Anticipatory Bail U/S 482 BNSS Not Maintainable on Mere Summons in Complaint Case: Allahabad High Court Clarifies Scope of 'Arrest'

Anticipatory Bail Not Maintainable on Mere Summons in Complaint Cases, Allahabad HC Clarifies

Allahabad | August 1, 2025

In a significant ruling clarifying the scope of pre-arrest bail under the new criminal laws, the Allahabad High Court has held that an anticipatory bail application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is not maintainable merely on the issuance of a summons in a complaint case.

Hon'ble Mr. Justice Arun Kumar Singh Deshwal, while rejecting an anticipatory bail plea, drew a crucial distinction between the "apprehension of arrest" by the police and being taken into "custody" by a court upon appearance. The court ruled that the remedy of anticipatory bail is intended to protect individuals from arbitrary police arrest, not from the judicial process of a court taking an accused into custody.

Background of the Case

The case, Asheesh Kumar Vs. State Of U.P. And Another , arose from a complaint case where the applicant, Asheesh Kumar, was summoned for a non-bailable offence. Fearing he would be taken into custody upon appearing before the trial court, he moved the High Court seeking anticipatory bail.

The State's counsel raised a preliminary objection, arguing that the application was premature and not maintainable as a summons does not create a "reason to believe" that the applicant will be arrested. The applicant’s counsel countered that the threat of being taken into custody by the court itself constitutes an apprehension of arrest, thereby justifying the plea for anticipatory bail.

Arguments Presented

• Applicant's Counsel (Sri Abhishek Trivedi): Argued that an individual summoned in a non-bailable complaint case has a reasonable apprehension of being taken into custody by the court, which is a form of arrest curtailing personal liberty. He cited judgments from the Patna and Delhi High Courts to support the view that anticipatory bail applies equally to complaint cases and state cases.

• State's Counsel (Sri Pankaj Saxena, A.G.A.): Contended that "reason to believe" under Section 482 BNSS must be based on a reasonable ground, not mere fear. He stressed that court custody cannot be equated with police arrest and that criminal statutes must be interpreted strictly.

Court's Analysis: Interpreting 'Arrest' and Legislative Intent

Justice Deshwal embarked on a detailed analysis of Section 482 BNSS (corresponding to Section 438 Cr.P.C.), its legislative history, and landmark Supreme Court precedents.

The court heavily relied on the Constitution Bench judgments in Shri Gurbaksh Singh Sibbia (1980) and Sushila Aggarwal (2020) . It extracted pivotal observations from these cases, emphasizing that the primary objective of anticipatory bail is to shield individuals from "arbitrary and unwanted arrest by the police."

"From the perusal of Section 482 B.N.S.S. ... it is clear that language of Section 482 B.N.S.S. is very clear and there is no ambiguity and purpose of anticipatory bail ... is to grant protection from unwanted and arbitrary arrest on the part of police or other prosecuting agency without warrant and not against the custody which could have been taken by the court on appearance before the concerned court..." the judgment noted.

The Court distinguished the terms "arrest" and "custody," stating that the former, as used in Section 482 BNSS, specifically pertains to an act by a police officer, not the judicial act of a court taking a person into its custody.

The Final Verdict and Key Holdings

Based on this reasoning, the Court dismissed the anticipatory bail application as not maintainable. Justice Deshwal laid down a clear three-pronged test for the maintainability of anticipatory bail in complaint cases:

• On Issuance of Summons: Anticipatory bail is not maintainable as there is no apprehension of arrest by the police.
• On Issuance of Bailable Warrant: Anticipatory bail is not maintainable , as the accused can secure release by furnishing the required bail upon arrest.
• On Issuance of Non-Bailable Warrant or Proclamation: Anticipatory bail is typically not maintainable . However, citing the Supreme Court's decision in Srikant Upadhyay (2024) , the Court acknowledged that in "exceptional circumstances," a pre-arrest bail could be granted in the interest of justice.

In the present case, as only a summons had been issued, the court found no valid ground for apprehension of arrest by the police. The application was rejected, but the applicant was granted liberty to apply for regular bail before the trial court within 15 days.