1. We have heard learned counsel for the petitioners and also learned counsel for the State who has appeared on advance notice.
2. This anticipatory bail application arises out of a Complaint Case No. 410 of 2023 pending on the file of Learned Chief Judicial Magistrate, Division, Madhubani, State of Bihar.
3. This Court has already held in SLP (Crl.) No.16221/2015 that in a complaint case the police has hardly any role to play. Relevant portion of the order passed in SLP(Crl.) No.16221/2025 reads thus:
“7. We have noticed that there is a serious problem in two States, viz. the State of Bihar and State of Jharkhand, respectively. We fail to understand that in a private complaint how does the Police involve itself or is concerned, in any manner. What was the basis for the accused to express apprehension that the police would arrest them.
8. In a private complaint when cognizance is taken and process is issued all that the Court would do is to issue summons. We have explained many times in the past the purport of Section 87 of the Criminal Procedure Code, 1973 (for short, “the Cr.PC.”) The Section 87 of the Cr.PC. reads thus:-
“ 87. Issue of warrant in lieu of, or in addition to, summons.”
9. Section 87 empowers the Court to issue warrant in lieu of, or in addition to, summons. However, this power has to be exercised only in two contingencies as explained by the provision itself, i.e, (a) and (b), referred to above, respectively.
10. Once the Court takes cognizance and issues summons, all that the accused has to do is to appear before that Court and join the proceedings. Why should the accused go before the Sessions Court or the High Court, as the case may be, and pray for anticipatory bail? Police has no power to arrest the accused in a complaint case unless there is a non bailable warrant issued by that Court along with the summons.
11. We may give one another simple illustration. Take a case wherein on a private complaint, the magistrate deems fit to take cognizance under Section 200 of the Cr.PC. but postpones the issue of process till the conclusion of the magisterial inquiry under Section 202 of the Cr.P.C. If a magistrate orders a Police inquiry under Section 202 and asks the police to give a report, then whether in the course of such inquiry, the police can arrest the accused. The answer is an emphatic “NO”, Police has no powers to arrest even during the course of the inquiry under Section 202 of the Cr.PC.”
4. That being the position, there is no question of the petitioners being taken into custody by the police.
5. Consequently, the impugned order dated 05.05.2026 is set aside.
6. The special leave petition is, accordingly, allowed.
7. Pending application(s), if any, shall stand disposed of.
Resource
Judgment cited and quoted
SLP (Crl.) No. 16221/2015 (which is also typed as SLP (Crl.) No. 16221/2025 in the subsequent line of the document).
- Section 87: Discussed regarding the court’s power and contingencies for issuing a warrant in lieu of, or in addition to, a summons.
- Section 200: Mentioned in the context of a magistrate taking cognizance on a private complaint.
- Section 202: Discussed in relation to magisterial and police inquiries, specifically clarifying that police have no power to arrest an accused even during the course of an inquiry under this section.
Party
Ram Pukar Yadav & Anr. vs. The State of Bihar & Anr – SLP (Crl.) No. 11260/2026 -16-06-2026 – Hon’ble Mr. Justice Ujjal Bhuyan and Hon’ble Mr. Justice Arun Palli.
Author’s note
In this judgment, and also the judgment cited in this judgment, do not speak of arrest of accused who appears for the first time before the trial court by the trial court itself. This judgment as well as the judgment cited speaks of anticipatory bail not necessary if there is apprehension of arrest by the police except section 87 Cr.P.C inasmuch as this is the complaint cases. But did not say that the anticipatory bail is not needed if the apprehension is at the behest of the court.
If we read thoroughly para.10 of the judgment quoted it says that Once the Court takes cognizance and issues summons, all that the accused has to do is to appear before that Court and join the proceedings. But this judgment does not say what happens after you join the proceedings, if you did not take anticipatory bail then the trial judge himself arrest the accused and remand him/her.
The relevant judgments are as follows:
When and where can an accused file a bail application after he receives a summons? Souvik Bhattacharya … Appellant(s) versus Enforcement Directorate, Kolkata Zonal Office – ii …Respondent(s) – Criminal Appeal No. 000963 of 2024 (Arising out of SLP(Criminal) No.14476 of 2023) – 16th February, 2024.
What happens if the accused appears pursuant to the summons and applies for bail, or what happens if he appears without an order of bail apprehending his arrest (A.B order)? (The court can arrest and remand the accused in its custody)
(1) Mahdoom Bava vs. Central Bureau of Investigation (20.03.2023 – SC) – MANU/SC/0275/2023= 2023(4) SCALE 548= AIR 2023 SC 1570= 2023 INSC 263 quoted in Satender Kumar Antil Vs. Central Bureau of Investigation & Ors (21.03.2023 – SC Order)-2024 (1) MWN (CR.) 424 – Date of Order: 21.03.2023 (3 Judge Bench)].
(2) Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440
The following Judgment is on point: Complainant has to obtain bail when he appears for the first time – Maninder Kaur and Ors. vs. Teja Singh (25.08.2000 – SC) – Criminal Appeal No. 699 of 2000 – Decided On: 25.08.2000 – JT 2000 (Suppl1) SC 278=2001 AIR SCW 5129.
