles of criminal law, procedural
fairness, and constitutional liberty. Yet, the
practice persists. This may be attributed to
several possible factors: (i) a perception
among judicial officers that their conduct
escapes scrutiny; (ii) a diminished sense of
constitutional duty in upholding the rule of
law; (iii) a lack of initiative or interest in
upgrading judicial skills; (iv) a belief that
their orders will remain unchallenged by
the High Court under the guise of longstanding practices; (v) apathy towards the
hardships faced by the ordinary litigant;
and/or (vi) an absence of accountability or
fear of departmental action. These reasons
are merely illustrative, and there may be
many more contributing factors.

19. The entire process exposes a
deeply troubling reality, thus it is both
appropriate and necessary to revisit the
celebrated Constitution Bench judgments
of
the
Supreme
Court
that
have
authoritatively addressed the principles
governing anticipatory bail-particularly in
the context of whether anticipatory bail is
required after the issuance of summons in
cases where the police have filed the
charge-sheet without arresting the accused.
A re-examination of these precedents will
provide clarity on the legal framework and
help assess the validity of the prevailing
practices.

20. The Indian criminal justice
system has been constitutionally mandated
to balance two competing interests: the
right to personal liberty and the interest of
fair and effective investigation. The remedy
of anticipatory bail, codified in Section 438
of the Code of Criminal Procedure, 1973
8 All. Smt. Bacchi Devi Vs. State of U.P. & Anr.
101
(corresponding section 482 of the BNSS),
and the filing of a charge-sheet without the
arrest of the accused, serve as critical
safeguards for protecting personal liberty in
cases involving non-bailable offences.
However, in the District Courts of Uttar
Pradesh, a peculiar and widespread
judicial anomaly has arisen; should an
accused person, who was not arrested
during investigation and against whom a
charge-sheet has been filed, be required to
seek a fresh anticipatory bail merely to
avoid being remanded to judicial custody
post-cognisance?

21. The answer, emerging from the
progressive jurisprudence laid down by the
Supreme Court, increasingly suggests a
clear
departure
from
ritualistic
and
automatic
arrests,
emphasising
that
appearance and bail bond are sufficient to
secure an accused's presence before the
court. This jurisprudence traces its roots
from Gurbaksh Singh Sibbia (supra),
travelled through Sushila Aggarwal (supra)
-
a
constitutional
Bench
judgement,
Siddharth
(supra),
and
was
recently
summarised in Satender Kumar Antil
(supra) by the 3-Judge Bench of the
Supreme Court.

22. In Gurbaksh Singh Sibbia
(supra), the Constitution Bench of the
Supreme Court laid down the foundational
principles of anticipatory bail. It held that
(i) anticipatory bail is not an extraordinary
remedy, to be granted only in rare cases,
but a part of the broader right to liberty
under Article 21, (ii) there is no fixed time
limit or procedural stage beyond which
anticipatory bail cannot be granted, and (iii)
the Court must balance the interests of
liberty and legitimate investigation without
treating arrest as necessary in every case.
The Constitutional Bench rejected the
notion that the right to anticipatory bail
should automatically end with the filing of
a charge-sheet or commencement of trial.

23. Despite Gurbaksh Singh Sibbia
(supra), a problematic practice became
entrenched in many trial courts- in Uttar
Pradesh-wherein
the
accused(s)
not
arrested during investigation are compelled
to surrender and seek regular bail postcognisance, failing which they risk remand
to judicial custody.

24. The Supreme Court, through a
consistent line of authoritative decisions-
including Gudikanti Narasimhulu v. Public
Prosecutor, High Court of A.P.6, Gurbaksh
Singh
Sibbia
(supra),
and
Sushila
Aggarwal (supra),- has firmly established
the foundational principle that personal
liberty is a cornerstone of the criminal
justice system. That arrest should not be
used as a punitive or mechanical measure.

