# Asheesh Kumar v. State of U.P. & Anr

- **Citation:** (2025) 8 ILRA 57
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-01
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 482 BNSS. No. 4464 of 2025
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asheesh-kumar-v-state-of-u-p-anr-53732
- **Pages:** 14

## Headnote

G.A.,

Issue for Consideration
Matter pertains to whether the anticipatory bail
application instituted u/s 482 B.N.S.S. is
maintainable at the stage where only a
summons has been issued in a complaint
case alleging commission of non-bailable
offence, in absence of any reasonable
apprehension of arrest by police without
warrant, so as to justify exercise of jurisdiction
u/s 482 B.N.S.S..

Headnotes
Penal Code, 1860 - ss. 452, 504, 506,
392,323 - Bharatiya Nyaya Sanhita, 2023 -
s.2(29) - Bharatiya Nagarik Suraksha
Sanhita, 2023 - ss. 43(1), 480, 482 -
Applicant is facing criminal proceedings in
58 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint case wherein allegations relate
to commission of non-bailable offence -
Upon cognizance of complaint, concerned
court issued summons to secure his
presence
-
Aggrieved,
applicant
approached High Court u/s 482 B.N.S.S.
seeking anticipatory bail, contending that
issuance of summons in a complaint
involving
a
non-bailable
accusation
generates a reasonable apprehension that
upon appearance he may be taken into
custody, thereby curtailing his personal
liberty - Preliminary objection raised by
State
regarding
maintainability
of
anticipatory bail, asserting that mere
issuance of summons does not constitute
reasonable apprehension of arrest by
police
without
warrant
-
Essential
controversy
before
High
Court
was
confined to maintaining protection against
arrest in event of only summons being
issued in complaint case.
Held: In a complaint case involving allegations
of non-bailable offence, the grant of anticipatory
bail is not maintainable upon mere issuance of
summons, as there exists no apprehension of
arrest by police without warrant - Likewise,
when bailable warrant is issued, accused,
though apprehensive of arrest, is entitled to
release
upon
furnishing
bail,
and
hence
anticipatory bail is also not maintainable -
Furthermore, even in cases where non-bailable
warrant or proclamation is issued, remedy of
anticipatory bail ordinarily remains unavailable -
In the present complaint case, as no bailable or
non-bailable warrant has been issued till date,
mere issuance of summon by order dated
23.08.2022 against applicant does not constitute
circumstance giving rise to apprehension of
arrest by police. [Paras 32, 33] (E-13)
Case Law Cited
Shri Gurbaksh Singh Sibbia and others v. State
of Punjab, (1980) 2 SCC 565; Balchand Jain
(Shri) v. State of Madhya Pradesh, (1976) 4
SCC 572; Sushila Aggarwal and Others v. State
(NCT of Delhi) and Another, (2020) 5 SCC 1;
Union of India v. Amrit Lal Manchanda and
Another, (2004) 3 SCC 75; Jitendra Kumar
Singh and Another v. State of U.P. and Others,
(2010) 3 SCC 119; Arun Kumar Aggarwal v.
State of Madhya Pradesh and Others, (2014)
13 SCC 707; Supreme Paper Mills Limited v.
Assistant Commissioner, Commercial Taxes,
Calcutta and others, (2010) 11 SCC 593;
Sukhdev Singh v. State of Haryana, (2013) 2
SCC 212; Srikant Upadhyay and Others v. State
of Bihar and Anr., (2024) INSC 202; Prem
Shankar Prasad v. State of Bihar and Another,
(2022) 14 SCC 516; Lavesh v. State (NCT of
Delhi), (2012) 8 SCC 730; State of Madhya
Pradesh v. Pradeep Sharma, (2014) 2 SCC
171; Bharat Chaudhary and Another v. State of
Bihar and Another, (2003) 8 SCC 77; -
referred to.

Muni Khatoon v. State of Bihar and others,
2017 SCC Online Pat 3808; P.V. Narsimha
Rao v. State (CBI), 1997 (40) DRJ (DB) -
distinguished

Books and Periodicals Cited
Black's Law Dictionary, (5th Edition, 1979);
Corpus Juris Secundum (Vol. 25 at p. 69)

List of Acts
Penal Code, 1860; Bharatiya Nyaya Sanhita,
2023; Bharatiya Nagarik Suraksha Sanhita,
2023

List of Keywords
Maintainability of anticipatory bail; Interim Bail;
Complaint
case
proceedings;
Issuance
of
summons; Reasonable apprehension of arrest;
Non-bailable offence; Arbitrary arrest by police;
Personal liberty of a person; Extraordinary
remedy; Exceptional circumstances; Process of
arrest; Reason to believe; Mere fear; Law
Commissio

## Text

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8 All. Asheesh Kumar Vs. State of U.P. & Anr.
57
has also been filed. It is the duty of the trial
court to consider for grant of the benefit of
the first offender and if the same is denied,
special reasons are required to be recorded
but in the instant case, the trial court has
failed not only to consider the case and
material on record appropriately but it has
also failed to consider the claim of first
offender and record any special reason for
declining the benefit of the first offender.

