Can electoral convenience be presented as social service to justify nomination of Deepak Prakash, son of Union Minister Upendra Kushwaha as MLC under Article 171 of Constitution of India?

In Prince Kumar Ojha vs. The State of Bihar & Ors. (2026), Joint Registrar (List) Patna High Court granted permission to file PIL vide order dated October 15, 2026. The other respondents are:2. The Principal Secretary to the Governor of Bihar, 3. The Principal Secretary, Election Department, Government of Bihar, 4. The Chief Electoral Officer-cum-Secretary, Election Department, Government of Bihar and 5. Deepak Prakash, Nominated Member of the Bihar Legislative Council (MLC). The case is listed for order before the Chief Justice on November 18, 2026.  The petitioner has argued that his nomination violates Articles 171(3)(e) and 171(5) of the Constitution, which restrict Legislative Council nominations to specific fields such as social service, literature, science, art, and the cooperative movement, rather than serving as political rehabilitation.

Deepak Prakash was appointed as a member of Legislative Council on August 5, 2026 by Bihar Governor Syed Ata Hasnain to fill the vacancy following the resignation of Devesh Kumar. Devesh was made to resign as member of Legislative Council on July 31, 2026. 

Earlier, in Rakesh Kumar Singh alias Rakesh Singh vs. State of Bihar & Ors.(2026), Supreme Court's 3-Judge Bench of Chief Justice Surya Kant, Justice Bagchi and Justice V Mohana on July 30, 2026 while hearing a petition, had asked the Bihar government as to how Deepak Prakash, an unelected minister, can hold the position even after six months after assuming office. He was first sworn in as Bihar’s Panchayati Raj Minister on November 20, 2025, in the Council of Ministers headed by then Chief Minister Nitish Kumar. At the time, he was not a member of either the Bihar Legislative Assembly or the Legislative Council. After the resignation and dissolution of the Nitish Kumar-led Cabinet, NDA leader Samrat Choudhary assumed office as Bihar Chief Minister on April 15. Prakash consequently ceased to be a Minister and remained out of the Council of Ministers. After a gap of around 22 days, Prakash was re-inducted into the Cabinet and sworn in again as Panchayati Raj Minister on May 7, despite still not being an elected legislator. The petitioner had contended that Deepak Prakash had already utilised approximately four months and 26 days of the six-month period permitted under Article 164(4) of the Constitution for a person who is not a member of the State Legislature to continue as a Minister. The six-month period had  expired on May 19. The petitioner had argued that Deepak Prakash’s resignation and subsequent reappointment could not be used to reset or extend the constitutional time limit.

The PIL in the High Court was filed on September 24, 2026 and registered on October 27, 2026. It challenges the nomination of Deepak Prakash as a MLC. The PIL has alleged that the nomination of Prakash violates Article 171(3)(e) and Article 171(5) of the Constitution of India. The PIL seeks issuance of a writ of quo warranto, calling Deepak Prakash to show under what circumstances he occupies the public office of a nominated MLC. It has also sought a writ of certiorari quashing the notification through which he was nominated as MLC. 

The petitioner has pointed out that Article 171(5) restricts nominations to the Legislative Council to persons possessing special knowledge or practical experience in literature, science, art, the cooperative movement and social service. The petitioner has submitted that Prakash does not fulfill the constitutional requirement for nomination under Article 171(3)(e), which a person must posses the prescribed special knowledge or practical experience in the five exhaustive fields. The PIL has submitted that the constitutional intent behind Article 171 is not to create a ‘backdoor’ entry for active political personalities into the Legislative Council. 

No writ can be entertained under Article 227: Supreme Court

In Radhey Shyam & Anr. vs. Chhabi Nath & Ors., reported in (2015) 5 SCC 423, the Supreme Court has held that jurisdiction under Article 227 of the Constitution of India is distinct from writ jurisdiction under Article 226 of the Constitution of India. The Court also observed in the same case that in some High Courts there is tendency of entertaining petition under Article 227 of the Constitution of India by terming them as writ petition. The Court in Shalini Shyam Shetty vs. Rajendra Shankar Patil, reported in (2010)8 SCC 329 has also made it clear that under Article 227 of the Constitution of India no writ could be entertained. 

