Case Background
The case arises from Phenhara P.S. Case No. 51 of 2025, registered on 14.03.2025 in East Champaran district.
According to the written report, the informant’s son, Shivam Kumar, was returning home after shopping. The petitioner allegedly attacked him with a pistol and a knife. However, Shivam Kumar, assisted by two nephews walking behind him, overpowered the petitioner.
A co-villager, Abhinandan Singh, also reached the spot. The prosecution version states that the pistol was snatched from the petitioner. The petitioner allegedly fled, leaving behind his motorcycle bearing Registration No. BR05-BG-9485. The pistol, knife and motorcycle were handed over to the police.
The case was registered for 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. The maximum punishment for these alleged offences is up to seven years of imprisonment.
Fearing arrest, the petitioner first approached the Sessions Judge, East Champaran, Motihari by filing Anticipatory Bail Petition No. 1523 of 2025 under the pre-arrest bail provisions (Section 438 Cr.P.C./Section 482 B.N.S.S.).
Instead of granting or rejecting bail, the Sessions Judge disposed of the petition by merely giving liberty to the petitioner to file a representation before the Superintendent of Police and the Investigating Officer, relying on a coordinate Bench order in Asha Baitha v. State of Bihar, 2024 SCC OnLine Pat 5670.
Feeling aggrieved that the Sessions Court had not decided his bail plea at all, the petitioner approached the Patna High Court in Criminal Miscellaneous No. 38822 of 2025, seeking anticipatory bail.
What the Court Examined and Decided
Hon’ble Mr. Justice Jitendra Kumar heard the matter. The petitioner was represented by counsel. The State was represented by the APP, and two advocates were appointed as Amici Curiae to assist the Court.
The petitioner’s counsel argued that he was innocent and falsely implicated. More importantly, he submitted that the Sessions Judge should have decided his anticipatory bail application on merits. Instead, the Sessions Court had simply sent him to the police, which, according to the petitioner, was not legally justified.
The learned APP for the State and the Amici Curiae agreed on one crucial point: the Sessions Court was not justified in avoiding a decision on the anticipatory bail application. They all submitted that the Sessions Judge had abdicated his duty by disposing of the bail petition only with a liberty to represent before the police.
The Patna High Court then examined in detail the order passed by the Sessions Judge and the earlier judgments relied upon, especially:
- Naushad Ansari v. State of Bihar, Cr. Misc. No. 3536 of 2024
- Asha Baitha v. State of Bihar, Cr. Misc. No. 44659 of 2024, 2024 SCC OnLine Pat 5670
- Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
- Mohd. Asfak Alam v. State of Jharkhand, (2023) 8 SCC 632
- Gauri Shankar Roy v. State of Bihar, 2015 SCC OnLine Pat 2165; (2015) 3 PLJR 618
- Sona Kunwar v. State of Bihar, 2021 SCC OnLine Pat 45
- Decisions of the Karnataka and Andhra Pradesh High Courts on Section 41A Cr.P.C.
In Naushad Ansari, the coordinate Bench had not said that anticipatory bail is barred because of Section 41A Cr.P.C. or Section 35 B.N.S.S. It had only directed police and Magistrates to strictly follow the guidelines of the Supreme Court in Arnesh Kumar and Mohd. Asfak Alam regarding arrest and remand in cases punishable up to seven years.
In Arnesh Kumar, the Supreme Court had issued detailed directions to all State Governments, police officers and Magistrates, stressing that:
- Police should not automatically arrest just because a cognizable case is registered in offences up to seven years.
- They must record reasons for arrest and use a checklist under Section 41(1)(b) Cr.P.C.
- If they decide not to arrest, they must send that decision to the Magistrate within two weeks.
- Notice of appearance under Section 41A Cr.P.C. must be issued and served within two weeks in such cases.
- Failure to follow these directions would expose police officers and Magistrates to departmental action and even contempt of court.
In Mohd. Asfak Alam, the Supreme Court reiterated these directions and also directed all High Courts and Directors General of Police to issue guidelines and circulars ensuring compliance.
The Patna High Court then made a crucial clarification. It held that neither Arnesh Kumar nor Mohd. Asfak Alam had said that anticipatory bail was not maintainable because of Section 41A Cr.P.C. (or Section 35 of the B.N.S.S.). In fact, in both those cases, the Supreme Court itself granted anticipatory bail while issuing directions to curb unnecessary arrests.
The High Court further held that even the coordinate Bench in Naushad Ansari had never declared that anticipatory bail petitions under Section 438 Cr.P.C./Section 482 B.N.S.S. are not maintainable on account of Section 41A Cr.P.C./Section 35 B.N.S.S.
According to the Patna High Court, the limited concern in Naushad Ansari was misuse of arrest powers by police and casual remand by Magistrates in offences up to seven years, which was causing a flood of bail applications. The purpose was to enforce the Supreme Court directions, not to shut the doors of anticipatory bail.
However, the Court noted with concern that a wrong “impression” was now circulating in the District Judiciary that after Section 41A Cr.P.C./Section 35 B.N.S.S., Sessions Courts need not decide anticipatory bail. Instead, they think they can simply refer accused persons to the police for relief under Section 41A. The Court said this misconception had led directly to the impugned order of the Sessions Judge in the present case.
