Allahabad HC Throws Down the Gauntlet: Is Anticipatory Bail Dead After Summons?

In a bold move that could reshape bail jurisprudence in Uttar Pradesh, Justice Rajiv Lochan Shukla of the Allahabad High Court has referred a batch of anticipatory bail applications to a larger bench. The core dispute? Whether a 2025 single-judge ruling in Asheesh Kumar v. State of U.P. correctly barred such relief once a court issues summons in complaint cases involving non-bailable offences. Hearing pleas from applicants like Brajpal @ Birjju, Sushil Kumar, Sahib, Pooran, Pramod, Prathbi Raj, Shivam, and Faiyaz Hussen—facing charges from cheating to rape and POCSO violations—the court expressed strong disagreement, keeping interim protections alive.

The Spark: A 2025 Verdict Under Fire

The saga began with Asheesh Kumar (2025 LiveLaw (AB) 293), where a coordinate bench held that summons issuance eliminates any "apprehension of arrest" by police, rendering anticipatory bail under Section 482 BNSS (old Section 438 CrPC) inapplicable in complaint cases. It distinguished "arrest" from "custody," arguing court custody on appearance isn't the police-led arbitrary arrest anticipatory bail targets. This view spread, prompting preliminary objections in these nine connected matters, some involving Magistrate-triable offences like Sections 504/506 IPC, others Sessions-triable like Section 376 IPC or POCSO Act violations.

But as LiveLaw reported in its coverage (2026 LiveLaw (AB) 148), Justice Shukla wasn't buying it. These cases arose post-cognizance summons, with applicants fearing remand—especially in Sessions cases under Sections 231-232 BNSS, mandating custody "subject to bail provisions."

Counsel Clash: Precedents vs. Local Precedent

Applicants' counsel, including Senior Advocate Anoop Trivedi as amicus, fired back. They argued Asheesh Kumar misread Supreme Court giants like Gurbaksh Singh Sibbia (1980) and Sushila Aggarwal (2020), while clashing with Bharat Chaudhary v. State of Bihar (2003) and Directorate of Enforcement v. Deepak Mahajan (1994). Cognizance or charge sheets, they stressed, don't strip courts of anticipatory bail power; the goal is shielding against pre-trial harassment.

The State, via AGA Paritosh Malviya, leaned on Asheesh Kumar 's logic: no police arrest threat post-summons means no anticipatory need. Yet the bench spotlighted gaps— Asheesh Kumar overlooked remand mandates in Sessions cases and SC affirmations that courts (not just police) can "arrest" for judicial custody.

Unpacking the Rift: Arrest, Custody, and SC Shadows

Justice Shukla dissected the flaw: Asheesh Kumar equated court summons with zero arrest risk, ignoring statutory realities. In Sessions-triable complaints, post-summons appearance triggers commitment proceedings under Sections 231-232 BNSS (old 208-209 CrPC), remanding accused to custody unless bailed. Drawing from Deepak Mahajan , he noted arrest precedes judicial custody—even by magistrates on surrender. "The arrest of a person is a condition precedent for taking him into judicial custody," the SC had clarified.

Enter Bharat Chaudhary , reaffirmed in Sumit v. State of U.P. (2026 INSC 145): cognizance or charge sheets don't bar anticipatory bail if facts warrant it. The court also nodded to a 2023 Lucknow Bench order and Mahdoom Bava v. CBI (2023), validating fears of trial-court remands. Distinguishing offence types—Magistrate vs. Sessions vs. special laws like POCSO—the judgment urged nuance over blanket bans.

Key Observations Straight from the Bench

  • On Asheesh Kumar 's Overreach : "A perusal of the reasoning given by this Court while coming to a conclusion that an anticipatory bail is not maintainable when an accused is summoned by the Court in a complaint case, in the opinion of this Court, is not in consonance with the law laid down by the Supreme Court."

  • Arrest vs. Apprehension : "The apprehension of arrest must be treated to be distinct from actual arrest."

  • Statutory Custody Trap : "A perusal of the provisions referred to above, clearly indicate that once a person is summoned to face trial by a Magistrate on having committed an offence, which is triable by a Court of Session, then subject to the provisions of bail, he has to be remanded into custody."

  • The Referral Question : "Whether the judgment of this Court in Asheesh Kumar (supra) holding that an anticipatory bail is not maintainable in a complaint case involving accusation of a non-bailable offence, upon issuance of a summons, as there is no apprehension of arrest by the police without warrant, lays down the correct law?"

Larger Bench Bound: Interim Shield Stays

No final call yet—the papers head to the Chief Justice for a larger bench. Interim orders continue, sparing applicants immediate arrest risks. This referral, blending cheque frauds, dowry deaths, and child sex offences, signals turbulence ahead. If upheld, Asheesh Kumar crumbles, affirming anticipatory bail's reach post-summons. Future litigants watch closely: does "arrest apprehension" include court remands, or is police the sole villain?