 

In Neeta Singh & Ors. vs. The State of Uttar Pradesh & Ors., reported in 2024 SCC OnLine SC 5761, the Supreme Court has held: “15. In view of the decision in Prakash Chand (supra), we hold that nomenclature of a petition read with the substance thereof does matter. Much depends on what the subject matter of the petition is and who is entrusted to hear and decide it. A Judge of a high court having been assigned petitions under Article 226 for hearing and decision by its Chief Justice cannot, if he (the Judge) finds that the petition filed under Article 226 should have ideally been filed under Article 227, treat the petition as one under Article 227 and proceed to hear and decide it, unless the Chief Justice has also assigned to such Judge petitions under Article 227 of the Constitution for hearing and decision. If not so assigned, the learned Judge may, in his discretion, direct the petition to be treated as one under Article 227 for being placed before the learned Judge having assignment. This is mandatory and, therefore, one finds the caution sounded by this Court in the opening sentence of paragraph 26 of Pepsi Foods (supra) to be of extreme significance.”

 

In conformity with judicial pronouncements, the Patna High Court Rules was amended on March 14, 2016 and Part A, Chapter XII, Sub Rule (v) of Rule 3 of Patna High Court Rules was incorporated which provides: “(v) Petitioner under Article-227 of the Constitution of India in respect of any order or any proceeding before any Criminal Court would be filed in Criminal Miscellaneous Jurisdiction.”  Under Patna High Court Rules a petition under Article 227 of the Constitution of India needs to be filed under Criminal Miscellaneous jurisdiction.  Under the Subject Code Classification of the High Court, Group 54, pertaining to Criminal Writ  Jurisdiction Cases, is divided into sixteen distinct subject categories, including Subject No. 10, which specifically relates to Criminal Writ Petitions arising out of judicial orders. But the subject classification has not been amended to bring it in conformity with the amendment dated March 14, 2016, whereby Part A, Chapter XII, Rule 3, Sub-rule (v) of the Patna High Court Rules came into force, though subject of 'Criminal Miscellaneous under Article 227' has been put under Group 50 in the Constitution of Benches. The aforesaid rule specifically stipulates that a petition invoking the jurisdiction of the High Court under Article 227 of the Constitution of India, in criminal matters, is required to be instituted as a Criminal Miscellaneous Jurisdiction. The High Court would be failing in its duty if it were to disregard the nomenclature of ‘Criminal Miscellaneous Jurisdiction’ prescribed under the aforesaid Rules.

 

The Subject Code Classification of Patna High Court, Group 54 pertains to Criminal Writ Jurisdiction Cases and is further classified into sixteen distinct subject categories, all of which are assigned to a Single Judge. The Subject No. 4 relates to matters concerning quashing of FIR/charge-sheet, whereas Subject No. 10 specifically pertains to matters arising out of judicial orders. As per the constitution of Benches of the High Court, all matters falling under the various subject categories of Group 54 are assigned to the same Bench. 

 

There is a need for necessary steps for amendment in the Subject Code Classification of the Court to bring it in conformity with the Patna High Court Rules. 

Patna High Court imposes cost of Rs 5, 000 upon the petitioner in a case from Chitragupta Nagar, Khagaria

In Shashi Bhushan Prasad Singh vs. State of Bihar Through Its Pr. Secretary, Home Department, Govt. of Bihar (2026), Patna High Court's Division Bench of Justices Justices Rajeev Ranjan Prasad and Rana Vikram Singh delivered a 24-page long judgement dated October 30, 2026, wherein, it considered the question: can High Court interfere with the order granting remand of the accused on the ground of non-service of the written grounds of arrest upon the petitioner’s son at the time of his arrest on June 5, 2026. The Court concluded: "27. Having considered the facts of the present case in the light of the judgments of the Hon'ble Supreme Court, we are of the considered opinion that once the prejudice-oriented test is applied in the present case, this writ application is liable to fail. As has been noticed hereinabove, the petitioner's son was fully aware of the ground of his arrest and it is not one of those cases in which he was taken by surprise and that he was not in possession of any information/materials to oppose the remand. The fact is that his lawyer had appeared through video conferencing and opposed the remand order. 28. In our order dated 15.10.2026 and 28.10.2026, we have noted how this case has progressed and time of this Court has been wasted. We have also taken note of the conduct and manner in which the case has been conducted. At one stage, we were of the considered opinion that this aspect of the matter was required to be discussed and appropriate order is required to be passed but considering that sometimes in legal profession, the lawyers engaged by a party go on making submissions under some excitements without understanding the effect of the same and as we have been informed by learned counsel for the petitioner himself that he was mostly dealing in service matters and perhaps for that reason he could not take an appropriate view at the time of  filing of the present writ application, we have decided to drop this aspect of the matter and not to pass any order as regards the conduct etc. 29. Vide order dated 28.10.2026, this Court had imposed a cost of Rs.5,000/- upon the petitioner which was required to be deposited within two weeks from the said order. If the receipt showing deposit of cost is not filed in the Registry within two weeks from the said date, steps shall be taken for recovery of the same in accordance with law. 30. This writ application, therefore, fails. It is dismissed accordingly."  

