The Patna High Court has held that Sessions Courts cannot ask accused seeking anticipatory bail to approach the police for relief under Section 41A of the CrPC/Section 35 BNSS. 

In doing so the court emphasized that the competent courts cannot shut their doors and refer the petitioners to go to other fora for protection of their liberty.

Section 41A of CrPC pertains to Notice of appearance before police officer. It states that a police officer shall in all cases where the arrest of a person is not required, issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognisable offence, to appear.

The petitioner, accused of offences under Arms Act had approached the Sessions Court seeking pre-arrest bail. Instead of deciding the application, the Sessions Judge disposed of it by granting liberty to the petitioner to represent before the police, citing coordinate bench's decision in Asha Baitha v. State of Bihar (2024). The coordinate bench had permitted the petitioner therein to approach the police in a representation while referring to high court's decision in Naushad Ansari Vs. State of Bihar (2024).

Justice Jitendra Kumar noted that the coordinate bench had in Naushad Ansari disposed of the anticipatory bail plea therein with a direction that the concerned Superintendent of Police of every district and investigating officers of the case shall forthwith comply with the direction of Supreme Court in  Arnesh Kumar's case. 

Perusing the judgment in Arnesh Kumar case, the high court observed, "it is pertinent to note that Hon'ble Supreme Court in Arnesh Kumar Case (supra) has nowhere held that anticipatory bail is not maintainable in view of Section 41A Cr.PC (Equivalent Section 35 of B.N.S.S.). In fact...Hon'ble Apex Court has granted anticipatory bail to the Petitioners, besides issuing directions to the police and Judicial Magistrate against unnecessary and arbitrary arrest and illegal remand in offence punishable up to seven years of imprisonment".

The court further noted that high court had nowhere held in Naushad Ansari Case that anticipatory bail petition is not maintainable in view Section 41A, Cr.PC/Section 35, BNSS. What the coordinate bench was concerned of was the violation of Arnesh Kumar, in view of which certain directions had been passed, the high court noted.

Justice Kumar thereafter observed that in view of Nausad Ansari case, an "impression" is doing the rounds among District Judiciary that in view of Section 41A Cr.PC/Section 35 BNSS anticipatory bail petitions are not required to be decided, if they are filed before sessions court, which is only required to refer the petitioners to the police for representation.

The high court said that due to this impression that the sessions court had passed the order in the present case. It said, 

"Such impression is urgently required to be dispelled, otherwise, such impression would render the provisions for pre-arrest bail otiose and nugatory, jeopardizing the life and liberty of the people by making it dependent upon the discretion of the police. This is not permissible under our constitutional scheme and statutory provisions. Even the Parliament has provided various provisions in the Criminal Procedure Code to protect this fundamental right of life and liberty of the people. The provisions of pre-arrest and post-arrest bail, Section 41 and 41A Cr.PC/Section 35, BNSS, refusal to remand by Judicial Magistrate, discharge of the accused by Trial Court and even acquittal for want of proof beyond reasonable doubts - all are the means to achieve the broad goal to prevent curtailment of liberty without legal necessity.”

The Court clarified that these provisions are not substitutes for one another but operate concurrently, each designed to safeguard liberty at different stages of the criminal process.

"The competent Courts vested with jurisdiction to exercise their power under the aforesaid provisions are duty bond to protect the liberty of the people. They can not shut their doors and refer the petitioners to go to other fora for protection of their liberty. Accordingly, Court seized with anticipatory bail petitions can not ask the petitioners to go to Police for relief under the provisions as provided under Section 41 and 41-A of the Cr.PC/ Section 35 of the B.N.S.S". 

The Court referred to various rulings all of which upheld the maintainability of anticipatory bail even in the presence of a Section 41A notice.

It said that if Courts  vested with jurisdiction to hear pre-arrest bail petitions, shut their doors and refer the petitioners to Police to get relief under Sections 41 and 41A of the Cr.PC,  “it would be a doomsday for the right of the people to life and liberty.”

Accordingly, the High Court allowed the anticipatory bail petition, directing that the petitioner be enlarged on bail in the event of arrest or surrender within eight weeks, on furnishing a bond of ₹10,000 with two sureties subject to certain conditions.

Case Title: Navneet Kumar Singh v. State of Bihar

Case No: CRIMINAL MISCELLANEOUS No.38822 of 2025

Counsels: For the Petitioner: Mr. Vishal Prasad Srivastava, Advocate

For the State: Mr. Anand Kishore Choudhary, APP

Amici Curiae : Mr. Ajay Kumar Thakur, Advocate, Mr. Anil Singh, Advocate

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