Living in adultery is not the same as committing adultery: Justice Jitendra Kumar

In Bulbul Khatoon & Anr. vs. The State Of Bihar & Anr. (2025), Justice Jitendra Kumar of Patna High Court delivered a 37-page long judgement dated July 7, 2025, wherein, he directed the Registrar General of the High Court "to circulate a copy of this judgment/order amongst all the Family Courts of Bihar, besides sending a copy of it to Bihar Judicial Academy for discussion in the training programmes for the Presiding Officers of the Family Courts." 

Relying on judicial precedents in  Hitesh Deka vs. Jinu Deka 2025 SCC OnLine Gau 259; Sukhdev Pakharwal vs. Rekha Okhale 2018 SCC OnLine MP 1687; Ashok vs. Anita 2011 SCC OnLine MP 2249; Sandha bs. Narayanan 1999 SCC OnLine Ker 64; Pandurang Barku Nathe vs. Leela Pandurang Nathe & Anr. 1997 SCC OnLine Bom 264, Justice Kumar observed:"Adultery is an offence against one’s spouse. If a married person establishes sexual relationship with someone other than his/her spouse, he/she commits adultery. Under Section 125 Cr.PC wife/petitioner is disqualified for getting maintenance from her husband if she is living in adultery. Moreover, 'living in adultery' is distinct from 'committing adultery'. 'Living in adultery' denotes a continuous course of conduct and not isolated acts of immorality. One or two lapses from virtues would be acts of adultery but would be quite insufficient to show that the woman was 'living in adultery'. A mere lapse, whether it is one or two, and a return back to a normal life can not be said to be living in adultery. If the lapse is continued and followed up by a further adulterous life, the woman can be said to be 'living in adultery'."

The judgement was pronounced upon hearing the Criminal Revision Petition which was preferred by the petitioners, praying for setting aside the impugned judgment/order dated April 4, 2020 and direct Md. Shamshad, the Opposite Party No. 2 to pay Rs. 20,000/- per month to the petitioners towards maintenance. The impugned order was passed by Principal Judge, Family Court, Purnia in a Maintenance case of 2017, whereby O.P. No. 2/Md.Shamshad was directed to pay maintenance to the petitioner No. 2/Danish Raza @ Rahul at the rate of Rs. 4,000/-per month from the date of order i.e. April 4, 2020. Bulbul Khatoon, the petitioner No. 1 was denied any maintenance holding that she is not entitled to get any maintenance from O.P. No. 2. 

The petitioners had filed Maintenance case on October 30, 2017 before the Family Court, Purniau under Section 125 Cr.PC against O.P. No. 2 herein/Md.Shamshad, the husband of the petitioner No. 1/Bulbul Khatoon and father of petitioner No. 2/Danish Raza @ Rahul, stating that the marriage between Bulbul Khatoon and Md.Shamshad was solemnized on February 18, 2013 as per Muslim Rites and Customs and after the marriage, Bulbul Khatoon joined the matrimonial home of her husband/Md. Shamshad and subsequently, Danish Raza @ Rahul was born out of the wedlock in March, 2014. It was further stated that during the pregnancy, Bulbul Khatoon came back to her parental home on account of ill behavior of relatives of her husband and after the birth of the child, her husband and his family members started demanding Rs. 5 lac towards additional dowry and they threatened that in case, she failed to pay the additional dowry, Md. Shamshad would solemnize second marriage with other girl. On account of failure of Bulbul Khatoon to pay the additional dowry, she was ousted from the matrimonial home on July 17, 2017 along with newly born child and even her ornaments were snatched from her. 

It was also stated that after ousting his wife Bulbul Khatoon, Md.Shamshad solemnized second marriage with one Kajal Khatoon, daughter of Md. Naseem. It is also stated that Bulbul Khatoon was unable to maintain herself and her minor son, whereas Md.Shamshad had sufficient means to maintain his wife and child having ten acres of agricultural land, tractor and corn factory machine and having Rs.5 lac annual income. Bulbul Khatoon and her son Danish Raza @ Rahul had claimed for monthly maintenance @ Rs.20,000/. 

