Appeal
High court denied A.B: 1. The High Court has denied anticipatory bail to the petitioner in connection with Complaint Case No. 6181 of 2021, instituted at the instance of the Respondent No.2 before us (original complainant), for the offence punishable under Sections 323, 420, 467, 468, 471 and 120B read with 34, respectively, of the Indian Penal Code, 1860 (for short “the IPC”).
Prima facie allegation appears to be a dispute with respect of two plots: 2. Prima facie, it appears from the allegations levelled in the complaint and the other materials on record that there is a dispute between the complainant (Respondent No.2) and the petitioner (original accused) before us with respect to two plots of land bearing nos. 1608-1609, respectively, admeasuring 110 kathas.
Hon’ble Supreme Court concerns with the Hon’ble High Court’s direction to the accused to surrender after denying the Anticipatory Bail
3. We are not concerned with the case put up by the complainant at this stage. We are concerned with something which we should not overlook or ignore. The impugned order passed by the High Court denying anticipatory bail reads thus:-
“Heard learned counsel for the parties.
2. It appears that this petitioner earlier filed an anticipatory bail application being A.B.A. No. 8063 of 2022 which was disposed of vide order dated 13.03.2023 with the following directions: “Petitioner is directed to surrender before the court below and seek regular bail which shall be disposed off on its own merits in accordance with the guidelines laid down by the Hon’ble Supreme Court of India in the case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr reported in 2021 (10) SCC 773.
3. No fresh and new ground has been pointed out by the learned counsel for the petitioner for entertaining this second Anticipatory Bail Application, therefore, A.B.A No. 2319 of 2025 stands dismissed.”
5. We should also look into this order of 13th March, 2023, referred to above. The High Court after looking into the facts of the matter issued the following directions, which reads thus:- “Petitioner is directed to surrender before the court below and seek regular bail which shall be disposed off on its own merits in accordance with the guidelines laid down by the Hon’ble Supreme Court of India in the case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. reported in 2021(10) SCC 773.”
6. Thus, not only the High Court declined to grant anticipatory bail as prayed for by the petitioner but also directed the petitioner to surrender before the Court and seek regular bail.
Supreme Court rightly noticed that how come it is possible for the police authorities to involve and arrest the accused in complaint cases
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.
Analysis
Section 87 Cr.P.C explained
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.
Police has no power to arrest the accused in complaint case without a non bailable warrant
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.
Police also has no power to arrest am accuse even under section 202 Cr.P.C inquiry
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.
High Court shall not direct the Anticipatory Bail petitioner to surrender and seek regular bail
12. The aforesaid aspects need to be kept in mind by the High Courts. 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.
13. 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.
14. We are informed by the learned counsel appearing for the parties that the trial is in progress. In such circumstances, referred to above, nothing further is required to be done in the matter. This petition is accordingly disposed of.
Conclusion
Direction to the registry to forward the copy
15. Registry is directed to forward one copy of this order to the Registrar General of the High Court of Bihar and also the Registrar General of the High Court of Jharkhand, respectively who in turn shall place this order before the Hon’ble Chief Justice of the respective High Courts.
16. We also impressed upon the learned counsel appearing for the State to look into this issue and guide the State accordingly.
17. With the aforesaid, the Special Leave Petition stands disposed of.
Resources
Judgment involved
- Satender Kumar Antil vs. Central Bureau of Investigation & Anr.: This 2021 Supreme Court ruling is cited repeatedly as it provides the primary guidelines for the granting of bail and the procedure to be followed by lower courts when an accused surrenders.
- ABA No. 8063 of 2022 (High Court of Jharkhand): This is an earlier order passed by the Jharkhand High Court on March 13, 2023, regarding the petitioner’s first anticipatory bail application, which the Supreme Court reviews and criticizes in the current judgment.
- ABA No. 2319 of 2025 (High Court of Jharkhand): This is the “impugned” final judgment and order dated July 4, 2025, from which this specific Special Leave Petition (SLP) arose.
