Atul Kumar vs State of U.P.

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 482 BNSS No. - 2209 of 2026

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Atul Kumar

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.....Applicant(s)

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Versus

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State of U.P.	.....Opposite Party(s)
Counsel for Applicant(s)	: Sunil Kumar Singh
Counsel for Opposite Party(s)	: G.A.

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Court No. - 68

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HON'BLE ASHUTOSH SRIVASTAVA, J.

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Heard Sri Sunil Kumar Singh, learned counsel for the applicant, learned AGA for the State and perused the record.

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The instant anticipatory bail application has been filed with a prayer to grant anticipatory bail to the applicant Atul Kumar in Case Crime No. 31 of 2026, under Sections 3(5), 110, 117(2), 127(2) of BNS, Police Station Sarailakhansi, District Mau, during the pendency of the trial before the court below.

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Learned counsel for the applicant while pressing the anticipatory bail plea of the applicant has argued that the applicant is entirely innocent and is apprehending his arrest in the aforesaid Case Crime Number. The FIR alleges that the named accused including 3-4 unknown persons forcibly took away the son of the informant and beat him up with kicks fists and iron rods. It is argued that no specific role has been assigned to the applicant. The FIR itself has been lodged with delay of one day which establishes the falsity of the allegations. The incident is alleged to have occurred at a public place but there are no eye witnesses. No fatal injuries are stated to have been inflicted upon the injured. The applicant is having criminal history of 17 cases to his credit which has been explained in the affidavit filed in support of the bail application. Hence anticipatory bail has been prayed for.

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Learned AGA has vehemently opposed the anticipatory bail plea of the applicant by submitting that complicity of the applicant in the commission of

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NABAIL No. 2209 of 2026

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2

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the crime cannot be ruled out from the allegations set out in the FIR at this stage and that no case for anticipatory bail is made out.

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I have heard learned counsel for the parties and have perused the record. The records reveal that the applicant is sought to be prosecuted under Section 3(5), 110, 117(2), 127(2) of BNS, Corresponding Sections 34, 308, 325, 342 of IPC. The maximum punishment for the offence alleged is seven years. From the allegations set out in the FIR, I am not inclined to grant anticipatory bail to the applicant at this stage and the relief for anticipatory bail is declined to the applicant. However, the Apex Court very recently while examining a similar issue which had arisen before it i.e. (I) whether notice under Section 35(3) of the BNSS, 2023 are to be issued mandatorily in all cases, qua an offence punishable with imprisonment upto seven years, and (II) Whether in the absence of circumstances under Sections 35(1)(b)(i) and 35(1)(b)(ii) of the BNSS, 2023 existing, is an arrest by Police Officer qua an offence punishable with imprisonment upto seven years legally justified, in the case of Satendra Kumar Antil Vs. Central Bureau of Investigation and Another, reported in 2026 Livelaw (SC) 114 considering its earlier decisions in Arnesh Kumar Vs. State of Bihar & Another 2014(8) SCC 273. Satendra Kumar Antil Vs. Central Bureau of Investigation 2022(10) SCC 5 1 and State of U.P. Vs. Bhagwant Kishore Lashi 1964(3) SC R71 held as under:-

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32. The power of arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023 must be interpreted as a strict objective necessity, and not a subjective convenience for the police officer. It does not mean the police officer can arrest to simply ask questions. However, it means that the police officer must satisfy himself that the investigation, qua an offence punishable with imprisonment up to 7 years, cannot proceed effectively without taking the concerned individual into custody. Any interpretation to the contrary would clearly frustrate the purpose and legislative intent of Sections 35(1)(b) and Sections 35(3) to 35(6) of the BNSS, 2023.

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33. On the basis of the interpretation given by us, we conclude as follows:

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a. An arrest by a police officer is a mere statutory discretion which facilitates him to conduct proper investigation, in the form of collection of

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NABAIL No. 2209 of 2026

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evidence and, therefore, shall not be termed as mandatory.

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b. Consequently, the police officer shall ask himself the question as to whether an arrest is a necessity or not, before undertaking the said exercise.

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c. For effecting an arrest, qua an offence punishable with imprisonment up to 7 years, the mandate of Section 35(1)(b)(i) of the BNSS, 2023 along with any one of the conditions mentioned in Section 35(1)(b)(ii) of the BNSS, 2023 must be in existence.

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d. A notice under Section 35(3) of the BNSS, 2023 to an accused or any individual concerned, qua offences punishable with imprisonment up to 7 years, is the rule.

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e. Even if the circumstances warranting an arrest of a person are available in terms of the conditions mentioned under Section 35(1)(b) of the BNSS, 2023, the arrest shall not be undertaken, unless it absolutely warranted.

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f. Power of arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023, pursuant to a notice issued under Section 35(3) of the BNSS, 2023 is not a matter of routine, but an exception, and the police officer is expected to be circumspect and slow in exercising the said power.

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In view of the above, the present anticipatory bail application is disposed of in terms of the observations made herein by the Apex Court.

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March 28, 2026

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pks

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(Ashutosh Srivastava,J.)

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Digitally signed by :- PAWAN KUMAR SINGH High Court of Judicature at Allahabad

Atul Kumar v. State of U.P.

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Atul Kumar v. State of U.P.

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