In a significant judgment aimed at protecting personal liberty and streamlining criminal procedure, the Supreme Court of India has clarified that the police have no power to arrest an accused in a "complaint case" unless the court specifically issues a Non-Bailable Warrant (NBW).
The Bench, comprising Justice J.B. Pardiwala and Justice Ujjal Bhuyan, expressed concern over a "serious procedural irregularity" prevalent in states like Bihar and Jharkhand. The Court noted that litigants are often forced to approach Sessions Courts and High Courts for anticipatory bail out of a misplaced fear that the mere issuance of a summons or a "process" by a Magistrate would lead to their immediate arrest.
The Supreme Court emphasized that in a private complaint case (where a case is filed directly before a Magistrate rather than through a police FIR), the legal process is strictly governed by the court's orders.
"Once the Court takes cognizance and issues summons, all that the accused has to do is to appear before that Court and join the proceedings," the Bench observed. The Court further clarified that the police do not have an inherent power to arrest in such cases. The only exception is when the Magistrate decides to issue a Non-Bailable Warrant along with the summons to ensure the accused's presence.
The Court also addressed a common point of confusion regarding Magisterial inquiries. Under Section 202 of the Code of Criminal Procedure (CrPC), a Magistrate may postpone the issuance of a process and direct an inquiry—sometimes by the police—to decide whether there is sufficient ground for proceeding.
The Supreme Court asked a rhetorical question: If a Magistrate orders a police inquiry under Section 202, can the police arrest the accused during that investigation?
The Bench gave an "emphatic NO." It held that even if the police are conducting an inquiry on the court's behalf under Section 202, they do not gain the power to arrest the individual. The inquiry is limited to gathering facts for the Magistrate, not for custodial interrogation.
The matter reached the Apex Court after the Jharkhand High Court not only rejected an anticipatory bail plea in a complaint case but also directed the appellant to "surrender" before the trial court to seek regular bail.
The Supreme Court took strong exception to this direction. While a High Court or Sessions Court has the discretion to reject an anticipatory bail application, it has "no jurisdiction" to command a citizen to surrender in a complaint case where no warrant for arrest exists.
“We also remind the High Court that the direction issued that the petitioner should surrender and seek regular bail before the Court was also wholly without jurisdiction,” the Bench remarked. The Court noted that such incorrect applications of law lead to unnecessary litigation and force people to travel all the way to the Supreme Court for relief.
This judgment serves as a vital shield against procedural harassment. The key highlights include:
- No Automatic Arrest: In a complaint case, an accused cannot be arrested by the police simply because the Magistrate has started the case.
- Duty to Appear: If a summons is received, the accused's duty is to appear in court, not necessarily to seek bail from a higher court.
- Limited Police Role: In court-ordered inquiries (Section 202), the police act as an arm of the court, not as independent investigators with arrest powers.
- Surrender Orders: Higher courts cannot force a person to surrender if the trial court has only issued a summons.
To ensure that these guidelines are followed at the grassroots level, the Supreme Court directed its Registry to forward copies of the order to the Registrar Generals of the High Courts of Bihar and Jharkhand. These are to be placed before the respective Chief Justices to ensure that subordinate courts and the police are sensitized about the correct legal position.