Phenothiazine, Promethazine come within the ambit of Drugs and Cosmetics Act, 1940, not under NDPS Act: Justices Mohit Kumar Shah, Arun Kumar Jha

In Dharmendra Kumar v. The State of Bihar (2026), Patna High Court's Division Bench of Justices Mohit Kumar Shah and Arun Kumar Jha delivered a 14-page long judgement dated April 9, 2026. It directed the suspension of the order of sentence imposed upon the accused persons booked under the Narcotic Drugs and Psychotropic Substance (NDPS) Act, 1985. The judgement was authored by Justice Jha.  The Court has held that Phenothiazine and Promethazine do not come within the ambit of the NDPS Act, and they are covered under the Drugs and Cosmetics Act, 1940. 

The High Court was considering an appeal filed by the appellant convicts seeking the suspension of sentence and grant of bail who were convicted under Section 21(c) of the NDPS Act. 

Justice Jha held, “The discussions made hereinbefore clearly shows that the seized articles which have been found to be Phenothiazine and Promethazine do not come within the ambit of any narcotic drug and psychotropic substances for the purposes of NDPS Act. Therefore, the judgment of conviction and order of sentence qua the appellants for possession of these two substances, prima facie, appears to be against the provisions of the NDPS Act and might not be sustainable, hence we find that the appellants have been able to make out a strong case in their favour for suspension of sentence and grant of bail to them during the pendency of their respective appeals.” 

The police officials had received information that three persons riding two motorcycles were going to a hotel to make a delivery of a consignment of Heroin. The informant reached the spot in front of the named hotel, where the Magistrate and Panther constables also came, and the checking of vehicles started. The police party caught hold of the suspected persons, and they were served with notice under Section 50 of the NDPS Act. From the motorcycle driven by the appellants Dharmendra Kumar and Ravindra Kumar, recovery of 1.006 Kg of heroin like substance was made, whereas from the motorcycle driven by appellant Vijay Kumar, recovery of 1.012 Kg of heroin like substance was made. On testing the seized articles, prima facie evidence of contraband containing heroin was found. 

On the basis of the written information of the informant, a case was registered under Sections 8, 21(c), 25 and 29 of the NDPS Act. Charges were framed, and the Trial Court convicted the appellants. The appellants approached the High Court in appeal on the ground that, as per the result of the report, the seized substances were “Phenothiazine along with Promethazine” and they are neither narcotic drugs nor psychotropic substances under the NDPS Act. Reasoning The Bench, at the outset, explained that Section 2 (xiv) of the NDPS Act defines “narcotic drug” to mean coca leaf, cannabis (hemp), opium poppy straw and includes all manufactured drugs. Similarly, Section 2 (xxiii) defines “Psychotropic Substance” as any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. 

Referring to the Schedule attached with the NDPS Act, which provides the list of psychotropic substances under Clause (xxiii) of Section 2, the Bench noted that this list does not contain either Phenothiazine or Promethazine. Similarly, Schedule I of NDPS Rules, 1985, which contains a list of narcotic drugs and psychotropic substances for which import into and export out of India has been provided for medical, scientific and training purposes, also does not contain the aforementioned two substances, i.e., Phenothiazine and Promethazine. 

Justice Jha found that the substances Phenothiazine and Promethazine find mention under Schedule H and G, respectively, of the Drugs Rules, 1945. The substance “Phenothiazine, derivatives of and salts of its derivatives” has been mentioned as item no.397 in Schedule H and the substance “Promethazine” has been mentioned under the heading ‘Antisthaninic substances, the following, their salts, their derivatives, salts of their derivatives’ in Schedule G of Drugs Rules, 1945. 

The judgement reads: “Further it is also pertinent to take note of the law in this regard to the effect that if any cognizable offence has been committed under Chapter IV of Drugs and Cosmetics Act, 1940, the police is not empowered to register an FIR”. 

It concluded that the seized articles did not come within the ambit of the NDPS Act. It suspended the order of sentence and directed the release of the appellants on bail during the pendency of the appeals.

Justice Alok Kumar Pandey accepts unconditional apology from Advocate P.R. Singh for inadvertent mistake, recalls 2018 order by Justice Aditya Kumar Trivedi

In Akhilesh Prasad @ Akhilesh Singh vs. The State of Bihar (2026), Justice Alok Kumar Pandey delivered a 30-page long judgement dated March 26, 2026, wherein, he concluded:"43. From perusal of record, it is evident that occurrence is of the year 2005 and appellant has already suffered 21 years in litigation and he has suffered mental agony of facing the trial since 2005 and he has lost his precious time being a first offender. The appellant has remained in judicial incarceration for one year, one month and nine days. Hence, to put the appellant in jail for remaining period is too harsh as appellant is aged about 90 years. Hence, the court is of the view that if sentence of the appellant is reduced to the period already undergone that would meet the ends of justice. Accordingly, the sentence of the appellant is reduced to the period already undergone. 44. With the aforesaid modification in sentence, the instant appeal stands partly allowed. 45. The interlocutory application, if any, also stands disposed of. 46. Let a copy of this judgment be transmitted to the Superintendent of the concerned jail for compliance and for record. 47. The records of this case be also returned to the concerned trial court forthwith." 

Justice Pandey observed: "42. So far as sentence of appellant under Section-324 of I.P.C. is concerned, learned counsel for the appellant submits that the appellant is aged about 90 years, he is a first offender and appellant has remained in judicial incarceration for one year, one month and nine days. Occurrence is of the year 2005 and appellant has already suffered 21 years in litigation and he has suffered mental agony of facing the trial since 2005 and he has lost his precious time being a first offender. Hence, if the appellant is sentenced to the period undergone, that would meet the ends of justice." 

An  Interlocutory Application was filed on behalf of the appellant for recalling the order dated November 27, 2018, wherein it was submitted that appellant of the appeal namely, Akhilesh Prasad @ Akhilesh Singh was still alive. It was also submitted that due to a bona fide misunderstanding arising out of a telephonic communication, counsel for the appellant inadvertently informed the Court that the appellant had expired, whereas in fact, it was the father of the appellant who had died and not the appellant. It was also submitted that the incorrect statement was neither intentional nor deliberate and no benefit could have accrued to the appellant by making such a submission. However, an unconditional apology was also  tendered on behalf of the appellant for the inadvertent mistake. Prabhat Ranjan Singh was the counsel for the appellant who had made the inadvertent mistake. The Court was satisfied that the incorrect statement was made due to a bona fide misunderstanding arising out of a telephonic communication. 

The November 2018 order reads:"It has been submitted at the end of the learned counsel for the appellant that sole appellant Akhilesh Prasad @ Akhilesh Singh is dead. It has further been submitted that as fine has also been inflicted apart from substantial sentence whereupon, the siblings of appellant (since deceased) intent to proceed with instant appeal and so, substitution is needed and for that an adjournment of four weeks be granted. List accordingly. During midst thereof, the concerned should take proper step." Notably, it was the father of the appellant who had died, not the appellant. 

Accordingly, the 1-page long order dated November 27, 2018 by Justice Aditya Kumar Trivedi was recalled by Justice Pandey. The Criminal Appeal was restored to its original file and number. and I.A. No. 3 of 2018 was allowed. 

The appeal was directed against the judgment of conviction dated January 15, 2009 and order of sentence dated January 17, 2009 passed by Additional District & Sessions Judge, F.T.C.-IV, Jehanabad in Sessions Trial No. 566 of 2006/138 of 2006, arising out of Hulasganj Ghosi P.S. Case No. 67 of 2005 (G.R. Case No. 413 of 2005) whereby and whereunder the appellant was convicted for the offences punishable under Sections 447, 341 and 307 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 7 years along with fine of Rs. 2,000/- under Section 307 of IPC and further sentenced to undergo rigorous imprisonment for one month in each Sections 447 and 341 of IPC. All the sentences were directed to run concurrently. 