28. In view of above and considering
the overall facts and circumstances of the
case, this Court is of the view that no
purpose would be served by sending the
appellants to jail to serve the sentence and
dispute was purely personal between the
close family members, therefore, the public
at large is also not going to be affected in
any manner, therefore, the appellants are
entitled for benefit of the first offender and
the appeal is liable to be allowed partly and
impugned judgment and order is liable to
be modified accordingly.

29. The appeal is partly allowed. The
conviction under Section 307 I.P.C. is
hereby converted into conviction under
Section 324 I.P.C. and sentence of 1 year is
awarded to both the appellants. However,
they are released on probation giving
benefit of First Offender and both the
appellants namely Dharmeshwar and Babu
Ram are directed to file two sureties each
to the tune of Rs 20,000/- along with
personal bonds before District Probation
Officer concerned and also an undertaking
to the effect that they shall maintain peace
and good behavior during the period of one
year from today. The said bonds are to be
filed by the appellants within a period of
two months from the date of this judgment.

30. In case of breach of any of the
above conditions, the appellants shall be
taken into custody and shall have to
undergo the aforesaid sentence awarded to
them.

31. A certified copy of this order
alongwith the trial court record shall be
sent to the court concerned for compliance
forthwith and in any case within 10 days
from today.
----------
(2025) 8 ILRA 57
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.08.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Misc. Anticipatory Bail Application U/S
482 BNSS. No. 4464 of 2025

Asheesh Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Abhishek Trivedi

Counsel for the Opposite Party:
G.A.,

Issue for Consideration
Matter pertains to whether the anticipatory bail
application instituted u/s 482 B.N.S.S. is
maintainable at the stage where only a
summons has been issued in a complaint
case alleging commission of non-bailable
offence, in absence of any reasonable
apprehension of arrest by police without
warrant, so as to justify exercise of jurisdiction
u/s 482 B.N.S.S..

Headnotes
Penal Code, 1860 - ss. 452, 504, 506,
392,323 - Bharatiya Nyaya Sanhita, 2023 -
s.2(29) - Bharatiya Nagarik Suraksha
Sanhita, 2023 - ss. 43(1), 480, 482 -
Applicant is facing criminal proceedings in
58 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint case wherein allegations relate
to commission of non-bailable offence -
Upon cognizance of complaint, concerned
court issued summons to secure his
presence
-
Aggrieved,
applicant
approached High Court u/s 482 B.N.S.S.
seeking anticipatory bail, contending that
issuance of summons in a complaint
involving
a
non-bailable
accusation
generates a reasonable apprehension that
upon appearance he may be taken into
custody, thereby curtailing his personal
liberty - Preliminary objection raised by
State
regarding
maintainability
of
anticipatory bail, asserting that mere
issuance of summons does not constitute
reasonable apprehension of arrest by
police
without
warrant
-
Essential
controversy
before
High
Court
was
confined to maintaining protection against
arrest in event of only summons being
issued in complaint case.
Held: In a complaint case involving allegations
of non-bailable offence, the grant of anticipatory
bail is not maintainable upon mere issuance of
summons, as there exists no apprehension of
arrest by police without warrant - Likewise,
when bailable warrant is issued, accused,
though apprehensive of arrest, is entitled to
release
upon
furnishing
bail,
and
hence
anticipatory bail is also not maintainable -
Furthermore, even in cases where non-bailable
warrant or proclamation is issued, remedy of
anticipatory bail ordinarily remains unavailable -
In the present complaint case, as no bailable or
non-bailable warrant has been issued till date,
mere issuance of summon by order dated
23.08.2022 against applicant does not constitute
circumstance giving rise to apprehension of
arrest by police. [Paras 32, 33] (E-13)
Case Law Cited
Shri Gurbaksh Singh Sibbia and others v. State
of Punjab, (1980) 2 SCC 565; Balchand Jain
(Shri) v. State of Madhya Pradesh, (1976) 4
SCC 572; Sushila Aggarwal and Others v. State
(NCT of Delhi) and Another, (2020) 5 SCC 1;
Union of India v. Amrit Lal Manchanda and
Another, (2004) 3 SCC 75; Jitendra Kumar
Singh and Another v. State of U.P. and Others,
(2010) 3 SCC 119; Arun Kumar Aggarwal v.
State of Madhya Pradesh and Others, (2014)
13 SCC 707; Supreme Paper Mills Limited v.
Assistant Commissioner, Commercial Taxes,
Calcutta and others, (2010) 11 SCC 593;
Sukhdev Singh v. State of Haryana, (2013) 2
SCC 212; Srikant Upadhyay and Others v. State
of Bihar and Anr., (2024) INSC 202; Prem
Shankar Prasad v. State of Bihar and Another,
(2022) 14 SCC 516; Lavesh v. State (NCT of
Delhi), (2012) 8 SCC 730; State of Madhya
Pradesh v. Pradeep Sharma, (2014) 2 SCC
171; Bharat Chaudhary and Another v. State of
Bihar and Another, (2003) 8 SCC 77; -
referred to.

