Title: Allahabad High Court Clarifies Non-Maintainability of Anticipatory Bail on Mere Summons in Complaint Cases Under BNSS

Introduction:

In the case of Asheesh Kumar vs. State of U.P. and Another, cited as 2025 LiveLaw (AB) 293, the Allahabad High Court dealt with a nuanced legal question regarding the maintainability of an anticipatory bail plea under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which corresponds to Section 438 of the CrPC, in a complaint case involving accusations of a non-bailable offence. The issue arose after Asheesh Kumar, the petitioner, approached the High Court seeking anticipatory bail on the basis that a summons had been issued to him in a complaint case. The bench of Justice Arun Kumar Singh Deshwal clarified the scope and purpose of anticipatory bail under the BNSS, ruling that such a plea would not be maintainable merely upon the issuance of a summons, as this does not equate to an apprehension of arrest by the police or prosecuting agency without a warrant. The judgment provided a comprehensive examination of the distinctions between arrest, custody, and judicial processes, reaffirming that the intent of anticipatory bail is to protect against arbitrary police arrest and not against lawful court custody. This decision has significant implications for litigants and legal practitioners navigating complaint cases under the new procedural framework of the BNSS.

Arguments of the Petitioner:

Asheesh Kumar, through his counsel, submitted that he had reasonable apprehension of arrest upon issuance of a summons in a complaint case where allegations pertained to a non-bailable offence. He argued that even though there was no police warrant or investigation, the nature of the offence alleged and the seriousness of the complaint implied that the magistrate could potentially take him into custody when he appeared in compliance with the summons. Thus, he sought anticipatory bail under Section 482 of the BNSS. His counsel contended that the term “apprehension of arrest” in the context of anticipatory bail should be interpreted liberally, especially where the underlying offence is non-bailable, as the possibility of custodial detention cannot be ruled out merely because the process has originated from a complaint rather than a police report. Furthermore, he referred to judicial precedents that had previously permitted anticipatory bail in complaint cases to reinforce his claim that the issuance of a summons itself could form a reasonable ground for apprehension of arrest.

Arguments of the Respondent:

Opposing the application, the Additional Government Advocate (AGA) raised a preliminary objection, arguing that anticipatory bail was not maintainable in the present case, as it was filed solely on the basis of a summons issued by the court in a complaint proceeding. The AGA emphasized that under Section 482 of the BNSS, anticipatory bail is meant to protect individuals from arrest without warrant by the police or prosecuting agency. He argued that court-issued summons do not involve arrest, and mere appearance before the court in response to summons does not amount to custody or detention. The AGA also distinguished between ‘custody’ and ‘arrest’, submitting that arrest implies coercive police action, whereas court custody resulting from a judicial process like summons does not attract the scope of anticipatory bail. He further relied on the Supreme Court’s decision in Gurbaksh Singh Sibbia v. State of Punjab (1980), which held that the “apprehension of arrest” must be based on reasonable grounds and not on vague or imaginary fears. Accordingly, the State opposed the grant of anticipatory bail and requested the Court to dismiss the application as premature and not maintainable in law.

Court’s Judgment:

Justice Arun Kumar Singh Deshwal, delivering a well-reasoned and detailed judgment, began by analyzing the legislative intent behind the provision of anticipatory bail under Section 482 of the BNSS. The Court noted that the statute envisages three key prerequisites for invoking anticipatory bail: (a) the person has reason to believe that they may be arrested, (b) the accusation pertains to a non-bailable offence, and (c) the arrest is anticipated to be executed without a warrant by a police officer. The bench emphasized that anticipatory bail is a preventive remedy created to shield individuals from arbitrary and unjustified police arrests. Referring to the 41st Law Commission Report and the Supreme Court’s observations in Gurbaksh Singh Sibbia, the Court clarified that the term ‘arrest’ in Section 482 BNSS cannot be conflated with judicial custody taken by a magistrate upon appearance in response to summons.

The Court held that when a court issues a summons, it merely requires the accused to appear and respond to the complaint. There is no element of coercion or arrest by a police officer involved. Therefore, in such a situation, anticipatory bail is not maintainable, as the core element—fear of arrest by police without warrant—is missing. The Court elaborated that even in instances where a bailable warrant is issued, the accused is entitled to bail upon readiness to furnish sureties and hence cannot claim an apprehension of arrest sufficient to invoke anticipatory bail. Furthermore, the bench differentiated between ‘custody’ taken by a court and ‘arrest’ executed by police officers, reiterating that the two are legally and operationally distinct.

To further substantiate its reasoning, the bench referred to the Supreme Court’s 2024 ruling in Srikant Upadhyay v. State of Bihar, where it was held that anticipatory bail is not ordinarily maintainable after issuance of a warrant of arrest or proclamation in a complaint case. However, in exceptional circumstances, courts may exercise discretion to grant anticipatory bail. Aligning itself with this principle, the Allahabad High Court underscored that mere issuance of summons or bailable warrants does not satisfy the statutory requirement of “reason to believe” arrest by police, as defined under Section 482 BNSS. Accordingly, anticipatory bail cannot be invoked on such grounds.

The High Court then articulated three specific findings to serve as guiding principles in future cases: First, in a complaint case involving a non-bailable offence, the mere issuance of a summons does not give rise to a maintainable claim for anticipatory bail, since there is no apprehension of police arrest. Second, even when a bailable warrant is issued, although the accused may fear arrest, the statutory provision ensures that the person will be released upon furnishing bail, and therefore anticipatory bail is still not maintainable. Third, in cases where a non-bailable warrant or proclamation is issued, anticipatory bail is generally not maintainable, though the Court retains discretion to grant relief in exceptional circumstances in the interest of justice. Applying these principles to the facts of the present case, the bench found that no warrant—bailable or non-bailable—had been issued against Asheesh Kumar. The only process issued was a summons. Consequently, the Court concluded that there was no valid basis for apprehension of police arrest under the BNSS, and thus, the anticipatory bail plea was not maintainable.

However, acknowledging the possibility of future developments, the Court granted liberty to the applicant to file a regular bail application within 15 days, which the trial court was directed to consider strictly in accordance with law. By providing this measured relief, the Court ensured that the applicant’s procedural rights were preserved without compromising the core objectives of anticipatory bail jurisprudence.

This judgment serves as a critical interpretation of the anticipatory bail mechanism under the newly enacted BNSS, reinforcing the narrow scope within which the remedy may be sought. It clarifies that anticipatory bail is not a general shield against all judicial processes but a targeted protection against unwarranted arrest by the police. It also harmonizes judicial thinking with statutory principles, balancing the rights of the accused with the prerogatives of lawful court procedures.