Allahabad High Court: In an anticipatory bail application filed in connection with a complaint case, the Single Judge Bench of Arun Kumar Singh Deshwal, J., rejected the application, holding that it was not maintainable as merely issuance of summons would not come within the ambit of apprehension of being arrested by the police.
Background
The complaint case was filed against the present accused under Sections 452, 392, 323, 504, 506 of the Penal Code, 1860 (‘IPC’).
In the previous order dated 18-06-2025, the accused was granted interim anticipatory bail subject to his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the investigating officer. However, the Court reserved judgment regarding the issue of maintainability raised by the State, as the application was filed merely upon the issuance of the summons in a complaint case. The question arose as Section 482 BNSS does not provide for the maintainability of an anticipatory bail application, whereas the Court issues any summons or warrant in a complaint case.
Issue
Whether an anticipatory bail application is maintainable in a complaint case? Whether mere issuance of the summons in a complaint case sufficient to presume that the applicant had an apprehension of arrest?
Analysis
Upon perusal of the ingredients of Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’), the Court stated that anticipatory bail would be maintainable where the person has reason to believe that he may be arrested without warrant by a police officer on the allegation of having committed a non-bailable offence. Furthermore, as per Section 2(29) of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’), “reason to believe” means sufficient cause to believe that thing but not otherwise. Therefore, mere fear would not be sufficient.
In this regard, the Court referred to Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565, wherein it was observed that the expression ‘reason to believe’ that the applicant may be so arrested must be founded on a reasonable ground and mere ‘fear’ is not ‘belief’ and ground on which belief of applicant is based, that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. The Court also observed that for anticipatory bail, if the proposed accusation appears to stem not from motive of furthering the ends of justice but from some ulterior motive, the object to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. It was also observed that there must be an imminent likelihood of arrest, which is the basis for the maintainability of anticipatory bail.
The Court further noted that Section 438 of the Criminal Procedure Code, 1973 (‘CrPC’) (corresponding Section 482 of the BNSS) was introduced based on the 41st report of the Law Commission of India (‘LCI’) dated 24-09-1969 of the Law Commission of India, which underscored that the purpose of introducing the provision of anticipatory bail was to grant protection from the arbitrary arrest by the police. In this regard, the Court referred to Sushila Aggarwal v. State (NCT of Delhi)(2020) 5 SCC 1, wherein it was observed that the basic object behind Section 438 CrPC as per 41st and 48th report of the LCI is protection against arbitrary and unwanted arrest by the police and also providing a preventive or curative measure to deal with unwanted arrest.
The Court remarked that sometimes confusion arises from the observations made in the case of Sushila Aggarwal (supra), wherein the Supreme Court while considering the observations in Gurbaksh Singh (supra) regarding imposition of condition for limiting the anticipatory bail period, that for limiting the period of anticipatory bail, the Court may consider the circumstances especially the stage for filing the anticipatory bail whether at the stage before FIR is filed or after filing of FIR or at the stage when the investigation is complete and charge-sheet is filed. Further in Gurbaksh Singh (supra), the Constitution Bench while considering the issue of limitation on the duration of anticipatory bail also considered the legislative intent behind enacting Section 438 of the CrPC and observed that the proof of legislative intent can be gathered from the language which legislature uses but in case of ambiguity, same can be resolved by resort to extraneous aids.
The Court stated that the abovementioned observations in Sushila Aggarwal (supra) did not suggest that anticipatory bail was maintainable upon issuance of a summons after the concerned court takes cognizance of the charge-sheet or complaint. In this regard, the Court reiterated that the observations of the Court are neither to be read as Euclid’s theorem nor as a provision of statute, and that too, taken out of their context and isolated observation in a judgement, cannot be treated as a precedent dehors the fact.
“The discussion in a judgment is meant to explain, not to define.”
The Court further added that when the intention of the legislature is evident from the language of a section, the Court should not add any words to interpret in a way that would result in an interpretation that was never intended by the legislature. In this regard, the Court referred to Sukhdev Singh v. State of Haryana (2013) 2 SCC 212, wherein it was observed that no law can be interpreted so as to frustrate the rule of law. It is a settled principle of interpretation of criminal jurisprudence that the provisions have to be strictly construed.
Regarding the issue at hand, the Court referred to Srikant Upadhyay v. State of Bihar 2024 SCC OnLine SC 282, wherein it was observed that in a case wherein a warrant of arrest or a proclamation is issued, the applicant is not entitled to invoke the extraordinary remedy of anticipatory bail. However, in exceptional circumstances, the Court can grant anticipatory bail even on the issuance of a non-bailable warrant or proclamation.
Therefore, the Court held that if a Court issues a summons or a bailable warrant in a complaint case, then it could not be presumed that the person has a reasonable apprehension of being arrested by the police or prosecuting agencies even if there is an accusation of committing a non-bailable offence in the complaint.
Relying upon Gurbaksh Singh (supra) and Sushila Aggarwal (supra), wherein it was observed that apprehension of arrest in Section 438 of the CrPC must involve an arbitrary and unwanted arrest by the police. Therefore, the Court stated that when a person is taken into custody by the Court upon appearing before it, in response to a summons, it could not be classified as an arrest as mentioned in Section 482 of the BNSS.
Decision
Based on the above analysis, the Court held the following:
- In a complaint case involving an accusation of a non-bailable offence, anticipatory bail was not maintainable upon the issuance of a summons, as there was no apprehension of arrest by the police without a warrant.
- In the aforementioned complaint case, when a bailable warrant was issued, although the accused may fear arrest in pursuance of the bailable warrant, he would be released on bail on his readiness to provide it. Therefore, in such cases also, the anticipatory bail was not maintainable as there was no apprehension of arrest and detention.
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In the event of a non-bailable warrant or proclamation issued in the above complaint case, anticipatory bail was typically not maintainable. However, in view of Srikant Upadhyay (supra), the Court might grant pre-arrest bail in exceptional circumstances in the interest of justice.
Regarding the present complaint case, the Court noted that warrants of any kind had not been issued; therefore, merely issuance of a summons against the accused would not come within the ambit of apprehension of being arrested by the police. Accordingly, the present anticipatory bail application was rejected for non-maintainability.
However, the Court clarified that the accused was at liberty to file a regular bail application before the Trial Court within 15 days.
[Asheesh Kumar v. State of U.P., Criminal Misc. Anticipatory Bail Application No. 4464 of 2025, decided on 01-08-2025]
Advocates who appeared in this case:
For the applicant: Abhishek Trivedi
For the respondent: Pankaj Saxena, A.G.A
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