Muni Khatoon v. State of Bihar and others,
2017 SCC Online Pat 3808; P.V. Narsimha
Rao v. State (CBI), 1997 (40) DRJ (DB) -
distinguished

Books and Periodicals Cited
Black's Law Dictionary, (5th Edition, 1979);
Corpus Juris Secundum (Vol. 25 at p. 69)

List of Acts
Penal Code, 1860; Bharatiya Nyaya Sanhita,
2023; Bharatiya Nagarik Suraksha Sanhita,
2023

List of Keywords
Maintainability of anticipatory bail; Interim Bail;
Complaint
case
proceedings;
Issuance
of
summons; Reasonable apprehension of arrest;
Non-bailable offence; Arbitrary arrest by police;
Personal liberty of a person; Extraordinary
remedy; Exceptional circumstances; Process of
arrest; Reason to believe; Mere fear; Law
Commission of India; Legislative intent of
Section 482 B.N.S.S; Res integra.

Case Arising From
ORIGINAL JURISDICTION: Criminal Misc.
Anticipatory Bail Application U/s 482 BNSS No. -
4464 of 2025
From the Complaint Case No. 938 of 2021,
Police Station Rauja, District- Shahjahanpur.

Appearances for Parties
Advs. for the Applicant:
Abhishek Trivedi

Advs. for the Opposite Party:
G.A.
8 All. Asheesh Kumar Vs. State of U.P. & Anr.
59
(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1.
This
matter
was
heard
on
18.06.2025. On that date, a preliminary
objection was raised by Sri Pankaj Saxena,
learned A.G.A. that present anticipatory
bail application is not maintainable as same
is filed merely on issuance of summon in
complaint case. On issuance of a summons,
the applicant has no reason to believe that
he may be arrested unless non-bailable
warrant is issued in complaint case. The
above preliminary objection raised by
learned A.G.A. was vehemently opposed
by Sri Abhishek Trivedi, learned counsel
for the applicant. Therefore, this Court after
releasing the applicant on interim bail
reserved the judgement on the issue
whether anticipatory bail is maintainable
merely on issuance of summons in the
complaint case wherein the accusation is
regarding the non-bailable offence.

2. Learned counsel for the applicant
has submitted that on issuance of a
summons in a complaint case wherein there
is an allegation of committing a nonbailable offence against the applicant, the
applicant has reasonable apprehension that
on his appearance before the Court, he may
be taken into custody by the court which
would also fall in the category of
apprehension of arrest as the object of
custody or arrest is of curtailing the
personal liberty of a person. In support of
his contention, learned counsel for the
applicant has relied upon the judgement of
Patna High Court in the case of Muni
Khatoon Vs. State of Bihar and others,
2017 SCC Online Pat 3808, as well as the
judgement of Division Bench of Delhi
High Court in the case of P.V. Narsimha
Rao Vs. State (CBI), 1997 (40) DRJ (DB)
wherein the Patna High Court and the Delhi
High Court have observed that power to
release a person on anticipatory bail cannot
be curtailed and this principle applies
equally to both complaint cases as well as
State cases.

3. Per contra, Sri Pankaj Saxena,
learned A.G.A. has submitted that the
words 'reason to believe' in Section 482
B.N.S.S. does not mean mere 'fear' and it
must be founded on a reasonable ground
and custody of the court cannot be equated
with the arrest by the police. It is further
submitted by learned A.G.A. that criminal
enactment should be interpreted strictly,
not liberally, as beneficial legislation.

4. After hearing the above submission,
the legal question which arises is whether
the anticipatory bail is maintainable during
the proceeding of complaint case ? To
decide this issue, it would be beneficial to
reproduce Section 482 B.N.S.S. regarding
anticipatory bail. Section 482 B.N.S.S.
(corresponding Section 438 Cr.P.C.) is
being quoted as under :-

Section 482 B.N.S.S. :-

1) When any person has reason to
believe that he may be arrested on an
accusation of having committed a nonbailable offence, he may apply to the High
Court or the Court of Session for a
direction under this section; and that Court
may, if it thinks fit, direct that in the event
of such arrest, he shall be released on bail.