The High Court warned that if this impression is not dispelled urgently, it would make pre-arrest bail provisions “otiose and nugatory” and dangerously place people’s life and liberty at the mercy of police discretion, which is not permissible under the Constitution or the Code.
The Court then explained that:
- Right to life and personal liberty under Article 21 is fundamental and has been strongly protected by the Constitution (Articles 32 and 226) and by procedural safeguards under the criminal law.
- Provisions like pre-arrest bail (Section 438 Cr.P.C./Section 482 B.N.S.S.), post-arrest bail, Sections 41 and 41A Cr.P.C./Section 35 B.N.S.S., refusal of remand by Magistrates, discharge and acquittal, all serve the broader goal of preventing curtailment of liberty without legal necessity.
- These are not substitutes for each other. They operate concurrently and at different stages, and the courts empowered under each provision must perform their duty instead of sending people elsewhere.
The Court gave simple, strong examples: a court hearing an anticipatory bail petition cannot tell the accused to go to the police; a court hearing regular bail cannot tell the accused to wait for remand arguments; a Magistrate cannot refuse to consider remand properly and push the accused to wait till discharge; a trial court cannot say “face the full trial first” when law allows discharge earlier.
The Judge called it a “dooms day” for the right to life and liberty if courts that are meant to decide pre-arrest bail simply close their doors and refer people to the police for relief under Sections 41 and 41A Cr.P.C. He described such closure as a “death knell” to the structure created to prevent unjustified curtailment of liberty.
The Court also acknowledged that Parliament had trusted the police with discretionary power to arrest without warrant but expected them to distinguish between the right to arrest and the necessity to arrest. Section 41A was inserted as guidance to avoid unnecessary arrests. However, in practice, police often misuse power and Magistrates sometimes authorize remand casually, leading to unnecessary detentions and a flood of bail petitions.
Because of this, the Supreme Court had to step in through Arnesh Kumar and Mohd. Asfak Alam. The High Court noted that if police acted responsibly and Magistrates applied their minds, the number of bail petitions in all courts, including the Supreme Court, would reduce significantly.
Coming back specifically to Section 41A/Section 35 B.N.S.S., the Court explained that:
- Section 438 Cr.P.C./Section 482 B.N.S.S. gives an accused the right to approach the Sessions Court or High Court for anticipatory bail whenever they apprehend arrest.
- Section 41(1)(b) Cr.P.C. regulates when police can arrest without warrant for offences up to seven years and requires reasons to be recorded.
- If police think arrest is not necessary, they must follow Section 41A Cr.P.C. by issuing a notice to appear.
- Even when such a notice is issued and the accused complies, the police can still later decide to arrest by recording reasons, or arrest for non-compliance or failure to identify, or arrest at the stage of filing charge-sheet under Section 170 Cr.P.C./Section 190 B.N.S.S.
Therefore, the Court held that apprehension of arrest “never vanishes completely” merely because a Section 41A notice is issued or complied with. For this reason, High Courts (including Patna in Gauri Shankar Roy and Sona Kunwar), Karnataka High Court and Andhra Pradesh High Court have all held that an anticipatory bail application is maintainable despite Section 41A.
The Patna High Court agreed with those views. It noted that to accept the opposite view would make Section 438 Cr.P.C. practically useless because in every cognizable case either there is arrest (in which case anticipatory bail is naturally barred) or there is no arrest or a Section 41A notice. If in both the “no arrest” and “notice” situations, anticipatory bail is treated as non-maintainable, Section 438 would be rendered meaningless.
The Court then applied this legal analysis to the present facts. The petitioner faces offences with maximum punishment up to seven years. No notice under Section 41A Cr.P.C./Section 35 B.N.S.S. has been served on him. He has not earlier filed any similar bail application before the Sessions Court or the High Court. It is also stated that he has no criminal antecedents and claims false implication.
In such circumstances, the Court held that the petitioner “should have been allowed pre-arrest bail” by the Sessions Court, subject to suitable conditions. It found that the Sessions Court’s failure to decide the bail application on merits and its action of sending the petitioner to the police amounted to “abdication of duty” under Section 438 Cr.P.C./Section 482 B.N.S.S. and was “nothing less than dereliction of duty” by a judicial officer at the highest district level.
Accordingly, the Patna High Court allowed the petition. It directed that the petitioner be enlarged on anticipatory bail in the event of his arrest or surrender before the court below within eight weeks from the date of receipt/production of the order. He must furnish bail bonds of Rs. 10,000 with two sureties of the like amount to the satisfaction of the concerned court in connection with Phenhara P.S. Case No. 51 of 2025.
The bail is subject to conditions under Section 482(2) of the B.N.S.S., 2023 and two specific conditions:
- If later it is brought to the court’s notice that the petitioner has criminal antecedents which he concealed, the court below shall cancel his bail bonds after hearing him and being satisfied about the concealment.
- If it is found that his statement about not having moved previous bail petitions is wrong, the court below shall cancel his bail bonds.