As per prosecution case, the informant Bharteshwar Prasad (PW-6), while undergoing treatment at the clinic of Dr. Pravin Kumar, gave his fardbeyan before A.S.I. Balmiki Singh of Islampur Police Station on March 21, 2005 at about 10:30 A.M., stating inter alia that on March 20, 2005 at about 8:00 P.M., he returned to his house at village Keur from Islampur Bazaar. As soon as he opened his door, his co-villager Akhilesh Prasad (appellant), armed with a farsa, came to his door along with two unknown persons and abused him in filthy language. Upon protest by the informant, the accused persons disclosed that the informant used to demand the outstanding rent from the wife and sister of the appellant, who had been residing in the informant’s house at Islampur without paying rent for the last two and a half years. On this issue, the accused/appellant allegedly threatened the informant that he would teach the informant and his son Arun such a lesson that they would forget to demand the rent. After a brief altercation, the appellant Akhilesh Kumar, who was having a farsa in his hand, assaulted the informant by giving a farsa blow on his head with an intention to kill him. Due to the assault, the informant sustained bleeding injuries and he became unconscious. He raised alarm for help upon which the local residents assembled at the place of occurrence. After seeing them, the accused persons fled away. The informant was taken to the clinic of Dr. Pravin Kumar at Islampur by the neighbours for treatment. During the course of treatment, he gained consciousness. On the basis of fardbeyan given by the informant/PW-6, Hulasganj Ghosi P.S. Case No. 67 of 2005 dated March 23, 2005 was registered for the offence under Sections 447, 504, 341, 323, 324 and 34 of the I.P.C. Routine investigation followed. Statement of witnesses came to be recorded and on the completion of investigation, charge sheet was submitted against the appellant under Sections 447, 341, 326, 307 and 34 of the IPC. Thereafter, the trial court took cognizance under the aforementioned Sections of the IPC. The case was committed to the court of sessions after following due procedure. The  trial court framed charges against the appellant under Sections 447, 341, 307 and 34 of the IPC. Charges were read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. In order to bring home the guilt of the accused persons, the prosecution examined all together seven witnesses. 

Justice Pandey observed:"The presence of injured witness/informant at the place of occurrence cannot be discarded as he is sufferer of crime and has supported the story of prosecution on the point of place of  occurrence, time of occurrence and manner of occurrence. As such, even if the Investigating Officer of
this case has not been examined, the whole prosecution story cannot be thrown out in a case where the place of occurrence is otherwise proved. Even if some minor discrepancies or inconsistencies are found in the evidence of prosecution-witnesses regarding manner of appearance of some of the witnesses, the whole story of prosecution cannot be thrown out when crux of the prosecution story is quite intact and
supportive of manner of occurrence, time of occurrence and how the injured/informant suffered injuries. 

Justice Pandey relied on para 22 of the Supreme Court's decision in Brahm Swaroop & Anr. vs. State of U.P., reported in AIR 2011 SC 280, which reads: "22. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to
discredit an injured witness."

He drew on para 30 of the Court's judgment in Mano Dutt & Anr. vs. State of Uttar Pradesh, reported in (2012) 4 SCC 79, which observed as follows:-"30... Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit."

In State of U.P. vs. Kishan Chand & Ors. reported in (2004) 7 SCC 629, a similar view was reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence lends support to his testimony that he was present during the occurrence. 

Justice Pandey considered as to whether the act of the appellant would attract the ingredients of Section 307 of the Indian Penal Code or not. "36. It is well settled that in order to attract Section 307 IPC, intention or knowledge to cause death is the essential ingredient. Mere causing of grievous injury by a sharp cutting weapon is not sufficient to bring the case within the ambit of Section 307 IPC, unless intention or knowledge to cause death is clearly established." 

The judgement reads:"37. It has rightly been admitted by P.W. 6/informant that there was no intention on the part of appellant regarding causing death as despite having full opportunity, the appellant did not commit any act of assault repeatedly. The very act of appellant clarifies that the intention was not to kill the informant/victim and, at best, inference can be drawn with regard to causing injury to informant. Considering the fact that only a single blow was inflicted, there was no repetition of assault and there is absence of clear evidence regarding intention or knowledge to cause death, the submission advanced by the learned counsel for the appellant is quite tenable and sustainable in the light of given facts and circumstances of the case that from the materials on record, only offence under Section-324 of I.P.C. can be made out and, as such, conviction of appellant under Section-307 of I.P.C. is not sustainable. 38. In the background of the discussions made hereinabove and on taking an overall view, the impugned judgment is varied only to the extent that the conviction of appellant stands modified to that under Section-324 of I.P.C. 

In absence of evidence, no offence was made out under Section 341 of the IPC, the appellant was acquitted of the charge under Section-341 of I.P.C. There was no allegation of criminal trespass against the appellant either in the initial version of the prosecution-story or in the evidence of the prosecution-witnesses, including the informant. The informant’s version in the initial version of the prosecution story as well as in his evidence is that on March 20, 2005 at about 8:00 P.M., he returned to his house and as soon as he was opening the door of his house, the accused Akhilesh Prasad came and assaulted him on his head by means of farsa. Hence, it was evident that the incident of assault took place outside the door of informant’s house. In view of the above, no offence is made out under Section 447 of the IPC. Accordingly, appellant was acquitted of the charge under Section-447 of I.P.C.

Supreme Court's Division Bench sets aside order by Justices Rajeev Ranjan Prasad, Partha Sarthy, gnoring Court's 3-Judge Bench decision in Union of India vs. K.A. Najeeb?

In Dhan Jee Pandey vs. The State of Bihar & Anr. (2026), Supreme Court's Division Bench of Justices R. Mahadevan and A. Amanullah delivered a 21-page long judgment dated April 10, 2026, wherein, it concluded:"...The impugned order granting suspension of sentence to Respondent No. 2 is set aside. Consequently, the bail bond furnished by Respondent No. 2 stands cancelled. He is directed to surrender before the concerned trial Court within a period of two weeks from today, failing which the trial Court shall take necessary steps to secure his custody in accordance with law....The impugned order granting suspension of sentence to Respondent No. 2 is set aside. Consequently, the bail bond furnished by Respondent No. 2 stands cancelled. He is directed to surrender before the concerned trial Court within a period of two weeks from today, failing which the trial Court shall take necessary steps to secure his custody in accordance with law." The judgement was authored by Justice Mahadevan. The impugned 5-page long order dated order dated November 22, 2024 in Shekhar Pandey @ Shekhar Suman Pandey @ Sintu Pandey @ Situ vs. The State of Bihar (2024) was authored by High Court's Division Bench of Justices Rajeev Ranjan Prasad and Partha Sarthy. The case had arisen out of PS. Case No.-4/2016.  

Justice Prasad had authored the High Court's order. His reasoning appears defensible in the light of the decision in Union of India v. KA Najeeb AIR 2021 SC 712, 3-Judge Bench of the Supreme Court delivered on February 1, 2021. The relevant part of para 18 of the judgement reads:

“... at the commencement of proceedings, courts are expected to appreciate the legislative position against grant of bail but the rigours of such provision melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence…”

The decision in Najeeb's case “lays down the constitutional approach arising from Article 21, whereas Watali (supra) explains the statutory approach arising out of Section 4-3(D)(5) of UAPA” (para 21 of Mohamad Hakim v. State (NCT of Delhi) 2021 SCC Online Del 4623. In its decision in National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, delivered by the Supreme Court on April 2, 2019.

 

The judgement by Justice Mahadevan reads: "A perusal of the record indicates that the prosecution case is founded on ocular evidence, which has been duly appreciated and accepted by the trial Court. Without considering the same in a proper perspective, the High Court erred in granting suspension of sentence to Respondent No. 2 and released him on bail. 19. The reliance placed by the High Court on the circumstance that the fatal shot was attributed to a co-accused, while Respondent No. 2 has been convictedwith the aid of Section 34 IPC, is wholly misconceived. The doctrine of constructive liability under Section 34 IPC is well settled; where an offence is committed in furtherance of a common intention, each participant is equally liable for the act done in execution thereof. The absence of a specific overt act cannot, at this stage, dilute the culpability of the convict, particularly in the face of a finding of common intention. 20. It is further evident that the High Court has embarked upon a selective consideration of certain aspects of the prosecution case, which in substance amounts to a premature reappreciation of evidence. Such an approach is directly contrary to the law laid down by this Court in Om Prakash Sahni (supra). 21. As held in State of Haryana v. Hasmat (supra), undue weight cannot be accorded to the period of incarceration or the pendency of the appeal in isolation, particularly where the conviction is founded on credible evidence. 22. The criminal antecedents of Respondent No. 2 also assume significance. The prosecution has brought on record multiple prior cases registered against him, including offences involving violence and use of arms. Though it has been contended that such cases arose out of political rivalry and have culminated in acquittal, such a contention cannot, at this stage, efface the relevance of antecedents as a factor in assessing the propriety of granting suspension of sentence. 23. Additionally, material has been placed to indicate that Respondent No. 2 has allegedly attempted to intimidate the appellant by issuing threats and initiating false cases. The explanation offered on behalf of Respondent No. 2 that such allegations are motivated, does not inspire confidence of this Court, particularly at this interlocutory stage. 24. Having regard to the seriousness of the offence, the nature of the evidence as accepted by the trial Court, the absence of any apparent infirmity in the judgment of conviction, and the settled legal position governing suspension of sentence, this Court is of the considered view that the High Court was not justified in granting suspension of sentence to Respondent No. 2. The impugned order, therefore, warrants interference by this Court." 