(2) When the High Court or the
Court of Session makes a direction under
sub-section (1), it may include such
conditions in such directions in the light of
the facts of the particular case, as it may
think fit, including-

(i) a condition that the person
shall
make
himself
available
for
60 INDIAN LAW REPORTS ALLAHABAD SERIES
interrogation by a police officer as and
when required;

(ii) a condition that the person
shall not, directly or indirectly, make any
inducement, threat or promise to any
person acquainted with the facts of the case
so as to dissuade him from disclosing such
facts to the Court or to any police officer;

 (iii) a condition that the person
shall not leave India without the previous
permission of the Court;

(iv) such other condition as may
be imposed under sub-section (3) of section
480, as if the bail were granted under that
section.

(3) If such person is thereafter
arrested without warrant by an officer in
charge of a police station on such
accusation, and is prepared either at the
time of arrest or at any time while in the
custody of such officer to give bail, he shall
be released on bail; and if a Magistrate
taking cognizance of such offence decides
that a warrant should be issued in the first
instance against that person, he shall issue
a bailable warrant in conformity with the
direction of the Court under sub-section
(1).

(4) Nothing in this section shall
apply to any case involving the arrest of
any person on accusation of having
committed an offence under section 65 and
sub-section (2) of section 70 of the
Bharatiya Nyaya Sanhita, 2023.

5. The main ingredients of Section 482
B.N.S.S. are as follows :-

(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.

6.
From
the
above
mentioned
ingredients of Section 482 B.N.S.S., it is
clear that 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.

7. As per Section 2(29) B.N.S.,
"reason to believe" means sufficient cause
to believe that thing but not otherwise.
Therefore, mere fear will not be sufficient.
Section 2(29) B.N.S. is being quoted as
under :-

2. Definitions - In this Sanhita,
unless the context otherwise requires -

(29) "reason to believe" - A
person is said to have "reason to believe"
a thing, if he has sufficient cause to believe
that thing but not otherwise;

8. The words "reason to believe" have
been considered by the Constitution Bench
of the Hon'ble Supreme Court in the case
of Shri Gurbaksh Singh Sibbia and
others Vs. State of Punjab, (1980) 2 SCC
565. The Hon'ble Apex Court in the case of
Shri Gurbaksh Singh Sibbia (supra) has
observed that expression 'reason to believe'
that the applicant may be so arrested must
be founded on a reasonable ground and
mere 'fear' is not 'belief' and ground on
which belief of applicant is based, that he
may be arrested for a non-bailable offence,
must be capable of being examined by the
Court objectively. Paragraph no. 35 of Shri
Gurbaksh Singh Sibbia (supra) is being
quoted as under :

35. Section 438(1) of the Code
lays down a condition which has to be
8 All. Asheesh Kumar Vs. State of U.P. & Anr.
61
satisfied before anticipatory bail can be
granted. The applicant must show that he
has "reason to believe" that he may be
arrested for a non-bailable offence. The use
of the expression "reason to believe"
shows that the belief that the applicant may
be so arrested must be founded on
reasonable grounds. 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 that some one
is going to make an accusation against
him, in pursuance of which he may be
arrested. The grounds on which the belief
of the applicant is based that he may be
arrested for a non-bailable offence, must be
capable of being examined by the court
objectively, because it is then alone that the
court can determine whether the applicant
has reason to believe that he may be so
arrested. Section 438(1), therefore, cannot
be invoked on the basis of vague and
general allegations, as if to arm oneself in
perpetuity
against
a
possible
arrest.
Otherwise, the number of applications for
anticipatory bail will be as large as, at any
rate, the adult populace. Anticipatory bail
is a device to secure the individuals liberty;
it is neither a passport to the commission of
crimes nor a shield against any and all
kinds of accusations, likely or unlikely.

9. The word "non-bailable warrant"
has been defined in Section 2(c) of
B.N.S.S. wherein it is mentioned that all
cases which are not mentioned as bailable
in the First Schedule of B.N.S.S. would be
non-bailable though the literal meaning of
non-bailable offence is wherein the police
normally would not grant bail after arrest.
However, in bailable offence, police would
release the person after arrest on bail if he
is ready to give bail. But the Magistrate can
grant bail in non-bailable offence on
fulfilling certain conditions as mentioned in
Section 480 B.N.S.S. Section 480 B.N.S.S.
(corresponding Section 437 Cr.P.C.) is
being quoted as under :-

480. When bail may be taken in
case of non-bailable offence-(1) When any
person accused of, or suspected of, the
commission of any non-bailable offence is
arrested or detained without warrant by an
officer in charge of a police station or
appears or is brought before a Court other
than the High Court or Court of Session, he
may be released on bail, but-

(i) such person shall not be so
released
if
there
appear
reasonable
grounds for believing that he has been
guilty of an offence punishable with death
or imprisonment for life;