Justice Kumar observed:"However, I find that learned Family Court by the impugned judgment/order has denied maintenance to Bulbul Khatoon on account of his finding that she has been living in adultery with Md. Tarikat, whereas there is no such cogent evidence on record. As such, the findings of learned Family Court is based on no evidence or perverse appreciation of evidence. Accordingly, the impugned order is not sustainable in the eye of law and hence, it is set aside to this extent and it is held that the petitioner No. 1/Bulbul Khatoon is also entitled to get maintenance from her husband/Respondent No. 2 herein. "

Justice Purnendu Singh as part of DB upholds verdict by Justice Anil Kumar Sinha in a CCA case from 1991

Supreme Court's decision in Ram Kishan vs. Union of India & Ors. (AIR 1996 SC 255) irrelevant in this CCA case? 

Justice Purnendu Singh as part of Division Bench led by Acting Chief Justice Ashutosh Kumar authored a 9-page long judgment dated July 1, 2025 wherein, he upheld the verdict by Justice Anil Kumar Sinha in Awadh Tiwari vs. The State of Bihar (2025). Justice Singh who authored the judgement observed:"...the appellant has not been able to show any illegality in the order of the learned Single Judge. The Court finds no merit in the instant appeal. The appeal is dismissed."

In the year 1989 while posted as Junior Engineer in the Minor Distributory Division-IX, Ghatshila Camp, Galudih, as a result of an agreement entered into, M/s Barauni Tiles was required supply PCC tiles which the appellant was to receive. Awadh Tiwari, the appellant received the same, however without waiting for the quality test report of the tiles, payment was made to the contractor, causing financial loss to the government.

By an order contained in Resolution no.1691 dated July 17, 1991, a decision was taken to initiate a departmental proceeding against the appellant under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930 which was subsequently converted into a proceeding under Rule 55A of the Rules. The appellant was served with a memo of charge according to which he during his tenure had received substandard tiles for the purpose of lining of canal. The tiles supplied at the ratio 1:2.97 of cement and sand against the specified ratio of 1:2. A sum of Rs.11,73,000/ had been paid to the contractor causing loss to the State exchequer. 

The charge was to the effect that the appellant was negligent and casual in his duty causing financial loss to the State. He had prepared the bill for payment to the contractor without getting the quality of the supplied tiles tested. The appellant submitted his reply to the show cause notice and on consideration of the contents thereof, the respondents came out with an order of punishment dated December 11, 1999 according to which there was stoppage of promotion for a period of ten years and further order of recovery of a sum to the tune of Rs.1,46,625.

The appellant had moved to the High Court in CWJC no.1015 of 2000 against the order of punishment which was allowed vide order dated February 17, 2006, the order of punishment quashed and the respondents were directed to refund the recovered amount on the basis of the said order to the appellant forthwith. 

The respondents preferred an appeal (LPA no.790 of 2007) against the order allowing the writ application (CWJC no.1015 of 2000). Though the judgment passed in the writ application was not interfered with and the appeal dismissed, however it was observed that if the law permits, the State of Bihar can proceed against the concerned employee in accordance with law.

The respondents included Secretary, Water Resources Department, Joint Secretary, Water Resources Department, Deputy Secretary, Water Resources Department and Engineer-In-Chief Middle, Water Resources Department, Government of Bihar. 

The respondents came out with an order dated January 18, 2011 stating therein that a decision was taken to proceed against the appellant and two others under Rule 17 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. The chargesheet containing the charges was enclosed with the order, to which the appellant filed his reply.

When the appellant retired from service on May 31, 2011, the departmental proceeding against the petitioner was converted into a proceeding under Rule 43(b) of the Bihar Pension Rules.

The enquiry officer submitted his report dated January 12, 2012 not finding the charges to have been proved against the appellant. Disagreeing with the contents of the enquiry report, a detailed second show cause contained in Memo no.683 dated June 26, 2012 was issued under the signature of the Engineer-in-Chief (Central), Water Resources Department, which was brought on record with the counter affidavit of the respondents in the writ application.

