The present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, has been filed by the pettioner seeking quashment of the order dated 23.02.2026 passed by the learned Chief Judicial Magistrate, Gwalior in connection with FIR bearing No.382/2025 registered at Police Station Jhansi Road, Gwalior under Sections 74, 75(1)(1), 351(3) of the Bharatiya Nyaya Sanhita, 2023 ("BNS"), whereby the applications on behalf of the petitioner under Section 340 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for acceptance of vakalatnama and taking the chargesheet on record in absence of the accused, and under Section 228 BNSS (or Section 205 CrPC) for exemption from personal appearance of the accused till the committal of the case to the Court of Session under Section 232 BNSS (or Section 209 CrPC) were rejected.

The prosecution story, in brief, is that on 28.11.2025 a written complaint was submitted by the complainant, namely, Rinki daughter of Prem Verma, to the Station House Officer, Police Station Jhansi Road, Gwalior, alleging molestation by the present petitioner. Both the complainant and the petitioner were working in the Junior Girls Hostel of JRMC College, where the complainant was employed as a guard and the petitioner was working as a management employee. According to the complaint, on 27.11.2025 at about 11:00 a.m., while the complainant was on duty, the petitioner allegedly called her to the staff office on the pretext of reading a notice on his mobile phone. It was alleged that upon reaching the office, she found that no other person was present there. The complainant has further alleged that the petitioner then touched her inappropriately, attempted to forcibly hug her, and pushed her onto a sofa. When she resisted and raised an alarm, the petitioner allegedly threatened to kill her. The complainant has further stated that she managed to push him away and ran out of the office, thereafter narrating the incident to a cleaning staff member named Hema as well as to the hostel warden and other staff members. She subsequently informed her family members and thereafter approached the police to lodge the complaint, explaining that the delay in lodging the FIR occurred due to fear. On the basis of the said complaint, FIR bearing No.382/2025 was registered on 28.11.2025 at Police Station Jhansi Road, Gwalior under Sections 74, 75(1)(i) and 351(3) of the Bharatiya Nyaya Sanhita, 2023.

During the course of investigation, the petitioner was not arrested and was instead served with notice under Section 35 BNSS (corresponding to Section 41A CrPC). The petitioner fully cooperated with the investigation and complied with all directions issued by the Investigating Officer pursuant to the said notice. One of the offences alleged against the petitioner, namely, Section 75(1)(i) of the Bharatiya Nyaya Sanhita, is triable exclusively by the Court of Session. After completion of investigation, the police presented the final report/charge-sheet before the learned Chief Judicial Magistrate, Gwalior on 23.02.2026. On the same date, the petitioner through his counsel filed applications seeking acceptance of the duly executed vakalatnama and for taking the charge-sheet on record in his absence, along with an application seeking exemption from personal appearance till committal of the case to the Court of Session under Section 232 BNSS. The learned Chief Judicial Magistrate, Gwalior, by the impugned order dated 23.02.2026, rejected the aforesaid applications and returned the charge-sheet. Hence, the present petition.

Leaned counsel for the petitoner submits that the impugned order dated 23.02.2026 passed by the learned Chief Judicial Magistrate is per se erroneous in law and contrary to the binding precedents of the Hon'ble Supreme Court as the order runs directly contrary to the law laid down by the Hon'ble Supreme Court in Siddharth v. State of Uttar Pradesh reported in (2022) 1 SCC 676 and Satender Kumar Antil v. Central Bureau of Investigation reported in (2022) 10 SCC 51, wherein it has been clearly held that when an accused has cooperated with the investigation and has not been arrested during the investigation, there is no requirement for the Investigating Officer to produce such accused in custody at the time of filing of the charge-sheet.

It is further submitted that the Hon'ble Supreme Court in Siddharth v. State of Uttar Pradesh (supra) has categorically held that the term "custody" appearing in Section 170 CrPC does not mandate either police custody or judicial custody and merely refers to the presentation of the accused before the court at the time of filing of the charge-sheet. It has further been clarified that where the accused has cooperated with the investigation and there is no apprehension of absconding or non-cooperation, arrest of such accused is not necessary merely for the purpose of filing the charge-sheet.

It is further submitted that the aforesaid principle has been reiterated and further elaborated by the Hon'ble Supreme Court in Satender Kumar Antil v. CBI (supra), wherein comprehensive guidelines were issued governing arrest, bail and procedure after filing of the charge-sheet. The Hon'ble Supreme Court clearly held that where an accused has not been arrested during investigation and has cooperated with the investigating agency, there is no requirement to forward such accused along with the charge-sheet. The Apex Court also directed that there should not be any insistence on filing a bail application while considering proceedings under Sections 88, 170, 204 and 209 of the Code. The Hon'ble Supreme Court further emphasized that in cases falling within Category 'A', namely offences punishable with imprisonment up to seven years, courts should ordinarily issue summons at the first instance and may even permit appearance through counsel. It was further held that non-bailable warrants should be issued only as a last resort and not as a routine measure. In the present case, the offences alleged against the petitioner under Sections 74, 75(1)(i) and 351(3) of the Bharatiya Nyaya Sanhita are punishable with imprisonment of less than seven years. The petitioner had fully cooperated during the investigation pursuant to notice under Section 35 BNSS and was never arrested by the investigating agency. In such circumstances, the learned Chief Judicial Magistrate ought to have accepted the vakalatnama and taken the charge-sheet on record, instead of returning the same on the ground of non-appearance of the accused.