(ii) such person shall not be so
released if such offence is a cognizable
offence and he had been previously
convicted of an offence punishable with
death,
imprisonment
for
life
or
imprisonment for seven years or more, or
he had been previously convicted on two or
more occasions of a cognizable offence
punishable with imprisonment for three
years or more but less than seven years:

Provided that the Court may
direct that a person referred to in clause (i)
or clause (ii) be released on bail if such
person is a child or is a woman or is sick or
infirm:

Provided further that the Court
may also direct that a person referred to in
clause (ii) be released on bail if it is
satisfied that it is just and proper so to do
for any other special reason:

Provided also that the mere fact
that an accused person may be required for
being
identified
by
witnesses
during
investigation or for police custody beyond
the first fifteen days shall not be sufficient
ground for refusing to grant bail if he is
otherwise entitled to be released on bail
62 INDIAN LAW REPORTS ALLAHABAD SERIES
and gives an undertaking that he shall
comply with such directions as may be
given by the Court:

Provided also that no person
shall, if the offence alleged to have been
committed by him is punishable with death,
imprisonment for life, or imprisonment for
seven years or more, be released on bail by
the Court under this sub-section without
giving an opportunity of hearing to the
Public Prosecutor.

(2) If it appears to such officer or
Court at any stage of the investigation,
inquiry or trial, as the case may be, that
there are not reasonable grounds for
believing that the accused has committed a
non-bailable offence, but that there are
sufficient grounds for further inquiry into
his guilt, the accused shall, subject to the
provisions of Section 492 and pending such
inquiry, be released on bail, or, at the
discretion of such officer or Court, on the
execution by him of a bond for his
appearance as hereinafter provided.

(3) When a person accused or
suspected of the commission of an offence
punishable with imprisonment which may
extend to seven years or more or of an
offence under Chapter VI, Chapter VII or
Chapter XVII of the Bharatiya Nyaya
Sanhita,
2023
or
abetment
of,
or
conspiracy or attempt to commit, any such
offence, is released on bail under subsection (1), the Court shall impose the
conditions,--

(a) that such person shall attend
in accordance with the conditions of the
bond executed under this Chapter;

(b) that such person shall not
commit an offence similar to the offence of
which he is accused, or suspected, of the
commission of which he is suspected; and

(c) that such person shall not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer or tamper with the
evidence, and may also impose, in the
interests of justice, such other conditions as
it considers necessary.

(4) An officer or a Court
releasing any person on bail under subsection (1) or sub-section (2), shall record
in writing his or its reasons or special
reasons for so doing.

(5) Any Court which has released
a person on bail under sub-section (1) or
sub-section (2), may, if it considers it
necessary so to do, direct that such person
be arrested and commit him to custody.

(6) If, in any case triable by a
Magistrate, the trial of a person accused of
any non-bailable offence is not concluded
within a period of sixty days from the first
date fixed for taking evidence in the case,
such person shall, if he is in custody during
the whole of the said period, be released on
bail to the satisfaction of the Magistrate,
unless for reasons to be recorded in
writing, the Magistrate otherwise directs.

(7) If, at any time, after the
conclusion of the trial of a person accused
of a non-bailable offence and before
judgment is delivered, the Court is of
opinion that there are reasonable grounds
for believing that the accused is not guilty
of any such offence, it shall release the
accused, if he is in custody, on the
execution by him of a bond for his
appearance to hear judgment delivered.

10. The police can arrest a person if
offence is cognizable whether bailable or
non-bailable but if the person is arrested in
bailable offence, he would normally be
released on bail by the police if the accused
is ready to furnish the bail but in case of
non-bailable offence, police is also required
to produce the person before the concerned
8 All. Asheesh Kumar Vs. State of U.P. & Anr.
63
Magistrate within 24 hours as per Section
58 of B.N.S.S. Thereafter, the Magistrate
decides whether a person should be sent to
police custody or judicial custody or be
released on bail. However, police can arrest
a person if it is alleged that he has
committed a cognizable offence but for the
maintainability of anticipatory bail under
Section 482 B.N.S.S., there must be
apprehension to arrest regarding nonbailable offence not the bailable offence.

11. From the above discussion, it is
clear that there must be apprehension of
arrest on the basis of an allegation of
committing the non-bailable offence. The
procedure of arrest has been mentioned in
Section 43(1) B.N.S.S. which provides that
in making the arrest, the police officer or
other person making the same shall actually
touch or confine the body of the person to
be arrested except in the case of a woman
providing oral intimation of the arrest as
per proviso of Section 43(1) of B.N.S.S.
Section 43(1) of B.N.S.S. is being quoted
as under :

43. (1) In making an arrest, the
police officer or other person making the
same shall actually touch or confine the
body of the person to be arrested, unless
there be a submission to the custody by
word or action:

Provided that where a woman is
to be arrested, unless the circumstances
indicate to the contrary, her submission to
custody or an oral intimation of arrest shall
be presumed and, unless the circumstances
otherwise require or unless the police
officer is a female, the police officer shall
not touch the person of the woman for
making her arrest.