 

Notably, Supreme Court's Division Bench of Justices V.R. Krishnaiyer and N.L. Untwalia in State of Rajasthan vs. Balchand (1977) 4 SCC 308 held:"The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court." Justice Mahadevan's judgement has taken note of  

Justice Mahadevan relied on Supreme Court's decision in State of Haryana vs. Hasmat (2004) 6 SCC 175, wherein, the Court held that suspension of sentence in serious offences must not be granted as a matter of routine, and that the appellate court must apply its mind to the nature of the offence, the manner of its commission, and the gravity of the findings recorded by the trial Court. The relevant paragraphs are: “6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.….9. In Vijay Kumar v. Narendra [(2002) 9 SCC 364 : 2003 SCC (Cri) 1195] and Ramji Prasad v. Rattan Kumar Jaiswal [(2002) 9 SCC 366 : 2003 SCC (Cri) 1197] it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar case [(2002) 9 SCC 364 : 2003 SCC (Cri) 1195] it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects have not been considered by the High Court while passing the impugned order." Notably, Justice Mahadevan's judgement does not refer to the subsequent decision of 2021 in Najeeb's case.  

It is crystal clear from the decision in Najeeb's case that the settled position of law is that the restriction on grant of bail will hold at the initial stages, but as time progresses the statutory restrictions, which “draw this justification on the premise that trial in such cases would be concluded expeditiously” gets diluted. It has been underlined by the Bombay High Court in Vinay Vivek Aranha vs. Union of India and another, (BA 2641/2021).

Significantly, a judgement delivered in ignorance of a relevant statutory position is deemed to be per incuriam. In para 183 of the Supreme Court's decision in AR Antulay v. RS Nayak (1988) 2 SCC 602) held that a decision set aside would “demand the decision of its precedent value”. In para 41 of its decision in State of UP and Anr. v. Synthetics and Chemicals Ltd. & Anr. (1991 4 SCC 139) cited from page no. 153 of Salmond on Jurisprudence, 12th Ed. that a “decision passes sub-silentio when the particular point of law involved in the decision is not perceived by the court or present in its mind”. In Punjab Land Development and Reclamation Corporation Ltd. v. Labour Court (1980) 3 SCC 682), it held that the “Supreme Court may not be said to declare the law on these subjects if the relevant provisions were not really present to its mind”.

The criminal appeal was filed in the Supreme Court by the appellant/informant challenging the judgment and order dated November 22, 2024 passed by Patna High Court in Criminal Appeal (DB) No. 1180 of 2018, whereby, the High Court, during the pendency of the appeal, had suspended the sentence of life imprisonment awarded to Respondent No. 2, Shekhar Pandey @ Shekhar Suman Pandey @ Sintu Pandey @ Situ and released him on bail. The prosecution case was that on the basis of the written information (fardbayan) of the appellant /informant, namely Dhan Jee Pandey, Buxar P. S. case dated January 4, 2016 was registered under Sections 302, 307, 120B and 34 of the Indian Penal Code, 1860 and Section 27 of the Arms Act, 1959 against Respondent No. 2 and other accused persons. It was alleged that on January 4, 2016 at about 04.15 p.m., the appellant, along with his elder brother (deceased), Ramashankar Pandey @ Jhamman Pandey, was proceeding towards his village on a motorcycle. On the way, they stopped at a betel shop located at the village chatti. At that time, the appellant’s father-in-law, Mukteshwar Mishra, also arrived and engaged in conversation with the appellant at a short distance from the shop. In the meantime, Respondent No. 2 along with other accused persons reached the spot and began abusing the deceased. Immediately thereafter, two accused persons, namely Shiv Jee Pandey and Ghanshyam Pandey, caught hold of the deceased, while the others took out firearms. Shiv Jee Pandey then fired a gunshot at the head of the deceased, causing fatal injuries. The other accused persons also fired at the appellant, who narrowly escaped. Thereafter, all the accused fled the scene on motorcycles. The deceased succumbed to the injuries and died on the spot.

Upon hearing the interlocutory application, the appellant Shekhar Pandey @ Shekhar Suman Pandey @ Sintu Pandey @ Situ wherein he had renewed his prayer for suspension of sentence and release on bail during pendency of the appeal, in his order, Justice Prasad had concluded: "....we are of the opinion that in the kind of the allegations against the appellant and the materials in which he has been convicted showing that he along with other had caught hold of the deceased, the allegation being general in nature and he has already spent six years seven months in incarceration but the appeal has not been listed for hearing, we direct suspension of sentence and release of the appellant on bail, during pendency of the appeal, on furnishing bail bond of Rs.25,000/-(Rupees Twenty Five Thousand Only) with two sureties of the like amount each to the satisfaction of learned A.D.J.-II-cum-Special Judge, Excise Court, Buxar in connection with Sessions Trial No.265 of 2016 arising out of Buxar (I) P.S. Case No.4 of 2016. 10. The fine, if any, imposed as a part of sentence shall remain suspended during pendency of the appeal. 11. It is made clear that the observations made hereinabove are only prima- facie and tentative for the purpose of suspension of sentence and bail only which would not cause prejudice to the either parties."

 

While rejecting the prayer for bail of the appellant on earlier occasion, the High Court in it’s order dated January 21, 2020 had observed that the Court was not inclined to grant bail to the appellant at this stage. But at the subsequent stage, the appellant had already remained in incarceration for over six years seven months and since the rejection of his prayer for bail more than 4½ years had gone past but the appeal had not yet been listed for hearing. 

 

The Supreme Court "emphasised that reasons must be recorded in writing, reflecting due consideration of relevant factors, and that orders granting suspension of sentence should not be passed mechanically." 

 

In Prem Prakash vs. Union of India through Directorate of Enforcement (2024) SLP (Crl.) 5416/2024, Supreme Court in its decision dated August 28, 2024 upheld the principle laid down in Balchand of bail being the rule and jail being the exception--- through which it can be deduced that in cases of arrest by ED as well, the natural bail principle is to follow. It referred to the Supreme Court's decision in a PMLA matter in the case of Vijay Madanlal Choudhary (2022). Notably, the decision in the case of Prem Prakash relied upon a decision by three justices in Raja Ram Jaiswal AIR 1964 SC 828 but failed to mention that after the decision in the case of Raja Ram Jaiswal came the Constitution Bench's decision in Badku Joti Savant AIR 1966 SC 1746.

 

 

Justices Bibek Chaudhuri, Chandra Shekhar Jha modify order of conviction and sentence by Special Judge, POCSO Court, Vaishali in case from 2016

In Birju @ Raja vs. The State of Bihar Bihar (2026), Patna High Court's Division Bench of Justices Bibek Chaudhuri and Chandra Shekhar Jha delivered a 31-page long judgment dated April 10, 2026, wherein, it concluded:"....we modify the order of conviction and sentence passed against the appellant. 54. The appellant, namely, Birju @ Raja, is convicted under Section 235(1) of the Cr.P.C. for the offence punishable under Section 366 and Section 376 of the I.P.C. In respect of  other offences, charged, the appellant is acquitted.55. For the offence punishable under Section 366 of the I.P.C., the appellant is liable to be sentenced to suffer imprisonment of either description, for a term which may extend to 10 year and shall also be liable to fine. 56. For the offence punishable under Section 376 of the I.P.C., he shall also be punished with imprisonment of either description, which shall not be less than 10 years, but which may extend to imprisonment for life and shall also be liable to fine." Justice Chaudhuri authored the judgement. 

The offences Sections 366 and 376 of the IPC are serious and non-bailable offences of sexual violence. Section 366 deals with kidnapping, abducting, or inducing a woman to compel marriage or force illicit intercourse. Section 376 defines the punishment for rape.