The counsel for the petitioner relied upon the judgments of the Supreme Court in Mihir Rajesh Shah vs. State of Maharashtra reported in (2026) 1 SCC 500, Pankaj Bansal vs. Union of India reported in (2024) 7 SCC 576 and Dr. Rajinder Rajan vs. Union of India & Anr. reported in 2026 SCC OnLine SC 802. One of the contentions of the counsel was, that even if a non-bailable warrant was issued against the detenue that alone would not serve the purpose unless it was shown that the warrant of arrest was duly read out to the accused at the time of his arrest. In this connection, he relied upon the judgment of the Supreme Court in case of Kasireddy Upender Reddy vs. State of Andhra Pradesh reported in (2026) 8 SCC 275 (Paragraph ‘38’). The counsel for the petitioner submitted that the writ application as framed was well maintainable and in the light of the judgments of the Supreme Court, the petitioner’s son would deserve his release on bail on the ground of non-furnishing of the written grounds of his arrest. 

The Advocate General submitted that the facts of the case would clearly show that the petitioner was well aware of the accusations against him, he was in possession of a copy of the First Information Report in which he was named accused, he was also aware of the issuance of non-bailable warrant and in fact he had filed an application for recall of the warrant of arrest. It was also pointed out that the petitioner’s son had filed an application seeking pre-arrest bail before this Court in Criminal Miscellaneous No.38639 of 2026 which was pending consideration, therefore on the face of these materials, the petitioner cannot be allowed to argue that the grounds of arrest were not known to the petitioner’s son. Placing reliance upon the judgments of the Supreme Court in State of Karnataka vs. Sri Darshan reported in 2025 SCC OnLine SC 1702: (2026) 8 SCC 223 and State of Rajasthan vs. Jhabra Ram reported in 2026 INSC 1169, the  Advocate General submitted that the ratio of judgments of the Supreme Court in cases of Sri Darshan (supra) and Jhabra Ram (supra) would be applicable in the facts of this case. It was also submitted that the High Court has taken into consideration the various judgments of the Supreme Court on the issue of compliance with the requirement of Article 22 of the Constitution of India, in case of Sarfaraz @ Muzaffar
Ahmad Wani vs. Union of India through NIA, New Delhi (Criminal Appeal (DB) No. 1478 of 2025). In it's judgment dated October 6, 2026, the High Court took note of the judgment in case of Sri Darshan (supra) and only after recording that the case of Sarfaraz @ Muzaffar Ahmad Wani (supra) was clearly distinguishable from that of Sri Darshan’s case, the High Court allowed the said writ petition. The  Advocate General informed that after the charge-sheet was filed and cognizance was taken, the records have been committed to the court of session. It was pointed out the petitioner admits filing of chargesheet dated July 11, 2026, order taking cognizance passed on July 18, 2026 by Chief Judicial Magistrate, Khagaria and registration of Sessions Trial No. 508/2026 in the court of District and Sessions Judge, Khagaria.

Justice Prsad observed: "....the legal position which emerges is that the constitutional mandate provided in Article 22(1) of the Constitution of India is not a mere procedural formality but a constitutional safeguard in the form of fundamental rights. The intent and purpose of the constitutional mandate is to prepare the arrested person to defend himself. If the provisions of Article 22(1) are read in a restrictive manner, its
intended purpose of securing personal liberty would not be achieved rather curtailed and put to disuse.” 