12. The arrest can be made by a police
officer, by any person or by a Judicial or
Executive Magistrate. The process of arrest
is the same as mentioned in Section 43(1)
of B.N.S.S.

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 same is as follows :-
64 INDIAN LAW REPORTS ALLAHABAD SERIES

"When it is applied to persons, it
implies restraint and may or may not imply
physical
force
sufficient
to
restrain
depending on the circumstances and with
reference to persons charged with crime, it
has been defined as meaning on actual
confinement or the present means of
enforcing it, the detention of the person
contrary to his will. Applied to things, it
means to have a charge or safe-keeping,
and connotes control and includes as well,
although it does not require, the element of
physical or manual possession, implying a
temporary physical control merely and
responsibility for the protection and
preservation of the thing in custody. So
used, the word does not connote dominion
or supremacy of authority. The said term
has been defined as meaning the keeping,
guarding,
care,
watch,
inspection,
preservation or security of a thing, and
carries with it the idea of the thing being
within the immediate personal care and
control of the prisoner to whose custody it
is subjected; charge; charge to keep,
subject to order or direction; immediate
charge and control and not the final
absolute control of ownership."

16. From the perusal of the definition
of "arrest" and "custody", it is clear that
"arrest"
is
different
from
"custody".
Therefore, the term "arrest" used in Section
482 B.N.S.S. cannot be equated with the
term "custody" which the police takes after
arrest or the court can take on surrendering
or producing an accused before it.

17.
Section
438
Cr.P.C.
(corresponding Section 482 B.N.S.S.) was
introduced on the basis of the 41st report
dated 24.09.1969 of the Law Commission
of India which pointed out the necessity of
introducing the provision in the Code to
grant anticipatory bail. The object of
inserting this section has been mentioned in
paragraph no. 39.9 of this report of Law
Commission of India, and the same is being
reproduced as under :-

"The suggestion for directing the
release of a person on bail prior to his
arrest (commonly known as "anticipatory
bail") was carefully considered by us.
Though there is a conflict of judicial
opinion about the power of a court to grant
anticipatory bail, the majority view is that
there is no such power under the existing
provisions of the Code. The necessity for
granting anticipatory bail arises mainly
because sometimes influential persons try
to implicate their rivals in false cases for
the purpose of disgracing them or for other
purposes by getting them detained in jail
for some days. In recent times, with the
accentuation of political rivalry, this
tendency is showing signs of steady
increase. Apart from false cases, where
there are reasonable grounds for holding
that a person accused of an offence is not
likely to abscond, or otherwise misuse his
liberty while on bail, there seems no
justification to require him first to submit to
custody, remain in prison for some days
and then apply for bail.

We recommend the acceptance of
this suggestion. We are further of the view
that this special power should be conferred
only on the High Court and the Court of
Session, and that the order should take
effect at the time of arrest or thereafter.

In order to settle the details of
this suggestion, the following draft of a new
section is placed for consideration:

'497-A. (1) When any person has
a reasonable apprehension that he would
be arrested on an accusation of having
committed a non-bailable offence, he may
apply to the High Court or the Court of
Session for a direction under this section.
8 All. Asheesh Kumar Vs. State of U.P. & Anr.
65
That court may, in its discretion, direct that
in the event of his arrest, he shall be
released on bail.

(2)
A
Magistrate
taking
cognizance of an offence against that
person shall, while taking steps under
Section 204(1), either issue summons or a
bailable warrant as indicated in the
direction of the court under sub-section (1).

(3) If any person in respect of
whom such a direction is made is arrested
without warrant by an officer in charge of
a police station on an accusation of having
committed that offence, and is prepared
either at the time of arrest or at any time
while in the custody of such officer to give
bail, such person shall be released on bail.'

We
considered
carefully
the
question of laying down in the statute
certain conditions under which alone
anticipatory bail could be granted. But we
found that it may not be practicable to
exhaustively enumerate those conditions;
and moreover, the laying down of such
conditions may be construed as prejudging
(partially at any rate) the whole case.
Hence we would leave it to the discretion of
the court and prefer not to fetter such
discretion in the statutory provision itself.
Superior courts will, undoubtedly, exercise
their discretion properly, and not make any
observations
in
the
order
granting
anticipatory bail which will have a
tendency to prejudice the fair trial of the
accused."

18. From the perusal of the above
recommendation of the Law Commission
of India, it is clear that the purpose of
introducing the provision of anticipatory
bail is to grant protection from the
arbitrary arrest by the police.

