The Allahabad High Court has clarified that the mere filing of a charge-sheet without arrest does not, by itself, warrant quashing of criminal proceedings under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The Court emphasized that applicants must pursue remedies through regular bail applications, particularly where the accused have not been taken into custody and the offences are non-bailable but not of an extreme gravity.
Background & Facts
The Dispute
The applicants, Rais and Another, are accused in Criminal Case No. 163 of 2026, arising out of Case Crime No. 376 of 2025, registered at Police Station Didoli, District Amroha. The case involves allegations under Sections 191(2), 115(2), 352, 351(2), 333, 78, and 74 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The offences are punishable with imprisonment extending up to seven years. The applicants were never arrested during the investigation. A charge-sheet was filed against them, and a summoning order was issued by the Additional Chief Judicial Magistrate, Court No. 2, Amroha, on 16.02.2026.
Key Facts
- The charge-sheet was submitted against both applicants without their arrest
- No remand or custody order was passed against either applicant
- The offences alleged are non-bailable but not punishable by life imprisonment or death
- The applicants have not been produced before any court prior to the filing of this application
- The case is at the stage of summoning; no evidence has been recorded
Procedural History
- 2025: Crime No. 376 of 2025 registered at Police Station Didoli, Amroha
- 2026: Charge-sheet filed in Criminal Case No. 163 of 2026
- 16.02.2026: Summoning order issued by Additional Chief Judicial Magistrate, Amroha
- 03.06.2026: Application under Section 528 BNSS filed before the Allahabad High Court seeking quashing of proceedings
The Parties' Positions
For the Applicants
The applicants, through counsel Sri Rajiv Sisodia, contended that since they were never arrested and the charge-sheet had already been filed, there was no necessity to subject them to the trauma of repeated court appearances. They argued that the proceedings were vexatious and sought quashing under Section 528 BNSS, which permits the High Court to quash proceedings if they are manifestly illegal or an abuse of process.
For the Respondent/State
The State, represented by Sri Alok Mishra, learned Additional Government Advocate, opposed the application on the ground that the allegations were serious and involved multiple non-bailable offences. The State submitted that the charge-sheet had been properly filed and that the court below had not committed any illegality in issuing the summoning order. The State further argued that quashing at this stage would pre-empt the trial court’s opportunity to examine the evidence.
Relief Sought
The applicants sought quashing of Criminal Case No. 163 of 2026, the summoning order dated 16.02.2026, and all related proceedings under BNSS Sections 191(2), 115(2), 352, 351(2), 333, 78, and 74.
The Legal Issue
Whether the High Court can quash criminal proceedings under Section 528 of the BNSS solely on the ground that the accused were not arrested and a charge-sheet has been filed, without any finding of abuse of process or manifest illegality.
Arguments Presented
For the Applicants
Counsel for the applicants relied on the principle that where an accused has not been arrested and the charge-sheet is already filed, the court should exercise restraint in subjecting the accused to the rigours of custody or repeated appearances. They argued that Section 528 BNSS empowers the High Court to intervene where proceedings are oppressive or without legal basis. They contended that the absence of arrest indicated the investigating agency did not consider the accused a flight risk or a threat to public order, thereby justifying quashing.
For the Respondent/State
The State countered that Section 528 BNSS is not a substitute for bail or a mechanism to avoid trial. The State emphasized that the allegations involved serious offences under BNSS, including fabrication of evidence (Section 191(2)) and assault (Section 351(2)), which require adjudication on merits. The State further submitted that the trial court had not acted illegally in issuing the summoning order and that the High Court should not interfere at this preliminary stage.
The Court's Analysis
The Court examined the nature of Section 528 BNSS and noted that it is an extraordinary remedy intended to prevent abuse of process or manifest injustice. The Court observed that the mere fact that the accused were not arrested and a charge-sheet was filed does not, in itself, constitute grounds for quashing. The Court held that the trial court had correctly taken cognizance based on the materials placed before it.
"The High Court cannot act as a first appellate court to re-appreciate evidence or to substitute its opinion on the sufficiency of materials at the stage of summoning."
The Court further referenced the Supreme Court’s judgment in Satender Kumar Antil v. Central Bureau of Investigation & Another (2022) 10 SCC 51, which categorizes accused persons into different classes for bail purposes. The Court noted that the applicants fall under Category A - those against whom a charge-sheet has been filed and who have not been arrested. The Court held that such accused are entitled to be considered for bail without physical custody, but this does not equate to a right to quash proceedings.
The Court emphasized that quashing under Section 528 BNSS requires a clear demonstration of perversity, mala fide, or complete absence of prima facie case - none of which were established here. The Court also observed that the applicants had not demonstrated any procedural irregularity in the filing of the charge-sheet or issuance of the summoning order.
The Verdict
The application under Section 528 BNSS was dismissed. The Court refused to quash the proceedings or the summoning order. However, the Court granted liberty to the applicants to file a regular bail application before the trial court, to be decided in accordance with the principles laid down in Satender Kumar Antil v. CBI. The Court directed that if a bail application is filed, the trial court must consider granting interim bail or release on personal bond without requiring physical custody, pending final disposal.
What This Means For Similar Cases
Quashing Is Not a Substitute for Bail
- Practitioners must not treat Section 528 BNSS as a shortcut to avoid bail proceedings
- Absence of arrest alone is insufficient to invoke quashing powers
- Courts will not interfere at the summoning stage unless there is clear abuse or lack of prima facie case
Category A Accused Entitled to Non-Custodial Bail
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Accused against whom charge-sheet is filed but not arrested fall under Category A per Satender Kumar Antil
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Trial courts must consider bail applications without requiring physical production of the accused
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Interim bail must be granted pending final hearing if no flight risk or tampering evidence exists
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Always file bail applications promptly after charge-sheet filing, even if no arrest occurred
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Cite Satender Kumar Antil (2022) 10 SCC 51 to argue for non-custodial bail in Category A cases
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Avoid seeking quashing unless there is evidence of malice, jurisdictional error, or total absence of allegations