The judgement added: "57. We have considered the fact that the appellant is a young man. No previous offence was proved against him. Undoubtedly, he committed a heinous offence but considering the age of the appellant and the fact that his entire life is left, when he can live a life of a responsible citizen, we propose to pass the following order of sentence: -(a) The appellant, Birju @ Raja, is sentenced to suffer rigorous imprisonment for a period of 10 years with fine of Rs. 20,000/-, in default to suffer further imprisonment of six months for the offence punishable under Section 366 of the I.P.C.  (b) The appellant is also sentenced to suffer rigorous imprisonment for 10 years and also to pay fine of Rs. 20,000/-, in default to suffer further imprisonment for six months for the offence punishable under Section 376 of the I.P.C. (c) Substantive sentence of imprisonment shall run concurrently. However, sentence for non-payment of fine shall run separately. (d) If the fine amount is realized, 80 per cent of the said fine amount be paid to the victim no. 1 as compensation. 58. The appellant is acquitted of the remaining charges."

Justice Chaudhuri observed:"....we would like to observe at the outset that every accused is presumed to be innocent unless proved guilty. The presumption of innocence is a human right. However, subject to statutory exceptions, the said principle forms the bedrock of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and its gravity must be taken into consideration. The Courts must remain vigilant to ensure that the application of such presumption does not result in injustice or mistaken conviction. Under the Prevention of Children from Sexual Offences Act, the concept of reverse burden has been introduced, as in certain other serious offences under enactments such as the NDPS Act, Negotiable Instrument Act, Prevention of Corruption Act and Terrorist and Disruptive Activities (Prevention) Act, etc. The provisions contained in the aforesaid enactments and particularly in Sections 29 and 30 of the POCSO Act, 2012, are in the nature of an exception to the general principle that the burden of proof always lies upon the prosecution. In the instant case, since we are concerned with the principle of reverse burden contained in Section 29 and 30 of the POCSO Act, we propose to deal with the law relating to reverse burden POCSO Act."

The judgement drew on the decision in Sachin Baliram Kakde vs. State of Maharashtra, reported in 2015 SCC OnLine Bom 8972, the Supreme Court in the context of presumption under Section 29 of the POCSO Act, 2012, held as follows: - “18. Thus, when a person is prosecuted for commission of the offence specified in the said section, the Court is required to presume that he said person has committed the said offence unless the contrary is proved. 19. The presumption, however, cannot be said to be irrebuttable. Infact, no presumption is irrebuttable in law, as this cannot be equated with conclusive proof. The provisions of section 29 of the POCSO Act mandates the Court to draw the presumption unless contrary is proved. 20. One has to keep in mind, as expressed by an eminent jurist that presumptions are bats in law, they fly in a twilight but vanish in the light of facts.” 30. It is no longer res integra that the presumption under Section 29 of the POCSO Act is not absolute. It is the duty of the prosecution to prove the foundational fact of the case, and only thereafter can the presumption under Section 29 and 39 be invoked. The statutory presumption stands activated only upon proof of the foundational facts by the prosecution. Even once such presumption is activated, the burden upon the accused is not to rebut the same beyond reasonable doubt. It is sufficient if the accused is able to create a serious doubt regarding the veracity of the prosecution case or brings on record material, rendering the prosecution version highly improbable. 31. Bearing this principle in mind, this Court shall now appreciate the evidence on record in order to come to a definite finding and the final conclusion in the instant appeal."

Res integra refers to legal issues that remain unresolved or untouched by precedent, affording judges the discretion to decide.  

The judgement reads:"41. We are not unmindful to note that in every case of rape, there must be physical injury around the private part and other parts of the body of the victim where there is complete subjugation out of fear and the victim found that any resistance against such act of the accused would be futile effort. Absence of injury does not support a case of consensual sex. 42. On the question as to whether the physical relationship between the appellant and the victim no. 1 was consensual or she was forced to commit sexual intercourse, the evidence of victim as well as circumstances leading to such activity are relevant. In Premkumar (supra), the Hon'ble Supreme Court held that physical relationship between the victim and the accused was consensual because of the fact that it appeared in evidence that the victim and the accused had love relationship for long. In the instant case, on the contrary, it is specifically denied by the victim no. 1 that she had love relationship with the appellant. In the F.I.R. also, the informant, being the uncle of the victim no. 1, stated that the appellant and two other boys used to disturb the victims for quite some time. Therefore, there is absolutely no evidence that the victim had love relationship with the appellant." It referred to the decision in Nirmal Premkumar v. State, reported in 2024 SCC OnLine SC 260, which was cited by the counsel of the appellant.

The criminal appeal had challenged the judgement, dated September 26, 2018, whereby and whereunder, the appellant was convicted under Section 235(1) of the Cr.P.C. for committing an offence punishable under Sections 363/376(2)(i) of the Indian Penal Code and Section 4/6/10 of the POCSO Act, 2012. By an order dated October 5, 2018, the Additional Sessions Judge-cum-Special Judge, Vaishali at HM Hjipur sentenced the appellant to undergo rigorous imprisonment for 10 years with fine of Rs. 20,000/- for the offence under Section 363 read with Section 34 of the I.P.C. He was also sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 20,000/- for the offence punishable under Section 366A read with Section 34 of the I.P.C. The appellant was further sentenced to suffer imprisonment for 12 years and fine of Rs. 25000/- for the offence punishable under Section 376 (2)(i) read with Section 34 of the I.P.C. Further sentence of rigorous imprisonment of 12 years with fine of Rs. 25,000/- for the offence punishable under Section 4 of the POCSO Act, 2012. Further sentence of rigorous imprisonment for 10 years with fine of Rs. 20,000/-. Further sentence of rigorous imprisonment for 12 years and fine of Rs. 25000/- for the offence punishable under Section 6 of the POCSO Act, 2012 and further sentence of rigorous imprisonment for 7 years and fine of Rs. 10,000/- for the offence punishable under Section 10 of the POCSO Act, 2012. It was also directed that the appellant shall suffer simple imprisonment for 5 months each for non-payment of fine amount on each count. All the sentences of rigorous imprisonment were directed to run concurrently. 

In the appeal, the appellant had challenged the  judgement of conviction and sentence on the following grounds:(a) Prosecution failed to bring home the charge against the accused; (b) No eye-witness to support the case of kidnapping of the minor girl of the informant, and her friend could be examined by the prosecution; (c) The Investigating Officer failed to ascertain the registration no. and identity of the Scorpio Car, with the help of which the victims were kidnapped. (d) The prosecution failed to prove the place of illegal confinement of the victims; (e) Prosecution also failed to prove involvement of three accused persons in the offence as alleged; (f) The prosecution case is full of contradiction with the evidence; and (g) The learned Trial Judge held the appellant guilty for the offence only on the basis of statement of the victim under Section 164 of the Cr.P.C. without considering the fact that such statement is only corroborative in nature."

The case was that one Sonu Kumar of village-Ajmatpur within the Police Station-Rajapakar in the district of Vaishali lodged a written complaint on July 3, 2016, stating, that on July 3, 2016 at about 07.00 a.m., her niece Soni Kumari, daughter of Binay Kumar Sharma, aged about 14 years along with one Savita Kumari, a minor girl aged about 13 years went to Ghora Chowk, which was stated to be at a distance of about 1 k.m. away to purchase some biscuits. However, they did not return even after considerable period of time. The informant came to know from the parents of his niece that three young men of village Baranti, namely, Birju @ Raja, Chhotu Kumar and Ranjan Singh, used to eve-tease and disturb them for some period of time. The informant made a complaint against them to their respective parents and they assured that their respective sons would not further commit such wrong in future. As the victim girls did not return to their respective homes, the informant suspected that had been kidnapped for some illicit purpose and lodged the complaint so that no harm might be caused to the said minor girls. On the basis of the said complaint, police registered a case, dated July 4, 2016, under Section 363/366A. 

Upon completion of investigation, the police submitted a charge-sheet against all three accused persons under Section 363/366A/376(2)(i) of the I.P.C. and Section 4/6/8/10 of the POCSO Act, 2012. Since the charge-sheet was submitted under the POCSO Act, 2012, the case was committed to the Court of the Special Judge, POCSO Court, Vaishali at Hajipur for trial and disposal. During trial, the prosecution examined 10 witnesses. On the basis of the evidence on record, both the oral and documentary, the trial judge convicted the accused//appellant and sentenced him to suffer rigorous imprisonment on different heads of charges.