Acts and Sections
Indian Penal Code (IPC), 1860
- Section 323: Punishment for voluntarily causing hurt.
- Section 420: Cheating and dishonestly inducing delivery of property.
- Section 467: Forgery of valuable security.
- Section 468: Forgery for purpose of cheating.
- Section 471: Using a forged document as genuine.
- Section 120B: Criminal conspiracy.
- Section 34: Acts done by several persons in furtherance of common intention.
Code of Criminal Procedure (Cr.PC), 1973
- Section 87: Powers of the Court to issue a warrant in lieu of, or in addition to, a summons. The Court noted this should only be used if the person is absconding or ignores a summons.
- Section 200: Examination of the complainant.
- Section 202: Postponement of issue of process (the Court clarified that police have no power to arrest during an inquiry under this section).
Party
Om Prakash Chhawnika @ Om Prakash Chabnika @ Om Prakash Chawnika vs. The State of Jharkhand & Anr - Special Leave Petition (Crl.) No. 16221/2025 - 2026 INSC 294 - April 23, 2026 - Hon'ble Mr. Justice J.B. Pardiwala and Hon'ble Mr. Justice Ujjal Bhuyan.
https://api.sci.gov.in/supremecourt/2025/56624/56624_2025_7_1_70475_Order_23-Apr-2026.pdf
Author’s note
The Supreme Court does not say in this judgment that the courts cannot arrest and remand an accused directly in complaint cases if the accused appears on summons in non-bailable matters. It only clarifies that the police authorities (any agency) cannot arrest the accused in complaint cases without the concerned court’s permission. In other words, the police can arrest an accused in complaint cases, but they must obtain a warrant of arrest or a summons in lieu of a warrant, as issued under section 87 of the Criminal Procedure Code (Cr.P.C.) by the concerned court.
A Contemporary and Necessary Research
We are going to research a very practical and important question of law regarding the following issue, which is yet to be settled.
“Question of law: Whether a court that issues a summons to the accused to ‘appear’ and answer the charges in a complaint case is empowered to arrest and remand the accused in the court’s custody on his first appearance? Or if an accused who is ‘appearing’ before the concerned court after receiving a summons in a complaint case must file for bail when he appears, or necessarily obtain anticipatory bail before he appears? In both cases, the answer is unequivocally ‘YES’”
How?
Before entering this research study, I remind myself of my senior’s teaching: to read the law as it is, accept it as it is, process it as it is, and express it as it is. Practice to check other resources for clarification would be if I have doubts even after. I encourage the readers to do the same.
Research methodology
In this study, I intend to adopt a “conclusion-first” (answer first) approach to ensure clarity. By presenting my answers upfront, I want the readers to grasp the results first before going through a systematic, step-by-step examination of the research methodology. I have designed this structure of study to transform a complex legal inquiry into an interesting, engaging and transparent study towards the question of law. [This approach is inspired by the way my senior answers the questions of the judicial officers in the courtroom. He would begin by directly answering the question and then guide the judge step by step through his reasoning process that led to that conclusion].
Let us dive into a fascinating study on the question of law one by one in the following order of answers:
(1) Obtaining a bail or an anticipatory bail is necessary for the accused who makes his/their first appearance in the summoning order before the concerned (trial) court.
(2) If not, the concerned court (trial) is empowered to arrest and remand the accused to its custody on his first appearance in pursuance of the summoning order.
(3) Courts cannot accept a bond under section 88 Cr.P.C instead of (or in the place of) bail or A.B since the court is not empowered to release solely based on his bond.
In simple language, the answer comes first, and the explanation/reasoning comes next, which are: (1) the accused must either apply and obtain bail from the court that summons him on his appearance, or he must necessarily obtain an anticipatory bail from the Sessions or High Court before appearing. (2) If the accused fails to do so, the concerned court that summons him is empowered to arrest him and remand him to its custody as per section 309 Cr.P.C. (3)Also, as an additional reading, we will learn that the bond under section 88 Cr.P.C is not equivalent to bail and therefore the courts cannot release a person by just accepting a bond under section 88 Cr.P.C without ordering of his release on a bail application (which includes A.B).
