Patna High Court
Navneet Kumar Singh vs The State Of Bihar on 8 August, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.38822 of 2025
Arising Out of PS. Case No.-51 Year-2025 Thana- PHENHARA District- East Champaran
======================================================
Navneet Kumar Singh, Son of Umesh Prasad Singh, resident of Village
-Bishunpur Basant, P.S- Phenhara, District- East Champaran
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
======================================================
Appearance :
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
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 08-08-2025
The petitioner seeks anticipatory bail, apprehending
his arrest, in connection with Phenhara P.S. Case No.51 of 2025,
dated-14.03.2025, registered for the offences punishable under
Sections 126(2), 115(2), 118(1), 352 and 351(2) of the Bharatiya
Nyaya Sanhita, 2023 and Sections 25(1-b)a and 26 of the Arms
Act.
2. The prosecution case, as emerging from the written
report, is that when Shivam Kumar, son of the informant was
coming back after shopping, the Petitioner attacked him with
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pistol and knife. However, he was overpowered by his son and
two nephews, who were just behind his son. Even a co-villager,
Abhinandan Singh also reached the place of occurrence and
pistol was snatched from the Petitioner. However, the Petitioner
fled away leaving behind his motorcycle bearing Registration
No. BR05-BG-9485. The pistol, knife and the motorcycle were
handed over to the police.
3. Learned counsel for the petitioner submits that the
Petitioner is innocent and has falsely been implicated in this
case. He further submits that the Petitioner first moved the Court
of Sessions Judge, East Champaran, Motihari by way of
anticipatory bail petition bearing no. 1523 of 2025, which was
disposed of by learned Sessions Judge in terms of the
observation made by a co-ordinate Bench of this Court in Asha
Baitha vs. State of Bihar bearing Criminal Miscellaneous
Case No.44659 of 2024 as reported in 2024 SCC Online Pat
5670. The observation made in Asha Baitha case (supra) is as
follows:
"The petitioner would be at liberty to file a
representation within a period of three weeks from today
before the concerned Superintendent of Police of the
district and the Investigating Officer of the case with a
web copy of the order dated 13.02.2024 in Cr. Misc. No.
3536/2024 (Naushad Ansari Vs. State of Bihar) and the
Superintendent of Police shall ensure that Investigating
Officer of the case strictly adhere to the direction
contained in the said order."
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4. I heard learned counsel for the petitioner, learned
APP for the State and learned Amici Curiae.
5. Learned counsel for the Petitioner submits that the
Petitioner is innocent and has falsely implicated in this case. He
should have been granted anticipatory bail by the Sessions
Court, instead of referring him to the police to represent.
6. Even, learned APP for the State and learned Amici
Curiae also submit that there was no justification of abdication
of duty on the part of the Sessions Court, who instead of
deciding the bail petition, has only disposed it of by giving him
liberty to represent to the police.
7. I considered the submissions of learned counsel for
the Petitioner, learned APP for the State and learned Amici
Curiae and perused the materials on record.
8. I find that the anticipatory bail petition bearing no.
1523 of 2025 was filed by the Petitioner before learned Sessions
Judge for anticipatory bail. However, the same has been only
disposed of without rejecting or allowing the prayer of the
Petitioner for anticipatory bail, and, instead, he has been given
liberty to make representation within a period of three weeks to
the concerned Superintendent of Police and the Investigating
Officer of the case, with a web copy of the order dated
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13.02.2024
passed in Criminal Miscellaneous No.3536 of 2024
titled Naushad Ansari Vs. State of Bihar, passed by a
coordinate Bench of this Court. The Superintendent of Police
has been also directed to ensure that the Investigating Officer of
the case strictly adheres to the direction contained in the said
order.
9. I further find that in Naushad Ansari case (supra),
the operative part of the order is as follows:
“12. After hearing the learned APP and the learned
counsel for the petitioner, the present anticipatory bail
application is disposed of 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 the Hon’ble Supreme Court as
contained in the case of Arnesh Kumar (supra) and
Md. Asfak Alam (supra).
