Patna High Court - Orders
Sanjay Gupta @ Sanjay Modi vs The State Of Bihar on 7 October, 2025
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.67378 of 2025
Arising Out of PS. Case No.-34 Year-2025 Thana- MAHILA P.S. District- Lakhisarai
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1. Sanjay Gupta @ Sanjay Modi S/o Bhadan Gupta R/o Village - Harnaha,
Ward No. 11, P.S - Jamui, District - Jamui
2. Sarswati Devi @ Sarswati W/o Sanjay Gupta @ Sanjay Modi R/o Village -
Harnaha, Ward No. 11, P.S - Jamui, District - Jamui
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Rabi Bhushan, Advocate
For the Opposite Party/s : Mr. Suresh Prasad Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 07-10-2025Heard learned counsel for the petitioners and learned APP for the State.
2. The petitioners apprehend their arrest in a case registered for the offences punishable under Sections 85, 352 and 3(5) of the Bharatiya Nyaya Sanhita, 2023 as well as Sections 3 and 4 of the Dowry Prohibition Act.
3. Learned APP for the State, at the outset, submits that the law is clear that where offences for which an FIR has been instituted carry punishment of seven years and less in such cases the arrest is not automatic. It is further submitted that if the police intend to arrest an accused who is implicated in a case relating to offences which carry punishment of seven years or less in that event the police resort to certain procedures as Patna High Court CR. MISC. No.67378 of 2025(2) dt.07-10-2025 2/4 incorporated in the BNSS, i.e., the police first have to give a notice under Section 35 of the BNSS. It is next submitted that anticipatory bail thereafter also may or may not be maintainable for the reason that it will depend on the facts and circumstances of the case because the police even after issuing notice under Section 35 of the BNSS cannot arrest the accused without seeking permission of the learned Magistrate. It is also submitted that if the police after issuing notice under Section 35 of the BNSS are of the view that arrest of the accused is necessary for investigation in that event the police will fill the check list and thereafter shall seek permission from the learned Magistrate to arrest the accused person.
4. Learned A.P.P. for the State further submits that the learned Magistrate may or may not grant permission to the police to arrest the accused. It is next submitted that if the learned Magistrate refuses permission to the police to arrest the accused in that event no apprehension of arrest will arise but if the learned Magistrate permits the police to arrest the accused in that event apprehension of arrest will arise. It is also submitted that if the police without resorting to procedures as envisaged under the law arrest an accused in breach of the same in that event the police officer shall also be held liable in terms of Patna High Court CR. MISC. No.67378 of 2025(2) dt.07-10-2025 3/4 memo no. 62973 dated 19.09.2023 issued by the Hon'ble Patna High Court as recorded in Cr. Misc. No. 3536 of 2024 (Naushad Ansari Vs. The State of Bihar).
5. It is submitted that there is no pleading in the anticipatory bail application which could even remotely suggest that notice under Section 35 of the BNSS has been issued to the petitioners, as such, it is submitted that for the present, the petitioners do not have any apprehension of arrest.
6. Learned counsel appearing on behalf of the petitioners is not in a position to rebut the submissions of the learned A.P.P. for the State but then submits that notice under Section 35 of the BNSS has not been served on the petitioners. It is further submitted that of late the police even without issuing notice under Section 35 of the BNSS or 41A of the Cr.P.C. arrest the accused and the learned Magistrate in mechanical manner remand the accused to judicial custody on which learned A.P.P. submits that if an accused is arrested in breach of the law in that event consequences would follow as mandated in memo no. 62973 dated 19.09.2023 issued by the Hon'ble Patna High Court.
7. Learned counsel for the petitioners, at this stage, seeks permission to withdraw the anticipatory bail application Patna High Court CR. MISC. No.67378 of 2025(2) dt.07-10-2025 4/4 with liberty to file afresh, if need arises and further to file an application before the concerned Superintendent of Police of the district bringing to his notice that he has not been served with notice under Section 35 BNSS within a period of three weeks from today.
8. Permission is accorded.
9.Accordingly, the instant anticipatory bail application is dismissed as withdrawn with the liberty aforesaid in connection with Lakhisarai Mahila P.S. Case No. 34 of 2025 pending in the Court of learned Sub-Divisional Judicial Magistrate, Lakhisarai/Successor Court.
(Satyavrat Verma, J) Kundan/-
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