The judgement was challenged in the High Court. The counsel for the appellant submitted that nobody saw the appellant or his associates to elope the victim girls from Ghora Chowk. It is the case of the prosecution that the victim girls were taken to Kolkata by the appellant and his associates but the Investigating Agency could not identify the space where the victims were allegedly confined. As per the prosecution case, they were allegedly kidnapped on July 3, 2016. The victim no. 1 was recovered from the side of the high road near her village in the early morning of July 22, 2016. After recovery, she was taken to the Police Station. Thereafter, her medical examination was done. Victim’s statement under Section 164 Cr.P.C. was recorded on the date of her recovery, i.e., on July 22, 2016. Victim No. 2 was also confined in the same room along with victim no. 1. According to her, she stayed with the accused persons for three days. Thereafter, she somehow fled away and informed the incident to an Auto Driver. The Auto Driver handed her over to the police of Kolkata. She was sent to a Home run by Childline for about two months. Thereafter, in the month of September, she was recovered by the Investigating Officer. It was also submitted that there is absolutely no witness examined by the prosecution during trial, who corroborated the prosecution case regarding involvement of the appellant. 

Justice Chaudhuri observed:"We also find that though the victim claimed that sh.e was aged about 15 years at the relevant point of time, the radiologist opined after conducting ossification test that the victim was aged between 17 and 19 years. If we consider the margin of errors to two years, then the approximate age of the victim at the relevant point of time was either 17 years or 21 years. It is needless to say that the margin of error shall be taken into consideration on the higher side to the benefit of the appellant. 50. The Investigating Officer did not take any attempts to seize:- (i) Date of birth certificate of the school or the matriculation or equivalent certificate from the concerned Examination Board, if available and in the absence thereof; (ii) Birth certificate given by a corporation or a municipality authority or a Panchayat; and (iii) only in absence of (i) and (ii) above, age shall be determined by an ossification test or any other medical age determination test. 51. In the absence of any birth certificate from the school or birth certificate given by the corporation, we have no other alternative but to rely on the ossification test of the victim, on perusal of which it is very uncertain to note that the victim was a minor on the date of commission of offence. 52. Even assuming that the victim was a major and she was subjected to rape by the appellant and for commission of such offence, she was abducted and forcibly confined in a room, the appellant is liable to be convicted under Section 366 for forcing the victim to illicit intercourse and Section 376 of the I.P.C." 

Justice Sandeep Kumar quashes closure report of police, sets aside order by Judicial Magistrate, 1st Class, Begusarai, directs re-investigation of death of petitioner's deceased mother

In Tezaswini Kumari vs. The State Of Bihar Through Its Director General Of Police & Ors. (2026), Justice Sandeep Kumar delivered a 40-page long judgement dated April 8, 2026, wherein, he  concluded: "37.....this Court is of the considered opinion that the death of the deceased mother of the petitioner deserves to be re-investigated in order to bring to the forefront the actual and the whole truth. Accordingly, the closure report No.179 of 2021 dated 31.10.2021 submitted by the police in Birpur P.S. Case No.49 of 2021 is hereby quashed. 38. In such circumstances, the investigation of Birpur P.S. Case No.49 of 2021 is directed to be conducted de novo by Sri Vikas Vaibhav, Inspector General of Police, Bihar. Sri Vikas Vaibhav shall commence the fresh investigation of Birpur P.S. Case No.49 of 2021 forthwith and he shall be free to constitute his own team. The police officers of Begusarai district shall extend all cooperation in the expeditious investigation and supervision of this case. The investigation shall be conducted in a holistic and comprehensive manner in accordance with law. 39. Since this Court has directed for re-investigation of the case, the impugned order dated 09.04.2025 passed by the learned Judicial Magistrate, 1st Class, Begusarai, is hereby quashed and set aside....42. Let a copy of this judgment be communicated through FAX or e-mail to the Director General of Police, Bihar as well as the Superintendent of Police, Begusarai forthwith for its compliance." In effcect, the judgement quashes closure report of police, sets aside order by Judicial Magistrate, 1st Class, Begusarai, directed re-investigation of death of petitioner's deceased mother. 

The writ petition was filed by the petitioner seeking re-investigation/de novo investigation in the death of her mother. It was the case of the petitioner that the investigation conducted by the local police in relation to the death of her mother is incomplete and deliberately directed away from the real line of investigation, and therefore, warrants investigation by the Central Bureau of Investigation (CBI) or a Special Investigating Team (SIT). 

Th writ petition prayed for Issuance of a writ in the nature of Mandamus or any other appropriate writ(s) or order(s) or direction(s) to transfer the said FIR bearing No.49 of 2021 dated April 5, 2021, registered under Section 302, IPC lodged with Birpur Police Station, Begusarai to Central Bureau of Investigation (CBI) or alternatively direct for the constitution of a Special Investigation Team (SIT) to investigate in the
present matter.  It also prayed for issuance of a writ in the nature of Mandamus or any other appropriate writ(s) or order(s) or direction(s) directing the respondent authorities to conduct a de novo investigation in
the said FIR bearing No.49 of 2021 dated April 5, 2021, registered under Section 302, IPC lodged with Birpur Police Station, Begusarai. The petitioner preferred to move an Interlocutory Application bearing I.A. No. 01 of 2025 seeking to amend the prayer portion of the main writ petition and add an additional prayer, which was allowed vide order dated June 27, 2025. It sought direction for setting aside the order dated April 9, 2025 in complaint case number 211114 of 2022 whereby and whereunder the Court of Om Prakash, Judicial Magistrate First Class, Begusarai while treating the protest petition filed by the petitioner in Birpur P.S. Case No.49 of 2021 as a complaint case, after making inquiry under Section 200 and Section 202 of Cr.P.C. has been pleased to dismiss the same under Section 203 of the CrPC.”

The petitioner was the daughter of Rinku Kumari, who was found dead on April 4, 2021 at Kasturba Gandhi Balika Avasiya Vidyalaya, Muzaffara, Begusarai. According to the prosecution, the deceased left her house on April 4, 2021 in the morning, for the school, where she was working as a warden, saying that she will come back home by evening. However, at around 2:00 P.M., the petitioner received a phone call and when the petitioner reached there along with her family members, she saw the dead body of her mother, lying on the floor. Later she was shown pictures of her deceased mother by the police officials and local people who had gathered there, in which her mother was seen to be in sitting position, with a noose around the neck and the rope looped from a ceiling fan and her body was covered with dirt and dust. Thereafter, the petitioner along with her family members performed the last rites of her mother and on the very next date i.e. on April 5, 2021 the petitioner approached Birpur Police Station, Begusarai and the present F.I.R. bearing Birpur P.S. Case No.49 of 2021 dated April 5, 2021 came to be registered. It was the case of the petitioner that when she approached the Birpur Police Station on April 5, 2021 to register an FIR naming Kaushal Kumar and Rohit Kumar as accused, the S.H.O. of Birpur Police Station, refused to lodge an FIR against the suspected accused persons stating that the petitioner was not present at the time of the incident and insisted that the F.I.R. will get registered only if the petitioner gave an application in accordance with what the S.H.O. directs and only thereafter, the F.I.R. came to be lodged based on the new complaint which was drafted as per the direction of the S.H.O. and prepared by the scribe (Katib) namely, Prabhakar Kumar and was later signed by the petitioner.

It was also the case of the petitioner that about three years ago from the date of occurrence, Kaushal Kumar and Rohit Kumar, who were the neighbours of the family of the petitioner, had taken Rs.15,00,000/- from the mother of the petitioner for transferring a piece of land to her, however, neither did they transfer the land nor did they return the money. Subsequently, a panchayati was held, in which both the persons had assured the deceased that they will return the money on April 4, 2021 but on the same date i.e., on April 4, 2021 the mother of the petitioner was found dead under mysterious circumstance, which according to the petitioner, warrants a serious investigation of the two suspected accused persons. 

The petitioner's counsel submitted that from the very beginning, the local police officials had been trying to protect the suspected accused persons, since they have considerable influence in the local community which was illustrated by the fact that despite repeated requests by the petitioner, who was the informant of the case, the Police has failed to name the suspected accused persons in the FIR. It was submitted that the petitioner was assured that after conducting preliminary investigation, name of the persons provided by the petitioner shall be arrayed as accused persons, however, the same was not done and the authorities have failed to conduct a proper investigation. The case was investigated only in a manner to support the narrative of suicide, ignoring the apprehension that the death of the mother of the petitioner was not a case of suicide but a case of murder. The petitioner had visited the competent authorities several times for taking proper action but she remained unheard. 