13. It is made clear that if any breach of the direction of
the Hon’ble Supreme Court is brought to the notice of this
court, the police and the learned Magistrate shall be dealt
in terms of the Memo No. 62973 dated 19.9.2023 issued
by this Court under the signature of the learned Registrar
General.
14. Let a copy of this order be sent to the DGP, Bihar,
Principal Secretary (Home), Government of Bihar and all
the learned District Judges for its onward communication
to all the Superintendents of Police, Investigating
Officers and the learned Magistrates.
15. The Court directs that the police and the learned
Magistrate shall completely adhere to the directions
given by the Hon’ble Supreme Court in the case of
Arnesh Kumar (supra) and Md. Asfak Alam (supra).”
10. I further find that Hon’ble Apex Court in Arnesh
Kumar Vs. State of Bihar (2014) 8 SCC 273 has issued the
following directions to the Police and Judicial Magistrate:
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“11. Our endeavour in this judgment is to ensure that
police officers do not arrest the accused unnecessarily
and Magistrate do not authorise detention casually and
mechanically. In order to ensure what we have
observed above, we give the following directions:
11.1. All the State Governments to instruct its police
officers not to automatically arrest when a case under
Section 498-A IPC is registered but to satisfy
themselves about the necessity for arrest under the
parameters laid down above flowing from Section 41
CrPC;
11.2. All police officers be provided with a check list
containing specified sub-clauses under Section 41(1)(b)
(ii);
11.3. The police officer shall forward the check list
duly filled and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of the
accused shall peruse the report furnished by the police
officer in terms aforesaid and only after recording its
satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the
Magistrate which may be extended by the
Superintendent of Police of the district for the reasons
to be recorded in writing;
11.6. Notice of appearance in terms of Section 41-A
CrPC be served on the accused within two weeks from
the date of institution of the case, which may be
extended by the Superintendent of Police of the district
for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid
shall apart from rendering the police officers concerned
liable for departmental action, they shall also be liable
to be punished for contempt of court to be instituted
before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons
as aforesaid by the Judicial Magistrate concerned shall
be liable for departmental action by the appropriate
High Court.
12. We hasten to add that the directions aforesaid shall
not only apply to the cases under Section 498-A IPC or
Section 4 of the Dowry Prohibition Act, the case in
hand, but also such cases where offence is punishable
with imprisonment for a term which may be less than
seven years or which may extend to seven years,
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whether with or without fine.”
11. I further find that the direction given by Hon’ble
Apex Court in Arnesh Kumar case (supra) has been reiterated
by Hon’ble Supreme Court in Mohd. Asfak Alam v. State of
Jharkhand as reported in (2023) 8 SCC 632. The direction
reads as follows:
“16. The impugned order of rejecting the bail and directing
the appellant, to surrender and later seek bail, therefore,
cannot stand, and is hereby set aside. Before parting, the
Court would direct all the courts seized of proceedings to
strictly follow the law laid down in Arnesh Kumar v. State
of Bihar, (2014) 8 SCC 273 and reiterate the directions
contained thereunder, as well as other directions.
16.1.(I) Arnesh Kumar v. State of Bihar, (2014) 8 SCC
273“11. Our endeavour in this judgment is to ensure that
police officers do not arrest the accused unnecessarily
and Magistrates do not authorise detention casually and
mechanically. In order to ensure what we have
observed above, we give the following directions:
11.1. All the State Governments to instruct its police
officers not to automatically arrest when a case under
Section 498-AIPC is registered but to satisfy
themselves about the necessity for arrest under the
parameters laid down above flowing from Section
41CrPC;
11.2. All police officers be provided with a checklist
containing specified sub-clauses under Section 41(1)(b)
(ii);
11.3. The police officer shall forward the checklist duly
filled and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of the
accused shall peruse the report furnished by the police
officer in terms aforesaid and only after recording its
satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from the
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date of the institution of the case with a copy to the
Magistrate which may be extended by the
Superintendent of Police of the district for the reasons
to be recorded in writing;
11.6. Notice of appearance in terms of Section 41-
ACrPC be served on the accused within two weeks
from the date of institution of the case, which may be
extended by the Superintendent of Police of the district
for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid
shall apart from rendering the police officers concerned
liable for departmental action, they shall also be liable
to be punished for contempt of court to be instituted
before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons
as aforesaid by the Judicial Magistrate concerned shall
be liable for departmental action by the appropriate
High Court.