What is the connection between summons and bail/Anticipatory Bail?
A sharp reading of sections 478, 480 BNSS (corresponding to sections 436 & 437 Cr.P.C 1973) from Chapter XXXV – Provisions as to Bail and Bonds alongside Form No.2’ from the second schedule of BNSS., 2023 would clarify that a person accused of an offence in a complaint case must obtain bail while he is appearing before the concerned court.
“Section 478. In what cases bail to be taken.
(1) When any person other than a person accused of a nonbailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:
(I am not going in detail with other provisions of this section)
Section 480. When bail may be taken in case of non-bailable offence
(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but—
(I am not going in detail with other provisions of this section)
“….”
Form No.2: SUMMONS TO AN ACCUSED PERSON
(See section 63)
To……………………………………….(name of accused) of …………..(address).
Whereas your attendance is necessary to answer to a charge of …………………………………… (state shortly the offence charged), you are hereby required to appear in person or by an advocate, before the (Magistrate) of ………………………………………., on the ………………………………………. day ……………………………………….. Herein fail not.
Dated, this ………………………………………. day of ………………………………………., 20………..
(Seal of the Court)”
Right. Now, while reviewing the aforementioned sections and form, we must fix in our mind that there is no separate bail provision or form contemplated under the BNSS for police cases or complaint cases. In other words, BNSS maintains a uniform framework for bail provisions for both police and complaint cases.
Thus, it is inevitable that we may find the word “appears” was drafted in both ‘sections 478(1), 480(1) of the BNSS and in Form No. 2 in the Second Schedule to the BNSS, 2023’ and from this, it is evident that the intention of the legislature is that, a person who is an accused in a police case or in a complaint case is being served with a summons by a competent court (trial) after taking cognizance, he (the accused) must ‘appear’ before the concerned court in obedience to the summoning order and thereafter, on such appearance, the accused must seek and obtain bail in both the cases involving bailable and non-bailable offences, in view of the expression “or appears” being used under Sections 478, 480 and form no.2 of the BNSS.
Now, the big question here is why the accused must go for Bail or A.B on his first appearance?
Because the very next question that comes to the court’s mind following the summoning order would be of what the court must do (or what action to take) if the accused ‘appears’ in obedience to the summoning order. Here is the answer: the only Chapter with immediate relevancy to the summoning order is ‘Provisions as to bail and bonds’ (Chapter XXXV). Now, it is high time to take a look at the newly defined provision for bail under the BNSS., 2023.
Definition of bail under BNSS: “Section 2 (b) “bail” means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond”.
Who is the accused? “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” [Pepsi Foods Ltd. Vs. Special Judicial Magistrate, (1998) 5 SCC 749]
Even a superficial reading of section 2(b) of the BNSS combined with Pepsi Foods Ltd (supra) would lead us to understand that a person who is an accused (once a summons is received, he is termed as an accused) comes automatically under the custody of law, and hence bail is a necessity for his temporary release from the court’s custody till the end of the trial or case however he is not released from the custody of law.
When and where can an accused file a bail application after he receives a summons?
For this, it is valuable to read ‘paragraph 10’ from the Hon’ble Supreme Court judgment Souvik Bhattacharya … Appellant(s) versus Enforcement Directorate, Kolkata Zonal Office – ii …Respondent(s) – Criminal Appeal No. of 2024 (Arising out of SLP(Criminal) No.14476 of 2023) (Arising out of impugned final judgment and order dated 18-10-2023 in CRM(SB) No.164/2023 passed by the High Court at Calcutta) – 16th February, 2024]
“10. As such Section 437 would come into play when the accused is arrested or detained or when the summons or warrant is issued against the accused for causing him to be brought or to appear before the Court. In absence of any order for issuance of summons or warrant under Section 204 or under any other provision of Cr.P.C., the summons could not have been issued or served upon the appellant nor he could have been arrested or taken into custody. The appellant-accused also appears to have filed the bail application before the Special Court under the misconception of fact and misconception of law, which application came to be dismissed by the Special Court. Though the said issue was not specifically raised by the appellant before the High Court, the said question being the question of law, we have permitted the counsel for the appellant to be raised in the instant appeal”.
