Supreme Court: In a petition for special leave to appeal, assailing the Jharkhand High Court order, during an anticipatory bail hearing, directing the petitioner to surrender before the court and then seek a regular bail, the Division Bench of J.B. Pardiwala and Ujjal Bhuyan, JJ., held that the High Court order was “wholly without jurisdiction” and stated that,
“If the Court wants to reject the anticipatory bail, it may do so but the Court has no jurisdiction to say that the petitioner should now surrender.”
Background
There was a land dispute between the petitioner and Respondent 2-Complainant. The Jharkhand High Court denied anticipatory bail to the petitioner in a complaint case for offences punishable under Sections 323, 420, 467, 468, 471, 120B and 34 Penal Code, 1860 (IPC).
Analysis
The Court noted that the Jharkhand High Court not only declined to grant anticipatory bail as prayed for by the petitioner but also directed the petitioner to surrender before the Court and seek regular bail. The Court stated that,
“We have noticed that there is a serious problem in two States, viz. the State of Bihar and State of Jharkhand, respectively. We fail to understand that in a private complaint how does the police involve itself or is concerned, in any manner. What was the basis for the accused to express apprehension that the police would arrest them.”
Also Read: Surrender to Safeguard Study of Judicial Discretion of Pre-Arrest Bail to a Proclaimed Offender
The Court stated that in a private complaint, when cognisance is taken and process is issued, all that the Court would do is to issue a summons. The Court stated that once a court takes cognisance and issues summons, all that the accused has to do is to appear before that Court and join the proceedings. The accused need not go before the Sessions Court or the High Court, as the case may be, and pray for anticipatory bail, unless a non-bailable warrant is issued by that Court along with the summons. The Court noted that even the power to issue a warrant under Section 87, Criminal Procedure Code, 1973 (CrPC), is limited to two contingencies as explained by the provision itself, i.e.,
(a) the Court believes the person has absconded or will not comply with the summons; or
(b) the person fails to appear despite proper service of summons and has no valid excuse.
The Court stated, by way of illustration, that where a Magistrate, on a private complaint, takes cognisance under Section 200 CrPC, but postpones issuance of process pending an inquiry under Section 202, and directs the police to submit a report, the police cannot arrest the accused during such inquiry. The Court made it clear that police have no power of arrest at the stage of inquiry under Section 202 CrPC. The Court directed the High Courts to keep the aforesaid aspects in mind, as unnecessarily anticipatory bail applications are entertained and reach the Supreme Court when rejected.
Decision
The Court stated that in the present matter, the High Court erred in directing the petitioner to surrender and seek regular bail before the trial court, as it was wholly without jurisdiction. The Court directed that a copy of this order be forwarded to the High Courts of Bihar and Jharkhand, and further asked State counsel to look into the issue and guide the State accordingly. The Court refrained from passing any further directions as the trial was already in progress.
[Om Prakash Chhawnika v. State of Jharkhand, SLP(Crl.) No.16221 of 2025, ordered on 23-4-2026]
Advocates who appeared in this case:
For the petitioner: Sameer Ranjan, Advocate with AOR Kumar Shivam
For the respondents: Pragya Baghel and Sujeet Kumar Chaubey, Advocates with AOR Pallavi Langar