Between Summons And Bail: What Should An Un-Arrested Accused Do After Cognizance In White-Collar Crime Cases?

Why Section 91 BNSS / 88 CrPC is not a backdoor bail order, and why Tarsem Lal matters beyond PMLA

A recurring problem arises in white-collar crime prosecutions. A person may first receive notices or summons from the ED, CBI, SFIO, EOW or another investigating agency. At that stage, the agency is investigating. A person may be called to answer questions, produce documents or explain transactions during the investigation. He cooperates, appears whenever called, and is consciously not arrested.

Then the investigation is completed, and the agency files a complaint or charge sheet with the court, naming the said person as an accused. The court then peruses the material, takes cognizance of the offence(s) and issues a summons for said person’s appearance.

A summons is the court’s formal direction requiring an accused to appear before it. In white-collar crime prosecutions, this stage usually arises after the investigating agency files a complaint or charge-sheet, the court takes cognizance, and the accused is called to answer the proceedings. For an un-arrested accused, the distinction is important: a summons is a process for appearance. It does not, by itself, mean that the person is directed to be brought in custody or that he must first surrender and then seek release from custody.

The legal basis for this approach can be traced to Inder Mohan Goswami v. State of Uttaranchal (2007) 12 SCC 1, decided on October 9 2007, where the Supreme Court held that issuance of summons is the general rule, unless the case involves circumstances such as a heinous offence, likelihood of tampering with evidence, or evasion of the process of law.

The confusion arises when the appearance of the accused pursuant to a summons is treated as requiring judicial custody or a formal bail application. That is where the real dilemma begins. On the first date before the court, after summons are issued, the accused and his lawyer face a question: should he apply for bail, or should he merely furnish a bond for appearance under Section 91 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)?

This is not a Technical Quibble, and the Answer Matters!

The word “bail” carries with it ‘custody’ or at least, the imminence of custody. For a practitioner, the wrong prayer can create the wrong premise. If the accused has never been arrested during the investigation and up to the filing of the chargesheet/complaint, and appears before the court because the court has summoned him, the first enquiry should be simple: Whether there is any custody? And in whose custody? If there is no arrest, no remand, no warrants or their execution and no pending custody application, the case may not yet be about release from custody. It may only be about assuring future appearance.

Section 91 BNSS occupies this narrow but significant space. It empowers the court to take a bond, with or without sureties, from an accused present besfore it, under summons. The predecessor provision, Section 88 of the Code of Criminal Procedure, 1973 (CrPC), has been interpreted by the Supreme Court in the same way, in cases involving post-cognizancec appearance under summons.

This article examines that position through the decisions rendered by the Hon’ble Supreme Court in Siddharth, Aman Preet Singh, Satender Kumar Antil and Tarsem Lal (as delineated below), and considers how the Section 88 CrPC jurisprudence informs the present framework under Section 91 BNSS.

The Statutory Framework under the BNSS

The statutory starting point is Section 91 of the BNSS, titled “Power to take bond for appearance”. It provides:

“When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial.”

Section 91 substantially carries forward Section 88 of the CrPC, which used the same formulation. The continuity is clear: both provisions empower the court to take a bond, with or without sureties, from a person who is already present before it. The text gives both sections their limits. The words “is present in such Court” are central. Section 91 is triggered by the presence before the court. It does not proceed on the assumption that the person is in custody. It also does not, by its own force, require the court to pass an order releasing him from custody.

The words “may require” in Section 91 of BNSS make it clear that the court’s power is discretionary. The accused cannot demand a bond as an automatic entitlement in every case. But the discretion must be exercised judicially. Relevant factors for the purpose of exercising discretion would include whether the accused was arrested during the investigation, whether he complied with the agency's summons and cooperated by furnishing information and documents and truthful statements, whether he presented himself/herself before the court under summons, without default, whether there are any allegations of absconding, tampering, or intimidation, and whether the prosecution has sought custody on stated grounds. The phrase “for his appearance” controls the section. The statutory purpose is attendance. The court, through summons, is securing the person’s future presence before the same court or the transferee court. That is why Section 91 should not be confused with a bail adjudication in every case.

This is where the distinction from bail provisions becomes important. Section 480 BNSS, corresponding broadly to Section 437 CrPC, deals with bail in non-bailable offences before courts other than the High Court and the Court of Session. Section 483 BNSS, corresponding broadly to Section 439 CrPC, preserves the special powers of the High Court and the Court of Session. These provisions apply when the accused is already in custody and bail is legally in issue. Section 91 BNSS operates at a narrower stage, where the court is securing the attendance of a person already present before it in compliance with a court-issued summons.