In the case of Dr. Rajinder Rajan, the Supreme Court held:-“20. It is no longer res integra that supplying the grounds of arrest to the accused in writing before the arrest or, in a given case, under exceptional circumstances, immediately thereafter, is the mandate of the Constitutional guarantees provided under Article 22(1) read with Article 21 of the Constitution of India. The ratio of the judgment in Mihir Rajesh Shah conclusively holds that any deviation from the above principle would lead to the arrest of the accused being declared illegal entitling such accused to be released forthwith.”

In the case of Sri Darshan, the Supreme Court rejected the contention of counsel for the respondents-accused that the arrest was illegal as the grounds of arrest were not furnished immediately in writing, thereby violating Article 22 (1) of the Constitution and Section 50 CrPC (now Section 47 of the Nagarik Suraksha Sanhita, 2023). The Court held that in absence of demonstrable prejudice such an irregularity is, at best, a curable defect and cannot by itself warrant bail.

The High Court had occasion to take note of the various judgments of the Supreme Court on this issue in the case of Sarfaraz @ Muzaffar Ahmad Wani (supra). The entire discussions have been summed up in paragraph '36' of the judgment in the case of Sarfaraz @ Muzaffar Ahmad Wani (supra) which we reproduce hereunder for a ready reference:-
"36. The upshots of the aforementioned discussions would lead to conclude this Court as under:-
(i) The constitutional mandate and the statutory mandate as contained under Article 22 of the Constitution of India and Section 50 of the CrPC leave no room for doubt that it would be necessary for the investigating agency/arresting authority, that a copy of the written grounds of arrest is furnished to the arrested person as a matter of course and without exception. This has been held by the Hon'ble Supreme Court in the case of Pankaj Bansal versus Union of India reported in (2024) 7 SCC 576:
(ii) If the arrest memo is simply a proforma indicating that the grounds of arrest has been conveyed, it would not be a compliance with the judgments of the Hon'ble Supreme Court in the case of Ahmed Mansoor (supra) and Dr. Rajindra Rajan (supra): and
(iii) Templates of the arrest memo containing the statement to the effect that the arresting officer explained the grounds of arrest to the accused before the arrest, is no compliance with the mandate of Article 22 of the constitution of India read with section 50 and 50A of the Code of Criminal Procedure (Now Sections 47 and 48 of the BNSS); and
(iv) The judgment in Sri Darshan’s case (supra) was rendered by the Hon’ble Supreme Court with a clear finding that the arrest memos and remand orders reflected that the respondents were aware of the reasons for their arrest. They were legally represented from the outset and applied for bail shortly after arrest, evidencing an immediate and informed understanding of the accusations. In such circumstance, the Hon’ble Supreme Court took a view that nomaterial has been placed on record to establish that any prejudice was caused due to the alleged procedural lapse. In the present case, the facts are entirely different, therefore, the decision of the Hon’ble Supreme Court in Sri Darshan’s case (supra) is to be read as explained in the case of Ahmed Mansoor (supra) in paragraph ‘8’ of the judgment."
24. We have further noticed that, in it’s recent judgment in the case of Jhabra Ram (supra), the Hon'ble Supreme Court has taken note of the prejudice-oriented test as has been laid down in Sri Darshan's (supra) case. We reproduce paragraph '19' of the judgment in Jhabra Ram as under:-
"19. In evaluating the effect of alleged procedural defects in communicating grounds of arrest, this Court in State of Karnataka v. Sri Darshan (supra) definitively established that the governing principle is the prejudice-oriented test. The Court categorically observed as follows:
“32.5. While Section 50 CrPC is mandatory, the consistent judicial approach has been to adopt a prejudice-oriented test when examining alleged procedural lapses. The mere absence of written grounds does not ipso facto render the arrest illegal, unless it results in demonstrable prejudice or denial of a fair opportunity to defend.
32.6. The High Court, however, relied heavily on the alleged procedural lapse as a determinative factor while overlooking the gravity of the offence under Section 302 IPC and the existence of a prima facie case. It noted, inter alia, that there was no mention in the remand orders about service of memo of grounds of arrest (SCC OnLine Kar para 45), the arrest memos were allegedly template-based and not personalised (SCC OnLine Kar para 50), and eyewitnesses had not stated that they were present at the time of arrest or had signed the memos (SCC OnLine Kar para 48). Relying on Pankaj Bansal v. Union of India [Pankaj Bansal v. Union of India, (2024) 7 SCC 576 : (2024) 3 SCC (Cri) 450] and Prabir Purkayastha v. State (NCT of Delhi) [Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254 : (2024) 3 SCC (Cri) 573], it concluded (SCC OnLine Kar paras 43, 49-50) that from 3-10-2023 onwards, failure to serve detailed, written, and individualised grounds of arrest immediately after arrest was a violation entitling the accused to bail.
