Anticipatory Bail Plea Not Maintainable On Mere Issuance Of Summons In Complaint Case Involving Non-Bailable Offence: Allahabad High Court

“…when a bailable warrant is issued, although the accused may fear the arrest in pursuance of bailable warrant but he will be released on bail on his readiness to provide it. Therefore, in such cases also, the anticipatory bail is not maintainable as there is no apprehension of arrest and detention”, a bench of Justice Arun Kumar Singh Deshwal observed.

Question before the Court

The court was dealing with an anticipatory bail plea filed by Asheesh Kumar, who had moved the HC after summons were issued to him in connection with a complaint case.

Though he was released on interim bail on June 18, 2025, the bench reserved judgment on whether anticipatory bail is maintainable merely on issuance of summons in the complaint case, wherein the accusation concerns a non-bailable offence.

In this matter, the AGA raised a preliminary objection, stating that the anticipatory bail plea was not maintainable as it was filed solely on the basis of the issuance of a summons in a complaint case.

He argued that on issuance of a summons, the applicant has no 'reason to believe' that he may be arrested unless a non-bailable warrant is issued. He contended that custody of the court cannot be equated with an arrest by the police.

This particular argument was opposed by the applicant's counsel, who argued that since the complaint alleges commission of a non-bailable offence, the applicant has reasonable apprehension that on appearance before the court, he may be taken into custody, which would also fall under 'apprehension of arrest'.

HC's observations:

At the outset, the Court carefully analysed the scope of anticipatory bail under Section 482 BNSS, and noted that the provision has three main ingredients:

(a) Reason to believe that a person may be arrested,

(b) on the accusation of having committed a non-bailable offence,

(c) Upon arrest without a warrant by a police officer on such accusation, he shall be released on his readiness to give bail.

Now, relying on the Constitution Bench judgment of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab 1980, the Court reiterated that 'mere fear' is not 'reason to believe' and that belief must be 'founded on reasonable ground' and 'must be capable of being examined by the Court objectively'.

Notably, the Court also clarified that 'arrest' and 'custody' are two different and distinct things. It noted that the term 'arrest' used in Section 482 BNSS cannot be equated with the term 'custody', which the police take after the arrest or the court can take on surrendering or producing an accused before it.

Referring to the 41^st Report of the Law Commission of India, the Court noted that the purpose of introducing the provision of anticipatory bail is to grant “protection from the arbitrary arrest by the police”.

Thus, the bench opined that if custody is taken by the court upon appearance in response to a summons, it cannot be equated with arrest by the police, and hence, anticipatory bail is not attracted in such a case.

"…purpose of anticipatory bail u/s 482 B.N.S.S. (438 Cr.P.C.) is to grant protection from unwanted and arbitrary arrest on the part of police or other prosecuting agency without warrant and not against the custody which could have been taken by the court on appearance before the concerned court concerning accusation of committing a non-bailable offence", the Court observed.

Thereafter, the Court examined the question: if in a complaint case, filed on accusation of committing non-bailable offence, the court issues an arrest warrant or proclamation against the accused for his appearance, whether in that case anticipatory bail would be maintainable even though the accused has apprehension of arrest ?

To answer this query, the bench referred to the 2024 judgment of the Supreme Court in Srikant Upadhyay vs State Of Bihar 2024 LiveLaw (SC) 232, in which it was held that where a warrant of arrest or a proclamation is issued, the applicant is not entitled to invoke the extraordinary remedy of anticipatory bail.

However, the Top Court added that in 'exceptional' circumstances, the court can grant anticipatory bail even on issuance of a non-bailable warrant or proclamation.

Against this backdrop, the HC observed thus:

“Therefore, if a court issues a summons or a bailable warrant in a complaint case then it cannot be presumed that the person has a reasonable apprehension of being arrested by the police or prosecuting agencies even if there is an accusation of committing a non-bailable offence in the complaint.”

Thus, the High Court came up with three specific findings:

• In a complaint case involving accusation of a non-bailable offence, anticipatory bail is not maintainable upon the issuance of a summons, as there is no apprehension of arrest by the police without warrant;
• In the aforementioned complaint case, when a bailable warrant is issued, although the accused may fear the arrest in pursuance of bailable warrant but he will be released on bail on his readiness to provide it. Therefore, in such cases also, the anticipatory bail is not maintainable as there is no apprehension of arrest and detention.
• In the event of a non-bailable warrant or proclamation issued in the above complaint case, anticipatory bail is typically not maintainable. However, in view of the Srikant Upadhyay (supra) judgement, the court may grant pre-arrest bail in exceptional circumstances in the interest of justice.

Against this backdrop, the Court examined the facts of the present case to note that since no warrant, bailable or non-bailable, has been issued to date, thus, merely issuance of a summons against the applicant would not constitute apprehension of being arrested by the police.

Accordingly, the Court concluded that his anticipatory bail wouldn't be maintainable.

However, the Court granted the applicant liberty to file a regular bail application within 15 days, which the trial court will consider in accordance with law.