The Court appreciated the assistance of both Amici Curiae and directed payment of honorarium of Rs. 7,000 each to them by the Patna High Court Legal Services Committee.
Importantly, the Court directed the Registrar General to circulate a copy of this judgment to all Judicial Officers of Bihar and to send it to the Bihar Judicial Academy for discussion in training programmes. A copy is also to be sent to the Director General of Police, Bihar, for circulation among all police officers of the State. This underlines that the judgment is intended to correct system-wide practice, not just decide one bail application.
Why This Judgment Matters
This judgment has strong, practical implications for people in Bihar who fear arrest in criminal cases, especially in offences punishable up to seven years.
First, the Patna High Court has made it clear that Sessions Courts and the High Court cannot refuse to decide anticipatory bail applications by sending accused persons to the police under Section 41A Cr.P.C./Section 35 B.N.S.S. If a person has a genuine apprehension of arrest, they are entitled to approach the court, and the court must take responsibility and decide the bail request.
Second, the Court has clarified that the Supreme Court’s directions in Arnesh Kumar and Mohd. Asfak Alam are meant to restrain unnecessary arrests and mechanical remand, not to take away the right to seek anticipatory bail. Therefore, even where notice under Section 41A is issued, an accused may still have a valid apprehension of arrest and can seek pre-arrest bail.
Third, this judgment protects ordinary citizens from being trapped between two authorities. Without this clarification, a person fearing arrest might be pushed from the court to the police and back, without clear relief. The Court has firmly stated that such passing of responsibility is unconstitutional and against the scheme of criminal procedure.
Fourth, by directing circulation of this judgment to all Judicial Officers and police in Bihar and to the Judicial Academy, the High Court is trying to harmonize practice across the State. This means future anticipatory bail petitions should be properly heard and decided on their merits, rather than being brushed aside on the ground of Section 41A notices.
For laypersons, the key takeaway is simple: if you genuinely fear arrest in a case where the maximum punishment is up to seven years, you can still file for anticipatory bail in the Sessions Court or the High Court. The court cannot refuse to hear you merely by saying “go to the police and rely on Section 41A.”
Legal Issues and Answers
-
Issue: Can a Sessions Court avoid deciding an anticipatory bail application by merely directing the accused to approach the police under Section 41A Cr.P.C./Section 35 B.N.S.S., on the basis of Arnesh Kumar, Mohd. Asfak Alam or Naushad Ansari?
Answer: No. The Patna High Court held that anticipatory bail petitions under Section 438 Cr.P.C./Section 482 B.N.S.S. remain fully maintainable despite Section 41A/Section 35. Courts vested with power to grant pre-arrest bail must decide such petitions on merits and cannot abdicate their duty by sending petitioners to the police. -
Issue: Does the issuance or possible issuance of a notice under Section 41A Cr.P.C./Section 35 B.N.S.S. remove an accused person’s apprehension of arrest so that anticipatory bail cannot be sought?
Answer: No. The Court held that apprehension of arrest does not vanish merely because of Section 41A. Police can still arrest in certain situations, including after compliance with notice or at the stage of filing charge-sheet. Thus, anticipatory bail remains a valid remedy. -
Issue: Was the petitioner entitled to anticipatory bail in the facts of this case?
Answer: Yes. Considering that the offences carry a maximum of seven years, no Section 41A/Section 35 notice had been issued, the petitioner claimed no prior bail petitions and no criminal antecedents, the High Court allowed anticipatory bail, subject to conditions.
Cases Cited by the Court
- Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
- Mohd. Asfak Alam v. State of Jharkhand, (2023) 8 SCC 632
- Naushad Ansari v. State of Bihar, Cr. Misc. No. 3536 of 2024
- Asha Baitha v. State of Bihar, Cr. Misc. No. 44659 of 2024; 2024 SCC OnLine Pat 5670
- Gauri Shankar Roy v. State of Bihar, 2015 SCC OnLine Pat 2165; (2015) 3 PLJR 618
- Sona Kunwar v. State of Bihar, 2021 SCC OnLine Pat 45
- Sri Ramappa @ Ramesh v. State of Karnataka through Range Forest Officer, Bagalkote (Karnataka High Court)
- Pinapala Uday Bhushan v. State of Andhra Pradesh, 2024 SCC OnLine AP 790
Case Details
Case Number: Criminal Miscellaneous No. 38822 of 2025 (arising out of Phenhara P.S. Case No. 51 of 2025)
Case Title: Navneet Kumar Singh v. The State of Bihar
Coram: Hon’ble Mr. Justice Jitendra Kumar
Citation: 2025(4) PLJR 53
Advocates:
- 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
Nature of the Case: Petition for anticipatory bail (pre-arrest bail) under Section 438 Cr.P.C./Section 482 B.N.S.S., arising from a criminal case involving alleged offences under the Bharatiya Nyaya Sanhita, 2023 and the Arms Act.
Date of Judgment: 08.08.2025
Police Station Case Details: Phenhara P.S. Case No. 51 of 2025, dated 14.03.2025, District East Champaran, Bihar
Offences Alleged: 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
Link to Judgment: Click here to access the full judgment of the Patna High Court
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