1. The present reference arises from Criminal Miscellaneous No. 65700 of 2025 ( Mohammad Raja v. State of Bihar ), wherein a learned Single Judge Bench of this Court, noticing conflicting approaches in the disposal of anticipatory Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 2/34 bail applications under Section 438 of the Code of Criminal Procedure, 1973, in cases involving offences punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, has sought clarification from this Division Bench.

2. The petitioner, Mohammad Raja, apprehended arrest in connection with Complaint Case No. C-2214 of 2024, registered under Section 498-A of the Indian Penal Code, 1860, upon a complaint lodged by Fiza Praveen. He approached the Sessions Judge, East Champaran at Motihari, seeking anticipatory bail. By an order dated 13.06.2025, the learned Sessions Judge, without adjudicating the application on merits, disposed of it by granting liberty to the petitioner to surrender and apply for regular bail before the court below, relying on the decisions of the Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar , reported in (2014) 8 SCC 273 and Satyendra Kumar Antil v. Central Bureau of Investigation, M.A. No. 2034 of 2022 in M.A. No. 1849 in S.L.P. (Cri) No. 5191 of 2021.

3. Aggrieved, the petitioner preferred the aforesaid Criminal Miscellaneous application before this Court. The learned Single Judge, while examining the matter, observed a Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 3/34 divergence in the approach adopted by coordinate Benches of this Court and certain misinterpretations thereof in the subordinate judiciary, particularly in the application of directives under Sections 41 and 41-A Cr.P.C. vis-à-vis the maintainability and disposal of anticipatory bail petitions in offences attracting punishment up to seven years.

4. The foundational principles governing arrest in such cases stem from Arnesh Kumar (supra), reiterated in Md. Asfak Alam v. State of Jharkhand , reported in (2023) 8 SCC 632, and earlier pronouncements such as Joginder Kumar v. State of U.P. , reported in ( 1994) 4 SCC 260, and D.K. Basu v. State of West Bengal , reported in (1997) 1 SCC 416. These emphasise that the power of arrest is not automatic but conditional upon necessity, to be exercised judiciously in light of constitutional safeguards under Article 21. The Supreme Court in Arnesh Kumar (supra) has laid down that simply because the police possesses the power to arrest does not mean that such power ought to be exercised in every case, drawing from Joginder Kumar (supra), where it was held that the power of arrest is conferred as an instrument of necessity, not convenience, given the paramountcy of liberty in our constitutional scheme.

Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 4/34

5. Amendments to Cr.P.C . in 2009 introduced a bifurcated regime:

6. The Magistrate, at the remand stage under Section 167 CrPC, must independently scrutinize the legality of arrest, examining compliance with Section 41 , and authorise detention only upon recording satisfaction in writing, uninfluenced by police assertions. The Magistrate is obliged to satisfy himself that the arrest was legal and in accordance with law, that all constitutional rights of the person arrested have been satisfied, and to scrutinize the reasons recorded by the police, addressing whether specific reasons have been recorded and whether those reasons prima facie justify one or more of the conditions mentioned in Section 41 CrPC.

Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 5/34

7. In pursuance of Md. Asfak Alam (supra), this Court issued Memo No. 62973 dated 19.09.2023, directing strict adherence by police and Magistrates, including:

8. A coordinate Bench in Naushad Ansari v. State of Bihar, Criminal Miscellaneous No. 3536 of 2024 (order dated 13.02.2024), disposed of an anticipatory bail application by directing police and investigating officers to comply with Arnesh Kumar (supra) and Md. Asfak Alam (supra), without adjudicating merits. The operative portion of the said order reads as follows:

9. This led to peculiar practice in some district courts, whereby Sessions Judges mechanically disposed of such petitions by referring petitioners to police under Section 41-A, treating it as an alternative to judicial adjudication under Section 438, as evidenced in the instant case.

10. Another Coordinate Bench in Navneet Kumar Singh v. State of Bihar, Cr. Misc. No. 38822 of 2025 (order dated 08.08.2025), identified this as a manifest error and abdication of statutory duty. It clarified that anticipatory bail remains maintainable notwithstanding Section 41-A, as apprehension of arrest persists even after issuance of notice; upon non-compliance, subsequent police opinion necessitating arrest, or at remand. The Court observed:

11. It further held that treating police relief under Section 41-A as a substitute for judicial relief under Section 438 would render the statute otiose and jeopardize the life and liberty of the people by making it dependent upon the discretion of the police. This is not permissible under our constitutional scheme and statutory provisions.

