Patna High Court – Orders
Brij Kishore Tiwari vs The State Of Bihar on 14 July, 2026
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.45425 of 2026
Arising Out of PS. Case No.-2909 Year-2024 Thana- EAST CHAMPARAN COMPLAINT
District- East Champaran
======================================================
Brij Kishore Tiwari S/o Late Mahendra Tiwari Resident of Village-
Bhagwatpur Bhaluwahiya, P.S.-Shikarganj, District- East Champaran
... ... Petitioner/s
Versus
1. The State of Bihar
2. Sheela Devi W/o Brij Kishore Tiwari Resident of Mohalla - Rajendra Nagar,
Ward No.-12, P.S.- Chhatauni, District - East Champaran. Mobile No.-
7462066844
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sitesh Kashyap, Advocate.
For the Opposite Party/s : Mr. Chandra Bhushan Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 14-07-2026
1. Heard learned counsel for the petitioner and the
learned APP for the State, Sri Chandra Bhushan Prasad.
2. The petitioner apprehends his arrest in connection
with Complaint Case No. 2909 of 2024, registered for an
offence punishable under Section 85 of the BNS, 2023.
3. Learned counsel for the petitioner submits that
petitioner is a person with clean antecedent and being husband
has been falsely implicated in the instant case by the
complainant. It is next submitted that complainant instituted
Complaint Case No. 2909 of 2024, in which, cognizance was
taken under section 85 of the BNS and thereafter summons were
issued.
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4. At this stage, the learned APP, Sri Chandra
Bhushan Prasad, submits that from perusal of the pleadings
made in the anticipatory bail application, it would manifest that
cognizance in the case has been taken, hence the petitioner is
apprehending arrest and thus has moved before this Court
seeking anticipatory bail, it is next submitted that after
cognizance is taken, summons are issued and if petitioner based
on the summons appears before the learned trial court, the
petitioner will not be arrested rather will join the proceedings
before the learned trial court.
5. Learned APP next submits that Hon’ble Jharkhand
High Court in ABA No. 2319 of 2025 (Om Prakash Chhawnika
@ Om Prakash Chabnika @ Om Prakash Chawnika vs. the
State of Jharkhand) had rejected the the anticipatory bail of Om
Prakash Chhawnika @ Om Prakash Chabnika @ Om Prakash
Chawnika in connection with Complaint Case No. 6181 of 2021
whereby cognizance was taken under Sections 323, 420, 467,
468, 471, 120B and 34 of the IPC, it is next submitted that
cognizance in Complaint Case No. 6181 of 2021 was taken
under non-bailable sections as such Om Prakash Chhawnika
fearing arrest moved the Hon’ble Jharkhand High Court, but
then his anticipatory bail came to be rejected, thereafter Om
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Prakash Chhawnika moved before the Hon’ble Supreme Court
by filing SLA (Crl.) No.16221 of 2025 assailing the order of the
Hon’ble Jharkhand High Court dated 4-7-2025 in ABA No.
2319 of 2025 arising out of Complaint Case No. 6181 of 2021.
It is further submitted that Hon’ble Supreme Court after
discussing the case laws on the issue recorded at para-7 of the
order dated 23-4-2026 in SLA (Crl.) No.16221 of 2025 –
” 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.”,
thereafter at para-8, it is recorded —
“In a private complaint when cognizance is taken and
process is issued all that the Court would do is to issue
summons. We have explained many times in the past the purport
of Section 87 of the Criminal Procedure Code, 1973 (for short,
“the Cr.PC.”) The Section 87 of the Cr.PC. reads thus:-
“87. Issue of warrant in lieu of, or in addition to,
summons.–A Court may, in any case in which it is
empowered by this Code to issue a summons for the
appearance of any person, issue, after recording its
reasons in writing, a warrant for his arrest–
(a) if, either before the issue of such summons, or
Patna High Court CR. MISC. No.45425 of 2026(2) dt.14-07-2026
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his appearance, the Court sees reason to believe that
he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the
summons is proved to have been duly served in time to
admit of his appearing in accordance therewith and no
reasonable excuse is offered for such failure.”
At para-9, it is recorded —
“Section 87 empowers the Court to issue warrant in lieu
of, or in addition to, summons. However, this power has to be
exercised only in two contingencies as explained by
the provision itself, i.e, (a) and (b) referred to above
respectively.”
It is further submitted that at para-10 it is recorded–
“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. Why should the accused go before the
Sessions Court or the High Court, as the case may be, and pray
for anticipatory bail? Police has no power to arrest the accused
in a complaint case unless there is a non bailable warrant
issued by that Court along with the summons.”
6. At this stage, the learned counsel appearing on
behalf of the petitioner submits that no doubt the law on the
issue is clear as decided by the Hon’ble Supreme Court but then
in practice in the State of Bihar, the learned Magistrates in
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mechanical manner on appearance of the accused based on
summons, relegate them to judicial custody, on which the
learned APP submits that it is difficult to appreciate what has
been submitted by learned senior counsel for the petitioner as it
cannot be presumed that the learned Magistrate will not
appreciate the orders of this Court and the Hon’ble Supreme
Court.
7. At this stage, learned counsel for the petitioner
fairly submits that since only summons have been issued in the
case, as such in view of the order of the Hon’ble Supreme Court
dated 23-4-2026 in SLA (Crl.) No.16221/2025, the instant
anticipatory bail application is not maintainable at this stage,
hence seeks permission to withdraw the anticipatory bail
application and submits that the petitioner will appear before the
learned trial court and will join the proceedings. It is also
submitted that the learned Magistrate also has to take note of the
order of the Hon’ble Supreme Court, on which the learned APP
submits that it is the duty of the petitioner to ensure that the
order of the Hon’ble Supreme Court is also produced at the time
when the petitioner appears before the learned Trial Court.
8. Since the petitioner has prayed for withdrawing the
anticipatory bail application at this stage, as such permission is
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accorded and the anticipatory bail application is dismissed as
withdrawn with the liberty to the petitioner to appear before the
learned trial court with an order dated 23-4-2026 in Special
Leave to Appeal (Crl) No. 16221 of 2025 passed by the Hon’ble
Supreme Court.
9. At this stage, learned counsel appearing on behalf
of the petitioner submits that till date non-bailable warrant of
arrest has not been issued against the petitioner.
(Satyavrat Verma, J)
amit/-
U T