12. We hasten to add that the directions aforesaid shall not
only apply to the cases under Section 498-AIPC or
Section 4 of the Dowry Prohibition Act, the case in hand,
but also such cases where offence is punishable with
imprisonment for a term which may be less than seven
years or which may extend to seven years, whether with
or without fine.”
16.2.(II) The High Court shall frame the above directions
in the form of notifications and guidelines to be followed
by the Sessions Courts and all other and criminal courts
dealing with various offences.
16.3.(III) Likewise, the Director General of Police in all
States shall ensure that strict instructions in terms of the
above directions are issued. Both the High Courts and the
DGPs of all States shall ensure that such guidelines and
Directives/Departmental Circulars are issued for guidance
of all lower courts and police authorities in each State
within eight weeks from today.
16.4.(IV) Affidavits of compliance shall be filed before
this Court within ten weeks by all the States and High
Courts, through their Registrars.”
12. However, it is pertinent to note that Hon’ble
Supreme Court in Arnesh Kumar Case (supra) and Mohd.
Asfak Alam case (supra) has nowhere held that anticipatory bail
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is not maintainable in view of Section 41A Cr.PC (Equivalent
Section 35 of B.N.S.S.). In fact, in both the cases 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.
13. I also find that learned Coordinate Bench of this
Court has also nowhere held in Naushad Ansari Case (supra)
that the anticipatory bail petition under Section 438,
Cr.PC/Section 482 B.N.S.S. is not maintainable in view of the
provisions as provided under Section 41A, Cr.PC/Section 35,
B.N.S.S.
14. However, learned coordinate Bench of this Court
was concerned with the violation of the direction of Hon’ble
Apex Court in Arnesh Kumar Case (supra) and Mohd. Asfak
Alam case (supra) by the police and Judicial Magistrates
leading to unnecessary and arbitrary arrest and remand in
offence punishable up to seven years of imprisonment, resulting
into flood of bail applications before the Sessions Court as well
as this Court. Hence, he has strictly directed the police and
Judicial Magistrates to comply with the directions of Hon’ble
Supreme Court as given in Arnesh Kumar Case (supra) and
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Mohd. Asfak Alam case (supra).
15. However, I find that in view of Nausad Ansari
case (supra) the impression is doing round in District Judiciary
that in view of Section 41A Cr.PC/Section 35, B.N.S.S.,
anticipatory bail petitions are not required to be decided, if they
are filed before the Court of Sessions and the Court is only
required to refer the Petitioners to the police for representation,
and it is due to this impression that the impugned order has been
passed by learned Sessions Judge in the case on hand. 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.
16. Right to life and liberty is fundamental to human
life and it has been obtained by the mankind after a long
struggle and sacrifice. Hence, our Constituent Assembly has
given utmost importance to this right by incorporating it as a
fundamental right by way of Article 21 of the Constitution and
by making provisions for enforcement of such right under
Articles 32 and 226 of the Constitution.
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17. 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. However, these provisions are not
substitutes for each other. All work concurrently. All the
provisions operate in their own way in the situations as
contemplated for their application. 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. Similarly, the Court seized with a petition for post
arrest bail can not ask the petitioners to move judicial Magistrate
for refusal of remand. Similarly, the Judicial Magistrate cannot
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say to the accused that he cannot refuse to remand the accused
and the accused would have to wait for stage of Discharge.
Similarly, the Trial Court at the stage of framing of charge
cannot say that he would frame charge against him and he would
have to wait for conclusion of the trial to get his liberty. The
statutory Provisions of the Criminal Procedure have been
deliberately introduced to prevent curtailment of liberty without
legal necessity by giving relief to the accused persons in
different situations and at different stages, if they fulfill their
requirements and conditions.
