Police can’t arrest unless non-bailable warrants issued in private complaints, rules Supreme Court

J B Pardiwala and Ujjal Bhuyan of the Supreme Court said that this power must be exercised cautiously and only after recording reasons in writing. (Image enhanced using AI)

Supreme Court: Police cannot arrest in complaint cases

• The Supreme Court said the very basis of seeking anticipatory bail in such cases was flawed.
• It emphasised that once a magistrate takes cognisance of a private complaint and issues summons, the accused is only required to appear before the court and participate in proceedings.
• Once the court takes cognisance and issues summons, all that the accused has to do is to appear before that court and join the proceedings, said the top court.
• “Why should the accused go before the Sessions Court or the High Court, as the case may be, and pray for anticipatory bail?” the Supreme Court asked, highlighting a systemic misunderstanding of procedure.
• Flagging the issue, especially in Bihar and Jharkhand, the court said, “We have noticed that there is a serious problem in two States, viz. the State of Bihar and State of Jharkhand, respectively.
• We fail to understand that in a private complaint how does the police involve itself or is concerned, in any manner.
• What was the basis for the accused to express apprehension that the police would arrest them. said that fear of arrest in such cases is legally unfounded, the court questioned.

Background: Anticipatory bail denied by high court

The case stems from a July 4, 2025 order of the Jharkhand High Court refusing anticipatory bail to the petitioner in connection with a 2021 complaint case involving allegations under various provisions of the Indian Penal Code, including cheating and forgery.

The high court had also directed the accused to surrender before the trial court and seek regular bail, relying on earlier directions issued in March 2023.

The court was hearing a petition arising from a private criminal complaint filed in 2021 over a land dispute involving two plots, in which the complainant had accused the petitioner of offences like cheating, forgery and criminal conspiracy under the IPC.

The accused, apprehending arrest, had sought anticipatory bail, which was rejected by the Jharkhand High Court in July 2025 along with a direction to surrender and seek regular bail.

Before the Supreme Court, however, the core issue was not the merits of the land dispute but whether such apprehension of arrest was legally valid at all in a private complaint case prompting the court to examine the scope of police powers and the necessity of anticipatory bail in such proceedings.

Section 87 CrPC explained

The court also clarified the scope of Section 87 of the Code of Criminal Procedure, which allows issuance of warrants in lieu of or in addition to summons only in limited circumstances such as when the accused is absconding or fails to appear despite service of summons.

The Supreme Court said that this power must be exercised cautiously and only after recording reasons in writing.

No arrest even during inquiry under Section 202

The apex court held that even when a magistrate orders a police inquiry under Section 202 CrPC before the issuing process, the police cannot arrest the accused during such inquiry.

Section 202 of the Code of Criminal Procedure, 1973, governs the postponement of issuing process, mandating a preliminary inquiry or investigation by a Magistrate if the accused resides outside the court’s jurisdiction to prevent frivolous litigation.

If a magistrate orders a police inquiry under Section 202 and asks the police to give a report, then whether in the course of such inquiry, the police can arrest the accused.

The answer is an emphatic “NO”, Police has no powers to arrest even during the course of the inquiry under Section 202 of the CrPC.

Concern over practice in Bihar, Jharkhand

The Supreme Court flagged what it described as a “serious problem” in Bihar and Jharkhand, where accused persons routinely approach courts seeking anticipatory bail in private complaint cases out of fear of arrest.

“We fail to understand that in a private complaint how does the Police involve itself,” the bench remarked.

It added that such unnecessary litigation burdens higher courts and reflects a lack of clarity in the application of criminal procedure.

High court direction to surrender ‘without jurisdiction’

The Supreme Court also held that the high court exceeded its jurisdiction by directing the accused to surrender and seek regular bail.

“If the Court wants to reject the anticipatory bail, it may do so but the Court has no jurisdiction to say that the petitioner should now surrender,” the Bench observed.

Case disposed, directions issued

Noting that the trial in the underlying complaint case was already in progress, the Supreme Court disposed of the petition without further relief.

However, it directed that a copy of its order be circulated to the registrar generals of the high courts of Bihar and Jharkhand for appropriate administrative consideration, signalling the need for systemic correction.

Key takeaway

The ruling draws a clear procedural boundary- in private complaint cases, arrest is not a default consequence.

Unless a court specifically issues a non-bailable warrant, the accused cannot be taken into custody making routine anticipatory bail pleas in such matters largely unnecessary.