25. In Gudikanti Narasimhulu
(supra),
Justice
V.R.
Krishna
Iyer
memorably
articulated
the
guiding
philosophy by stating that bail is the rule,
jail the exception. Justice Krishna Iyer
emphasised that courts must act with
judicial
sensitivity
and
constitutional
awareness when dealing with questions of
pre-trial
detention.
That
arrest
and
incarceration before conviction must be
guided by necessity- not routine. This
judgment remains a cornerstone in the
evolution of bail jurisprudence, firmly
grounding the grant of bail in the values of
fairness,
reasonableness,
and
the
overarching protection of individual liberty.

26. In Siddharam Satlingappa
Mhetre v. State of Maharashtra7, the
Supreme Court reaffirmed the principles
laid down in Gurbaksh Singh Sibbia
102 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra) by holding that the order granting
anticipatory bail for a limited duration and
thereafter directing the accused to surrender
and apply for a regular bail is contrary to
the legislative intention and the judgment
of the constitution Bench in Gurbaksh
Singh Sibbia case (supra)2, and further
clarified that the restriction of the provision
of anticipatory bail under section 438
Cr.P.C. (corresponding section 482 BNSS)
limits the personal liberty of the accused
granted under Article 21 of the constitution.
The added provision is nowhere found in
the enactment and bringing in restrictions,
which are not found in the enactment is
again an unreasonable restriction. It would
not stand the test of fairness and
reasonableness, which is implicit in Article
21 of the constitution after the decision of
the case in Menaka Gandhi v. Union of
India8 and further clarified the scope and
duration of anticipatory bail. The court held
that a fixed time limit should not ordinarily
restrict
anticipatory
bail
and,
unless
exceptional
circumstances
warrant
otherwise, such protection should continue
until the conclusion of the trial.

27.
However,
in
Salauddin
Abdulsamad
Shaikh
v.
State
of
Maharashtra9, a 3-judge Bench of the
Supreme Court took a view that stood in
contrast to the principles laid down in
Gurbaksh Singh Sibbia (supra). The
court in Salauddin (supra) held that
anticipatory bail should ordinarily be
limited in duration. The rationale offered
was that since anticipatory bail is
granted at a stage when investigation is
still underway, the relief must be
temporary
and
subject
to
judicial
reassessment upon completion of the
investigation or filing of the chargesheet. It was further observed that once
the investigation progresses or a charge
sheet is submitted, the accused should
apply for regular bail.

28. Notably, the judgment in
Salauddin (supra) failed to adequately
engage with the binding precedent
established by the Constitution Bench in
Gurbakhs Singh Sibbia (supra), and for
this reason, it has often been viewed as
rendered per incuriam.

29.
Despite
these
apparent
doctrinal deficiencies, the decision in
Salaluddin (supra) was followed in a
series of subsequent judgments, thereby
creating a judicial anomaly that imposed
unwarranted
limited
durations
on
anticipatory bail. These included cases
such as K.L. Verma v. State10, Sunita
Devi v. State of Bihar11, Adri Dhran
Das v. State of West Bengal12, Nirmal
Jeet Kaur v. State of M.P.13, HDFC
Bank Ltd. v. J.J. Mannan14, Satpal
Singh v. State of Punjab15, and Naresh
Kumar Yadav v. Ravindra Kumar16.
This
line
of
decisions
effectively
narrowed the scope of anticipatory bail.

30. However,
this
view
was
decisively overruled by the Constitutional
Bench of the Supreme Court in Sushila
Aggarwal (supra). The court categorically
held that the protection granted under
Section 438 of the Cr.P.C. (corresponding
section 482 of BNSS) is not inherently
time-bound
and
cannot
be
curtailed
arbitrarily. It clarified that an order granting
anticipatory bail does not automatically
lapse upon the issuance of a summons,
filing of the charge-sheet, or framing of
charges. Unless the court specifically limits
the duration of such protection based on
particular
facts
and
compelling
circumstances, the anticipatory bail shall
ordinarily
remain
in
force
till
the
8 All. Smt. Bacchi Devi Vs. State of U.P. & Anr.
103
conclusion of the trial. The judgment thus
reaffirmed the primacy of personal liberty
and sought to harmonise the provision with
the constitutional guarantee under Article
21.

