ORDER :

BIBEK CHAUDHURI, J.

1. The present reference arises from Criminal Miscellaneous No. 65700 of 2025 (Mohammad Raja v. State of Bihar), wherein a learned Single Judge Bench of this Court, noticing conflicting approaches in the disposal of anticipatory bail applications under Section 438 of the Code of Criminal Procedure, 1973, in cases involving offences punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, has sought clarification from this Division Bench.

2. The petitioner, Mohammad Raja, apprehended arrest in connection with Complaint Case No. C-2214 of 2024, registered under Section 498-A of the Indian Penal Code, 1860, upon a complaint lodged by Fiza Praveen. He approached the Sessions Judge, East Champaran at Motihari, seeking anticipatory bail. By an order dated 13.06.2025, the learned Sessions Judge, without adjudicating the application on merits, disposed of it by granting liberty to the petitioner to surrender and apply for regular bail before the court below, relying on the decisions of the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar, reported in (2014) 8 SCC 273 and Satyendra Kumar Antil v. Central Bureau of Investigation, M.A. No. 2034 of 2022 in M.A. No. 1849 in S.L.P. (Cri) No. 5191 of 2021

3. Aggrieved, the petitioner preferred the aforesaid Criminal Miscellaneous application before this Court. The learned Single Judge, while examining the matter, observed a divergence in the approach adopted by coordinate Benches of this Court and certain misinterpretations thereof in the subordinate judiciary, particularly in the application of directives under Sections 41 and 41-A Cr.P.C. vis-à-vis the maintainability and disposal of anticipatory bail petitions in offences attracting punishment up to seven years.

4. The foundational principles governing arrest in such cases stem from Arnesh Kumar (supra), reiterated in Md. Asfak Alam v. State of Jharkhand, reported in (2023) 8 SCC 632, and earlier pronouncements such as Joginder Kumar v. State of U.P., reported in (1994) 4 SCC 260, and D.K. Basu v. State of West Bengal, reported in (1997) 1 SCC 416. These emphasise that the power of arrest is not automatic but conditional upon necessity, to be exercised judiciously in light of constitutional safeguards under Article 21. The Supreme Court in Arnesh Kumar (supra) has laid down that simply because the police possesses the power to arrest does not mean that such power ought to be exercised in every case, drawing from Joginder Kumar (supra), where it was held that the power of arrest is conferred as an instrument of necessity, not convenience, given the paramountcy of liberty in our constitutional scheme.

5. Amendments to Cr.P.C. in 2009 introduced a bifurcated regime:

(i) For cognizable offences punishable with up to seven years’ imprisonment, Section 41(1)(b) mandates recording of reasons justifying arrest to prevent absconding, repetition of offence, or tampering with evidence.

(ii) Where arrest is deemed unnecessary, Section 41-A requires issuance of a notice directing appearance, with arrest permissible only upon non-compliance or subsequent necessity, duly recorded.

6. The Magistrate, at the remand stage under Section 167 CrPC, must independently scrutinize the legality of arrest, examining compliance with Section 41, and authorise detention only upon recording satisfaction in writing, uninfluenced by police assertions. The Magistrate is obliged to satisfy himself that the arrest was legal and in accordance with law, that all constitutional rights of the person arrested have been satisfied, and to scrutinize the reasons recorded by the police, addressing whether specific reasons have been recorded and whether those reasons prima facie justify one or more of the conditions mentioned in Section 41 CrPC.

7. In pursuance of Md. Asfak Alam (supra), this Court issued Memo No. 62973 dated 19.09.2023, directing strict adherence by police and Magistrates, including:

“(i