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 in a complaint case where only a summons or bailable warrant has been issued. The ruling clarifies that such proceedings do not constitute a “reasonable apprehension of arrest” as required under the statute.
Justice Arun Kumar Singh Deshwal delivered the judgment in Asheesh Kumar v. State of U.P. and Another [Criminal Misc. Anticipatory Bail Application U/S 482 BNSS No. 4464 of 2025], rejecting the applicant’s plea for anticipatory bail on the sole ground that summons had been issued against him in a complaint case alleging a non-bailable offence.
Background
The applicant, Asheesh Kumar, had approached the High Court seeking anticipatory bail on the basis of a summons issued by the trial court in a complaint case involving allegations of a non-bailable offence. The applicant contended that such a summons gave rise to a reasonable apprehension of arrest, as he might be taken into custody upon appearance.
However, the Additional Government Advocate (A.G.A.) raised a preliminary objection, arguing that anticipatory bail is not maintainable merely on the issuance of summons and that there is no arrest by police involved in such a scenario.
Arguments of the Parties
For the Applicant:
Counsel for the applicant, Sri Abhishek Trivedi, argued that a person facing a complaint case involving a non-bailable offence has reasonable apprehension of being taken into custody by the court upon appearance. He relied on:
- Muni Khatoon v. State of Bihar [2017 SCC Online Pat 3808]
- P.V. Narsimha Rao v. State (CBI) [1997 (40) DRJ (DB)]
Both judgments held that anticipatory bail cannot be denied solely because proceedings arise out of a complaint case.
For the State:
Opposing the plea, A.G.A. Sri Pankaj Saxena argued that mere “fear” is insufficient under Section 482 BNSS, which requires a “reason to believe” that arrest may occur without warrant and by a police officer. He emphasized that custody ordered by a court after appearance cannot be equated with arrest by police.
Court’s Analysis
The Court undertook a detailed examination of Section 482 BNSS (equivalent to Section 438 CrPC) and held:
“Anticipatory bail would be maintainable where the person has reason to believe that he may be arrested without warrant by a police officer on accusation of having committed a non-bailable offence.”
Referring to Section 2(29) BNSS, the Court emphasized that “reason to believe” means sufficient cause to believe—not merely vague fear. It relied heavily on the Constitution Bench judgment of the Supreme Court in Shri Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565], which held:
“Mere ‘fear’ is not ‘belief’, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension…”
The Court clarified that “arrest” as contemplated under Section 482 BNSS must involve police action, not judicial custody upon appearance in response to summons or bailable warrant.
It distinguished between “arrest” and “custody”, citing authoritative legal dictionaries, and reiterated that custody ordered by a court upon surrender cannot form the basis for anticipatory bail.
Additionally, the Court cited the Law Commission’s 41st Report and judgments in Balchand Jain v. State of M.P. and Sushila Aggarwal v. State (NCT of Delhi) to reinforce that anticipatory bail is a remedy against arbitrary police action, not judicial process.
Exceptions Clarified
The Court acknowledged the Supreme Court’s decision in Srikant Upadhyay v. State of Bihar [(2024) INSC 202], which permits anticipatory bail in “extreme, exceptional cases” even when non-bailable warrants or proclamations are issued. However, it made clear that:
“If a court issues a summons or a bailable warrant in a complaint case, it cannot be presumed that the person has a reasonable apprehension of being arrested by the police or prosecuting agencies…”
Conclusion and Decision
Summarising its conclusions, the Court held:
- Anticipatory bail is not maintainable in a complaint case merely on the issuance of a summons, even where the allegation involves a non-bailable offence.
- Issuance of a bailable warrant also does not give rise to such apprehension since the accused would be released on bail upon furnishing the same.
- In cases involving non-bailable warrants or proclamations, anticipatory bail is generally not maintainable, except in rare and exceptional situations.
Applying these principles to the facts of the case, the Court found that since only a summons had been issued, there was no basis for a reasonable apprehension of arrest by the police.
Accordingly, the Court rejected the anticipatory bail application but granted liberty to the applicant to approach the trial court for regular bail within 15 days.
Case Title: Asheesh Kumar v. State of U.P. and Another
Counsel for Applicant: Abhishek Trivedi
Counsel for State: A.G.A. Pankaj Saxena