The letter showed that the point of difference of the disciplinary authority with the report of the enquiry officer was two fold. Firstly, that inspite of the ratio of cement and sand in the tiles supplied by the contractor being 1:2.97 in place of the specified 1:2, steps had been taken by the appellant in the measurement book for payment to the contractor, though he should have obtained the directions of the higher authorities with respect to the quality test report and only thereafter should have proceeded to take steps for payment. The second point of difference was to the effect that a direction had been given to the Barauni Tiles i.e. the contractor to replace the tiles but the contractor had not carried out the directions. Inspite of having knowledge of this fact, the appellant proceeded to make entries in the measurement book and recommend for payment of amount to the contractor.

The appellant filed his response to the show cause notice dated June 26, 2012 of the disciplinary authority differing with the contents of the enquiry report. After considering the reply of the appellant, the respondents passed an order contained in Memo no.374 dated March 20, 2013 under Rule 43(b) of Bihar Pension Rules imposing punishment of 5% pension. Following dismissal of the writ application preferred by the appellant against the order of punishment, the appeal was preferred.

The counsel for the appellant submitted that in the enquiry conducted in the departmental proceeding against the appellant, the enquiry officer in his report dated January 12, 2012 did not find any of the three charges to have been proved. Though the disciplinary authority issued a second show cause notice dated June 26, 2012, however no reason was given therein for differing with the contents of the enquiry report. It merely repeated the charges as contained in the chargesheet issued in the departmental proceeding. It was submitted that the second show cause notice as also the order of punishment are both unsustainable. The counsel for the appellant relied on the judgment of the Supreme Court in the case of Ram Kishan vs. Union of India & Ors. (AIR 1996 SC 255). 

But Justice Singh observed:"So far as the judgment in the case of Ram Kishan (supra) relied on by the learned counsel for the appellant is concerned, the same is of no assistance to the appellant herein, the facts of the two cases being distinct and distinguishable.While the instant case relates to steps of payment having been taken by the delinquent/appellant inspite of sub-quality tiles having been supplied by the contractor, the case cited relates to misconduct of the Constable/appellant therein of having facilitate supply of alcohol to an under-trial prisoner and of having abused his superior officer." 

Siya Ram Sahi and Shally Kumari were the counsels for the appellant. 

The appellant was proceeded against departmentally under the CCA Rules while still in service, on his retirement on May 31, 2011, the proceedings were converted into one under Rule 43(b) of the Bihar Pension Rules. The enquiry officer submitted his report on January 12, 2012 not finding any of the charges levelled against the appellant to have been proved. The disciplinary authority disagreeing with the contents of the enquiry report issued a second show cause notice to the appellant on June 26, 2012 to which the appellant submitted his reply. Not finding the reply to be satisfactory, another show cause notice was issued to the appellant on December 3, 2012 stating therein that it was proposed to impose a punishment on the appellant under Rule 43(b) of the Bihar Pension Rules. The appellant was given time of 15 days to submit his reply which was filed by the appellant on December 22, 2012. The reply of the appellant was not found satisfactory and the order of punishment was passed which was challenged unsuccessfully in the writ application before Justice Sinha, the single judge bench. 

The writ application was preferred against the order dated March 20, 2013 bearing Memo No.374 passed by Engineer-In-Chief (Central), Water Resources Department, Government of Bihar, Patna whereby punishment of stoppage of 5% pension was imposed upon the petitioner in a departmental proceeding concluded under Rule 43(b) of the Bihar Pension Rules. 

Before dismissing the writ application, in his 10-page long judgement dated March 14, 2023, Justice Sinha had observed:"...the Court while testing the validity of the order of the punishment is required to see the flaw into decision making process and cannot sit upon the decision itself as an appellate authority. Even assuming the aforesaid instruction of Cabinet (Vigilance) Department dated 06.07.1992 vide Memo No. 1045 is applicable in the case of the petitioner in relation to the permissible limit of difference in ratio up to 25% but the difference of ratio found by the Laboratory in the present case to the extent of 1:2.97 is more than the permissible limit of 25%. The petitioner has not pointed out any procedural infirmity and or violation of principle of natural justice in the departmental proceeding. In view of the aforesaid discussions, I come to the conclusion that the impugned order of punishment does not require any interference by this Court..."

The judgement by the Division Bench which upheld Justice Sinha's judgement appears to be a fit case for appeal in the Supreme Court.  

