IMPORTANT POINT
Police has no power to arrest accused in a complaint case unless there is a non-bailable warrant issued by that Court along with summons – If Magistrate orders Police inquiry under Section 202 and asks Police to give report, then in course of such inquiry, Police cannot arrest accused.

ORDER

1. The High Court has denied anticipatory bail to the petitioner in connection with Complaint Case No. 6181 of 2021, instituted at the instance of the Respondent No.2 before us (original complainant), for the offence punishable under Sections 323, 420, 467, 468, 471 and 120B read with 34, respectively, of the Indian Penal Code, 1860 (for short “the IPC”).

2. Prima facie, it appears from the allegations levelled in the complaint and the other materials on record that there is a dispute between the complainant (Respondent No.2) and the petitioner (original accused) before us with respect to two plots of land bearing nos. 1608-1609, respectively, admeasuring 110 kathas.

3. We are not concerned with the case put up by the complainant at this stage. We are concerned with something which we should not overlook or ignore. The impugned order passed by the High Court denying anticipatory bail reads thus:-

“Heard learned counsel for the parties.

2. It appears that this petitioner earlier filed an anticipatory bail application being A.B.A. No. 8063 of 2022 which was disposed of vide order dated 13.03.2023 with the following directions: "Petitioner is directed to surrender before the court below and seek regular bail which shall be disposed off on its own merits in accordance with the guidelines laid down by the Hon'ble Supreme Court of India in the case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr reported in 2021 (10) SCC 773.

3. No fresh and new ground has been pointed out by the learned counsel for the petitioner for entertaining this second Anticipatory Bail Application, therefore, A.B.A No. 2319 of 2025 stands dismissed.”

4. The High Court, while passing the impugned order, has made a reference of its earlier order passed in Anticipatory Bail Application No.8063 of 2022 which came to be disposed of on 13.3.2023.

5. We should also look into this order of 13th March, 2023, referred to above. The High Court after looking into the facts of the matter issued the following directions, which reads thus:-

“Petitioner is directed to surrender before the court below and seek regular bail which shall be disposed off on its own merits in accordance with the guidelines laid down by the Hon'ble Supreme Court of India in the case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. reported in 2021(10) SCC 773.”

6. Thus, not only the High Court 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.

7. 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.

8. In a private complaint when cognizance is taken and process is issued all that the Court would do is to issue summons. We have explained many times in the past the purport of Section 87 of the Criminal Procedure Code, 1973 (for short, “the Cr.PC.”) The Section 87 of the Cr.PC. reads thus:-

“87. Issue of warrant in lieu of, or in addition to, summons.—A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest—

(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or

(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.”

9. Section 87 empowers the Court to issue warrant in lieu of, or in addition to, summons. However, this power has to be exercised only in two contingen