1. Hearing on maintainability of anticipatory bail after summons in complaint case — Issue referred to larger bench. (Para 1 , 2 , 3 )
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2026 Supreme(All) 475
HIGH COURT OF JUDICATURE AT ALLAHABAD
RAJIV LOCHAN SHUKLA, J.
Brajpal @ Birjju @ Bijendra and another - Applicant
Versus
State of U.P. and another - Opposite Partys
Criminal Misc. Anticipatory Bail Application U/S 482 BNSS No. – 1205, 10034, 10776, 461, 1796, 1890, 919 of 2026
Decided On : 18-03-2026
Advocates:
Advocate Appeared:
For the Applicants : Sunil Kumar Mishra
For the Opposite Partys : G.A., Ram Babu Tiwari
Advocate Appeared:
For the Applicants : Sunil Kumar Mishra
For the Opposite Partys : G.A., Ram Babu Tiwari
The court referred to a Larger Bench the question of whether anticipatory bail is maintainable in complaint cases after the issuance of summons, noting that Supreme Court precedents suggest cognizance or filing a charge-sheet does not bar such relief and that Courts also possess the power to arrest.
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 482; Code of Criminal Procedure, 1973 - Section 438 - Maintainability of anticipatory bail post-cognizance - The power to grant anticipatory bail is intended to prevent undue harassment and pre-trial detention; the fact that a court has taken cognizance of a complaint or an investigating agency has filed a charge-sheet does not, by itself, prevent the concerned courts from granting anticipatory bail in appropriate cases (Paras 10-11).
(B) Concept of Arrest and Custody - The power to arrest is not exclusive to police officers but is also vested in Magistrates; taking a person into judicial custody upon appearance or surrender is preceded by an arrest by the Magistrate (Paras 16-17).
(C) Sessions Triable Cases - In cases triable exclusively by the Court of Session, statutory provisions mandate that an accused appearing before the Magistrate shall, subject to bail provisions, be remanded to custody, which supports the existence of a legitimate apprehension of arrest (Paras 15, 21).
Facts of the case:
Several anticipatory bail applications were filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita. A preliminary objection was raised regarding their maintainability based on a previous decision of the High Court which held that anticipatory bail is not maintainable in complaint cases upon the issuance of summons, as there is no apprehension of arrest by the police without a warrant.
Findings of Court:
The Court found that the reasoning in the previous decision appeared to be inconsistent with the law laid down by the Supreme Court and ignored the statutory mandate to remand accused persons to custody in Sessions triable cases upon their appearance.
Issues: Whether the previous judgment 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?
Ratio Decidendi: The Supreme Court has clarified that the power to grant anticipatory bail is not denuded after cognizance is taken or a charge-sheet is filed. Since Magistrates possess the power to arrest and are legally required to remand accused persons to custody in Sessions triable cases upon appearance, the apprehension of arrest is not limited solely to police action, rendering the previous restriction on maintainability potentially incorrect.
Result: Matter referred to a Larger Bench for decision on the question of law; interim orders passed in the respective cases shall continue until further orders.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Applicability of anticipatory bail after cognizance and summons in complaint cases — conflicting views on arrest vs custody. (Para 4 , 5 , 6 )
3. Earlier judgment in Asheesh Kumar not consistent with Supreme Court on maintainability post-cognizance and summons. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 )
4. Whether anticipatory bail is maintainable in complaint case after summons — referred to larger bench for correct law. (Para 26 )
5. Matter referred to larger bench; interim orders continue until further orders. (Para 27 , 28 )
6. Is anticipatory bail maintainable in a complaint case after the court takes cognizance and issues summons?
The court held that earlier judgment ruling it not maintainable is not consistent with Supreme Court precedent; issue referred to larger bench. (Para 6 , 10 , 11 , 18 , 19 , 23 , 26 )
7. Does the issuance of summons in a complaint case eliminate the apprehension of arrest for anticipatory bail?
The court found that provisions for Sessions triable cases mandate remand to custody, creating an apprehension of arrest even after summons. (Para 11 , 15 , 16 , 20 , 21 , 22 )
8. What is the distinction between arrest and custody in the context of anticipatory bail?
The court noted that arrest and custody are not synonymous; arrest is a condition precedent for taking into custody, and the Magistrate can arrest an accused on appearance. (Para 8 , 16 , 17 )
9. Does the statutory scheme for complaint cases differ based on whether the offence is triable by Magistrate or Sessions?