It is further submitted that the learned court below further erred in doubting the validity of the vakalatnama and the affidavits filed in support of the applications. The petitioner had duly authorized his counsel through a properly executed vakalatnama and had sought exemption from personal appearance only till committal of the case to the Court of Sessions. Such a request is fully consistent with the principles laid down by the Hon'ble Supreme Court in the aforesaid judgments, which emphasize protection of personal liberty and discourage unnecessary detention or arrest of cooperating accused persons. It is further settled law that custody of the accused is not a pre-condition for taking the charge-sheet on record. The power of the court to take cognizance of the offence upon filing of the charge-sheet is distinct from the power to secure the presence of the accused. The insistence upon production of the accused in custody before accepting the charge-sheet is therefore contrary to the scheme of criminal procedure and the binding law declared by the Hon'ble Supreme Court. The Hon'ble Supreme Court has also observed that trial courts should not insist upon arrest of an accused merely as a formality before taking the charge-sheet on record. Such a practice is contrary to the intent of criminal procedure and unnecessarily interferes with the liberty of the accused who has otherwise cooperated with the investigation.

In view of the above submissions, it is prayed that the impugned order passed by the learned Chief Judicial Magistrate, Gwalior rejecting the applications filed by the petitioner and returning the charge-sheet being manifestly illegal, arbitrary is liable to be set aside.

Per contra, learned Public Prosecutor for the State has opposed the petition and prayed for its rejection.

After hearing counsel for the parties and perusing the record, this Court finds that the petitioner was never arrested during the course of investigation and had duly cooperated with the investigating agency pursuant to the notice issued under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 41A CrPC). The investigating officer, after completion of investigation, filed the final report/charge-sheet before the court concerned without finding it necessary to arrest the petitioner. In such circumstances, there was no legal justification for the learned Chief Judicial Magistrate to insist upon the personal presence or custody of the petitioner as a precondition for taking the charge-sheet on record.

The law in this regard has been clearly settled by the Hon'ble Supreme Court in Siddharth v. State of Uttar Pradesh (supra) and Satender Kumar Antil v. Central Bureau of Investigation (supra), wherein it has been categorically held that the word "custody" occurring in the procedural provisions governing filing of charge-sheets does not mandate that an accused must necessarily be arrested and produced in custody before the court at the time of filing of the charge-sheet. The Hon'ble Supreme Court has further emphasized that where the accused has cooperated with the investigation and has not been arrested during investigation, there should be no insistence upon arrest or physical custody merely as a procedural formality. The courts have also been directed to avoid unnecessary curtailment of personal liberty and to permit appearance through counsel at appropriate stages, particularly where the offences alleged are punishable with imprisonment of seven years or less and the accused has demonstrated cooperation with the investigation.

In the present case, the petitioner had moved appropriate applications through his counsel seeking acceptance of the duly executed vakalatnama, for taking the charge-sheet on record in his absence, and for exemption from personal appearance till committal of the case to the Court of Session. The learned court below, however, rejected the said applications and returned the charge-sheet solely on the ground that the petitioner was not personally present before the court. Such an approach is clearly inconsistent with the mandate of law laid down by the Hon'ble Supreme Court and reflects a mechanical insistence upon personal appearance of the accused without considering the factual matrix of the case and the legal position governing the field.

This Court is therefore of the considered view that the learned Chief Judicial Magistrate failed to exercise jurisdiction in accordance with law and acted in disregard of binding judicial precedents. The impugned order, by effectively refusing to take the charge-sheet on record in the absence of the accused despite his cooperation during investigation and representation through counsel, amounts to an erroneous exercise of judicial discretion and results in unnecessary prejudice to the petitioner.

Accordingly, this Court holds that the impugned order dated 23.02.2026 passed by the learned Chief Judicial Magistrate, Gwalior cannot be sustained in the eyes of law. The petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is therefore allowed. The impugned order dated 23.02.2026 is hereby quashed and set aside. The learned Chief Judicial Magistrate, Gwalior is directed to accept the duly executed vakalatnama filed on behalf of the petitioner and to take the charge- sheet on record in accordance with law. It is further observed that the petitioner shall be at liberty to seek exemption from personal appearance through appropriate applications before the court concerned, which shall be considered in the light of the principles laid down by the Hon'ble Supreme Court in the aforementioned judgments.

The petition stands allowed in the aforesaid terms.