“Don’t act selectively on collegium recommendations" on appointments and transfers of judges:Chief Justice of India

Justice Bhushan R. Gavai, 52nd Chief Justice of India told Union government “Don’t act selectively on collegium recommendations" on appointments and transfer  of judges after presiding over his first collegium meeting on May 26, 2025. The collegium includes Justices Surya Kant, Vikram Nath, J.K. Maheshwari, and B.V. Nagarathna besides Justice Gavai.  

A Supreme Court's bench led by Justice Sanjay Kishan Kaul had said, “selective appointments undermined the element of workable trust essential for the relationship between the judiciary and the executive.” It “sends a wrong signal.” Justice Kaul had made these observations prior to his retirement in December 2023. 

In the aftermath of the judgement declaring the National Democratic Alliance government enacted the National Judicial Appointments Commission (NJAC) Act, 2014 to be unconstitutional in 2015, the Memorandum of Procedure (MoP) guides the appointment and transfer of judges in constitution. But Union Government has not been complying with it although independence of judiciary is part of the basic structure of the Constitution of India. 

In January 2025, a bench of the Supreme Court permitted the High Courts to appoint retired judges as ad hoc judges under Article 224A of the Constitution to alleviate the mounting backlog. As ofb July 1, 2025, the High Courts have 371 vacancies out of a sanctioned strength of 1,122. The present working strength stands at 751 judges. Over 63 lakh pending cases in the High Courts, according to the National Judicial Data Grid.

The Supreme Court Collegium, headed by Chief Justice Gavai, has recommended the appointment of 39 individuals as judges across nine High Courts. The recommendations were made on July 1 and 2 after an in-person interactions with candidates from judicial officers and practising advocates. 

Notably, the collegium has recommended names of two advocates Ajit Kumar, and Praveen Kumar as judges of the Patna High Court. The High Court has a sanctioned strength of total 53 judges, which includes 40 permanent, and 13 additional judges. At present, the High Court is functioning with 36 permanent judges only. 

The Supreme Court Collegium had initially recommended five names for appointment as judges in February 2025. However, the Union government cleared only three names. The appointment of the other two recommended advocates, Ritesh Kumar and Anshul Raj, is still pending.

The question is: who should be held accountable for delay in appointment of 17 judges in the Patna High Court including these two names. In this regard, the silence of advocates' association, lawyers association and bar association is deafening. 

Why is the the Collegium issuing only statements listing the names of recommended candidates and their High Courts, sans details about timeline and process? Why has it discontinued the practice of regularly publishing detailed minutes of Collegium meetings and basic information regarding the dates on which High Courts send their recommendations and the timeline of the Collegium’s deliberations on Supreme Court's website. 

Justice Purnendu Singh quashes termination order for violating principle of natural justice

In Smt. Archana Kumari vs. The State of Bihar through its Secretary Education Department, Govt. of Bihar, New Secretariat, Patna & Ors. (2025), Justice Purnendu Singh delivered a 6-page long judgement dated June 16, 2025 wherein, he concluded:"I also find that there has been gross violation of principle of natural justice. It is admitted that before termination order dated 15.11.2022 has been passed, no opportunity has been given to the petitioner. On this ground also, the order contained in Memo No.669 dated 15.11.2022 is fit to be set aside and quashed...." There were six other respondents including The Director Primary Education, Education Department, Govt. of Bihar, Patna, District Magistrate, Vaishali, District Education Officer, Vaishali, District Programme Officer, (Establishment), Vaishali, Block Development Officer, Bhagwanpur, Vaishali and Block Education Officer, Bhagwanpur, Vaishali.

The petitioner had prayed quashing "the memo no.669 dated 15.11.2022 issued by the Executive Officer cum Block Panchayati Raj Officer, Panchayat Samiti, Bhagwanpur (Vaishali) whereby and whereunder the petitioner was terminated from service with immediate effect on the ground she was working on the basis of Madhyama Visharad certificate issued from the Hindi Sahitya Sammelo Allahabad. She also sought direction from the Court to the respondent authority to reinstate the petitioner in service with all consequential benefits. 

According to the State that the main issue involved in the present writ petition was the validity of the Madhmya Visharad degree obtained by the petitioner from Hindi Sahitaya Sammelan, Allahabad.  