 30.1 The Supreme Court in
Sushila Aggarwal (supra) further clarified
that anticipatory bail under Section 438
Cr.P.C. (corresponding section 482 of
BNSS) can be made subject to reasonable
conditions- such as full cooperation with
the investigation, mandatory appearance
before the court when required, and
abstaining from tampering with evidence or
influencing
witnesses.
However,
the
imposition of arbitrary or mechanical time
limits on the duration of anticipatory bail
was expressly held to be impermissible,
unless justified by specific and compelling
reasons.
The
Constitution
Bench
emphasised that the protection granted
under anticipatory bail must not be
rendered
illusory
by
unwarranted
limitations.

30.2 It is further held that an
order granting anticipatory bail does not
automatically cease to operate upon the
filing of a charge sheet, upon the accused
being summoned, or upon the framing of
charges. In the absence of any supervening
circumstances, such anticipatory bail may
ordinarily continue until the conclusion of
the trial. The trial court, however, retains
the power under Section 439(2) of the
Cr.P.C. (corresponding section 483(3) of
BNSS) to cancel such bail and direct the
arrest of the accused, if warranted by the
facts and circumstances of the case. Mere
filing of the charge sheet does not compel
an
accused,
who
has
been
granted
anticipatory bail, to surrender and seek
regular bail- unless specific allegations or
material indicate that the accused is
absconding, evading the process of law,
intimidating witnesses, violating conditions
of bail, or has otherwise abused the
concession granted. Subject to continued
compliance with the conditions imposed at
the time of grant, anticipatory bail can
subsist till the conclusion of the trial.

30.3
The
observations
in
Siddharam Satlingappa Mhetre (supra) and
other similar judgments that no restrictive
conditions at all can be imposed, while
granting anticipatory bail, has overruled.
Likewise,
the
decision
in
Salauddin
Abdulsamad
Shaikh
(supra),
and
subsequent decisions including K.L. Verma
(supra), Sunita Devi (supra), Adri Dharan
Das (supra), Nirmal Jeet Kaur (supra),
HDFC Bank Ltd. (supra), Satpal Singh
(supra), and Naresh Kumar Yadav (supra),
which lay down such restrictive conditions,
or terms limiting the grant of anticipatory
bail, to a period of time have also been
overruled in Sushila Aggrawal (supra).

30.4 This judicial insistence on
custody is often based on an erroneous
interpretation of Section 170 Cr.P.C.
(corresponding section 190 of BNSS),
which states that the police shall forward
the accused "in custody" along with the
charge-sheet. Trial courts and police have
frequently
misread
this
as
requiring
physical custody, disregarding the libertycentric mandate of Article 21 of the
constitution.

31. In Siddharth v. State of U.P.
(supra), the police had completed the
investigation and were ready to file a
charge-sheet. However, they insisted that
the accused be arrested and produced
before the Magistrate for the charge-sheet
to be formally taken on record. The
accused approached the Supreme Court
challenging this insistence, and the court
held through a progressive and practical
interpretation of the law that personal
104 INDIAN LAW REPORTS ALLAHABAD SERIES
liberty is an important aspect of the
constitutional mandate. The occasion to
arrest an accused during investigation
arises when a custodial investigation
becomes necessary, or when the crime is
heinous, or when there is a possibility of
influencing the witnesses, or the accused
may abscond. A distinction must be made
between the existence of the power to arrest
and the justification for the exercise of it17.
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. By cautioning against
ritualistic arrest practices, the Supreme
Court has once again highlighted the need
for rational, liberty-conscious criminal
procedure, in tune with constitutional
mandates and the evolving ethos of human
rights.