Being dissatisfied, the petitioner sent an e-mail dated April 10, 2021 describing the entire fact of the matter was sent to the Director General of Police and other high ranking functionaries of the State requesting them for their intervention in the matter. The petitioner also wrote a letter dated April 16, 2021 to the Superintendent of Police, Begusarai stating all her grievances against the investigating authority. Later, on June 7, 2021 the petitioner had also moved a protest petition against the closure report filed by the Police in the Court of ACJM-VI, Begusarai. The lackadaisical attitude of the local police officials was illustrated by the fact that they have not even bothered to record the statements of Kaushal Kumar and rather made Rohit Kumar as a prosecution witness. The investigative authorities failed to enquire into the fact that as per the statement of the Adeshpal i.e. the peon of the school, namely, Ajit Kumar Bablu, the deceased had informed him regarding her visit to school and had asked him to reach the school by 12:00 noon. The inconsistencies in the statement of the peon was pointed out, which was never investigated by the police thoroughly. The peon had stated that the deceased had informed him before reaching the school premises, however, contradicting his statement, on the other hand, he had stated that the deceased usually used to inform him about her arrival at the school, however, she did not inform him on the date of occurrence. The peon in his statement had stated that he had reached the school at 12:30 P.M. but during investigation, it had come that the CCTV camera installed at the school was suspiciously switched on at 01:45 P.M. and at 01:53 P.M. the peon was seen running towards the main gate calling people and hurling. However, there is no finding regarding the whereabouts of peon in between 12:30 P.M. and 01:53 P.M. and more importantly, the investigating officer failed to investigate the case on the point as to why the CCTV camera installed at the school remained non-functional/ switched off for almost five and half hours. Although the investigation regarding the Call Detail Records and Customer Acquisition Form of the deceased and Kaushal Kumar was made, but the investigation failed to gather details regarding call records either of the deceased or Kaushal Kumar and though the Investigating Officer analyzed the tower location of the suspected accused, but the same was only after 08:59 A.M. which was way beyond the time when the CCTV camera got switched off, and therefore, the investigation of the Call Detail Record holds no meaningful relevance.

The counsel of the petitioner submitted that from the inquest report prepared on the place of occurrence, it was evident that the body of the deceased was found in a sitting position, which further aggravates the suspicion of a staged hanging and therefore, pointed towards planned homicide, considering the fact that even the C.C.T.V. cameras installed in the school premises were switched off just after the entry of the deceased in the school.  During investigation it emeregd that these suspected two persons had taken money from the deceased and there was regular tension amongst the family of the deceased and these persons. The police failed to conduct a fair, proper and honest investigation in the present case and the petitioner seeks justice to unravel the mystery of her mother's death, dissatisfied with the investigation carried out by the investigating officer as the investigation has reached a dead end without identification of the criminals and the investigating authorities have investigated the case with a coloured perspective from the very inception. 

Justice Kumar referred to the position of law on the powers of the Constitutional Court to direct for re-investigation / de-novo investigation. He relied on Supreme Court's decision in Rubabbuddin Sheikh vs. State of Gujarat & Ors. reported as (2010) 2 SCC 200 while exercising epistolary jurisdiction on the letter written by the brother of the victim in a fake encounter has held that the Constitutional Court is not barred from directing further/de novo investigation in an appropriate case and has held as follows:-“60. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr Rohatgi, learned Senior Counsel appearing for the State of Gujarat that after the charge-sheet is submitted in the court in the criminal proceeding it was not open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any independent agency. Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI. It cannot be said that after the charge-sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI. 61. Keeping this discussion in mind, that is to say, in an appropriate case, the court is empowered to hand over the investigation to an independent agency like CBI even when the charge-sheet has been submitted, we now deal with the facts of this case whether such investigation should be transferred to the CBI Authorities or any other independent agency in spite of the fact that the charge- sheet has been submitted in court. On this ground, we have carefully examined the eight action taken reports submitted by the State police authorities before us and also the various materials produced and the submissions of the learned counsel for both the parties. (emphasis supplied).

Justice Kumar referred to Supreme Court's decision in State of West Bengal & Ors. vs. Committee For Protection Of Democratic Rights, West Bengal & Ors. reported as (2010) 3 SCC 571, wherein it has been held: “Conclusions 68. Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows: (i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure. (ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
xxx
(vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure. 
69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.” (emphasis supplied)

Justice Kumar drew on Supreme Court's judgements in Subrata Chattoraj vs. Union of India & Ors. reported as (2014) 8 SCC 768, Mithilesh Kumar Singh vs. State of Rajasthan & Ors. reported as (2015) 9 SCC 795, Pooja Pal vs. Union of India & Ors. reported as (2016) 3 SCC 135, Karnel Singh v. State of M.P. (1995) 5 SCC 518, Ram Bihari Yadav vs. State of Bihar (1998) 4 SCC 517, Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, Gudalure M.J. Cherian [Gudalure M.J. Cherian v. Union of India, (1992) 1 SCC 397], Punjab and Haryana High Court Bar Assn. [Punjab and Haryana High Court Bar Assn. vs. State of Punjab, (1994) 1 SCC 616, Neetu Kumar Nagaich vs. State of Rajasthan & Ors. reported as (2020) 16 SCC 777, Kashmeri Devi vs. Delhi Admn. 1988 Supp SCC 482, Babubhai vs. State of Gujarat (2010) 12 SCC 254, Ganeshbhai Jakshibhai Bharwad vs. State of Gujarat, 2009 SCC OnLine Guj 12130], Dharam Pal vs. State of Haryana [Dharam Pal v. State of Haryana, (2016) 4 SCC 160,

Justice Kumar observed that "...from the perusal of the case records, it is clear that the suspected accused persons were not named in the F.I.R. on the alleged insistence of the S.H.O. of Birpur Police Station. More
importantly, from the perusal of the case diary, it appears that the statement of one of the aforesaid suspected accused was not recorded by the investigating officer. 32. In a case of unnatural death, which appears to be suicide, it is imperative for the investigating officer to conclusively establish suicide. In the present case, there is no suicide note or verifiable psychological suicidal history supported by the independent witnesses to bring home the factum of suicide. The sole statement of the alleged suspected accused Rohit Kumar could not be the sole ground to point towards a pre-existing suicidal tendency of the deceased mother of the petitioner since the aforesaid Rohit Kumar is not only one of the suspected accused but his brother is also a suspected accused, who is alleged to have had taken Rs.15,00,000/- from
the deceased mother of the petitioner as per the version of the petitioner. Therefore, a bald statement before the police that one fine day the aforesaid Rohit Kumar had seen the deceased mother trying to pour kerosene on herself does not establish conclusively the suicidal tendency. 33. Further, from the perusal of the records of the case, it appears that the investigation since its inception has been on the presumption that the deceased, that is, the mother of the petitioner, had committed suicide. The primary purpose of the investigation is fact finding and finding the truth, therefore, it is incumbent upon the investigating officer to conduct a holistic investigation to uncover the actual truth. Proceeding with a myopic view would not only fail to bring the truth to the forefront but also be a gross miscarriage of justice."

Justice Kumar added:"....the inquest report prepared by the police at the place of occurrence, the postmortem of the deceased conducted at Sadar Hospital, Begusarai, as well as the special opinion sought by this Court from the Head of the Department, Forensic Medicine and Toxicology, P.M.C.H., Patna would, though point towards the conclusion that the mother of the petitioner had committed suicide inside the school premises where she was working as warden but, the postmortem report or the medico-legal opinion cannot be sole ground to establish suicide conclusively. A postmortem report or a medico-legal opinion is an important corroborative evidence but, it could not qualify as a substantive evidence to conclusively establish suicide. Where the investigation seeks to proceeds on a theory of suicide, such theory, must be supported by reliable material and must, therefore, be properly investigated. A premature or unsupported labeling of an unnatural death as suicide is inconsistent with the constitutional requirement of a fair and proper investigation. 35. It is trite law that medico-legal opinions have a corroborative evidentiary value but cannot be the sole ground based on which an inescapable conclusion is drawn, particularly, when there are admitted suspicious elements surrounding the death of the mother of the petitioner. The fact that the CCTV cameras installed inside the school premises were functioning perfectly well up until 7:18 hours when it was switched off, and the aforesaid cameras were switched on at 13:24 hours. 36. The contention of the petitioner is that the allegedly suspected accused Kaushal Kumar had taken Rs.15,00,000/- from the mother of the petitioner in lieu of transferring a piece of land. However, from the perusal of the case records, it appears that though the investigating officer had analyzed the CDR and CAF, yet they failed to record the statement of aforesaid Kaushal Kumar. Therefore, it appears that the investigation did not holistically investigate the incident and proceeded with a preconceived presumption of suicide. No meaningful attempts also appears to have been made to investigate the abetment of suicide or whether the scene of crime was staged."
 