18. If the Courts which are 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 dooms day for the right of the people to
life and liberty. Such closure of doors would blow a death knell
to the edifice created against curtailment of liberty without
necessity.
19. It is also equally important to point out that the
Parliament has also trusted the Police to conduct proper
investigation without unnecessarily curtailing the liberty of the
people facing accusation. They have been given discretionary
power to arrest under certain circumstances without warrant
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from Judicial Magistrate as stipulated under Section 41 of the
Cr.PC, but Parliament had expected that our Police would be
sensitive to the fact that right to arrest is one thing but necessity
to exercise such right is another and they would not misuse their
discretionary power of arrest without legal necessity. As a matter
of guidance, the Parliament has subsequently inserted 41A into
the Cr.PC for guidance to the Police how to avoid unnecessary
arrest of the accused and what procedure should be followed to
complete the investigation under such circumstances. But
unfortunately, it has been found that the Police is not working to
the expectation of the legislature. Even the Judicial Magistrates
are failing in their duty to prevent illegal detention by
authorizing unnecessary arrests by passing remand orders
casually and mechanically. They are not refusing remand even in
deserving cases. Hence, Hon’ble Apex Court was constrained to
issue a direction to the Police and Judicial Magistrates in
Arnesh Kumar case (supra) in the context of Section 41A
Cr.PC and same has been reiterated by Hon’ble Apex Court in
Md. Asfak Alam case (supra).
20. The misuse of discretionary power by the Police to
arrest without warrant and dereliction of duty on the part of the
Judicial Magistrates in regard to remand of the accused persons
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has led to flooding of Courts with pre-arrest and post arrest bail
petitions, because people apprehending arbitrary arrest by the
Police are rushing to the Courts by way of anticipatory bail
petitions and those who are arbitrarily arrested are filing regular
bail petitions. The result is that District Courts as well as the
Constitutional Courts, including Hon’ble Apex Court, are
flooded with bail petitions, clogging the justice delivery system.
If the Police come to the expectation of the Parliament and avoid
unnecessary arrest, and Judicial Magistrates exercise their right
to remand properly, this problem of flood of bail petitions would
heavily come down, and it could have been a great service to our
society by making the judiciary free of unnecessary litigations.
Hence, the Police and the Judicial Magistrates are expected to
follow the direction of the Hon’ble Apex Court in Arnesh
Kumar case (supra) and Md. Asfak Alam case (supra) in true
letter and spirit of the directions. On their failure to comply with
the directions, even Contempt Proceedings may be initiated.
21. Now coming back to the statutory provisions
regarding the pre-arrest bail and Section 41A Cr.PC/ Section 35
of B.N.S.S., it is pertinent to point out that Section 438
Cr.PC/Section 482 B.N.S.S. provides for pre-arrest bail and the
accused are given right to move Sessions Court or High Court if
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they are apprehending arrest in face of accusation and in such
situation, the competent Courts are empowered to grant or
refuse anticipatory bail to the petitioner.
22. However, Section 41(1)(b) Cr.PC deal with power
of the police to arrest without warrant from Judicial Magistrate
in case of cognizable offence punishable up to seven years of
imprisonment subject to the conditions as provided therein. It is
also provided therein if the police is satisfied that such arrest is
necessary in view of the situations as mentioned therein, the
police is required to record the reasons in writing for such arrest.
However, when the police is satisfied that arrest is not necessary,
the police is required to follow the procedure as provided under
Section 41A Cr.PC which has been introduced in the year, 2009
by way of amendment. As per Section 41A, the police is
required to issue notice to the accused, directing him to appear
before him at such places as specified by the police and in the
event of such notice being issued to the accused, it is duty of the
accused to comply with the terms of the notice and if the
accused complies and continues to comply with the notice, he is
not required to be arrested in respect of the offence referred to in
the notice unless, for the reasons to be recorded by the police,
the police opines that the accused is to be arrested. In the event
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of non-compliance of the terms of the notice and unwillingness
of the accused to identify himself, the police is again
empowered to arrest the accused for the offence as mentioned in
the notice. Even otherwise, under Section 170 Cr.PC/190 of the
B.N.S.S., the police is empowered to take the accused in custody
after completion of the investigation if evidence is found to be
sufficient to forward him to the Jurisdictional Magistrate.