Justice Singh recorded that there was violation of Section 14 of Bihar State School Teachers and Employees Disputes Redressal Rules, 2015 by District Education Officer, Vaishali who acted in a mechanical manner.

Justice P.N. Bhagwati has defined it as "fair play in action". The right to hearing encompasses the following concepts within its ambit:

1. Right to notice
2. Right to present case and evidence
3. Right to rebut adverse evidence
1. Right to cross-examination
2. Right to legal representation
4. Disclosure of evidence to the party
5. Showing the report of enquiry to the other party
6. Reasoned decisions or speaking orders

Therefore, pre-decisional hearing is one of the standard and essential rules of Audi Alteram Partem. But, it would be wrong to disregard the status of the post-decisional hearing. Post-decisional hearing is also a justiciable rule as it affords the hearing opportunity to the aggrieved person and is a better option than no hearing (I.P. MASSEY, ADMINISTRATIVE LAW (Eastern Book Company 2022).. However, it is pertinent to note that a post-decisional hearing must be considered an exception rather than a rule.

 

Justice Vipul Pancholi led bench dismisses Bihar Govt's appeal of 1999 against judgment of acquittal in 1987 case

The High Court's website does provide details about what happened in this case in the High Court during August 1999-April 2025. Its silence regarding such delay in adjudication is intriguing and inexplicable. 

In The State of Bihar vs. SK. Manso @ Mansoor & Ors. (2025), Patna High Court's Division Bench of Justices Vipul M. Pancholi and Sunil Dutta Mishra delivered a 25-page long judgement upholding the judgment of acquittal dated May 17, 1999 passed by the Court of 2nd Additional Sessions Judge, Banka in Sessions Trial of 1992, whereby the Trial Court had acquitted SK. Manso @Mansoor, SK. Jahir, SK. Tahir and Md. Gulam Rasool, all the 4 respondents/accused of all the charges levelled against them. The causelist showed name of Ganesh Prasad Jayaswal as the petitioner's counsel and Nageshwar Prasad as the APP. But the judgement shows name of Dilip Kumar Sinha as the APP but does not show any name of the counsel on behalf of the respondents.   He concluded: "we are of the view that the prosecution has failed to prove the case against the accused beyond reasonable doubt. We have also gone through the reasoning recorded by the Trial Court while passing the impugned judgment. We are of the view that the Trial Court has not committed any error while passing the impugned judgment." 

The judgement reads: "In view of the aforesaid discussion, we are of the view that no interference is required in the impugned judgment rendered by the Trial Court." The High Court dismissed the State government's appeal of the year 1999 which was filed on August 18, 1999 and registered on the same day. It was listed for hearing before Justice Pancholi bench since April 21, 2025.    

The informant Mosmat Bibi Jaibunissa stated in her fardbeyan recorded on August 14, 1987 at around 10:00 a.m. at Government Hospital, Ghoraiya that, in the morning of that day at around 07:00 a.m., her son Sheikh Mansoor and Sheikh Nasir along with ploughman Sheikh Ramjani were ploughing her field situated at the south-west corner of village. Then, at that time, Sheikh Manso of her village came with a gandasa, Sheikh Jahoor with spear, Sheikh Rasool with a bana and Sheikh Tahir with a lathi in their hands to the field abusing and told them to stop ploughing, else they won’t let them go alive. The above mentioned four accused persons surrounded them and started assaulting. Her ploughman Sheikh Ramjani was hit with a spear by Sheikh Jahir and by gandasa wielded by Sheikh Mansi. Sheikh Rasool hit her on her head with bana and when her son tried to save her, he was hit on his head by Sheikh Tahir with a lathi. When Ramjani fell down, all the four accused persons started hitting him due to which he fell unconscious there. Besides this, her two sons, Sheikh Ramjani and the ploughmen were beaten and injured by them. When they raised alarm, nearby residents, namely Sheikh Haviv, Sheikh Badruddin, Sheikh Nazimuddin etc. came running and all the four accused persons ran away. Thereafter, she along with her other companions brought Sheikh Ramjani on a cot to the Government Hospital, Dhoraiya since Ramjani’s condition was very bad. The above mentioned persons had beaten him with an intention to kill him. Manso told in an abusive tone that he should not be spared alive. She took Ramjani to Hospital where she was advised to take him to B.M.C.H., Bhagalpur. She got him seated in a Maxi and then took him to Bhagalpur. After that, she along with other injured namely Md. Kalimuddin, Md. Shamim and her two sons went for treatment where she gave her statement. The reason for the incident is that the above mentioned accused persons claim the field which she was ploughing to be theirs.  

