Anticipatory Bail Remains Maintainable Despite Proclamation under BNSS Sections 84/85: Patna High Court’s “Serious Consideration, Not Embargo” Standard

Introduction

This commentary analyzes the decision of the Patna High Court in Mangali Devi @ Mangari Devi & Ors. v. State of Bihar (Criminal Miscellaneous No. 33213 of 2025, decided on 27 August 2025), delivered by Hon’ble Mr. Justice Jitendra Kumar. The case arises from a village land/irrigation dispute that escalated into violence, leading to cross FIRs and the death of one party’s mother ten days after the incident. The petitioners sought anticipatory bail in connection with Manjhi P.S. Case No. 379 of 2024 (registered under provisions of the Bharatiya Nyaya Sanhita, 2023), while proclamation and attachment proceedings under Sections 84 and 85 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) were simultaneously set in motion.

The central legal issue was whether an anticipatory bail application under Section 482 BNSS (successor to Section 438 CrPC) is maintainable—and, if so, on what parameters—when police have initiated proclamation and attachment proceedings (formerly Sections 82/83 CrPC; now Sections 84/85 BNSS). The Court also had to determine, on the facts, whether the petitioners deserved pre-arrest bail given the presence of a case and counter case, the allegation profile (including “omnibus” allegations), injuries on both sides, and the timing of the proclamation vis-à-vis the bail applications.

Summary of the Judgment

Maintainability affirmed: The Court held that an anticipatory bail application remains maintainable even where proclamation (Section 84 BNSS) and attachment (Section 85 BNSS) proceedings have been initiated. There is no absolute bar in law.
Seriousness caveat: While maintainable, the existence of proclamation/attachment must be considered seriously, not casually. Ordinarily, an absconder/proclaimed person is not entitled to anticipatory bail; only exceptional or rare cases justify grant.
Facts warranting relief: Considering the presence of a case and counter case arising from the same incident, injuries on both sides (including serious head injuries to petitioners’ side), general/omnibus allegations without specific overt acts against any petitioner, clean antecedents, and the fact that Sections 84/85 BNSS were invoked while the petitioners’ anticipatory bail petitions were pending in District Court and High Court, the Court granted anticipatory bail.
Conditions imposed: The petitioners were directed to surrender or face arrest within eight weeks and to be enlarged on bail upon furnishing bonds of Rs. 10,000 each with two sureties of like amount, subject to Section 482(2) BNSS conditions and additional cancellation triggers if criminal antecedents or prior bail facts were concealed or misstated.
Reportable ruling: The judgment is marked AFR (Approved for Reporting), underscoring its precedential value in the BNSS era.

Detailed Analysis

1. Precedents Cited and Their Influence

The Court’s reasoning is anchored in a careful synthesis of Supreme Court precedents that have evolved the law on anticipatory bail where proclamation proceedings are in play:

Lavesh v. State (Nct Of Delhi), (2012) 8 SCC 730: The Supreme Court held that when an accused is absconding and has been declared a proclaimed offender/person under Section 82 CrPC, anticipatory bail should ordinarily be refused. This forms the baseline presumption against grant to absconders.
State of M.P. v. Pradeep Sharma, (2014) 2 SCC 171: Reaffirmed Lavesh—proclaimed offenders are generally not entitled to anticipatory bail. This authority emphasizes the gravity of proclamation and the need to discourage evasion.
Prem Shankar Prasad v. State of Bihar, 2021 SCC OnLine SC 955 (also referred to at (2022) 14 SCC 516): The Supreme Court criticized a High Court for granting anticipatory bail after ignoring pending proceedings under Sections 82/83 CrPC. The message: proclamation proceedings are a crucial factor and cannot be brushed aside.
Abhishek v. State of Maharashtra, (2022) 8 SCC 282: The Court reiterated that an accused declared an absconder and out of reach ordinarily deserves no pre-arrest indulgence under Section 438 CrPC. This reinforces the seriousness with which proclamation must be viewed.
State of Haryana v. Dharamraj, (2023) 17 SCC 510: While echoing the general rule against grant to proclaimed offenders, the Supreme Court recognized that in exceptional or rare cases, constitutional courts may still consider anticipatory bail.
Asha Dubey v. State of Madhya Pradesh, MANU/SCOR/124926/2024: The Supreme Court clarified there is no total embargo on considering anticipatory bail even post-proclamation. Courts must examine the circumstances, the nature of the offence, and the background of the proclamation. Fit cases may warrant grant, subject to cooperation and liberty to seek cancellation on breach.
Serious Fraud Investigation Office v. Aditya Sarda, 2025 SCC OnLine SC 764: The Supreme Court cautioned High Courts to consider the issuance of NBWs and proclamation proceedings seriously and not casually while deciding anticipatory bail. This directly informs the High Court’s approach to give due weight to Sections 84/85 BNSS.