31.1
The
Supreme
Court
decisively addressed this misinterpretation
in Siddharth (supra) by holding that: (i)
custody in Section 170 Cr.P.C. does not
mean arrest. It only means presentation of
the accused before the court to take
cognisance, (ii) if the police never found
the need to arrest the accused during
investigation
and
the
accused
has
cooperated
throughout,
there
is
no
justification for arrest merely to take
cognizance or file the charge-sheet, and
(iii) liberty cannot be sacrificed on the altar
of procedural formality. This ruling marked
a pivotal moment, as it acknowledged that
a bail bond or undertaking is sufficient to
secure the accused's presence, obviating the
need for anticipatory or regular bail in such
circumstances.

32.
The
Supreme
Court,
in
Musheer
Alam
v.
State
of
U.P.18,
deprecated the practice of sending an
accused to judicial custody after the court
has taken cognizance of the charge sheet, if
the accused was not arrested during the
investigation. In this case, the petitioner
was not arrested during the investigation,
and the charge sheet was filed without an
arrest. The trial court subsequently took
cognizance of the case. Following the trial
court's practice, the petitioner filed for
anticipatory bail before the Sessions Court,
which was rejected. The petitioner then
challenged the rejection order before the
High Court, which upheld the decision.
Aggrieved
by
this,
the
petitioner
approached the Supreme Court seeking
anticipatory bail. While allowing the
petition, Justice J.B. Pardiwala, speaking
for the Bench, termed the practice as
"unusual." The relevant extract of the
order is reproduced below for reference:

".....5. We take notice of the fact
that the investigation is over and chargesheet has been filed in the CBI Court at
Gorakhpur.

6. While the investigation was in
progress, the Investigating Officer did not
deem fit to arrest the petitioner herein.

7. The CBI Court has taken
cognisance and has issued summons to the
petitioner herein to appear.

8. The learned counsel appearing
for the petitioner would submit that there is
a practice in the State of Uttar Pradesh
that arrest is effected after the charge-sheet
is filed and the Court takes cognisance of
the charge-sheet. We do not propose to say
anything as regards in this unusual
practice except that it makes no sense.

9. We are of the view that once
the investigation is over and charge-sheet
is filed then the accused should be asked to
appear before the Court concerned and
should furnish bail to the satisfaction of the
trial court.
8 All. Smt. Bacchi Devi Vs. State of U.P. & Anr.
105

10. If at all, the Investigating
Officer
wanted
to
interrogate
the
petitioner, he could have arrested him
during the course of the investigation itself.
Now there is no point in making a formal
arrest.

11.
In
such
circumstances,
referred to above, we order that the
petitioner herein shall appear before the
CBI Court, Gorakhpur and furnish bail to
the satisfaction of the Court........."
(emphasis lead)

33. In Satender Kumar Antil
(supra), the Supreme Court laid down
comprehensive
guidelines aimed at streamlining the
procedures relating to arrest and bail. It
also issued specific directions in cases
where the police have filed a charge sheet
without arresting the accused, along with
other related directives. The relevant
excerpts from the orders passed in the
Miscellaneous Applications are outlined in
succeeding
sub-paragraphs
for
ready
reference. This Court confines itself to
referring only to those directions that are
pertinent to the issue at hand and are
specifically applicable to the State of Uttar
Pradesh.

 33.1 The Court emphasised that if
an accused has not been arrested during
investigation and has cooperated with the
investigation,
there
is
ordinarily
no
justification for taking the accused into
custody by the courts upon filing of a
charge sheet, as held in the case of Sidharth
(supra). In such cases, the trial court is
expected to accept the appearance of the
accused upon service of summons and
permit them to furnish a bail bond under
Section 88 Cr.P.C. (corresponding section
91 of BNSS), rather than insisting on
surrender or seeking anticipatory bail. The
Court emphasised that in such cases, it is
not mandatory for the accused to seek
anticipatory bail, as the filing of the chargesheet without arrest is a clear indication
that the investigating agency did not find it
necessary to curtail the liberty of the
accused during investigation. Therefore,
there is no occasion for the Court to send
the accused to judicial custody until or
unless there are pressing reasons for it.