19. The three-Judge Bench of the
Apex Court in the case of Balchand Jain
(Shri) Vs. State of Madhya Pradesh,
(1976) 4 SCC 572 also considered the
object and legislative intent of Section 438
Cr.P.C. and observed that intention of the
legislature in enshrining the salutary
provisions in Section 438 Cr.P.C. which
applies only to non-bailable offence, was to
see that the liberty of a person is not to be
in jeopardy on frivolous grounds at the
instance of unscrupulous or irresponsible
officers or persons who may be incharge
of prosecution.

20. Similarly, the Constitution Bench
of the Apex Court in the case of Sushila
Aggarwal and Others Vs. State (NCT of
Delhi) and Another, (2020) 5 SCC 1
while considering the issue regarding
limitation of period of anticipatory bail also
observed that basic object behind Section
438 Cr.P.C. as per 41st and 48th report of
Law Commission is protection against
arbitrary and unwanted arrest by the
police and also providing a preventive or
curative measure to deal with unwanted
arrest. It is worth noting that unwanted
arrest or detention can be made by the
police or a prosecuting agency rather than
by the court. Paragraph nos. 57 and 62 of
Sushila Aggarwal (supra) is being quoted
as under :

57. The interpretation of Section
438 - that it does not encapsulate Article
21, is erroneous. This Court is of the
opinion that the issue is not whether
Section 438 is an intrinsic element of
Article 21 : it is rather whether that
provision is part of fair procedure. As to
that, there can be no doubt that the
provision for anticipatory bail is proliberty and enables one anticipating arrest,
a facility of approaching the court for a
direction that he or she not be arrested; it
was specifically enacted as a measure of
66 INDIAN LAW REPORTS ALLAHABAD SERIES
protection against arbitrary arrests and
humiliation
by
the
police,
which
Parliament
itself
recognised
as
a
widespread malaise on the part of the
police.

62. This Court cannot lose sight
of the fact that the Law Commission's 41st
and 48th Reports focused on the need to
introduce the provision (for anticipatory
bail) as a preventive, or curative measure,
to deal with a particular problem i.e.
unwarranted arrests. Sibbia [Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2
SCC 565 : 1980 SCC (Cri) 465] noticed
this fact, and also that significantly, Section
438 is not hedged with any obligation on
the court's power, to impose conditions.
That situation remains unchanged : the
provision remains unaltered - at least
substantially (barring an amendment in
2005 which obliged the issuance of notice
to the Public Prosecutor before issuing any
order
for
anticipatory
bail)
[
The
amendment i.e. the Criminal Procedure
Code (Amendment) Act, 2005 - which has
till now, not been brought into force, reads
as follows:"438. Direction for grant of bail
to person apprehending arrest.-(1) Where
any person has reason to believe that he
may be arrested on accusation of having
committed a non-bailable offence, he may
apply to the High Court or the Court of
Session for a direction under this section;
that in the event of such arrest, he shall be
released on bail and the Court may after
taking into consideration inter alia the
following factors, namely-(i) the nature
and gravity of the accusation;(ii) the
antecedents of the applicant including the
fact as to whether he has previously
undergone imprisonment on conviction by
a court in respect of any cognizable
offence;(iii) the possibility of the applicant
to flee from justice; and(iv) where the
accusation has been made with the object
of injuring or humiliating the applicant by
having him so arrested,either reject the
application forthwith or issue an interim
order for the grant of anticipatory
bail:Provided that where the High Court or
as the case may be the Court of Session has
not passed any interim order under this
sub-section or has rejected the application
for grant of anticipatory bail it shall be
open to an officer in charge of police
station to arrest without warrant the
applicant on the basis of the accusation
apprehended in such application.(I-A)
Where the Court grants an interim order
under sub-section (1), it shall forthwith
cause a notice being not less than seven
days' notice, together with the copy of such
order to be served on the Public Prosecutor
and the Superintendent of Police, with a
view to give the Public Prosecutor a
reasonable opportunity of being heard
when the application shall be finally heard
by the Court.(I-B) The presence of the
applicant seeking anticipatory bail shall be
obligatory at the time of final hearing of
the application and passing of final order
by the Court, if on an application made to
it by the Public Prosecutor, the Court
considers such presence necessary in the
interest of justice."] . The 203rd Report of
the Law Commission, which reviewed the
entire law on the subject and noticed later
decisions, such as Salauddin [Salauddin
Abdulsamad
Shaikh
v.
State
of
Maharashtra, (1996) 1 SCC 667 : 1996
SCC (Cri) 198] , Adri Dharan Das [Adri
Dharan Das v. State of W.B., (2005) 4 SCC
303 : 2005 SCC (Cri) 933] , etc.
recommended no change in law on this
aspect relating to conditions. In this
background, it is important to notice that
the only bar, or restriction, imposed by
Parliament upon the exercise of the power
(to grant anticipatory bail) is by way of a
positive restriction i.e. in the case where
8 All. Asheesh Kumar Vs. State of U.P. & Anr.
67
accused are alleged to have committed
offences punishable under Section 376(3)
or Section 376-AB or Section 376-DA or
Section 376-DB of the Penal Code. In other
words,
Parliament
has
now
denied
jurisdiction of the courts (i.e. Court of
Session and High Courts) from granting
anticipatory bail to those accused of such
offences.
The
amendment
[Code
of
Criminal Procedure Amendment Act, 2018
introduced Section 438(4)] reads as
follows:

"438. (4) Nothing in this section
shall apply to any case involving the arrest
of any person on accusation of having
committed an offence under sub-section (3)
of Section 376 or Section 376-AB or
Section 376-DA or Section 376-DB of the
Indian Penal Code."