Therefore, where a person has been cooperative, never arrested during investigation, appears pursuant to summons after cognizance, and the prosecution does not seek custody, it cannot be presumed that such accused is under custody or must come under custody when appearing before the court for the first time under summons, the first legal issue that arises at such juncture is ordinarily the appearance and continuous future appearance of the accused, and not the release of such accused from custody, for it there is/can be no automatic custody for such a person/accused appearing before the court. Section 91 BNSS answers that situation by permitting the court to take a bond, with or without sureties, without converting the first appearance into a bail hearing.

Siddharth: Arrest is not a Formality at the time of Filing the Chargesheet or Complaint

The first major correction came in Siddharth v. State of Uttar Pradesh (2022) 1 SCC 676, decided on 16 August 2021. The case arose under Section 170 CrPC, which deals with the stage where, after investigation, the police forward the case to the Magistrate when there is sufficient material to proceed with the trial. The practical problem was that trial courts were insisting that an accused must first be arrested and produced before the court before the charge-sheet could be taken on record. The Supreme Court rejected that approach.

The Supreme Court held that “custody” in Section 170 does not mean police custody or judicial custody in every case. It means presentation of the accused before the court for the purpose of taking the proceedings forward. If the investigating agency consciously chose not to arrest such an accused person during the investigation, and there is no real risk of absconding or disobedience of summons, arrest cannot be insisted upon merely because the charge-sheet is being filed.

Non-arrest during investigation is not a favour. It may reflect the investigating agency’s own assessment that custody was unnecessary. For a practitioner, Siddharth (supra) is the first brick in the argument: a charge-sheet or complaint does not automatically convert a cooperative accused into a person who must first be taken into custody, and only then considered for bail. Hence, for Section 91 BNSS, the relevance is direct. If a person was not arrested during the investigation and appears before the court when summoned, his presence is already secured. The court may then consider a bond, with or without surety, for future appearance. There is no legal requirement to first take such an accused into custody and then consider release under bail provisions.

Aman Preet Singh: The First-Date Anxiety

Aman Preet Singh v. CBI (2021) 13 SCC 764, decided on 2 September 2021, carried the Siddharth (Supra) principle into the courtroom the moment cognizance was taken. The accused had joined the investigation. He had not been arrested. The charge-sheet was filed. When the matter reached the trial court, the question was whether his appearance should expose him to arrest merely because the case had now entered the court's jurisdiction.

The Supreme Court answered the issue in practical terms. If the investigating agency did not consider an arrest necessary during the investigation, and the charge-sheet had already been filed, the accused could not be taken into custody at the first court appearance merely because the matter had reached the cognizance stage. The Supreme Court addressed the underlying concern directly. A person who remained available and cooperative during the investigation should not be subjected to custody as a routine consequence of filing the charge-sheet. The filing of a charge-sheet may require the accused to appear before the court upon cognizance. It does not, by itself, create a fresh ground for arrest.

Aman Preet Singh must be read with care. The Supreme Court used the term “bail” because the matter before it had travelled in that form, and the appellant had approached the Court seeking protection. The deeper principle is more useful: where the accused was never arrested and appears when called, custody should not be introduced as a procedural ritual.

What emerges from this line of precedent is a simple structural distinction. The first appearance after summons is meant to secure the accused’s presence before the court, not to take the accused in custody by ritual, and certainly not to create any fiction of the custody. Unless the prosecution demonstrates a concrete need for arrest, the transition from investigation to trial should occur through ordinary processes of appearance and bond rather than incarceration.

Satender Kumar Antil: Categories are Guidance, not a Substitute for Facts

Satender Kumar Antil v. CBI (2022) 10 SCC 51, decided on 11 July 2022, gave structure to the post-charge-sheet stage. The Supreme Court recognized that courts needed a workable method to deal with accused persons who cooperated with investigative agencies and were not arrested during the investigation but were later summoned by the court after filing of the charge-sheet/complaint. The Supreme Court grouped cases into categories. The coercive process was to be followed only if the accused failed to appear despite service of the summons. This continued the logic of Siddharth (Supra) and Aman Preet Singh (Supra): Arrest and custody cannot become a ritual merely because the case has reached the court.

