For Reading a Rebuttable Presumption Against Custody Into § 204 CrPC

Recently, in Serious Fraud Investigation Office v. Aditya Sarda, the Supreme Court reversed the grant of anticipatory bail to the accused individuals who had not been arrested during investigation and had fully cooperated with the SFIO. Following the filing of a prosecution complaint under § 212(6) of the Companies Act, the Special Court issued non-bailable warrants at the very outset, without first summoning the accused. While no custodial interrogation had been sought earlier, the Supreme Court reversed this decision, holding that trial courts retain discretion under § 204 of the CrPC to issue either summons or warrant, if the gravity of the offence or considerations of public interest so require.

In this essay, I argue that where prosecutions follow non-custodial investigations, a constitutionally faithful interpretation of the CrPC demands courts to recognise a rebuttable presumption against post-charge sheet custody, especially in the absence of any demonstrated necessity for remand.

To begin with, a principled reading of the provision reveals that it is predicated on a constitutionally rooted, tiered approach to securing the accused’s presence. This is evident in its distinction between “summons-cases” and “warrant-cases,” where even within warrant cases, it vests the Magistrate with the discretion to issue either a summons or a warrant. Interestingly, it does not mandate the issuance of a warrant (even in warrant cases), far less a non-bailable one, as the initial mode of process.

§ 204 of the CrPC states:

“204. Issue of process.—(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be—
(a) a summons-case, he shall issue his summons for the attendance of the accused; or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction…(emphasis mine)

This mode of understanding is perhaps best explained in the Supreme Court’s decision in Inder Mohan Goswami, where the Court held that non-bailable warrants should be issued only when summons or bailable warrants are unlikely to secure the accused’s presence. Such conditions may arise if the person is evading service, is likely to abscond, or poses a threat if left at large. The Court emphasised that summons or bailable warrants must be preferred wherever sufficient, and that any decision to issue non-bailable warrants must follow a careful scrutiny of facts and application of judicial mind, given the gravity of the consequences involved. 

Read in this light, summons come first, after which, if the accused fails to appear, bailable warrants follow. Only if the accused continues to evade process or demonstrates a risk of absconding, can non-bailable warrants then be issued. The logic behind this sequencing is fairly straightforward. Summons assume cooperation. Bailable warrants respond to hesitation or delay. While non-bailable warrants, then, address defiance.  

Against this backdrop, the decision in Aditya Sarda marks a troubling departure. By treating non-bailable warrants as an initial measure of compulsion (notwithstanding the absence of custodial investigation, evasion, or non-cooperation by the accused) the Court fails to appreciate the graded model embedded in § 204. It permits the most coercive form of process without first exhausting, or even attempting, the least restrictive.

Such a reading, I submit, destabilises both the clarity of Inder Mohan Goswami, and the broader constitutional structure that safeguards liberty through a graded model of restraint. When prosecutions arise from non‑custodial investigations and the accused have demonstrated full cooperation, trial courts must begin from a rebuttable presumption against post‑charge‑sheet custody, resorting to non‑bailable warrants only upon concrete proof of evasion, absconding risk, or public‑interest necessity. 

Anything less transforms § 204’s tiered model into a blunt instrument, eroding the liberty‑protective logic and unsettling the broader constitutional commitment that coercive process be both necessary and minimally impairing.