Justice Pancholi observed:"it is also required to be observed that the informant and the prosecution witnesses have suppressed the manner in which the occurrence took place. From the deposition of the prosecution witnesses, it has been revealed that in the incident in question, the accused persons have also sustained injury and, in fact, the counter-case has been filed by the accused side against the informant and the other injured witnesses. However, it is required to be observed at this stage that the prosecution has failed to bring on record the nature of injuries sustained by the accused persons in the incident in question. It is well settled that it is the duty of the prosecution to explain the injury sustained by the accused.

He noted: "....the prosecution has failed to examine the Investigating Officer, who has carried out the investigation. The Trial Court has specifically observed in the impugned judgment that because of the non-examination of the Investigating Officer, in the present case, serious prejudice has been caused to the defence. We are of the view that the Trial Court is right in observing the said aspect. As observed hereinabove, from the deposition of the prosecution witnesses, it transpires that the accused persons have sustained injury in the incident in question and, therefore, counter-case has been filed. Some of the prosecution witnesses were arrested in connection with the counter-case. Thus, because of the non-examination of the Investigating Officer, in the present case, the defence has lost the opportunity to cross-examine the Investigating Officer. We are also of the view that serious prejudice has been caused to the defence because of the non-examination of the Investigating Officer and which can be considered as fatal." He pointed out that...the prosecution has failed to examine the Doctor, who had given the treatment to the injured witnesses...." 

Justice Pancholi underlined that "....there is no recovery or discovery of the weapons which have been allegedly used in commission of the crime. Thus, there is no recovery or discovery from the accused." 

Justice Pancholi relied on Para-42 of the Supreme Court's decision in he decision in Chandrappa and Ors. vs. State of Karnataka, reported in (2007) 4 SCC 415. The Court has laid down the principle regarding the powers of the Appellate Court while dealing with an appeal against an order of acquittal. The Court observed:“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. 
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 

Justice Pancholi also relied on Para-22 of the Supreme Court's decision in Nikhil Chandra Mondal vs. State of West Bengal, reported in (2023) 6 SCC 605.  The Court observed: “22. Recently, a three-Judge Bench of this Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] has considered various earlier judgments on the scope of interference in a case of acquittal. It held that there is double presumption in favour of the accused. Firstly, the presumption of innocence that is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the court. It has been further held that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

Drawing on these decisions, Justice Pancholi concluded:"it can be said that Appellant Court must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding recorded by the Trial Court." It is the 22nd judgement of the year authored by Justice Pancholi. 

Justice Pancholi's 21st judgment of 2025 set aside judgment by Additional Sessions Judge-II, Nawada

His 34-page long 21st judgement dated June 18, 2025 was delivered in Madhav Kumar @ Madhav Singh vs. The State Of Bihar (2025), wherein the he quashed and set aside the impugned common judgment of conviction dated May 29, 2018 and order of sentence dated June 5, 2018, passed in a Sessions Trial No. of 2016 by the Court of Additional Sessions Judge-II, Nawada. The case had arisen out of Pakribarawan P.S. case of 2016.  

The Trial Court had convicted appellants Gopal Singh and Madhav Kumar for committing the offence punishable under Sections- 302 of I.P.C. The appellants Bhopal Singh and Chandan Singh were also been convicted for committing the offence punishable under Section-341 and 302/34 of I.P.C. The appellants Gopal Singh and Madhav Kumar were sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- each for the offence punishable under Section-302 of I.P.C. The appellants Bhopal Singh and Chandan Singh were sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- each for the offence punishable under Section-302/34 of I.P.C. and a fine of Rs. 500/- each for the offence punishable under Section-341 of I.P.C. 

