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

A Division Bench of the Allahabad High Court holds that once a court takes cognizance on a charge sheet, the right to challenge an initial remand order by habeas corpus is extinguished, and treats recent Supreme Court judgments on arrest-ground communication as per incuriam.

A Division Bench of the Allahabad High Court, comprising Justice Siddharth and Justice Vinai Kumar Dwivedi, dismissed a habeas corpus petition filed by Neeraj and another, who were accused in a dowry death and murder case registered at Police Station Kotwali, Lalitpur. The petition was filed more than two years after arrest, at a stage when trial was already underway and prosecution witnesses were being examined. The bench used the occasion to lay down a clear procedural cutoff: a habeas corpus petition challenging an illegal initial remand is not maintainable once a competent court has taken cognizance on the charge sheet. The bench also held, respectfully, that the recent line of Supreme Court judgments in Vihaan Kumar v. State of Haryana, Prabir Purkayastha v. State (NCT of Delhi), Pankaj Bansal v. Union of India, and Mihir Rajesh Shah v. State of Maharashtra are hit by the doctrine of stare decisis and are not binding precedents.

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 against the petitioner was that he had murdered his wife and caused the death of his one-year-old daughter. Information about the incident had been entered in the General Diary on 8 January 2024 at 10:57 hours, before the FIR was formally registered.

The petitioner was arrested in connection with the FIR. His case before the court was that the grounds of arrest were neither communicated to him in writing nor conveyed to any family member or authorised person at the time of arrest. He argued this was a direct violation of Article 22(1) of the Constitution and Sections 47 and 48 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). He relied on the Supreme Court's judgments in Prabir Purkayastha, Pankaj Bansal, Vihaan Kumar, Kasireddy Upender Reddy v. State of Andhra Pradesh, and Mihir Rajesh Shah to contend that non-communication of grounds of arrest vitiates the arrest itself and all subsequent remand orders.

By the time the petition was filed, charges had already been framed on 12 August 2024. The case was pending as Sessions Case No. 438/24 before the Sessions Judge, Lalitpur. Cross-examination of prosecution witness P.W.-2 had been conducted on 12 March 2026. A bail application filed before the Sessions Judge had been rejected on 15 April 2025. Critically, neither the initial remand order nor any subsequent remand order had ever been challenged before any court. The bail rejection order itself showed that no plea of illegal arrest or illegal detention had been raised before the bail court.

The Conflict Between Two Lines of Supreme Court Authority

The bench identified two irreconcilable sets of Supreme Court judgments on the maintainability of habeas corpus petitions.

The first set — comprising Kanu Sanyal v. District Magistrate, Darjeeling (1973), Naranjan Singh Nathuwan v. State of Punjab (1952), Sanjay Dutt v. State through CBI Bombay (1994), A.K. Gopalan v. Government of India (1966), and Col. Dr. B.R. Ramachandra Rao v. State of Maharashtra (1972) — holds that in habeas corpus proceedings the court examines the legality of detention as it stands on the date of return of the rule, not the date of filing. If the initial detention order has been replaced by a subsequent valid judicial order, the earlier order drops out of consideration. There is a legal presumption that custody is lawful when the court is approached during trial or after filing of a charge sheet.

The second set — Vihaan Kumar, Prabir Purkayastha, Pankaj Bansal, Kasireddy Upender Reddy, and Mihir Rajesh Shah — holds that non-compliance with Article 22(1) vitiates the arrest at its inception, and that subsequent remand orders, cognizance, or filing of a charge sheet cannot cure that foundational illegality. These judgments do not fix any timeline within which a habeas corpus petition must be filed.

The bench observed that the second set of judgments had opened what it described as a “pandoras box” of petitions being filed after cognizance, committal, framing of charges, and even during recording of evidence, with accused persons relying on alleged non-communication of grounds of arrest after their bail applications had been rejected at every level.

Why the Bench Treated the Recent Judgments as Per Incuriam

The bench examined the precedents considered in each of the five recent Supreme Court judgments and found that none of them had engaged with the first set of Constitution Bench and larger-bench decisions on the maintainability of habeas corpus. The bench compiled a detailed table showing which earlier judgments were cited in each of the five recent decisions, and concluded that the earlier binding precedents on the question of maintainability — particularly Kanu Sanyal, Sanjay Dutt, A.K. Gopalan, and Ramachandra Rao — were not placed before or considered by the benches deciding Vihaan Kumar and the other recent cases.

