No Anticipatory Bail On Mere Summons In Complaint Cases? Allahabad High Court Doubts 2025 Ruling, Refers Issue To Larger Bench
The Allahabad High Court has referred to a larger bench the question as to whether an anticipatory bail application is maintainable after an accused is summoned in a complaint case involving a non-bailable offence.
A bench of Justice Rajiv Lochan Shukla expressed disagreement with a 2025 coordinate bench ruling in Asheesh Kumar v. State of U.P. and Another 2025 LiveLaw (AB) 293, wherein it was held that anticipatory bail under Section 482 BNSS is not maintainable upon the mere issuance of a summons as there is no apprehension of arrest by the police without a warrant.
Justice Shukla was essentially hearing a batch of anticipatory bail applications arising from various complaint cases when he observed that the reasoning in Asheesh Kumar (supra) is not in consonance with the law laid down by the Supreme Court.
The Court noted that the earlier judgment failed to account for statutory provisions [Sections 208 and 209 CrPC/Sections 231 and 232 BNSS] which require remanding an accused to custody in Sessions-triable offences.
For context, as per S. 231 & 232, once a person is summoned to face trial by a Magistrate for having committed an offence triable by a Court of Session, he must be remanded into custody, subject to the provisions of bail.
Our readers may note that in Asheesh Kumar, the HC reasoned that once a Court summons an accused in a complaint case, he does not suffer from any apprehension of arrest, and thus anticipatory bail would not lie.
In that case, the single judge had opined that if 'custody' is taken by the court upon appearance in response to a summons, it cannot be equated with an '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 had observed.
More details of the 2025 ruling here : Anticipatory Bail Plea Not Maintainable On Mere Issuance Of Summons In Complaint Case Involving Non-Bailable Offence: Allahabad High Court
However, Justice Shukla in the present case differed from the ratio of the 2025 judgment as he noted that even as per the Supreme Court's ruling in the case of Directorate of Enforcement v. Deepak Mahajan 1994, the 'arrest' of a person is a condition precedent to taking them into 'judicial custody'.
The HC also relied on the Supreme Court's 2003 ruling in Bharat Chaudhary and Another Vs State of Bihar and Another, wherein it was held that anticipatory bail isn't barred when a court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet.
It may be noted that this ruling was recently referred to in the recent case of Sumit v. State of UP and another 2026 LiveLaw (SC) 147.
Against this backdrop, stressing that the apprehension of arrest must be treated as distinct from actual arrest, the Court opined that the law laid down in Asheesh Kumar (supra) is not in consonance with the law laid down by the Supreme Court in Bharat Chaudhary and another (supra) and Directorate of Enforcement vs Deepak Mahajan and another (supra).
In view of the above, considering the larger issue involved, the bench referred the matter to be considered by a Larger Bench on the following question of law:
"Whether the judgment of this Court in Asheesh Kumar (supra) holding that an anticipatory bail is not maintainable in a complaint case involving accusation of a non-bailable offence, upon issuance of a summons, as there is no apprehension of arrest by the police without warrant, lays down the correct law?"
Case title - Brajpal @ Birjju @ Bijendra and another vs State of U.P. and another along with connected cases 2026 LiveLaw (AB) 148
Case Citation: 2026 LiveLaw (AB) 148