The P.W. 3 Ramendra Prasad Singh, the informant gave his written report to S.H.O wherein he stated that at about 05:45 p.m. on March 24, 2016, the Holi festival day., exchange of abuses took place between his son Rahul Kumar on one side and his full brother Gopal Singh and nephew Madhav Singh on the other. Thereafter, at about 06:45 p.m., his son was coming to the lane from the southern side. As soon as he reached near the house of Haridwar Singh, accused Gopal Singh, Madhav Singh, armed with a spear and Bhopal Singh and Chandan Kumar came in front of the house of Haridwar Singh and Bhopal Singh and Chandan Singh caught hold of his son and Gopal Singh and Madhav Kumar assaulted him with Bhala (spear) and injured him grievously. On commotion, his daughter Sonam Kumari shouted upon which his wife and village people came there and seeing them the miscreants fled away. When they went nearer, they saw grievous injuries on both the sides of chest, navel and scrotum of his son, caused by spear out of which profuse blood was oozing and his son was writhing in pain. By the time they could manage a vehicle to rush him to the hospital, he succumbed to the injuries sustained by him. 

As the appeals arose out of the common judgment and order, advocates appearing for the parties had jointly prayed that all these appeals be heard together and be disposed of by a common judgment.

Justice Pancholi recorded that from the written report, it transpired that the informant was not an eye-witness to the occurrence in question and daughter of the informant, namely, Sonam Kumari, PW2 was projected as an eye-witness. The case of the prosecution rested mainly upon her deposition. She is sister of the deceased and is an interested and related witness. The formal F.I.R. was registered at 18.45 hours on March 24, 2016 and the F.I.R. was received by the concerned Magistrate Court on March 30, 2016. "Thus, there is a gross delay in sending the F.I.R. to the concerned Magistrate Court for which the prosecution has failed to give any reasonable explanation." Notably, at another place, the judgement recorded that the formal F.I.R. was registered on march 24, 2016 at 23:30 hours. 

Justice Pancholi also noted that from the deposition given by P.Ws. 1, 2 and 3, who were near relatives of the deceased, it transpires that there were major contradictions and improvement in their version. All the these witnesses had deposed before the Court that all the four accused together flung the deceased on the ground. However, no such allegation was levelled against the accused in the written report given by P.W. 3, informant. 

He recorded that as per the case of P.Ws. 1 to 3, the deceased sustained grievous spear injuries on both sides of his chest. He also sustained injuries on his navel and scrotum. But the deposition of P.W. 6, Dr. Bipin Kumar Chaudhary, who had conducted the post mortem on the dead body of the deceased, it emerged that injury Nos. 1 and 2 are incised wound injuries, whereas injury Nos. 3 and 4 are bruises. During cross-examination, this witness specifically stated that, except these two injuries mentioned by him in the examination-in-chief, he did not find any other injury either on the navel or the scrotum of the dead body. Thus, we are of the view that the medical evidence does not support the version given by the prosecution-witnesses, namely P.Ws. 1 to 3. PW2, Sonam Kumari's deposition also does not match with the medical report which revealed that no such injuries were found on the navel or scrotum of the dead body as was claimed by her. He also recorded that the prosecution failed to examine any independent witnesses. He took note of the fact that from the version of the prosecution-witness, i.e. the I.O., it was revealed that Bhopal and Chandan, the two accused, although they were not present at the scene, they were falsely implicated. The P.W. 3, informant, who is the father of the deceased drafted the written report
immediately at the place of occurrence. During cross-examination, he stated that he had arranged the paper for preparing the report from a shop, but he does not want to disclose the name of the person who brought the paper from the shop. Justice Pancholi observed that if P.W. 3, informant, had already disclosed the names of the assailants and the manner in which the occurrence took place to the police on telephone, there was no question of giving the written report to the police. He pointed out from the record that there was discrepancy with regard to the time of preparing the inquest report. The counsel for the appellants stated that there is overwriting in Column Nos. 1 and 3 of the inquest report from which it can be said that prosecution has not come with clean hands and has suppressed the correct version. 

The judgement reads: "We have also gone through the inquest report produced before the trial court. It appears that there is overwriting at two places, i.e. Column Nos. 1 and 3. It would further reveal from the evidence that the investigating agency has failed to recover/discover the weapons/spears with which assaults were made. Further, the prosecution did not examine A.S.I. Anil Prasad who has prepared the inquest report. Similarly, prosecution did not examine police officer Ramshankar Dubey who was sent by the S.H.O. (P.W. 5) to the place of occurrence."