12. Relying on Arnesh Kumar (where anticipatory bail was granted), Md. Asfak Alam (similarly granting bail to the husband), and earlier decisions of this Court such as Gauri Shankar Roy v. State of Bihar , 2015 SCC OnLine Pat 2165, where it was held:

13. The reasoning further emphasised:

14. Reference was also made to pronouncements from other High Courts, such as Sri. Ramappa @ Ramesh v. State of Karnataka , where the Karnataka High Court held:

15. The Court further held that the term "subject to such orders as may have been passed by a competent Court" in Section 41-A(4) CrPC itself contemplates the possibility of anticipatory bail orders being obtained inter-regnum issuance of notice and before actual arrest.

16. In Pinapala Uday Bhushan v. State of Andhra Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 11/34 Pradesh, 2024 SCC OnLine AP 790, the High Court of Andhra Pradesh held that apprehension of arrest exists even after issuance of notice under Section 41-A CrPC.

17. An interim approach emerged in Rameshwar Kumar v. State of Bihar, Criminal Miscellaneous No. 53019 of 2025 (order dated 01.09.2025), where, upon police undertaking to issue notice under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (equivalent to Section 41-A CrPC), the petitioner voluntarily withdrew the application with liberty to refile, without the Court mandating disposal sans merits.

18. The statutory architecture delineates distinct spheres: Sections 41 and 41-A govern police conduct in investigation, while Section 438 empowers courts to grant pre- arrest bail as a safeguard. These are complementary, not mutually exclusive; apprehension endures post-notice, necessitating judicial oversight, as even after compliance, the police may arrest if necessity arises ( Section 41-A(3) CrPC), or the Magistrate may authorize detention.

19. Reconciling the coordinate Bench orders, Naushad Ansari aimed at enforcing police and magisterial compliance to curb arbitrary arrests, without ousting Section 438 jurisdiction. Navneet Kumar Singh corrected misapplications thereof, Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 12/34 mandating merits-based adjudication. The proper course ensures adherence to Arnesh Kumar at investigative levels while preserving judicial gatekeeping in bail matters, recognizing the crisis from police misuse and mechanical remands leading to a deluge of bail petitions.

20. The learned Single Judge Bench perceiving a need for authoritative resolution amid conflicting interpretations affecting subordinate courts, has referred the following question:

21. Section 41 of the Code of Criminal Procedure, 1873 corresponding to Section 35 of the BNSS, 2023, speaks of the power of the Police and the circumstances where police may arrest without warrant any person, who commits a cognizable offence or against whom a reasonable complaint has been made or a credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence. Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 13/34 Section 41 of the Cr.P.C. runs hereunder: -

[Provided that a police officer shall, in all the cases where the arrest of a person is not required under the provision of this sub-section, record the reasons in writing for not making the arrest.] (ba) against whom credible information has been received that he has committed a cognisable offence punishable with imprisonment far a term Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 15/34 which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 16/34 concerned in, any act committed at any place out of India which if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule, made under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Subject to the provisions of Section 42, no person concerned in a non-cognisable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested accept Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 17/34 under a warrant or order of a Magistrate."

22. Section 41 A of the Cr.P.C. states as follows: -

23. Thus, under Section 41A of the Cr.P.C., when in course of investigation, the Police Officer finds that the arrest of the person is not required under the provisions of sub-section (1) of Section 41, he shall issue a notice, directing the person against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence to appear before him or at such other place as may be specified in the notice. The provision of Section 41A(3) of the Cr.P.C. is codified in Section 35(3) of the BNSS. Subsequent provisions of sub-section (2), (3) and (4) is included in Section 35 (4), (5) and (6) of the BNSS, 2023.

24. In Arnesh Kumar v. State of Bihar , reported in (2014) 8 SCC 273, the Hon'ble Supreme Court issued the following directions: -

11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4 The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;

11.5 The decision not to arrest an accused, be forwarded to the Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 20/34 Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

11.6 Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

11.8 Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."

25. In paragraph 12 of Arnesh Kumar (supra), the Hon'ble Supreme Court was pleased to add further that the directions issued in paragraph 11 of the judgement shall not only apply to the cases under Section 498A of the Indian Penal Code Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 21/34 or Section 4 of the Dowry Prohibition Act, but also such cases where offence is punishable with imprisonment for a term which may be less than seven (7) years or which may extend to seven (7) years whether with or without fine.