Relying on the Supreme Court's own caution in Bengal Immunity Co. Ltd. v. State of Bihar (1955), the bench held that the Apex Court should not depart from settled precedent merely because a contrary view appears preferable, and that the object of Article 141 is to ensure certainty and finality in the law. The bench held, respectfully, that the second set of judgments is hit by the doctrine of stare decisis and does not constitute binding precedent.

The bench also addressed the State's argument that Bal Mukund Jaiswal v. Superintendent, District Jail, Varanasi, a Full Bench judgment of the Allahabad High Court, remained good law. The petitioner had sought to distinguish it on the ground that it diluted constitutional safeguards under Articles 21 and 22. The bench declined to depart from the Full Bench's position, which had held that an accused in judicial custody on the basis of valid remand orders under Sections 209 and 309 CrPC cannot be set at liberty by habeas corpus solely because the initial detention was allegedly violative of Article 22(1).

The Cognizance Cutoff: What the Bench Laid Down

The bench reasoned through the nine stages of criminal procedure from FIR to judgment and identified the passing of a cognizance order on the charge sheet as the decisive threshold. The remand order under Section 167 CrPC is a pre-investigation judicial order. Once the investigating officer submits a charge sheet and the competent court takes cognizance under Section 190 CrPC, the Section 167 remand order ceases to operate. The cognizance order stands on a higher footing than the initial remand order and is itself open to challenge through statutory remedies under the CrPC or BNSS.

After committal under Section 209 CrPC, the accused's detention is governed by Section 309 CrPC. After framing of charges under Section 228 or 240 CrPC, yet another judicial order comes into existence. Each of these orders is amenable to statutory challenge. The bench held that it would be impermissible to bypass all these remedies and invoke habeas corpus to attack the initial remand order at a stage when that order has long ceased to have any operative force.

The bench set out its conclusions in six numbered propositions:

First, a habeas corpus petition challenging an illegal initial remand must be filed at the earliest opportunity. Second, rejection of a bail application by the trial court alone does not bar a habeas corpus petition, but rejection by the High Court or the Supreme Court does bar a habeas corpus petition before a coordinate bench of the same court, since entertaining it would amount to an appeal or review of the bail order. Third, once a charge sheet is submitted under Section 173(2) CrPC or Section 154(2) BNSS and cognizance is taken thereon, the right to challenge the initial remand order by habeas corpus is extinguished. Fourth, after cognizance, the challenge to arrest on grounds of violation of Articles 21 and 22(1) must be pursued through the statutory bail remedy. Fifth, habeas corpus is also unavailable after an order of committal under Section 209 CrPC or Section 232 BNSS, or after remand by the trial court under Section 309 CrPC or Section 346 BNSS. Sixth, habeas corpus cannot be availed after framing of charges under Section 228 or 240 CrPC.

Application to the Facts

Applying these conclusions to the petitioner's case, the bench found the petition wholly unsustainable. The petitioner had been arrested in January 2024. Charges were framed in August 2024. Trial was underway with prosecution witnesses being examined. The petitioner had not disclosed his date of arrest or the date of the initial remand order anywhere in the petition. He had not challenged any remand order before any court. He had not raised the plea of illegal arrest even in his bail application before the Sessions Judge.

The petitioner's counsel argued that the petitioner was a poor person who had been unaware of his fundamental rights and could not afford counsel earlier. The bench acknowledged the submission but held that the trial had already commenced and prosecution witnesses were being examined, placing the matter well beyond the cognizance cutoff it had identified.

On the separate argument that remand orders under Section 309 CrPC were being extended without reasoned orders beyond the fifteen-day limit, the bench found no illegality on the remand sheets brought on record, noting that extension of remand dates is general practice in trial courts. It held that a habeas corpus petition cannot be maintained on the ground that Section 309 CrPC orders are not in accordance with law.

Outcome

The Division Bench dismissed Habeas Corpus Writ Petition No. 218 of 2026 on 27 May 2026. The bench held the petition to be without merit both on the ground of inordinate delay and on the ground that the matter had passed well beyond the stage at which habeas corpus could be maintained. The bench recorded its appreciation for the assistance of Sri Anupam Verma, counsel for the petitioners, and Sri Manish Goyal, Additional Advocate General, assisted by Sri Roopak Chaubey, A.G.A.-Ist, for the State.