Mere Issuance Of Summons Under Section 204 Cr.P.C. Does Not Give Rise To Apprehension Of Arrest – No Anticipatory Bail: Supreme Court

“Anticipatory Bail Cannot Be Based On Hypothetical Fear Of Arrest”, Supreme Court of India clarified the legal position on anticipatory bail in complaint cases where the Magistrate has merely issued summons under Section 204 of the Code of Criminal Procedure, 1973.

The Bench of Justice J.B. Pardiwala and Justice K.V. Viswanathan held that once a Magistrate takes cognizance on a private complaint and issues summons, the accused is only required to appear before the Court. In the absence of a warrant, there is no reasonable basis to apprehend arrest. The Court observed in clear terms, “We fail to understand what necessitated the petitioner to go before the High Court and pray for anticipatory bail in a case arising from a private complaint.”

The Special Leave Petition was accordingly disposed of with a direction to the petitioner to appear before the Magistrate.

The petitioner was named as an accused in Complaint Case No. 11328 of 2023 filed before the Chief Judicial Magistrate for offences under Sections 406 and 420 of the Indian Penal Code, 1860. The complaint was instituted otherwise than on a police report.

After recording the sworn statement of the complainant and examining two witnesses during inquiry, the Magistrate passed an order dated 03 July 2024 holding that “a prima facie case of offences punishable under section 406 and 420 of the IPC appears to be made out” and ordered issuance of summons against the petitioner under Section 204 Cr.P.C.

Instead of appearing pursuant to the summons, the petitioner approached the High Court seeking anticipatory bail. Upon denial of relief, he moved the Supreme Court.

Supreme Court’s Observation On Section 204 Cr.P.C.

The Supreme Court carefully examined the Magistrate’s order and noted that it was a clear case of issuance of process under Section 204 Cr.P.C. The Court observed, “Once summons is issued, the petitioner has to appear before the court concerned. We fail to understand the basis of the apprehension expressed that once the petitioner would appear before the court of the Judicial Magistrate, he would be taken in custody and sent behind bars.”

The Bench emphasized that the issuance of summons does not automatically imply arrest. The accused is legally obligated to appear and participate in the proceedings in accordance with law.

“Section 87 Cr.P.C. Must Be Specifically Invoked For Issuance Of Warrant”

The Court went further to explain the scope of Section 87 Cr.P.C., which empowers a Court to issue a warrant in lieu of or in addition to summons.

Quoting the statutory provision, the Bench explained that a warrant may be issued only after recording reasons in writing and only in two contingencies: where the Court believes the accused has absconded or will not obey the summons, or where the accused fails to appear despite due service without reasonable excuse.

The Court noted that in the present case, “while issuing summons, the Court has not taken recourse to Section 87 of the Code.” It categorically observed that had a warrant been issued at the stage of taking cognizance, “perhaps the petitioner would have been justified in praying for anticipatory bail, as on the strength of the warrant the police would arrest him.”

In the absence of such a warrant, the apprehension of arrest was held to be unfounded.

Procedure In Complaint Cases – Chapter XIV Cr.P.C.

The Bench clarified that since the case was instituted otherwise than on a police report, the Trial Court must now proceed in accordance with Chapter XIV of the Cr.P.C. The petitioner was directed to appear before the Magistrate in compliance with the summons, after which the Court would continue the proceedings in accordance with law.

The order reinforces that the procedural safeguards in complaint cases are structured and sequential, and anticipatory bail cannot be invoked merely on speculative apprehension.

Disposing of the Special Leave Petition, the Supreme Court made it clear that anticipatory bail is not meant to be invoked in routine fashion when a Magistrate has merely issued summons under Section 204 Cr.P.C. In the absence of a warrant under Section 87 Cr.P.C., there is no immediate threat of arrest.

The ruling serves as a reminder that criminal process must be understood in its statutory context, and that apprehension of arrest must be real and legally grounded, not hypothetical.

Date of Decision: 09 February 2026