Here, the Hon’ble Supreme Court has taken the matter as a question of law and held that if the accused ‘appears’ on the summons or is brought before the concerned court on a ‘warrant’, only then he can apply for bail under section 437 Cr.P.C (kindly note that the Apex court did not speak about section 88 Cr.P.C) before the concerned court. In other words, the Apex court has pronounced that if there is no summons for appearance, then the accused cannot surrender himself for the custody of the court and claim bail under section 437 Cr.P.C.
Whether the Anticipatory Bail is for apprehension of arrest by the police only, or is there no Anticipatory Bail for complaint cases?
Now, the very big question is whether an accused of a non-bailable offence in a complaint case, after receiving a summons, could apply and obtain anticipatory bail before his appearance? The answer is a very big YES. How? Let us analyse.
Normally, a basic misunderstanding occurs that the Anticipatory bail application is only for police cases and not for complaint cases, inasmuch as there is no intervention or involvement of police authorities in complaint cases. But the same is answered in the negative by the following judgment, after all, the provisions in the BNSS are handmade of justice that fit the legislation’s intent.
A three-Judge Bench of the Hon’ble Supreme Court in Satender Kumar Antil vs. Central Bureau of Investigation and Others (dated 21.03.2023), while addressing the question posed by the amicus curiae, pertains to the status/position of an accused person appearing before the court for the first time after receiving a summons is clarified by the Hon’ble Supreme Court after referring its previous judgment in Mahdoom Bava vs. Central Bureau of Investigation [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], the same is reiterated as follows:
“Mr. Siddharth Aggarwal , learned senior Counsel seeks to bring to our notice an order passed yesterday by a Bench of this Court in Criminal Appeal No. 853/2023, Mahdoom Bava vs. Central Bureau of Investigation where the issue qua how the Court deals with anticipatory bail where a person has cooperated with investigation but never arrested and charge sheet has been filed has been dealt with.
…..
Learned counsel submits that though there is observation qua the correctness of the practice to be tested in an appropriate case, this case itself is the appropriate case as directions have already been passed and somehow they have been understood as if they will apply to cases for regular bail and not to anticipatory bail. We would like to clarify that what we have enunciated qua bail would equally apply to anticipatory bail cases. Anticipatory bail after all is one of the species of a bail”. [Miscellaneous Application No. 2034/2022 in MA 1849/2021 in Special Leave to Appeal Crl. No. 5191/2021, IA No. 52669/2023, IA No. 52666/2023, IA No. 36585/2023, IA No. 36697/2023, IA No. 35729/2023, IA No. 52662/2023, IA No. 52655/2023, IA No. 54736/2023, IA No. 54707/2023, IA No. 55890/2023, IA No. 56839/2023, IA No. 56842/2023, IA No. 56846/2023, IA No. 56848/2023, MA 2035/2022 in Special Leave to Appeal Crl. No. 5191/2021, IA No. 166259/2022, Diary No. 10451/2023 and IA No. 51653/2023 – Date of Order: 21.03.2023 – Satender Kumar Antil Vs. Central Bureau of Investigation & Ors (21.03.2023 – SC Order)-2024 (1) MWN (CR.) 424].
What the Hon’ble three-judge bench means by stating that “this case itself is the appropriate case as directions have already been passed” is that the direction issued in Satender Kumar Antil vs. Central Bureau of Investigation [Miscellaneous Application No.1849 OF 2021 in Special Leave Petition (Crl.) No.5191 OF 2021 & ANR – July 11, 2022] applies to A.B also since there are many amended orders issued on the main judgment. In clear words, the aforesaid three-judge bench of the Supreme Court simplified the position/practice that the directions/guidelines issued for bail in Satender Kumar Antil (main judgment) shall equally/also apply to anticipatory bail also in cases where the accused make(s) his/their first appearance in the trial court (concerned court) following a summoning order, since the Anticipatory Bail is nothing but one of the kinds of bail.