26. Directions of the Hon'ble Supreme Court was reiterated in Md. Asfak Alam v. State of Jharkhand , reported in (2023) 8 SCC 632.

27. In addition to the directions issued in Arnesh Kumar (supra), the Hon'ble Supreme Court lays down as hereunder:

11.3. The police officer shall forward the checklist duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from thedate of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41- A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 23/34 directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-AIPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine."

16.2.(II) The High Court shall frame the above directions in the form of notifications and guidelines to be followed by the Sessions Courts and all other and criminal courts dealing with various offences.

16.3.(III) Likewise, the Director General of Police in all States shall ensure that strict instructions in terms of Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 24/34 the above directions are issued. Both the High Courts and the DGPs of all States shall ensure that such guidelines and Directives/Departmental Circulars are issued for guidance of all lower courts and police authorities in each State within eight weeks from today.

16.4.(IV) Affidavits of compliance shall be filed before this Court within ten weeks by all the States and High Courts, through their Registrars."

28. Twin directions by the Hon'ble Supreme Court in Arnesh Kumar (supra) and Md. Asfak Alam (supra) has created a legal fiction and difference of opinion cropped up amongst the Hon'ble Judges of not only this High Court but other High Courts as well on the cumulative effect of Section 41 and 41A of the Cr.P.C. corresponding to Section 35, 35(3) of the BNSS and Section 438 corresponding to Section 482 of the BNSS on the question as to whether an application for anticipatory bail is maintainable in view of the provisions contained in Section 41(1)(B) read with Section 41A of the Cr.P.C.

29. It is needless to say that Section 438 Cr.P.C. applies to anticipatory bail in cases where any person has reason to believe that he may be arrested on an accusation of having Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 25/34 committed a non-bailable offence. In other words, when there is a reasonable apprehension in the mind of a person that he may be arrested in connection with non-bailable offence he can apply under Section 438 of the Cr.P.C. praying for bail in anticipation of his arrest.

30. In Naushad Ansari v. State of Bihar (Criminal Miscellaneous No. 3536 of 2024), a Coordinate Bench of this Court practically disposed of an application under Section 438 of the Cr.P.C. without passing any order holding, inter alia, that the petitioner could not have been any reason to believe that he might be arrested in a case registered under 498(A) of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, because of the fact that the Police Officer is not empowered to arrest him without the order of the learned Magistrate, to be passed on the basis of check-list and other documents which the Police Officer is obliged to send to the learned Magistrate for his judicial consideration.

31. We have heard the learned counsel for the petitioner in Cr. Misc. No. 65700 of 2025 and the learned Advocate General on the issue.

32. It is submitted by the learned counsel appearing on behalf of the petitioner that the petitioner has reasonable and Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 26/34 genuine apprehension of arrest by the Police in connection with Complaint Case No. C 2214 of 2024, because of the fact that even if the Police Officer is not empowered to arrest in a non- bailable cognizable offence where the punishment is less than seven (7) years or up to seven (7) years without complying with the provisions of Section 41A of the Cr.P.C., he may be arrested after compliance of the stage contemplated in Section 41A of the Cr.P.C. On the basis of the report required to be submitted by the Police Officer to the jurisdictional Magistrate, be may be arrested upon consideration of such report on the basis of the order of the learned Magistrate, during investigation or even after filing of the charge-sheet there is reasonable belief that the accused may be arrested upon observance of certain provisions contained in Section 41A of the Cr.P.C., corresponding to Section 35(3) and the following provisions of the same Section in BNSS. Therefore, the application for anticipatory bail is maintainable.

33. The learned Advocate General also submits that there is no quarrel between the guidelines of the Hon'ble Supreme Court in Arnesh Kumar (supra), Md. Asfak Alam (supra) and Satyendra Kumar Antil (supra) and the relief provided in Section 438 of the Cr.P.C. for anticipatory bail. It is Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 27/34 submitted by the learned Advocate General that the guidelines laid down by the Hon'ble Supreme Court in Arnesh Kumar (supra) in paragraph 11 and the subsequent paragraphs are basically the guidelines to be followed by the Police Authority while authorizing detention of a person in a case punishable with offence less than or up to seven (7) years. Paragraph 11.4 of Arnesh Kumar (supra) contains a direction upon the Magistrate who is authorized to detain an accused that the Magistrate shall peruse the report furnished by the Police Officer and only after recording its satisfaction, the Magistrate will authorize the detention. The said guidelines was reiterated in subsequent decisions in Md. Asfaz Alam (supra) and Satyendra Kumar Antil (supra).

