Closure of Courts' Doors to Anticipatory Bail is a Death Knell to Liberty: Patna High Court Slams Sessions Judge for Abdicating Duty

“If Courts vested with jurisdiction to hear anticipatory bail petitions shut their doors and refer the petitioners to Police for relief under Section 41A CrPC, it would be a doomsday for the right of the people to life and liberty” – Patna High Court issued a landmark ruling that reinforced the constitutional sanctity of anticipatory bail under Section 438 CrPC (now Section 482 BNSS), denouncing the recent trend in District Courts of dismissing such pleas by directing petitioners to approach police authorities under Section 41A CrPC. The Court came down heavily on the Sessions Judge for not deciding the bail application and instead abdicating judicial responsibility.

Navneet Kumar Singh, a resident of East Champaran, filed for anticipatory bail in relation to Phenhara P.S. Case No. 51 of 2025. The FIR alleged that the petitioner had attacked the informant’s son with a pistol and knife after a minor altercation. Although the weapon was reportedly recovered by locals and handed over to the police, the petitioner fled the scene.

Facing serious charges 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 petitioner initially sought anticipatory bail from the Sessions Court in East Champaran.

However, rather than adjudicating the application, the Sessions Court merely disposed of the plea citing Naushad Ansari v. State of Bihar and advised the petitioner to represent his case before the police.

Was the Sessions Court justified in not deciding the anticipatory bail petition?

The High Court unequivocally ruled “No”, holding that this amounted to dereliction of duty. Justice Jitendra Kumar remarked:

“Such impression is urgently required to be dispelled, otherwise, it 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.”

The Court reminded the judiciary that it is their constitutional and statutory obligation to safeguard personal liberty:

“They cannot shut their doors and refer the petitioners to go to other fora for protection of their liberty.”

Is anticipatory bail maintainable despite issuance or possibility of issuance of notice under Section 41A CrPC / Section 35 BNSS?

The Court answered “Absolutely Yes”, observing: “The apprehension of arrest never vanishes completely even if notice is issued and complied with.”

The judgment underlined that Section 41A CrPC and Section 438 CrPC operate concurrently and do not substitute one another.

“All the provisions operate in their own way… refusal to entertain anticipatory bail due to notice under Section 41A would blow a death knell to the edifice created against curtailment of liberty without necessity.”

The High Court discussed at length the directions of the Supreme Court in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273] and Md. Asfak Alam v. State of Jharkhand [(2023) 8 SCC 632], both of which aimed at curbing unnecessary arrests under offences punishable with up to 7 years.

However, the High Court clarified: “In both the cases, Hon’ble Apex Court granted anticipatory bail… nowhere has it been held that anticipatory bail is not maintainable in view of Section 41A CrPC.”

The Court cited and relied on its own prior decision in Gauri Shankar Roy v. State of Bihar, 2015 SCC OnLine Pat 2165, holding that anticipatory bail is maintainable even after issuance of a notice under Section 41A, because “apprehension of arrest still persists.”

Court’s Rebuke to Sessions Court:

In one of the most scathing passages, Justice Jitendra Kumar declared:

“The Sessions Judge has abdicated his duty… This is nothing less than dereliction of duty as a judicial officer holding office of the highest Court at the District level.”

The Court made it clear that the discretion of police under Section 41A cannot override the jurisdiction of Courts under Section 438 CrPC:

“Closure of doors would be a doomsday for the right of the people to life and liberty.”

Allowing the anticipatory bail, the High Court directed that the petitioner be released on bail in the event of arrest or surrender, upon furnishing bonds of ₹10,000 with two sureties. It also imposed standard conditions under Section 482 BNSS and warned that any concealment of criminal antecedents would result in cancellation of bail.

In a strong administrative move, the Court directed:

“A copy of this judgment be sent to all Judicial Officers of Bihar and the Director, Bihar Judicial Academy… to discuss in training programmes.”

It further directed the Director General of Police, Bihar, to circulate the judgment among all police officers.

In this emphatic and far-reaching verdict, the Patna High Court has reinstated the sacrosanct nature of anticipatory bail as a constitutional remedy for safeguarding personal liberty. It has also reined in the misuse of procedural discretion by lower courts and reinforced that judicial responsibility cannot be outsourced to the police.

By ruling that pre-arrest bail petitions must be heard and decided on merits, and that Section 41A CrPC cannot be used as a substitute to deny bail, this judgment fortifies the architecture of constitutional freedoms and prevents arbitrary deprivation of liberty.

Date of Decision: 08 August 2025