23. In view of the aforesaid provisions of Section 41A
Cr.PC/35 of the B.N.S.S. and Section 170 Cr.PC/190 of the
B.N.S.S., apprehension of arrest to the accused never vanishes
completely, even if notice is issued by the Police and all the
conditions of the notice are complied with by the accused.
Hence, the pre requisite for filing pre-arrest bail petition is
always available to such accused to move competent Courts
under Section 438 Cr.PC/482 B.N.S.S. Hence, anticipatory bail
petition is maintainable despite the provisions of Section 41A
Cr.PC/35 of the B.N.S.S., even if police gives notice to the
accused in the event of his opinion that the arrest is not
necessary for completing the investigation. This is the reason,
this Court has consistently held that the anticipatory bail
petitions are maintainable despite the provisions of Section 41A
Cr.PC/35 of the B.N.S.S. Here one may refer to Gauri Shankar
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Roy v. State of Bihar, 2015 SCC OnLine Pat 2165 (2015) 3
PLJR 618 wherein a coordinate Bench of this Court has held as
follows:
“40. Hence, a person gets apprehension of being
arrested in two situations:- firstly when a ‘Notice’ is issued
to him under Section 41A(1) of the Code and secondly,
after complying the terms of ‘Notice’ the police officer
forms an opinion that such person ought to be arrested or
in a situation, such person fails to comply the terms of
‘Notice’ or is unwilling to ‘identify’ himself.
41. In view of this Court, in all the above three
situations such person can maintain an anticipatory bail
application as Section 41A of the Code does not stipulate
the specific condition of notice of appearance. To take a
contrary view (police bail) will give a long rope to the
police to deprive any person to avail the remedy under
Section 438 of the Code.
…………………………………………………………………………..
44. Section 41A of the Code operates in a situation
where there is no arrest and prescribes the course of option
to be adopted by a police officer in case he decides not to
arrest any person. Till the time any person is not arrested,
he is entitled to maintain an application for grant of
anticipatory bail subject to, of course, the applicability of
any other law to the contrary.
………………………………………………………………………..
46. If the logic of non-maintainability of anticipatory
bail application under Section 438 Cr.P.C. on the score is
to be accepted, then startling anomaly resulting in serious
consequences would arise and virtually Section 438 of the
Cr.P.C. will become otiose because in all cognizable cases
either there has to be arrest or there has to be no arrest or
there has to be a notice by the police officer. In case there
is arrest, jurisdiction under Section 438 Cr.P.C. is
automatically ousted and in case of non arrest, the
requirement of notice is there and if issuance of notice and
appearing in pursuance thereof is deemed to be in police
custody, then also Section 438 Cr.P.c. would be ousted.
This can certainly never be the legitimate interpretation of
the scope of Section 41A Cr.P.C.”
(Emphasis suppled.)
24. The same view was reiterated by Coordinate
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Bench of this Court in Sona Kunwar v. State of Bihar as
reported in 2021 SCC OnLine Pat 45 holding as follows:-
“6. In reply, learned counsel appearing for the appellants
submitted that in Gauri Shankar Roy v. State of Bihar,
since reported in (2015) 3 PLJR 618, this Court has already
held that if a person has appeared upon notice issued to him
under Section 41-A(1) of the Cr.P.C and when the police
officer forms an opinion that such person ought not be
arrested, the apprehension of arrest does not completely
vanish and under such circumstances, an application under
Section 438 of the Cr.P.C would be maintainable. He further
contended that since the ingredients of the offence
punishable under the Act are not attracted against the
appellants, Section 18 of the Act would not be a bar for
maintainability of an application under Section 438 of the
Cr.P.C.”