Yes, the court observed that different kinds of complaint cases (Magistrate triable vs Sessions triable) must be considered for maintainability of anticipatory bail. (Para 11 , 24 , 25 )
JUDGMENT :
HON'BLE RAJIV LOCHAN SHUKLA, J.
1. These matters are posted today for consideration of the preliminary objection raised with respect to the maintainability of these anticipatory bails in view of the decision of this Court dated 01.08.2025 in Criminal Miscellaneous Anticipatory Bail Application u/S 482 B.N.S.S. No. 4464 of 2025, Asheesh Kumar v. State of U.P. and Another .
2. As all the cases raise a similar issue, hence, with the consent of the counsels for the parties, the same are being decided by this common order.
3. Heard learned counsel for the applicant(s) as well as learned counsel for the complainant in the respective matters, Sri Anoop Trivedi, learned Senior Advocate, Amicus Curiae, and Sri Paritosh Malviya, learned A.G.A. for the State.
4. Shri Trivedi has contended that this Court in its decision in Asheesh Kumar (supra), which is although restricted to a complaint case in paragraph Nos. 15 and 16, has distinguished ‘arrest’ from ‘custody’ and has also opined in paragraph 21 that the observations of the Supreme Court in Shri Gurbaksh Singh Sibbia & Ors. vs. State of Punjab (1980) 2 SCC 565 and Sushila Aggarwal & Ors. vs. State NCT of Delhi & Anr. (2020) 5 SCC 1, do not suggest that an anticipatory bail is maintainable upon issuance of summons after the concerned Court takes cognizance on the charge sheet or complaint.
5. Sri Trivedi has stated that the consideration made in the judgment of Asheesh Kumar (supra), even though the same is limited to a complaint case, proceeds on the assumption that once a Court summons an accused post-filing of a charge sheet or inquiry in a complaint case, he does not suffer from any apprehension of arrest, as such an anticipatory bail would not lie.
6. Sri Trivedi contends that the consideration of this Court and thereafter its final determination in the above-mentioned decision that an anticipatory bail is not maintainable in complaint cases is at variance with the ratio of the decisions of the Supreme Court in Bharat Chaudhary and another vs State of Bihar and another (2003) 8 SCC 77 and Directorate of Enforcement vs Deepak Mahajan and another (1994) 3 SCC 440.
7. Before proceeding to deliberate on the legal issues raised, this Court deems it appropriate to refer to certain paragraphs of the decision of this court in Asheesh Kumar (supra), which have led to the present legal issue being raised before this Court.
8. Paragraph nos. 13 to 16, 21, 31 and 32 of the judgment in Asheesh Kumar (supra) are quoted herein below :
“13. In Section 482 B.N.S.S., the word is ‘arrest’, not ‘custody’. The Apex Court in the case of Shri Gurbaksh Singh Sibbia (supra) has also observed that for anticipatory bail if the proposed accusation appears to be stemmed not from motive of furthering the ends of justice but from some ulterior motive, the object being injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made.
14. The term “arrest” has not been defined in either B.N.S. or B.N.S.S. though Section 43 B.N.S.S. lays down the mode of arrest. Black’s Law Dictionary, (5th Edition, 1979) defines “arrest” as follows :-
“To deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand. Arrest involves the authority to arrest, the assertion of that authority with the intent to effect an arrest, and the restraint of the person to be arrested. All that is required for an “arrest” is some act by officer indicating his intention to detain or take person into custody and thereby subject that person to the actual control and will of the officer, no formal declaration of arrest is required.”
15. Similarly, the term “custody” is also not defined in either B.N.S. or B.N.S.S. But the definition of “custody” can be borrowed from the Corpus Juris Secundum (Vol. 25 at p. 69) and