32.7. In the present case, the arrest memos and remand records clearly reflect that the respondents were aware of the reasons for their arrest. They were legally represented from the outset and applied for bail shortly after arrest, evidencing an immediate and informed understanding of the accusations. No material has been placed on record to establish that any prejudice was caused due to the alleged procedural lapse. In the absence of demonstrable prejudice, such as irregularity is, at best, a curable defect and cannot, by itself, warrant release on bail. As reiterated above, the High Court treated it as a determinative factor while overlooking the gravity of the charge under Section 302 IPC and the existence of a prima facie case. Its reliance on Pankaj Bansal [Pankaj Bansal v. Union of India, (2024) 7 SCC 576 : (2024) 3 SCC (Cri) 450] and Prabir Purkayastha [Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254 : (2024) 3 SCC (Cri) 573] is misplaced, as those decisions turned on materially different facts and statutory contexts. The approach adopted here is inconsistent with the settled principle that procedural lapses in furnishing grounds of arrest, absent prejudice, do not ipso facto render custody illegal or entitle the accused to bail.”
25. This Court further finds that in the case of Jhabra Ram (supra), the Hon'ble Supreme Court has discussed its judgment in the case of Kasireddy Upender Reddy (supra). In this connection, the discussions made in paragraphs '20', '21' and '22' of the judgment would be significant to take note of :-"20. In examining the constitutional object underlying Article 22(1)37 of the Constitution and Section 4738 of the BNSS, this Court in Kasireddy Upender Reddy (Supra) reiterated that the requirement of communicating grounds of arrest is designed to serve a substantive purpose rather than a mere formalistic routine. The Court observed as follows: “32. The object underlying the provision that the grounds of arrest should be communicated to the person arrested has been very succinctly explained in Vihaan Kumar [Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799]. On learning about the grounds for arrest, the person concerned will be in a position to make an application before the appropriate court for bail, or move the High Court for a writ of habeas corpus. Further, the information will enable the arrested person to prepare his defence in time for the purposes of his trial. For these reasons, it has been provided by the Constitution that, the ground for the arrest must be communicated to the person arrested as soon as possible. 33. For the purposes of clause (1) of Article 22, it is not necessary for the authorities to furnish full details of the offence. However, the information should be sufficient to enable the arrested person to understand why he has been arrested. The grounds to be communicated to the arrested person should be somewhat similar to the charge framed by the Court for the trial of a case.”
21. Applying these principles to the present facts, the record clearly reflects that the respondent was fully cognizant of the grounds for his apprehension and was effectively represented by counsel at the stage of remand. The substantive mandate of Article 22(1) thus stands meaningfully fulfilled, with no demonstrable prejudice having been suffered.
22. As affirmed in Kasireddy Upender Reddy (supra) and State of Karnataka (supra), the constitutional framework requires that the arrestee be informed of the grounds of arrest but does not insist upon written communication as an indispensable formality irrespective of the attendant circumstances. In the absence of demonstrable prejudice or denial of an opportunity to defend, an alleged procedural defect in the mode of service cannot ipso facto invalidate detention or entitle an accused to regular bail, more so in cases involving grave allegations of espionage affecting national security and sovereign integrity." 

The judgement by Division Bench reads: "26. At this stage, we are reminded of the judgment of the Hon'ble Supreme Court in the case of Bharat Petroleum Corpn. Ltd. and Another Vs. N.R. Vairamani and Another reported in (2004) 8 SCC 579 (para 9) in which the Hon'ble Supreme Court has observed as under:-“9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton2 (AC at p. 761) Lord MacDermott observed : (All ER p. 14 C-D) “The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge,…””