(Emphasis supplied.)
25. Similar view has been taken by Karnataka High
Court in Sri. Ramappa @ Ramesh Vs. the State of Karnataka
through Range Forest Officer, Bagalkote. In this case also,
notice under Section 41A Cr.PC was issued to the Petitioner.
However, the Petitioner had not appeared before the police and
he had filed anticipatory bail petition before the High Court.
Here, Karnataka High Court has held as follows:-
“18. The conclusion which emerges from the conjoint
reading of Section 41 and 41A of the Code is as follows :
In connection with allegation of commission of offence
punishable up to 7 years with or without fine, the Police
Officer can arrest – (i) only if he has reasons to believe
regarding commission of the offence by the person
concerned, coupled with (ii) the existence of one or more
of the circumstances provided in the Section rendering
arrest necessary.
19. In case the Police Officer decides not to arrest, he has
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mandatorily required to issue notice to the person
concerned under Section 41A(1). The notice is required to
comply with the terms of the notice and till the time the
notice observes and adheres to the undertaking under the
notice, he shall not be arrested unless for the reasons to be
recorded, the Police Officer is of the opinion that he ought
to be arrested. The use of word ‘shall in Section 41 A(1) of
the Code reflects that the provision is mandatory in nature.
20. Where there is any failure on the part of the notices to
comply with the terms of the notice, it is always
incumbent upon the Police Officer to arrest the notice
subject to such orders as may have been passed by a
competent Court in this behalf. The use of the term
‘subject to such orders is of significance as the legislature
is not expected to waste the words or use them casually
without any intention of a specific interpretation being
given to them. The term subject to such orders as may
have been passed refers to orders relating to grant of
anticipatory bail which the notice may have obtained
interregnum the issuance of notice and before actual
arrest.
21.1. Section 41A of the Cr.P.C. which was inserted by Act
5 of 2009 was made effective from 01.11.2010 and was
introduced by the Legislature for purposes of giving notice
of appearance to a person who’s arrest is not required
under provisions of Section 41(1) of Cr.P.C., directing the
person against whom a reasonable complaint has been
made or creditable information has been received or
reasonable suspicion exists that he has committed a
cognizable offence, to appear before him or at such other
place as may be specified in the Notice.
21.2. Under Section 41A (2) of the Code the person
concerned to whom the Notice has been issued is duty
bound to comply with the terms of notice.
21.3. Section 41A (3) stipulates about the person who
complies with the Notice, shall not be arrested unless for
reasons recorded by the Police that he ought to be arrested
and one of such contingencies when such person can be
arrested as stipulated udder Section 41A (4) which
prescribes the arrest of such person if he fails to comply
the terms of Notice or is unwilling to identify himself if
then the Police Officer subject to such orders as may have
been parsed by a competent Court, may arrest him for the
offences mentioned in the Notice.
22. Hence, a person gets apprehension of being arrested in
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under Section 41A (1) of the Code and secondly, after
complying the terms of ‘Notice’ the police officer forms
an opinion that such person ought to be arrested or in a
situation, such person fails to comply the terms of ‘Notice’
or is unwilling to ‘identify’ himself.
23. In all the above three situations such person can
maintain an anticipatory bail application as Section 41A of
the Code does not stipulate the specific condition of notice
of appearance.
24. Section 41A of the Code operates in a situation where
there is no arrest and prescribes the course of option to be
adopted by a police officer in case he decides not to arrest
any person. Till the time any person is not arrested, he is
entitled to maintain an application for grant of anticipatory
bail subject to, of course, the applicability of any other law
to the contrary.
25. Section 41A of the Cr.P.C. defers the arrest until and
unless sufficient evidence is collected, so as to produce or
forward the accused to the custody of the Court. The
apprehension of arrest, thus, does not completely vanish
away on the issuance of notice of appearance under
Section 41 A of the Cr.P.C., and hence, the question being
raised in maintainability of an application under Section
438 Cr.P.C., during the pendency of notice being issued
under Section 41A Cr.P.C. or during the compliance of the
terms of such notice, is completely unwarranted and is not
in tune with the provisions of law. The apprehension of
arrest always does exist even after issuance of notice of
appearance under Section 41A Cr.P.C. and under such
circumstance the Courts cannot evade to entertain an
application under Section 438 Cr.P.C.”
