The Allahabad High Court has disagreed with three bail directions issued by a coordinate Bench in Bacchi Devi v. State of U.P. and referred them to a Larger Bench. Justice Arun Kumar Singh Deshwal held that an accused not arrested during investigation has no indefeasible right to be released on a bond after the chargesheet is filed. The Court held that the discretion of trial courts cannot be curtailed by a general judicial direction.
Background
The reference arose from a bail cancellation application filed by the first informant in a dowry death case registered at Police Station Auraiya. The FIR was registered under Sections 85, 80(2), 115(2) and 351(2) of the BNS and Sections 3/4 of the Dowry Prohibition Act. Opposite party Nos. 2 to 4 are the brother-in-law, mother-in-law and father-in-law of the deceased.
The High Court had stayed their arrest in a writ petition until the police report was submitted. A chargesheet was filed on December 3, 2025, and cognisance was taken on December 22, 2025. After bailable warrants were issued against them on four dates, they appeared before the trial court on May 2, 2026. The CJM, Auraiya, relying strictly on Bacchi Devi, released them on personal bonds of ₹1 lakh each without any surety.
Arguments
Advocate Ansar Ahmad, along with Advocate Sandhya Chaturvedi, appearing for the first informant, argued that Bacchi Devi conflicts with the Supreme Court’s rulings in Satender Kumar Antil and Musheer Alam. He submitted that the Satender Kumar Antil guidelines on releasing unarrested accused apply only to offences punishable up to seven years.
AGA D.P.S. Chauhan, for the State, submitted that Section 441 CrPC (Section 485 BNSS) gives the trial court discretion on sureties, which a higher court cannot curtail.
Amicus Curiae Jitendra Kumar Shishodia relied on Pankaj Jain v. Union of India, which held that the word “may” in Section 88 CrPC makes release on bond discretionary. Amicus Curiae Ronak Chaturvedi relied on Sumit v. State of U.P., under which an accused must apply for bail when a serious offence is added in the chargesheet.
Chandan Sharma, panel lawyer for the High Court, submitted that the High Court had filed an application seeking modification of the Bacchi Devi surety directions, which is still pending.
Counsel for opposite party Nos. 2 to 4, Advocates Jeetendra Kumar Sharma and Nimish Dubey, argued that the Bacchi Devi directions had not been set aside by a larger bench and were mandatory, so the trial court committed no illegality.
Court’s Findings
Relying on Pankaj Jain, the Court held that “where a person has not been arrested during the course of investigation, he has no indefeasible right to be released on a bond upon the filing of the charge-sheet.”
The Court read Satender Kumar Antil as allowing release on bond without a bail application only for offences punishable up to seven years, and even then subject to exceptions. For offences punishable with more than seven years, the bail application must be decided on merits. Direction 38(i) of Bacchi Devi made no such distinction. The Court noted that Pankaj Jain and the relevant parts of Satender Kumar Antil were not placed before the coordinate Bench.
On Direction 38(iv), which deemed limited protection orders to continue until the end of trial, the Court held that Gurbaksh Singh Sibbia and Sushila Aggarwal allow courts to limit protection in special circumstances. It observed: “The statutory discretion vested in a court/Magistrate cannot be curtailed by the higher court through a general direction in a judicial order.”
On Direction 46, which mandated release on a single surety, the Court held that Section 441 CrPC permits one or more sureties. It found that dispensing with this requirement “amounts to rewriting the statute through a judicial order, which is not permissible in law.”
The Court also noted that, even under Bacchi Devi, the benefit of Direction 38(i) is available only to an accused who appears on summons, not one who appears after warrants are issued.
Outcome
The High Court referred the correctness of Direction Nos. 38(i), 38(iv) and 46 of Bacchi Devi to a Larger Bench and directed that the matter be placed before the Chief Justice within three days. The bail cancellation application will be listed after the Larger Bench answers the reference.
Case Title: Arun Kumar v. State of U.P. and 3 Others
Case No.: Criminal Misc. Bail Cancellation Application No. 362 of 2026
Bench: Justice Arun Kumar Singh Deshwal
Date: October 26, 2026