Hence, it is clear that the accused, who is about to make his first appearance in court, can file and seek Anticipatory Bail before the Sessions court or High Court to avoid arrest and remand by the courts.
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)?
This must be answered by mentioning that the court is empowered to arrest and remand the accused to its custody directly on his first appearance. A curious reading of the following Supreme Court Judgments clarifies the power of the court to arrest and remand the accused on his first appearance in obedience to the summons order, in affirmative.
“10. More importantly, the Appellants apprehend arrest, not at the behest of the CBI but at the behest of the Trial Court. This is for the reason that in some parts of the country, there seems to be a practice followed by Courts to remand the Accused to custody, the moment they appear in response to the summoning order. The correctness of such a practice has to be tested in an appropriate case. Suffice for the present to note that it is not the CBI which is seeking their custody, but the Appellants apprehend that they may be remanded to custody by the Trial Court and this is why they seek protection. We must keep this in mind while deciding the fate of these appeals.
11. In the case of the prime Accused, namely Shri Mahdoom Bava, an additional argument advanced by the learned Additional Solicitor General is that he was involved in eleven other cases. But the tabulation of those eleven cases would show that seven out of those eleven cases are complaints Under Section 138 of the Negotiable Instruments Act, 1881 and three out of those seven cases are actually inter-parties and not at the instance of the Bank. The eighth case is a complaint filed by the Income Tax Officer and it relates to the nonpayment of TDS amount. The remaining three cases are the cases filed by CBI, one of which is the subject matter out of which the above appeals arise.
12. In view of the aforesaid, we are of the considered view that the Appellants are entitled to be released on bail, in the event of the Court choosing to remand them to custody, when they appear in response to the summoning order. Therefore, the appeals are allowed and the Appellants are directed to be released on bail, in the event of their arrest, subject to such terms and conditions as may be imposed by the Special Court, including the condition for the surrender of the passport, if any. [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]”.
“48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender [Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440]”
Here it is clear that this power of arrest highlighted by the Hon’ble Supreme courts in the aforementioned judgments is nothing but empowering the concerned courts to remand the accused who is appearing for the first time before it. This procedure is clearly a handmade of justice.
A thorough examination of the aforementioned judgments clarifies that because an arrest is a precondition for remanding an accused into judicial custody, the Hon’ble Supreme Court has interpreted the power of arrest as an inherent or “inbuilt” procedure when a trial court directly remands an accused appearing for the first time in response to a summons.
Hence, the power of arrest that is interpreted as an inbuilt procedure in the cited precedents to remand an accused upon their first/initial appearance in response to the summons is nothing but a handmaid of justice,
Analysing section 88 Cr.P.C as not an alternative to bail or A.B
What is bail, though not explained in Cr. P.C. is now defined in section 2(b) of the BNSS as the release of an accused from the custody of law. Here, a combined reading of sections 2(b), 478, 480 and 482 BNSS go to show that the word ‘release’ is the ‘magic word’ that empowers the court to free a person from its temporary clutches (custody), since the main case is pending. Now the important ingredient, i.e., the ‘magic word release’, is absent under section 90 BNSS, and, hence, the only power available to the court is if an accused person who is appearing for the first time in response to the summons executes a Bond under section 91, then the concerned court may receive the same and record/file it with the case bundle and nothing else. In simple words, the courts are not empowered to release a person after receiving only a bond under section 91 BNSS for the following reason.
