Anticipatory Bail Petition Is Maintainable Despite Section 35 BNSS Even If Police Gives Notice To Accused: Patna High Court

The Petitioner approached the High Court seeking anticipatory bail, apprehending his arrest, in connection with a case registered under Sections 126(2), 115(2), 118(1), 352 and 351(2) of the Bharatiya Nyaya Sanhita, 2023 and Sections 25(1-b)a and 26 of the Arms Act.

The Single Bench of Justice Jitendra Kumar held, “In view of the aforesaid provisions of Section 41A Cr.PC/35 of the B.N.S.S. and Section 170 Cr.PC/190 of the B.N.S.S., apprehension of arrest to the accused never vanishes completely, even if notice is issued by the Police and all the conditions of the notice are complied with by the accused. Hence, the pre requisite for filing pre-arrest bail petition is always available to such accused to move competent Courts under Section 438 Cr.PC/482 B.N.S.S. Hence, anticipatory bail petition is maintainable despite the provisions of Section 41A Cr.PC/35 of the B.N.S.S., even if police gives notice to the accused in the event of his opinion that the arrest is not necessary for completing the investigation. This is the reason, this Court has consistently held that the anticipatory bail petitions are maintainable despite the provisions of Section 41A Cr.PC/35 of the B.N.S.S.”

Advocate Vishal Prasad Srivastava represented the Petitioner, while APP Anand Kishore Choudhary represented the State.

Factual Background

It was alleged that when the son of the informant was coming back after shopping, the Petitioner attacked him with a pistol and a knife. However, he was overpowered by his son and two nephews, who were just behind his son. Even a co-villager also reached the place of occurrence, and a pistol was snatched from the Petitioner. The Petitioner fled away, leaving behind his motorcycle. The pistol, knife and motorcycle were handed over to the police.

Reasoning

The Bench noted that the anticipatory bail petition was filed by the Petitioner before the Sessions Judge for anticipatory bail. However, the same was disposed of without rejecting or allowing the prayer of the Petitioner for anticipatory bail, and, instead, he had been given liberty to make a representation within three weeks to the concerned Superintendent of Police and the Investigating Officer of the case, with a web copy of the order passed by a coordinate Bench in Naushad Ansari Vs. State of Bihar (2024).

The Court made it clear that the Coordinate Bench had nowhere held in Naushad Ansari Case (supra) that the anticipatory bail petition under Section 438, Cr.PC, Section 482 B.N.S.S. is not maintainable in view of the provisions as provided under Section 41A, CrPC, Section 35, B.N.S.S.

The Bench found that in view of Nausad Ansari case (supra) the impression has been doing the rounds in the District Judiciary that in view of Section 41A Cr.PC, Section 35, B.N.S.S., anticipatory bail petitions are not required to be decided if they are filed before the Court of Sessions, and the Court is only required to refer the Petitioners to the police for representation. It was further noticed that it was due to this impression that the impugned order was passed by the Sessions Judge in the case on hand. “Such impression is urgently required to be dispelled, otherwise, such impression would render the provisions for pre-arrest bail otiose and nugatory, jeopardizing the life and liberty of the people by making it dependent upon the discretion of the police. This is not permissible under our constitutional scheme and statutory provisions”, the Bench said.

It further mentioned, “Accordingly, Court seized with anticipatory bail petitions can not ask the petitioners to go to Police for relief under the provisions as provided under Section 41 and 41-A of the Cr.PC/ Section 35 of the B.N.S.S. Similarly, the Court seized with a petition for post arrest bail can not ask the petitioners to move judicial Magistrate for refusal of remand. Similarly, the Judicial Magistrate cannot say to the accused that he cannot refuse to remand the accused and the accused would have to wait for stage of Discharge. Similarly, the Trial Court at the stage of framing of charge cannot say that he would frame charge against him and he would have to wait for conclusion of the trial to get his liberty.”

Coming to the facts of the case, the Bench noted that the Petitioner had not previously moved any similar application before the Sessions Court or this Court, and he had also no criminal antecedents. It was further claimed by him that he was innocent and had falsely been implicated. “In such circumstances, the Petitioner should have been allowed pre-arrest bail subject to the conditions as may have been stipulated by Sessions Court”, the Bench said while also adding, “Hence, the manner of disposal of the anticipatory bail petition by the Sessions Court is no way justified. In fact, he has abdicated his duty as enjoined under Section 438 Cr.PC/482 of the B.N.S.S. This is nothing less than dereliction of duty as judicial officer holding office of the highest Court at the District level.”

Allowing the petition, the Bench directed the petitioner to be enlarged on bail, in the event of his arrest or surrender before the court below within eight weeks on his furnishing bail bonds of Rs 10,000. The Bench also asked the Registrar General to circulate a copy of the judgment amongst all the Judicial Officers of Bihar District Judiciary and send a copy to the Director, Bihar Judicial Academy, to discuss it in the training programmes for the Judicial Officers.

Cause Title: Navneet Kumar Singh v. The State Of Bihar (Criminal Miscellaneous No.38822 of 2025)

Appearance

Petitioner: Advocate Vishal Prasad Srivastava

Respondent: APP Anand Kishore Choudhary, Advocates Ajay Kumar Thakur, Anil Singh

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