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Habeas Corpus Not Maintainable Once Court Takes Cognizance — Accused Must Seek Regular Bail: Allahabad HC
Citation: 2026 LiveLaw (AB) 305
Court: Allahabad High Court
Bench: Justice Siddharth and Justice Vinai Kumar Dwivedi
Date: June 1, 2026
Petitioners: Neeraj and Another
Respondent: State of U.P. and Another
Facts
Neeraj and another petitioner were arrested by UP Police; a chargesheet was thereafter filed and cognizance was taken by the competent Magistrate. While in judicial custody pursuant to that cognizance, the petitioners filed a habeas corpus petition before the Allahabad High Court challenging the legality of their initial arrest and remand order.
Holding
The Division Bench held that the petition was not maintainable. The court observed:
“Once a competent Court takes cognizance on the charge sheet, an accused cannot maintain a habeas corpus petition challenging the legality of his arrest or the initial remand order.”
Once cognizance is taken, the accused’s custody no longer traces to the police’s act of arrest or the pre-chargesheet remand; it rests on the court’s own judicial process. The original arrest and remand become irrelevant to the continuance of detention. At that stage, the prescribed statutory remedy is an application for regular bail — under Section 439 CrPC / Section 483 BNSS before the Sessions Court, and thereafter before the High Court if refused. Habeas corpus is not a shortcut to bypass the bail hierarchy where an adequate statutory remedy exists.
Principle
The cognizance watershed determines which remedy is available: before cognizance, habeas corpus lies to challenge an unlawful arrest or procedurally defective remand; after cognizance, the accused is in judicial custody sustained by the court’s own order, and the appropriate remedy is regular bail through the statutory hierarchy (trial court → Sessions Court → High Court under Section 483 BNSS). The High Court will not entertain habeas corpus as a substitute for bail applications once the statutory framework is available.
Relevant Provisions
- Section 187(2), BNSS 2023 / Section 167(2), CrPC — Magistrate’s power to authorise remand pending investigation.
- Section 193, BNSS / Section 173, CrPC — Filing of chargesheet by police.
- Section 210, BNSS / Section 190, CrPC — Taking cognizance of an offence.
- Section 483, BNSS / Section 439, CrPC — Special powers of High Court regarding bail.
- Article 226, Constitution of India — High Court’s writ jurisdiction, including habeas corpus.
Practical Guidance
- At arrest / pre-remand: A habeas corpus petition is appropriate to challenge an unlawful arrest.
- Post-remand, pre-cognizance: Habeas corpus may lie where there are serious procedural violations.
- Post-cognizance on chargesheet: File for regular bail; habeas corpus to challenge the initial arrest will not be entertained.
Useful Resources
- LiveLaw — Report on Neeraj v. State of UP, 2026 LiveLaw (AB) 305
- Section 483 BNSS (Bail by High Court) — Indian Kanoon
- Section 439 CrPC — Indian Kanoon
- Article 226 — Writ Jurisdiction of High Courts
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