Section 88 Cr.P.C (s.91 BNSS) is not a right of any person
Judgments reference
Discretion given under section 88 to the Court does not confer any right on a person, who is present in the court rather it is the power given to the court to facilitate his appearance, which clearly indicates that use of word may is discretionary and it is for the court to exercise its discretion when situation so demands [Pankaj Jain vs. Union of India – 2018(1) MWN (Cri) 345 (SC)=(2018) 3 Scale 421=(2018) 5 SCC 743=(2018) 2 SCC(Cri) 867].
e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code [Satender Kumar Antil vs. Central Bureau of Investigation – Miscellaneous Application no: 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 & Anr – July 11, 2022].
One may ask, how would you say that an accused shall not be released by obtaining a bond under section 88 Cr.P.C (s.91 BNSS)? For a simple reason, no court, even the Hon’ble Supreme Court, can release an accused from custody invoking section 88 Cr.P.C (s.91 BNSS) since it has no ‘power’ to release.
Yes, I meant power. I know there are constitutional and inherent powers for the Hon’ble Supreme Court or High Court to release a person from custody, but not by invoking section 88 Cr.P.C (s.91 BNSS). The power required to release a person in custody is to be ascertained from the sections only (through concerned words). Let us restrict ourselves only to bail. If we examine sections 478 & 480 BNSS, we can find the words ‘shall be released on bail’ which empower the Magistrate/trial court to release a person from custody. Are there any such ‘magic words’ available under section 88 Cr.P.C (s.91 BNSS) empowering the Magistrate/court to release a person from custody? The answer is ‘NO’.
We have to understand that the law is based on logical conclusions; therefore, it is illogical to release a person by invoking section 88 Cr.P.C (s.91 BNSS) from custody, whereby the magistrate or trial court has no power to do so. Further, Chapter XXXV BNSS says ‘Provisions as to Bail and Bonds’ and not as ‘Provisions as to Bail or Bonds’. Therefore, on the first ‘appearance’ of the accused through summons, the provision to release him is only through bail and not by obtaining a bond under section 88 Cr.P.C (s.91 BNSS).
At this moment, I want to cite the following Supreme Court judgment.
“15. Now, we come to the issue of whether an order of the Court accepting bonds under Section 88 amounts to grant of bail. If an accused appears pursuant to a summons issued on the complaint, he is not in custody. Therefore, there is no question of granting him bail. Moreover, even if the accused who appears before the Court does not offer to submit bonds under Section 88 of the CrPC, the Court can always direct him to do so. A bond furnished according to Section 88 is an undertaking to appear before the Court on the date fixed. The question of filing bail bonds arises only when the Court grants bail. When an accused furnishes a bond in accordance with Section 88 of the CrPC for appearance before a Criminal Court, he agrees and undertakes to appear before the Criminal Court regularly and punctually and on his default, he agrees to pay the amount mentioned in the bond. Section 441 of the CrPC deals with a bond to be furnished by an accused when released on bail. Therefore, in our considered view, an order accepting bonds under Section 88 from the accused does not amount to a grant of bail” – TARSEM LAL vs. DIRECTORATE OF ENFORCEMENT JALANDHAR ZONAL OFFICE – 2024 INSC 434 – CRIMINAL APPEAL NO.2608 OF 2024 (Arising out of Special Leave Petition (Crl.) No. 121 of 2024) – May 16, 2024]
Conclusion
Hence, in conclusion, the answer to the question of law that is based on the aforesaid research study is that the accused must apply for bail after he appears for the first time before the concerned court that issues a summons to him, or he must necessarily obtain Anticipatory Bail to avoid the arrest by the court (not by police) and remand to its custody. In the first case, if he applies for bail, the court is empowered to reject the bail application and take him into its custody by arresting and remanding the accused, since the arrest is the inbuilt power granted by the Judicial pronouncements.
In the event of the accused’s first appearance in a complaint case, since there is no separate provision or provision that bars the accused from obtaining bail (including A.B), it is must and necessary for the court must see whether the accused is filing bail application (on his first appearance) or has he obtained an order of A.B already, without the release of bail order from the concerned court or without an order of A.B the court shall not allow the accused to walk away.
By
Advocate, Tamilnadu.