(Emphasis supplied.)
26. In Pinapala Uday Bhushan vs State of AP (2024
SCC OnLine AP 790) High Court of Andhra Pradesh has also
held that apprehension of arrest exists even after issuance of
notice under Section 41A Cr.PC.
Patna High Court CR. MISC. No.38822 of 2025 dt.08-08-2025
20/22
Present case
27. Now coming to the case on hand, I find that the
Petitioner is accused of offence punishable under Sections
126(2), 115(2), 118(1), 352 and 351(2) of the Bharatiya Nyaya
Sanhita, 2023 and Section 25(1-b)a and 26 of the Arms Act for
which maximum punishment prescribed for the alleged offences
is up to seven years of imprisonment. It also transpires that even
notice was not received by the Petitioner from the police under
Section 41A Cr.PC/35 of B.N.S.S., and hence, he had moved the
Sessions Court for anticipatory bail, but the same has been
disposed of only by giving liberty to the Petitioner to represent
to the police. It also transpires that the Petitioner had not
previously moved any similar application before the Sessions
Court or this Court and he has also no criminal antecedent and it
is claimed by the Petitioner that he is innocent and has falsely
been implicated.
28. In such circumstances, the Petitioner should have
been allowed pre-arrest bail subject to the conditions as may
have been stipulated by Sessions Court.
29. Hence, the manner of disposal of the anticipatory
bail petition by the Sessions Court is no way justified. In fact, he
has abdicated his duty as enjoined under Section 438 Cr.PC/482
Patna High Court CR. MISC. No.38822 of 2025 dt.08-08-2025
21/22
of the B.N.S.S. This is nothing less than dereliction of duty as
judicial officer holding office of the highest Court at the District
level.
30. Considering the aforesaid facts and circumstances,
this petition is allowed, directing the petitioner, above-named,
to be enlarged on bail, in the event of his arrest or surrender
before the court below within a period of eight weeks from the
date of receipt / production of a copy of this order, on his
furnishing bail bonds in the sum of Rs. 10,000 /- (Ten
Thousand) with two sureties of the like amount each to the
satisfaction of learned concerned Court below, in connection
with Phenhara P.S. Case No. 51 of 2025, subject to the
conditions as laid down under Section 482 (2) of the B.N.S.S.,
2023 and on the following conditions:
(i) In case, it is brought to the notice of the court
below that the petitioner has any criminal antecedents, learned
court below shall cancel the bail bonds of the petitioner after
hearing him and getting satisfied that the petitioner has
concealed his criminal antecedents despite his knowledge of the
same.
(ii) In case, it is brought to the notice of the court
below that statement regarding previous bail petition is wrong,
Patna High Court CR. MISC. No.38822 of 2025 dt.08-08-2025
22/22learned court below shall cancel the bail bonds of the petitioner.
31. The assistance as provided by learned Amici
Curiae, Shri Ajay Kumar Thakur, Advocate and Shri Anil Singh,
Advocate is highly appreciated. The Secretary, Patna High Court
Legal Services Committee, is directed to pay honorarium of
Rs.7,000/- each to both of the Amici Curiae.
32. Learned Registrar General is directed to circulate
a copy of this judgment amongst all the Judicial Officers of
Bihar District Judiciary and a copy of this Judgment be also sent
to the Director, Bihar Judicial Academy to discuss it in the
training programmes for the Judicial Officers.
33. A copy of this judgment be also sent to the
Director General of Police, Patna, to circulate amongst all the
Police Officers of the State of Bihar.
(Jitendra Kumar, J.)
Chandan/Ravishankar-
AFR/NAFR A.F.R. CAV DATE 28.07.2025 Uploading Date 08.08.2025 Transmission Date 08.08.2025
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