21. Sometimes confusion arises from
the observations made in the case of
Sushila Aggarwal (supra) in paragraph
no. 7.6, wherein the Apex Court while
considering
the
observations
of
Constitution Bench of Apex Court in the
case of Shri Gurbaksh Singh Sibbia
(supra) regarding imposition of condition
for limiting the period of anticipatory bail,
that for limiting the period of anticipatory
bail,
the
court
may
consider
the
circumstances especially the stage for filing
the anticipatory bail whether at the stage
before F.I.R. is filed or after filing of F.I.R.
or at the stage when the investigation is
complete
and
charge-sheet
is
filed.
However,
the
above
observations
in
Sushila Aggarwal (supra) do not suggest
that anticipatory bail is maintainable upon
issuance of a summons after the concerned
court takes cognizance on the charge-sheet
or complaint. Even otherwise, the Apex
Court in the case of Union of India Vs.
Amrit Lal Manchanda and Another,
(2004) 3 SCC 75 and Jitendra Kumar
Singh and Another Vs. State of U.P. and
Others, (2010) 3 SCC 119 observed that
observations of the court are neither to be
read as Euclid's theorem nor as a provision
of statute and that too taken out of their
context and isolated observation in a
judgement cannot be treated as a precedent
dehors the fact. The discussion in a
judgement is meant to explain, not to
define.

22. The Constitution Bench of Apex
Court in the case of Shri Gurbaksh Singh
Sibbia (supra) while considering the issue
of limitation on the duration of anticipatory
bail also considered the legislative intent
behind enacting the Section 438 Cr.P.C.
(corresponding Section 482 B.N.S.S.) and
observed that the proof of legislative intent
can be gathered from the language which
legislature uses but in case of ambiguity,
same can be resolved by resort to
extraneous aids. It was also observed that
there must be imminent likelihood of arrest,
which is the basis for the maintainability of
anticipatory bail. Relevant extract of
paragraph no. 12 of Shri Gurbaksh Singh
Sibbia (supra) is being quoted as under :

"The proof of legislative intent
can best be found in the language which
the legislature uses. Ambiguities can
undoubtedly be resolved by resort to
extraneous aids but words, as wide and
explicit as have been used in Section 438,
must be given their full effect, especially
when to refuse to do so will result in undue
impairment of the freedom of the individual
and the presumption of innocence. It has to
be borne in mind that anticipatory bail is
sought when there is a mere apprehension
of arrest on the accusation that the
applicant has committed a non- bailable
offence. A person who has yet to lose his
freedom by being arrested asks for freedom
68 INDIAN LAW REPORTS ALLAHABAD SERIES
in the event of arrest. That is the stage at
which it is imperative to protect his
freedom, insofar as one may, and to give
full play to the presumption that he is
innocent. In fact, the stage at which
anticipatory bail if generally sought brings
about its striking dissimilarity with the
situation in which a person who is arrested
for the commission of a non-bailable
offence asks for bail."

23. The Constitution Bench of the
Apex Court again in paragraph no. 41 of
Shri Gurbaksh Singh Sibbia (supra)
observed that while granting anticipatory
bail under Section 438 Cr.P.C., a possible
conflict between the right of an individual
to his liberty and the right of the police
to investigate into crimes reported to
them can be avoided. Paragraph no. 41 of
Shri Gurbaksh Singh Sibbia (supra) is
quoted as under :

41. Apart from the fact that the
very language of the statute compels this
construction,
there
is
an
important
principle involved in the insistence that
facts, on the basis of which a direction
under Section 438(1) is sought, must be
clear and specific, not vague and general.
It is only by the observance of that
principle that a possible conflict between
the right of an individual to his liberty and
the right of the police to investigate into
crimes reported to them can be avoided. A
blanket order of anticipatory bail is bound
to cause serious interference with both the
right and the duty of the police in the
matter of investigation because, regardless
of what kind of offence is alleged to have
been committed by the applicant and when,
an order of bail which comprehends
allegedly
unlawful
activity
of
any
description whatsoever, will prevent the
police from arresting the applicant even if
he commits, say, a murder in the presence
of the public.