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

The Allahabad High Court has issued a comprehensive set of directions for the trial courts across Uttar Pradesh to ensure uniform trial court practice, to give effect to the constitutional guarantees under Article 21 and to implement binding Supreme Court directions in this regard. 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...

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

Sparsh Upadhyay

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