At the same time, Satender Kumar Antil (Supra) did not create a blanket formula. It cautioned that economic offences cannot be treated as a single, separate class. The court must still examine the statute involved, the gravity of the allegations, the conduct of the accused, the stage of proceedings and whether custody is really required. This is important for ED, CBI, SFIO and EOW matters. The label “economic offence” is serious, but it is not a ‘magic phrase’ that answers every procedural question.

Tarsem Lal: The Pivot after Cognizance

In Tarsem Lal v. Directorate of Enforcement (2024) 7 SCC 61, decided on 16 May 2024, the Supreme Court began with the process issued after cognizance. It held that where the accused was not arrested before the complaint was filed, the normal course is to issue a summons. A summons is meant to secure the accused’s presence before the court. Compliance with that summons does not result in the accused being placed in custody.

The Supreme Court then considered Section 88 of the CrPC. It held that Section 88 is an enabling provision. It permits the court to require an accused to present before it to execute a bond, with or without sureties, for future appearance. The object is to ensure a regular appearance before the court. The crucial holding is that a bond under Section 88 is not bail. A person who appears pursuant to a summons and is not in custody does not need release from custody. The bond is only an undertaking to appear before the court on future dates. Accepting such a bond, therefore, does not amount to granting bail. Section 91 carries forward the same statutory principle as Section 88 of the CrPC.

The PMLA consequence follows from this distinction. If an accused seeks bail under PMLA, the twin conditions under Section 45 of the PMLA must be satisfied. But where the accused appears pursuant to summons, and the court accepts a bond for appearance under Section 88 CrPC, or now Section 91 BNSS, the court is not granting bail. The twin conditions are therefore not triggered merely because a bond is accepted under Section 88 CrPC, or now Section 91 BNSS.

The Court also preserved the prosecution’s remedy. If custody is required after the accused appears, the prosecution must move a specific application. The court must hear the accused and record reasons before permitting custody. Custody cannot be introduced as a routine consequence of cognizance.

For present purposes, Tarsem Lal gives the working rule. Where an un-arrested accused appears on summons and custody is not sought, the court may secure future attendance through a bond.

When Section 91 Ends and Bail Begins

Tarsem Lal (Supra) should not be read to mean that an un-arrested accused is never required to seek bail. The point is narrower: where the accused appears on summons, and custody is not sought, the immediate issue is of appearance, not release. The BNSS preserves separate bail powers for different courts. Section 480, corresponding broadly to Section 437 CrPC, deals with bail before courts other than the High Court and the Court of Session. Section 483, corresponding broadly to Section 439 CrPC, preserves the wider bail jurisdiction of the High Court and the Court of Session.

The position changes once custody enters the frame. Bail must be considered where the accused has been arrested, produced under warrant, remanded on appearance, or faces a custody application after cognizance has been taken. The same applies where the prosecution demonstrates with cogent material/reasons a flight risk, tampering, intimidation, non-cooperation or a genuine need for custodial interrogation.

Special statutes must also be respected. If bail is actually sought under a special law, statutory bail conditions cannot be circumvented by calling the request an appearance bond. The distinction is therefore practical. Section 91 secures an appearance where custody is absent. Bail provisions protect liberty where custody is present, sought, or legally imminent.

The Practical Course

For accused persons, the practical lesson is this: do not panic merely because the “court” has entered the process. Ask and examine what is actually happening. Are you being taken into custody? ‘Or’ Has the agency filed an application seeking custody? ‘Or’ Are you being produced under a warrant? ‘Or’ Has the court indicated remand? If the answer is no, the first legal step may be to file an appearance bond under Section 91 BNSS, rather than a bail application.

For practitioners, the drafting must be exact. Do not describe a summons appearance as “surrender” unless the facts justify that word. Do not say the accused is “seeking release” when he was never in custody. Do not make concessions that the statute does not demand. The application under Section 88 CrPC, or now Section 91 BNSS, should demonstrate: cooperation in investigation; bonafide conduct; no flight risk; no risk of tampering with evidence; commitment to appear before the court; a personal bond (with or without sureties); and reserve the right to oppose custody and seek bail or protective orders.

If a court accepts a bond under Section 91 BNSS from an accused who was never in custody, but records the same in the order as “bail granted”, what should determine its legal character: the wording of the order, or the substance of the proceeding?

That question may well decide the next round of courtroom debate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.