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 the