Habeas Corpus Cannot Be Filed After Cognizance, Says Allahabad HC in Dowry Death Case

A Division Bench of the Allahabad High Court holds that the right to challenge an illegal arrest by habeas corpus ends once a court takes cognizance on the charge sheet, resolving a conflict between two lines of Supreme Court authority.

A Division Bench of the Allahabad High Court, comprising Justice Siddharth and Justice Vinai Kumar Dwivedi, dismissed a habeas corpus petition filed by an accused facing trial for the alleged murder and dowry death of his wife and infant daughter. The petitioner, Neeraj, had been in custody since January 2024 and filed the petition in 2026 — more than two years after his arrest — when cross-examination of prosecution witnesses was already under way in Sessions Case No. 438/24 before the Sessions Judge, Lalitpur. The bench used the occasion to lay down a clear rule: a habeas corpus petition challenging the legality of an initial arrest or remand order is not maintainable once a competent court has taken cognizance of the offence on the charge sheet. The judgment directly addresses what the bench described as a “chaotic” situation created by an apparent conflict between older Constitution Bench precedents and a recent line of Supreme Court decisions on the mandatory communication of grounds of arrest.

The Arrest and the Petition

FIR No. 20/2024 was registered at Police Station Kotwali, Lalitpur, under Sections 498A, 323, 304B, 302, 201 and 120B IPC and Section 4 of the Dowry Prohibition Act. The allegation was that Neeraj had murdered his wife and killed his one-year-old daughter. Information about the incident had been entered in the general diary on 8 January 2024 at 10:57 hours. Neeraj was arrested in connection with the FIR.

The petitioner's case was that the grounds of arrest were never communicated to him in writing, nor were they communicated to any family member or authorised person. He relied on a series of Supreme Court decisions — Prabir Purkayastha v. State (NCT of Delhi), Pankaj Bansal v. Union of India, Vihaan Kumar v. State of Haryana, Kasireddy Upender Reddy v. State of Andhra Pradesh, and Mihir Rajesh Shah v. State of Maharashtra — which collectively hold that failure to communicate grounds of arrest in writing vitiates the arrest and all subsequent remand orders, and that filing of a charge sheet does not cure this constitutional infirmity.

He also argued that the Remand Magistrate had not ensured compliance with Article 22(1) of the Constitution and Sections 50 and 50A of the Bharatiya Nagarik Suraksha Sanhita (BNSS) before remanding him to judicial custody. A further ground was that remand orders under Section 309 CrPC had been extended without reasoned orders beyond the fifteen-day limit prescribed by the provision.

By the time the petition was heard, charges had been framed on 12 August 2024, the case had been committed to the Sessions Court, and cross-examination of P.W.-2 had been conducted on 12 March 2026. A bail application before the Sessions Judge, Lalitpur (Bail Application No. 217/25) had been rejected on 15 April 2025. The bail rejection order did not record any plea of illegal arrest or unconstitutional detention.

The Conflict Between Two Lines of Authority

The bench identified two irreconcilable sets of Supreme Court judgments that had been generating a flood of habeas corpus petitions at the Allahabad High Court.

The first set — which the bench called the “old law” — includes Constitution Bench decisions in Naranjan Singh Nathuwan v. State of Punjab, Sanjay Dutt v. State through CBI, A.K. Gopalan v. Government of India, and Kanu Sanyal v. District Magistrate, Darjeeling. These cases hold that in a habeas corpus petition the court examines the legality of detention as it stands on the date of return of the rule, not the date of initial arrest. If the detention is lawful on the date of hearing — because a subsequent valid judicial order has intervened — the writ cannot issue. There is a legal presumption that custody is lawful when the court is approached during trial or after filing of the charge sheet.

The second set — the recent decisions in Prabir Purkayastha, Pankaj Bansal, Vihaan Kumar, Kasireddy Upender Reddy, and Mihir Rajesh Shah — holds that non-compliance with Article 22(1) vitiates the arrest at its root. Subsequent remand orders are also vitiated. Filing of a charge sheet does not validate a constitutionally defective arrest. These decisions do not fix any timeline within which a habeas corpus petition must be filed.