High Court decisions harmonized with these principles:

Deepankar Vishwas v. State of Madhya Pradesh, MANU/MP/0882/2025: Held that even where Sections 82/83 CrPC (now 84/85 BNSS) and/or Section 299 CrPC (now Section 335 BNSS) are invoked, anticipatory bail is maintainable. However, grant must be cautious, reserved for exceptional situations, factoring the gravity and seriousness.
Jagadish Das v. State of NCT of Delhi, 2025 SCC OnLine Del 4553: Reiterated the “exceptional circumstances” threshold for grant of anticipatory bail to proclaimed persons.

Together, these authorities shape a two-step framework: (i) no absolute bar on maintainability despite proclamation; (ii) on merits, proclamation weighs heavily against grant—save in exceptional, well-justified situations.

2. The Court’s Legal Reasoning

The Patna High Court’s reasoning proceeds in a structured manner:

Maintainability vs. entitlement: The Court first answers the threshold question—an application for anticipatory bail under Section 482 BNSS is maintainable even when proclamation and attachment under Sections 84/85 BNSS are pending or concluded. This aligns with Asha Dubey and the broader Supreme Court line, distinguishing the right to apply from the decision to grant.
Proclamation must be treated seriously: Echoing Prem Shankar Prasad and Aditya Sarda, the Court underscores that the factum of proclamation/attachment is a weighty factor; courts must not trivialize it. Ordinarily, absconders/proclaimed persons do not deserve anticipatory bail (Lavesh, Pradeep Sharma, Abhishek). Only exceptional or rare factual configurations can justify departure (Dharamraj, Asha Dubey).
Application to facts—why this case is exceptional: The Court identifies a constellation of factors:
- Case and counter case: Both sides lodged FIRs for serious offences arising from the same occurrence. The petitioners’ FIR (Manjhi P.S. Case No. 369 of 2024) was filed on the date of the incident alleging attempt to murder and allied offences. The informant’s FIR (the present case) was lodged ten days later and resulted in a fatality during treatment. Cross injuries, including serious head injuries on the petitioners’ side, indicated a free fight rather than one-sided aggression.
- Omnibus allegations: The prosecution version did not attribute specific overt acts to individual petitioners; allegations were general. This militated in favor of anticipatory bail in a cross-version scenario, pending full investigation.
- Clean antecedents: The petitioners had no criminal history and had not sought bail earlier in the matter.
- Timing and bona fides: Sections 84/85 BNSS proceedings were initiated while the petitioners’ anticipatory bail pleas were already pending before the Sessions Court and the High Court. The Court found that, in these circumstances, the petitioners could not be branded as willful evaders. They were pursuing legal remedies rather than absconding.
Balancing these factors, the Court concluded the case qualified as an exceptional one warranting pre-arrest protection, even while taking the proclamation proceedings seriously.
Outcome and safeguards: Anticipatory bail was granted with safeguards: surrender/arrest within eight weeks; bail on bonds of Rs. 10,000 each with two sureties; adherence to Section 482(2) BNSS conditions; and specific cancellation triggers if criminal antecedents or prior bail litigation facts were concealed or misrepresented.

