Justice Arun Kumar Singh Deshwal, Allahabad High Court
In Complaint Case Involving Non-Bailable Offence, Anticipatory Bail Is Not Maintainable Upon Issuance Of Summons: Allahabad High Court
|The Allahabad High Court was considering a Miscellaneous Anticipatory Bail Application.
The Allahabad High Court has ruled that anticipatory bail is not maintainable upon issuance of a summons during the proceedings of a complaint case involving a non-bailable offence.
The High Court was considering a Miscellaneous Anticipatory Bail Application.
The Single Bench of Justice Arun Kumar Singh Deshwal stated, “In a complaint case involving accusation of a non-bailable offence, anticipatory bail is not maintainable upon the issuance of a summons, as there is no apprehension of arrest by the police without warrant.”
Abhishek Trivedi represented the Applicant while Government Advocate represented the Opposite Party.
Factual Background
When the matter of anticipatory bail application was heard on an earlier date, an objection was raised that the same was not maintainable as it was filed merely on the issuance of summons in the complaint case. This preliminary objection was vehemently opposed by the counsel for the applicant. The Court after releasing the applicant on interim bail, reserved the judgement on the issue whether anticipatory bail is maintainable merely on issuance of summons in the complaint case wherein the accusation is regarding a non-bailable offence.
Issue
The issue before the Bench was whether anticipatory bail is maintainable during the proceedings of a complaint case.
Reasoning
The Bench explained that the term “arrest” used in Section 482 B.N.S.S. cannot be equated with the term “custody” which the police takes after arrest or the court can take on surrendering or producing an accused before it. Referring to the recommendation of the Law Commission of India, the Bench observed that the purpose of introducing the provision of anticipatory bail is to grant protection from the arbitrary arrest by the police.
“From the conjoint reading of Section 482 (1) and 482 (3) of B.N.S.S., it is clear that there must be an apprehension of arrest by the police without a warrant”, it said.
The Bench referred to the judgment of the Apex Court in Srikant Upadhyay and Others Vs. State of Bihar and Anr., (2024), where it has been held 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. The Bench thus made it clear that, if a court issues a summons or a bailable warrant in a complaint case, then it cannot 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.
The Bench thus enumerated the following points of law:
- In a complaint case involving accusation of a non-bailable offence, anticipatory bail is not maintainable upon the issuance of a summons, as there is no apprehension of arrest by the police without warrant;
- In the aforementioned complaint case, when a bailable warrant is issued, although the accused may fear the arrest in pursuance of bailable warrant but he will be released on bail on his readiness to provide it. Therefore, in such cases also, the anticipatory bail is not maintainable as there is no apprehension of arrest and detention.
- In the event of a non-bailable warrant or proclamation issued in the above complaint case, anticipatory bail is typically not maintainable.
- However, in view of the judgement of the Apex Court in Srikant Upadhyay (supra), the court may grant pre-arrest bail in exceptional circumstances in the interest of justice.
On the facts of the case, the Bench found that the warrant, whether bailable or non-bailable, had not been issued. “...therefore, merely issuance of summon by order dated 23.08.2022 against the applicant would not come within the premises of apprehension of being arrested by the police”, it held while rejecting the anticipatory bail application.
“However, the applicant is at liberty to file a regular bail application before the court below within a period of 15 days. In case such an application is filed, the court below shall consider the same in accordance with law”, it concluded.
Cause Title: Asheesh Kumar v. State of U.P. and Another (Neutral Citation: 2025:AHC:128977)
Appearance
Applicant: Abhishek Trivedi
Opposite Party: Government Advocate