The State, through the Additional Advocate General Sri Manish Goyal, argued that the second set of judgments was hit by the doctrine of stare decisis because they had been decided without considering the earlier binding Constitution Bench precedents. The petitioner's counsel countered that the old cases were confined to their peculiar facts — particularly that Kanu Sanyal involved successive independent detention orders in different States — and could not be stretched to validate an unconstitutionally defective arrest.

How the Bench Reasoned

The bench accepted that the second set of recent judgments had not engaged with the earlier Constitution Bench decisions. Applying the principle in Bengal Immunity Co. Ltd. v. State of Bihar (1955), the bench held that the Supreme Court should not depart from settled law merely because a later bench prefers a different view. The object of Article 141 is certainty. Allowing successive benches to reopen settled questions would damage the authority of the court's pronouncements. On this basis, the bench held that the second set of recent judgments was not binding, being hit by the doctrine of stare decisis.

The bench then worked through the stages of a criminal trial under the CrPC to identify the precise point at which the initial remand order loses its legal significance. A remand order under Section 167 CrPC operates only until cognizance is taken on the charge sheet. Once cognizance is taken, the Section 167 order ceases to operate. The order of cognizance is a judicial order that stands on a higher footing than a pre-investigation remand. After committal under Section 209 CrPC, remand is governed by Section 309 CrPC. After framing of charge under Section 228 CrPC, yet another judicial order exists. Each of these orders is amenable to statutory challenge under the CrPC or BNSS; none of them can be assailed by habeas corpus.

The bench drew a distinction between the remedy available before and after cognizance. Before cognizance is taken, an accused may file a habeas corpus petition challenging the illegality of the initial arrest and remand. After cognizance, the appropriate remedy for a person who alleges violation of Articles 21 and 22(1) is a bail application before the competent court, not a habeas corpus petition. The bench also held that rejection of a bail application by the High Court or the Supreme Court would itself bar a subsequent habeas corpus petition before a coordinate bench of the same court, since entertaining such a petition would amount to an appeal or review of the bail order.

On the specific facts, the bench found that Neeraj had not disclosed his date of arrest in the petition, had not annexed the initial remand order, and had not raised the plea of illegal arrest even in his bail application before the Sessions Judge. The petition was filed more than two years after arrest, when the trial was well advanced. The bench found no illegality in the Section 309 CrPC remand orders either, noting that the dates of extension were recorded on the remand sheet in the general practice followed by trial courts.

The Conclusions Laid Down

The bench set out its conclusions in six numbered propositions:

A habeas corpus petition may be filed at the earliest opportunity if the initial remand is illegal. Rejection of a bail application by the trial court alone does not bar such a petition. However, once a charge sheet is submitted under Section 173(2) CrPC or Section 154(2) BNSS and a court passes a judicial order of cognizance, the right to challenge the initial remand order by habeas corpus is extinguished. After cognizance, the challenge to arrest on grounds of violation of Articles 21 and 22(1) must be pursued through the statutory bail remedy. The habeas corpus remedy is equally unavailable after an order of committal under Section 209 CrPC or Section 232 BNSS, after remand by the trial court under Section 309 CrPC or Section 346 BNSS, and after framing of charge under Section 228 or Section 240 CrPC.

The bench expressly held that the ratio of the first set of old judgments in Kanu Sanyal and related cases “still hold good and have not been overruled.”

Outcome

The Division Bench dismissed Habeas Corpus Writ Petition No. 218 of 2026 on 27 May 2026. The bench found the petition to be without merit both on the ground of inordinate and unexplained delay and on the ground that the petition was not maintainable at the stage of trial when prosecution witnesses were being examined. The trial in Sessions Case No. 438/24 before the Sessions Judge, Lalitpur, continues. The bench noted that it remained open to the petitioner to file a bail application before the High Court in the present case.