 

Justice Ritesh Kumar sets aside orders by Labour Resources Department, restores petitioner's pension to 100%, directs refund of 20% deducted pension

In Sudhanshu Shekhar Tripathi vs. The State of Bihar through the Chief Secretary & Ors. (2026), Justice Ritesh Kumar delivered a 37-page long judgment dated April 9, 2026, wherein, he concluded:"28. The respondent authorities are directed tor restore the pension of the petitioner to 100% and to refund/return the amount to the tune of 20%, which has been deducted from the pension of the petitioner till date, within a period of three months from the date of receipt/production of a copy of the order. The respondent authorities are further directed to make payment of the entire 100% of the pension/post-retiral dues which have not been paid to the petitioner on account of pendency of the departmental proceeding, within the period aforementioned. If the entire exercise will not be completed within a period of three months, then the petitioner would be entitled for interest @ 6% from the date of filing of the writ petition till the date of its actual payment. 29. The writ petition is allowed with the direction above mentioned."  

The other seven respondents were:  Principal Secretary, Department of Labour Resources, Government of Bihar, Deputy Secretary, Department of Labour Resources, Officer On Special Duty, Department of Labour Resources,  Director of Employment, Directorate of Empolyment and Training Department of Labour Resources, Accountant General (A and E) Bihar, Director of Provident Fund, Finance Department, and District Treasury Officer, Gaya, Bihar. 

The writ petition was filed with prayer calling upon the respondents to show cause why rule nisi in the nature of writ and/or in the nature of writ of certiorari be not issued upon the respondents and the order dated 15.05.2023 passed by the Officer on Special Duty, Department of Labour Resources, Government of Bihar be quashed and or cancelled; further for issuance of writ/order/directions upon the respondent(s) to quash the entire disciplinary proceedings under Memo No.2887 & 2888, both dated 31.10.2017 issued by the respondents upon the petitioner; further issue a writ of or in the nature of writ of mandamus commanding and/or directing the respondents to forthwith release the post-retirement benefits, withheld so far, with interest admissible to the petitioner.

The writ petition was filed because the petitioner having been allocated the Bihar Employment Service, gave his joining as a District Employment Officer on 02.04.1992. He was promoted to the post of Assistant Director of Employment on 02.04.2004 in the pay scale of Rs. 15600-39100/- with Grade Pay of Rs. 6600/-. Subsequently, the petitioner was granted promotion to the post of Deputy Director of Employment and thereafter superannuated from service on 31.10.2017. On 16.10.2017, the petitioner informed the Principal Secretary, Department of Labour Resources,  Government of Bihar, Patna about fake appointments on Class-III and Class-IV posts in the Department of Employment and the need to enquire into the matter. Pursuant to the Letter dated 16.10.2017, an enquiry was conducted and without any basis the department initiated departmental proceeding against the petitioner vide Resolution No. 2887 and 2888, both dated 31.10.2017, but the same was not served upon the petitioner, since on the same day he has superannuated. The said resolutions were not served upon the petitioner, since the same were said to have been sent to the previous place of posting of the petitioner i.e. Gaya Division, Gaya, therefore, the same was returned unserved. However, vide Memo Nos. 3112 and 3114 dated 16.11.2017 issued under the signature of the Deputy Secretary to the Government, Labour Resources Department, Government of Bihar, Patna a decision was taken to convert the departmental proceeding, initiated against the petitioner vide Memo No. 2888 dated 31.10.2017, in the proceeding under Rule, 43(b) of the Bihar Pension Rule, 1950. The petitioner was served with all the letters mentioned hereinabove i.e. Resolution Nos. 2887 and 2888 dated 31.10.2017 and Resolution Nos. 3112 and 3114 dated 16.11.2017, through registered post on 22.11.2017. Along with the letters, the charge of  Memo was also annexed, from where the petitioner came to know about the initiation of departmental proceeding against him. Subsequently vide Letter No. 3468 dated 04.12.2017 issued under the signature of the Deputy Secretary to the Government, Labour Resources Department, Government of Bihar, Patna the petitioner was informed that the entire gratuity has been kept withheld due to the pending enquiry against him and he was also informed that his pension has been reduced by 10%. 

The petitioner's senior counsel submitted that being aggrieved with the decision of the State Government the petitioner preferred C.W.J.C. No. 720 of 2018 before the Hig Court, wherein a Co-ordinate Bench of this Court vide its order dated 15.01.2018, while directing the respondent authorities to file counter affidavit, stayed further proceeding in the matter. The writ petition filed by the petitioner was finally heard by a Co-ordinate Bench of the High Court and vide order dated 05.09.2018, the same was partly allowed by quashing the departmental proceeding in relation to Letter Nos. 2887 and 2890 dated 31.10.2017 and further directed that the proceeding related to Letter Nos. 2887 and 2888 dated 31.10.2017 will continue, subject to the observations made in  the order dated 05.09.2018. The petitioner also filed C.W.J.C. No. 16529 of 2017 and the same was disposed of vide order dated 19.04.2019 passed by a Co-ordinate Bench of the High Court with a direction to the respondent to release the withheld retiral dues and 90% gratuity amount in favour of the petitioner.

The petitioner's senior counsel submitted that in view of the observations made by the Single Judge vide his order dated 05.09.2018, passed in C.W.J.C. No. 720 of 2018, the Joint Labour Commissioner, Bihar vide Memo No. 2010 dated 08.05.2019 directed the Enquiry Officer to produce the letters/documents mentioned therein, in the enquiry, so that decision can be taken that whether the departmental proceeding under Rule 43 (b) of the Bihar Pension Rules has been initiated in violation of the provision contained therein or not, but even then no such documents were provided to the petitioner or produced before the authorities concerned. The petitioner filed an appeal before this Court against the order dated 05.09.2018 passed in C.W.J.C. No. 720 of 2018. The appeal filed by the petitioner was numbered as L.P.A. No. 1553 of 2018. 

The petitioner's counsel also submitted that vide Letter dated 23.08.2021 the petitioner again requested the Conducting Officer to provide evidences with regard to proof of service of the charge-sheet upon the petitioner, before his date of retirement i.e. 31.10.2017, but no response was received by the petitioner, then he was constrained to again write a Letter dated 17.09.2021 to the Conducting Officer, wherein the petitioner again asked for the proof/evidence about the claim of serving notice/charge-sheet upon him before the date of retirement. Along with in the letter dated 17.09.2021, the petitioner also requested the Conducting Officer to call certain witnesses for their examination and cross-examination, to prove/disprove the charges against the petitioner, but no such document was ever provided to the petitioner.

The senior counsel for the petitioner submitted that the Enquiry/Conducting Officer vide his Letter No. 354 dated 04.02.2022 proceeded to submit his enquiry report before the disciplinary authority, wherein he came to the conclusion that since the delinquent has not appeared and denied the charges levelled against him, therefore, the Letter No. 1262 dated 27.08.2007 of the District Magistrate, Vaishali, which is the evidence of the charge-sheet, on the basis of the said letter the charges are found to be proved. Subsequently, vide Letter No. 691 dated 24.03.2022 issued under the signature of the Officer on Special duty, Labour Resource Department, Government of Bihar, Patna, second show cause notice was issued to the petitioner and the petitioner was directed to submits his reply within fifteen days, that why punishment be not imposed against the petitioner. In compliance thereof, the petitioner submitted his reply on 07.04.2022, wherein he took a defense that initiation of the departmental proceeding itself was in complete violation of the provisions contained in Rule 43 (b) of the Bihar Pension Rule, 1950 and other statutory Rules, as well as in violation of the principles of natural justice, in violation of Rule, 17 (3) and 17 (6) (iv) of the Bihar CCA Rule of 2005. The enquiry report was submitted without appreciation of any evidence. 

