Chhotu Kumar v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.54727 of 2025 Arising Out of PS. Case No.-28 Year-2022 Thana- MALI District- Aurangabad ====================================================== Chhotu Kumar S/o Umesh Singh R/o Vill- Malpur, P.S.- Barun, DisttAurangabad ... ... Petitioner/s
Versus
The State of Bihar ... ... Opposite Party/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Aman Vishal For the Opposite Party/s :
Dr. Kumar Uday Pratap ====================================================== CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA ORAL ORDER 22-09-2025 Heard learned counsel for the petitioner and learned APP for the State
2. The petitioner apprehends his arrest in Mali P. S. Case No.28 of 2022 registered for the offences punishable under Section 379 of the I.P.C. and later on, Section 411 of the I.P.C. has also been added.
3. Learned APP for the State, at the outset, submits that the law is clear that where offences for which an FIR has been instituted carries punishment of seven years and less, the arrest is not automatic. It is next submitted that in the event, if the police intends to arrest an accused who is implicated in a case relating to offences which carries punishment of seven years or less, in that event,, the police has to resort to certain procedure as incorporated in the Cr.P.C./BNSS, i.e., the police
2/4 first has to give a notice under Section 41/35 of the Cr.P.C./BNSS. The learned APP next submits that anticipatory bail may or may not be maintainable after the accused receives notice under Section 41/35 Cr.P.C./BNSS, as it will depend on the facts and circumstances of the case, because the police even after issuance of notice under Section 41/35 Cr.P.C./BNSS cannot arrest the accused without seeking permission of the learned Magistrate. The learned APP further submits that if the police after issuing notice under Section 41/35 Cr.P.C.
/BNSS seeks permission of the learned Magistrate to arrest the accused and the learned Magistrate refuses permission to the police to arrest the accused, in that event apprehension of arrest will not arise and thus anticipatory bail application will not be maintainable, but if the learned Magistrate permits the police to arrest the accused, in that event, apprehension of arrest will arise. The learned APP next fairly submits that in the event, if the police without resorting to procedure as envisaged under the law arrests the person in breach of the same, in that event, the police officer shall also be held liable in terms of Memo No. 62973 dated 19.09.2023 issued by the Hon'ble Patna High Court as recorded in Criminal Miscellaneous No. 3536 of 2024 (Naushad Ansari Vs. The State of Bihar).
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4. It is next submitted that there is no pleading in the anticipatory bail application which could even remotely suggest that notice under Section 41/35 Cr.P.C./BNSS has been issued to the petitioner when the offences for which the instant FIR has been instituted carries punishment of less than seven years. The learned APP, thus, submits that since no notice under Section 41/35 Cr.P.C./BNSS has been issued to the petitioner, as such, petitioner for the present does not have any apprehension of arrest.
5. Learned counsel appearing on behalf of the petitioner is not in a position to rebut the submission of the learned A.P.P. for the State, but then submits that of late, police even without resorting to procedure as envisaged under the Cr.P.C. /BNSS with respect to offences carrying punishment of seven years and less, is arresting the accused and the learned Magistrates are also mechanically remanding, on which the learned APP again submits that the said issue has been taken care of by Memo No. 62973 dated 19.09.2023 issued by the Hon'ble Patna High Court.
6. At this stage, the learned counsel appearing on behalf of the petitioner seeks permission to withdraw the anticipatory bail application with liberty to file afresh, if need
4/4 arises and further to file an application before the concerned Superintendent of Police of the District, bringing to his notice that he has not been served with notice under Section 41(A) Cr.P.C., within a period of three weeks from today.
7. Permission is accorded.
8. Accordingly, the instant anticipatory bail application is dismissed as withdrawn with the liberty aforesaid.
9. At this stage, the learned A.P.P. submits that the case is of the Year 2022 and it may be a possibility that process under Section 82 Cr.P.C. might have been issued, on which the learned counsel appearing on behalf of the petitioner asserts and submits that he has instruction to make submission that process under Section 82 Cr.P.C. has not been issued till date.
10. It is made clear that the concerned Superintendent of Police shall examine the issue and in the event, if it is found that process under Section 82 Cr.P.C. has been issued against the petitioner prior to passing of the instant order, in that event, the present order shall not be given effect to.
(Satyavrat Verma, J) vikash/- U T