Court Cannot Direct Accused To Surrender While Rejecting Anticipatory Bail : Supreme Court

The Supreme Court emphasised that a court has no jurisdiction to direct an accused to surrender before the trial court while rejecting anticipatory bail.

“If the Court wants to reject the anticipatory bail, it may do so but the Court has no jurisdiction to say that the petitioner should now surrender”, the Court observed.

A bench of Justice JB Pardiwala and Justice Ujjal Bhuyan was hearing a plea filed by a man accused of cheating and forgery against a Jharkhand High Court order which had rejected his anticipatory bail plea and asked him to surrender and seek regular bail.

The complainant filed a private complaint before a magistrate in 2021 alleging offences under Sections 323 (voluntarily causing hurt), 420 (cheating), 467 (forgery of valuable security), 468 (forgery for purpose of cheating), 471 (using forged document), and 120B read with 34 of the IPC, in connection with a land dispute.

The High Court dismissed the petitioner's second anticipatory bail application on the ground that no new circumstances were shown. It had relied on its earlier order rejecting his first anticipatory bail plea, in which the Court directed the petitioner to surrender before the trial court and seek regular bail in terms of the decision in Satender Kumar Antil v. CBI.

The Supreme Court said such a direction was wholly without jurisdiction. It said that if a court chooses to reject anticipatory bail, it may do so, but it cannot compel the accused to surrender.

The Court explained that once a magistrate takes cognizance and issues process, the usual course is issuance of summons, and the accused is required only to appear before the court and participate in the proceedings.

Referring to Section 87 of the CrPC, 1973, the Court said a warrant can be issued in place of or in addition to summons only if the court records reasons to believe that the accused has absconded or will not obey the summons, or if the accused fails to appear despite service of summons without reasonable cause.

The Court said police have no power to arrest an accused in a complaint case unless a non-bailable warrant is issued by the court. It also clarified that even during an inquiry under Section 202 CrPC, where a magistrate may seek a police report before issuing process, the police cannot arrest the accused.

The Court noted that despite this legal position, anticipatory bail applications are being routinely filed and entertained, particularly in Bihar and Jharkhand, resulting in unnecessary litigation reaching the Supreme Court.

“Unnecessarily anticipatory bail applications are entertained and when rejected the litigants have to travel all the way upto the highest Court of this Country. We also remind the High Court that the direction issued that the petitioner should surrender and seek regular bail before the Court was also wholly without jurisdiction”, the Court said.

Since the trial in the present case was already in progress, the Court disposed of the petition observing that no further orders were required and disposed of the petition.

It directed that a copy of the order be forwarded to the Registrars General of the High Courts of Bihar and Jharkhand to be placed before their respective Chief Justices. The Court also asked the State counsel to examine the issue and guide the State accordingly.

Also from the order - Police Cannot Arrest Accused In Complaint Case Unless Non Bailable Warrant Issued Along With Summons : Supreme Court

Case no. – Petition for Special Leave to Appeal (Crl.) No.16221/2025

Case Title – Om Prakash Chhawnika @ Om Prakash Chabnika @ Om Prakash Chawnika v. State of Jharkhand & Anr.

Citation: 2026 LiveLaw (SC) 419

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