The counsel for the petitioner submitted that a second supplementary counter affidavit was filed by the respondent-State on 13.08.2022 in LPA No. 1553 of 2018, filed by the petitioner, wherein the extract of the dispatch register was produced, which goes to show that the resolution letter (along with charge Memo Nos. 2887 and 2888) dated 31.10.2017 were dispatched for the first time through registered on 02.11.2017 i.e. after the retirement of the petitioner. The  appeal preferred by the petitioner i.e. L.P.A. No. 1553 of 2018 was disposed of by the Division Bench of this Court vide judgment dated 31.08.2022 with a direction to the State-respondent to issue show cause notice to the petitioner in furnishing necessary materials with the Memo dated 31.10.2017 has been served upon the petitioner and on receipt of such notice and material, the petitioner was directed to file his explanation along with material information, if any and thereafter the disciplinary authority was directed to analyze the material fact and explanation to be submitted by the petitioner and take a decision within a period three months from the date of receipt of the order. The petitioner was directed to co-operate in deciding the issue with the disciplinary authority. It was further directed that till the decision is taken by the disciplinary authority, further action pursuant to the Memo dated 31.10.2017 shall be kept in abeyance, until decision is taken by the disciplinary authority.

Being aggrieved with the judgment dated 31.08.2022 passed in L.P.A. No. 1553 of 2018, the petitioner preferred SLP (Civil) No. 20131 of 2022. In the meantime the respondent-State, in compliance of order dated 31.08.2022 passed in L.P.A. No. 1553 of 2018, issued fresh show cause  notice to the petitioner, without providing any acknowledgment or any certificate mandated under Section 65 (B) of the Indian Evidence Act and in violation of the directions given by the Division Bench in L.P.A. No. 1553 of 2018. In compliance thereof the petitioner filed his reply on 25.11.2022 to the fresh show cause notice dated 10.11.2022, wherein he explained that the proceeding initiated vide Memo Nos. 2887 and 2888 dated 31.10.2017 i.e. on the date of his retirement, are illegal, invalid and ultra virus, as the respondent authorities have failed to prove the service of the said notice/charge Memo upon the petitioner, during his service period and nor did they submit acknowledgment or certificate required under Section 65 (b) of the Indian Evidence Act, to make any electronic document admissible as evidence. The SLP preferred by the petitioner was disposed of on 06.12.2022 by the Supreme Court of India, in view of the fresh show cause notice issued by the State-respondent, with a direction to the petitioner to participate in the proceeding before the disciplinary authority and it was observed that it goes without saying that all the defences which may be available to the petitioner are kept open to be considered by the disciplinary authority in accordance with law and on its own merits.

The senior counsel of the petitioner relied on Supreme Court's decisions in State of Uttar Pradesh & Ors. vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772, Roop Singh Negi vs. The Punjab National Bank & Ors. reported in (2009) 2 SCC 570, Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors. reported in (2020) 7 SCC 1 and Mohd. Idrish Ansari vs. State of Bihar & Ors. reported in AIR (1995) SC 1853.  

Justice Kumar observed:"...this Court finds that the department had not produced any witness in the enquiry, even though the charges levelled against the petitioner, were denied by him. Therefore, the enquiry itself stood vitiated. This fact finds support from a recent judgment of the Hon’ble Supreme Court of India in a case bearing civil Appeal no. 4130 of 2026 (Arising out of SLP (C) No. 2900 of (Jai Prakash Saini Vs. Managing Director, U.P. Cooperative Federation Ltd. & Ors).....". 

The Supreme Court held as follows:- “17. From the decisions of this Court in Sur Enamel (supra) and Kharak Singh (supra), followed in Chamoli District Cooperative (supra), which deals with similar service rules as are applicable here, it is now settled that unless the charged employee accepts his guilt in clear terms, an enquiry on the charges drawn against him would have to be held. In the enquiry, the employer/department would have to take steps first to lead evidence against the workmen / delinquent charged and give an opportunity to him to cross examine those witnesses. Only thereafter, the workmen / delinquent shall be asked whether he wants to lead any evidence and/or submit an explanation about the evidence led against him. Even in a case based solely on documentary evidence, unless the relied upon documents are admitted by the charged employee, a witness would have to be examined to prove those documents and when so examined, the witness would have to be tendered for cross-examination. 18. In the instant case, we find that the department had not produced any witness in the enquiry even though the charges levelled upon the appellant were denied by him. Therefore, in our view, the enquiry stood vitiated. Once the enquiry stood vitiated, the consequential order of punishment/ recovery cannot be sustained. We therefore allow this appeal. The impugned judgment and order of the High Court is set aside. The writ petition of the appellant stands allowed to the extent indicated below. The order of dismissal and consequential recovery is set aside. The Federation is, however, at liberty to hold a de novo enquiry, if it so desires, within a period of six months from the date of this order. If the Federation does not hold de novo enquiry as permitted above, the appellant shall be entitled to reinstatement with benefit of continuity in service including arrears of salary after adjusting suspension allowance, if any, paid already. In case the Federation chooses to hold an enquiry, it shall reinstate the appellant and place him under suspension till completion of the enquiry and during this period pay suspension allowance as may be payable in accordance with law. In case de novo enquiry is held, other service benefits including arrears of salary as well as benefits of continuity in service shall depend on the outcome of the enquiry.”

The High Court's judgement records that "No evidence has been brought on record by the respondent authorities to suggest that the disciplinary authority had ever directed for service of notice upon the petitioner through electronic mode and even if the same was sent to the petitioner, the same was sent by a sub-ordinate employee, by using his private computer, which is not permissible in law. Further, there is no valid proof of service of the said notice through electronic mode, upon the petitioner, since the required certificate in terms of section 65(b) (4) of the Evidence Act, by a Competent Officer was not brought on record by the respondent authorities and the office clerk, whose letter was brought on record, was neither authorized to grant certificate nor was the In-charge of the computer and he used his personal computer for the same, without any valid authorization. Further, even during course of the departmental enquiry there are discrepancies with regard to the email I.D, on which the said memo of charge dated 31.10.2017 is said to have been sent/dispatched, since different email IDs were mentioned, upon which the which the same was said to have been sent. Even the charges which were levelled against the petitioner were for the period, more than four years prior to his retirement and no proceeding in terms of the Rule 43 (b) of the Bihar Pension Rule, 1950 could have been initiated/conducted against the petitioner, after his retirement on 31.10.2017." 

Justice Kumar observed:"The Enquiry Officer or the disciplinary authority did not bothered to take into account the directions given by a Co-ordinate Bench of this Court in C.W.J.C. 720 of 2018, Hon’ble Division Bench in L.P.A. 1553 of 2018 and even the Hon’ble Supreme Court of India in SLP (Civil No. 20131 of 2022), which was preferred by the petitioner against the judgment dated 31.08.2022 passed in L.P.A. No. 1553 of 2018. 26. Accordingly from the considerations made above, this Court has got no option, but to set aside the Letter no. 1216 dated 15.05.2023 issued by the Officer on Special duty, Department of Labour Resources, Government of Bihar, Patna, resolution contained in memo no. 3480 dated 16.11.2023, issued under the signature of the Under Secretary to the Government, Labour Resources Department, Government of Bihar, Patna, letter no. 425 dated 02.02.2024 issued under the signature of the officer on special duty, Labour Resources Department, Government of Bihar, Patna and memo no. 848 dated 07.03.2024 issued under the signature of the Joint Secretary, Labour Resources Department, Government of Bihar, Patna." 

Justice Kumar relied on the High Court's judgment dated February 25, 2026 passed in Nutan Kumar Prabahat vs. The State of Bihar and Ors.), wherein, the Court held as follows:-“25. The High Court under Article 226/227 is entitled to interfere when the finding of fact is based on no evidence and if in every case where no valid evidence is laid at the enquiry proceeding, there is a remand made, it would be offering a premium to the negligence of the management/disciplinary authority and condoning the levity with which the departmental enquiry was conducted. It is the disciplinary authority, who appoints the Enquiry Officer and the Presenting Officer and it is expected that the Presenting Officer would be well versed in the procedures and also be informed in the manner in which evidence has to be laid before the Enquiry Officer, to prove the misconduct, alleged against a delinquent employee. In a disciplinary enquiry proceeding, it is also the trite principle that the standard of proof is preponderance of probability as distinguished from proof beyond reasonable doubt, as would be required in a criminal prosecution. However, if there is no evidence laid at the enquiry, there is no question of any preponderance of probability being drawn to find the allegations proved nor can the delinquent be penalised on the basis of peremptory finding without any valid evidence. The disciplinary authority had an opportunity in a properly constituted enquiry proceeding and if in such a proceeding no evidence was laid,the punishment of dismissal has to be found to be imposed on no valid evidence.”