34. Section 438 Cr.P.C., on the other hand, is applicable when a person has a reasonable belief of apprehending his arrest in a non-bailable offence. Such provision always exists for the accused when he is named in the F.I.R. or even at the stage when notice is sent by the Police Officer to him for appearance, when he is interrogated by the Police, when the check-list is sent to the Magistrate and when the Magistrate passes any order authorizing his arrest. Therefore, Section 438 of the Cr.P.C. is always applicable even Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 28/34 in a case where an accused reasonably believes that he may be arrested in a non-cognizable offence, prescribing punishment up to seven (7) years of imprisonment with or without fine.

35. We have considered detailed submissions made by the learned Advocate appearing on behalf of the petitioner and the learned Advocate General.

35. We have also perused the factual aspect of the matter, legal provisions and the precedence on this issue.

36. Section 41A was introduced by the Legislature with a view to giving notice of appearance to a person whose arrest is not required under the provisions of Section 41(1) of the Cr.P.C. and against whom a reasonable complaint has been received or reasonable suspicion exists that he has committed a cognizable offence, requiring him to appear before him at a place as may be specified in the notice. Sub-section (2) of Section 41A of the Cr.P.C. makes it imperative for the person concerned to whom notice has been issued to comply with the terms of the notice. Sub-section (3) of Section 41A states that the person who complies with the notice shall not be arrested unless for reasons recorded by Police that he ought to be arrested for the reasons to be recorded by the Police Officer. Section 41A(4) prescribes that if the accused fails to comply Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 29/34 with the terms of the notice or is unwilling to identify himself, the Police Officer may, subject to such orders, as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

37. Therefore, a person reasonably apprehends of being arrested firstly when a notice is issued to him under Section 41A(1) of the Cr.P.C. and secondly after complying the terms of the notice, if the Police Officer forms an opinion that such person ought to be arrested or in a situation, such person fails to comply the terms of the notice or is unwilling to identify himself.

38. In all the above three situations, such person can seek relief of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1873, corresponding to Section 482 of the BNSS.

39. In Sri Ramappa @ Ramesh v The State of Karnataka through Range Forest Officer, Bagalkote, reported in ILR 2021 Kar 4522, this issue came up for consideration before a learned Single Judge. The learned Single Judge observed in the aforesaid report in paragraphs 24 and 25 as follows:-

40. In Jerry Paul v. State of Karnataka , a Coordinate Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 31/34 Single Judge of the High Court of Karnataka took a contrary view, which is reported in (2020) SCC Online Kar 4969. In this case, the learned Single Judge of Karnataka High Court held that petitioner's application for anticipatory bail was not maintainable because of the fact that in the charge-sheet the Investigating Officer clearly stated that the accused was served with a notice under Section 41A of the Cr.P.C. after filing of the charge-sheet and the Investigating Officer even had not obtained permission for further investigation under Section 173(8) of the Cr.P.C. In that circumstances, it was held that there was no threat of arrest of the noticee, who received notice under Section 41(A) of the Cr.P.C.

41. Therefore, the factual circumstances of Jerry Paul (supra) is quite distinguishable from Sri Ramappa (supra).

42. A learned Single Bench of this Court in Cr. Misc. No. 46436 of 2013 with another matter in the case of Gauri Shankar Roy v. The State of Bihar decided on 4 th of March, 2015 succinctly held as follows:

43. We do not find any contrary reason while answering the reference from what has been decided by this Court in Gauri Shankar Roy v. State of Bihar (Cr. Misc . No. 46436 of 2013 and Cr. Misc. No. 46437 of 2013), decided on 4th of March, 2015 and Navneet Kumar Singh v. The State of Bihar (Cr. Misc. No. 38822 of 2025), decided on 8 th of August, 2025.

44. We are of the view that Navneet Kumar Singh and Gauri Shankar Roy laid down the correct law on the issue. At the same time, we are of the view that the decision rendered in Naushad Ansari v. State of Bihar, Criminal Miscellaneous No. 3536 of 2024 does not lay down correct proposition of law and the decision made in Naushad Ansari (supra) is declared per incurium.

45. The question placed under reference is answered accordingly.

46. Let the records of Cr. Misc. No. 65700 of 2025 be Patna High Court CR. MISC. No.65700 of 2025(6) dt.16-12-2025 34/34 sent back to the Court of learned Single Judge for further order.

(Bibek Chaudhuri, J) Dr. Anshuman, J: I agree.

( Dr. Anshuman, J) skm/-