3. Impact and Prospective Significance

This judgment carries notable implications for bail jurisprudence in the BNSS regime:

Clarifies the BNSS position: By expressly mapping Sections 82/83 CrPC to Sections 84/85 BNSS and Section 438 CrPC to Section 482 BNSS, the Court supplies a clear doctrinal bridge from pre- to post-BNSS jurisprudence. The “no embargo but exceptional grant” standard is affirmed for the BNSS era.
Guidance on proclamation timing: The Court recognizes that proclamation/attachment initiated during the pendency of a bona fide anticipatory bail application should not automatically label the applicant an evader. Trial courts must interrogate chronology and bona fides, ensuring the proclamation tool is not misused to frustrate statutory remedies.
Cross-case balance: Where there is a case and counter case with injuries on both sides and non-specific allegations, anticipatory bail may be appropriate, even with proclamation in place—subject to strict conditions and cooperation requirements.
Operational checklist for courts: The ruling encourages lower courts to:
- Verify the stage, reasons, and chronology of Sections 84/85 BNSS proceedings;
- Assess specificity of allegations and the presence of cross-injuries/cross-FIRs;
- Scrutinize antecedents and litigation conduct;
- Apply stringent conditions and preserve liberty to cancel on breach or fresh material.
Police/prosecution practice: The judgment subtly cautions against perfunctory or strategic use of proclamation during bail proceedings. Investigating agencies should ensure scrupulous compliance and record of reasons before invoking Sections 84/85 BNSS.

Complex Concepts Simplified

Anticipatory Bail (Section 482 BNSS): A pre-arrest bail that protects an accused from being taken into custody, subject to conditions. It is the BNSS successor to Section 438 CrPC.
Proclamation and Attachment (Sections 84/85 BNSS): If an accused evades arrest, the court may issue a proclamation (publicly requiring appearance) and attach property. Under the former CrPC, these were Sections 82/83. A person may be termed a “proclaimed person/offender” depending on the provision invoked and category of offence.
Maintainability vs. Merits: That an application can be filed and heard (maintainability) is distinct from whether it should be allowed (entitlement on merits). Proclamation does not bar maintainability but weighs heavily against grant.
“Omnibus” Allegations: Non-specific, broad-brush accusations against multiple accused without delineating who did what. In bail contexts, such allegations attract caution, especially where there is a cross-version.
Case and Counter Case: Two FIRs from the same occurrence by opposing sides. Courts often adopt a balanced approach, mindful of mutual injuries and differing narratives, particularly at the pre-trial stage.
CAV Judgment: “Closed After Verdict”—the judgment was reserved on an earlier date and pronounced subsequently (here, reserved on 20.08.2025 and pronounced on 27.08.2025).
AFR: “Approved for Reporting,” indicating the judgment’s precedential and reportable value.

Key Extracted Principles from the Decision

Anticipatory bail applications remain maintainable notwithstanding initiation of proceedings under Sections 84/85 BNSS (formerly 82/83 CrPC).
Courts must treat proclamation/attachment as a serious adverse factor; ordinarily, absconders/proclaimed persons are not entitled to anticipatory bail.
Exceptionality is the benchmark for grant in such situations—courts may depart from the norm where facts justify, e.g., bona fide pendency of bail, cross cases, injuries on both sides, non-specific allegations, and clean antecedents.
Proclamation initiated during the pendency of anticipatory bail proceedings does not, by itself, establish evasion of process.
Grant of anticipatory bail should be hedged with strict statutory and case-specific conditions, with ready recourse to cancellation on breach or discovery of suppression.

Conclusion

The Patna High Court’s decision in Mangali Devi @ Mangari Devi v. State of Bihar provides timely, reportable guidance in the early BNSS landscape. It affirms that proclamation and attachment proceedings do not erect a jurisdictional bar to anticipatory bail; rather, they mark a strong discretionary consideration militating against grant except in rare or exceptional configurations. By carefully examining cross FIRs, mutual injuries, the generality of accusations, clean antecedents, and the chronology of proclamation vis-à-vis bail efforts, the Court crafts a calibrated approach that respects both investigative imperatives and individual liberty.

Practically, the ruling equips trial courts and practitioners with a structured, Supreme Court-aligned framework: anticipate maintainability; scrutinize proclamation rigorously; and, where facts warrant, craft conditional relief that preserves the integrity of investigation while preventing misuse of proclamation to foreclose statutory remedies. As a reportable pronouncement, this judgment will likely become a frequently cited authority in Bihar and beyond on the maintainability and cautious grant of anticipatory bail post-proclamation under Sections 84/85 BNSS.