Justice Pancholi acquitted the appellants of the charges levelled against them by the Trial Court. The appellant Madhav Kumar@ Madhav Singh and appellant Gopal Singh were in custody. They were directed to be released from jail custody forthwith. The appellants Bhopal Singh and Chandan Singh @Chandan Kumar (in Cr. Appeal (D.B.) No. 784 of 2018) were on bail. They were discharged from the liabilities of their bail-bonds.

Also read: Justice Pancholi led Division Bench upholds judgment of acquittal by Additional District & Sessions Judge-I, Sherghati, Gaya 

Also read: Justice Vipul Pancholi to take over as Patna High Court Chief Justice, dismissed State Government Appeals against acquittal of 1997, 1998, 1999 and 2024, set aside judgment of 1991  

  

 

Patna High Court judgement of 2015 upholding 2010 order of Additional Sessions Judge-II, Saharsa in rape case of 2007 reaches Supreme Court

In Sanjay Kamat vs. The State of Bihar (2015), Patna High Court's Division Bench of Justices Dharnidhar Jha and Ahsanuddin Amanullah had delivered a judgement dated July 6, 2015 upholding the judgment of conviction dated February 10, 2010 and order of sentence dated February 15, 2010 passed by the Additional Sessions Judge-II, Saharsa in Sessions Trial of 2008 in a rape offence of 2007. By the impugned judgment, Sanjay Kamat, the appellant was held guilty of committing an offence under Section 376 of the Indian Penal Code and he, after being heard under Section 235 Cr.P.C., was directed to suffer rigorous imprisonment for life. Justice Jha concluded:"After apprising the evidence of witnesses, we come to the conclusion that the learned trial judge was perfectly justified, in face of the evidence available to him, to hold that the prosecution had succeeded in bringing the charge home to the present appellant and he appears appropriately passing the order of sentence. In the result, the appeal fails and the same is dismissed."The appellant filed an appeal against the High Court's judgment in the Supreme Court on April 25, 2025. It was verified on June 23, 2025. It came up for hearing on July on July 2, 2025 but was adjourned. 

The appellant had appealed against the judgment of conviction and order of sentence in the High Court. The gist of the allegation was that while playing, a girl child of 6-7 years was lured into visiting the village fair where she could be getting some balloons from the appellant. The grandmother of the victim opposed the taking away of the victim but the appellant succeeded in his act. It was evening and dark and the little child did not come back. The victim was brought to her mother to tell her that it was this appellant who had handed the injured and bleeding little child to them to be handed over to her mother. The incident had occurred at about 5.00 P.M. on October 20, 2007. 

The High Court observed: "In spite of the non-examination of the investigating officer, what we further find from the record is that the investigation was completed and the solitary appellant was sent up for trial which ended in the impugned judgment." It was authored by Justice Jha.

Justice Jha recorded that the trial court judge before proceeding to record the evidence of PW3, the victim of the occurrence, had put certain questions to her in order to judging her competence of appreciating wordly things and thus, her competence to retain facts so as to relate them at a later stage. The judgement reads: "We refrain ourselves from putting those words in this judgment on account of the privacy reasons, but we may note that the victim had indeed narrated the real facts concerning the commission of the offence with her. She had narrated the manner as to how she was ravished and what the appellant had done in that connection. That these two lines we put down only to convey the facts which were stated by PW3 and whatever she had stated or whatever the learned counsel who had appeared during trial on behalf of the appellant had elicited, appear to us quite an unequal a dual between the little child who could be not knowing the crafts of the court and the competence and ingenuity of a counsel in such matters. The questions which were put to the little girl could be as nauseating and disturbing as they could have been, we wish the trial court ought to have prohibited them from being put to the child." Justice Jha observed that those were words which could impart a sense of shame to anyone, "but the counsel was as ruthless in putting those words to the little child during her cross examination". It is apparent from her deposition sheet. He noted: "At any rate, the judges have very limited resources and power to intervene in matters of restraining cross-examination and the answers to those questions further confirm us in our view that it could be the appellant only who had committed the offence." 

Justice Jha observed: "The examination of the investigating officer  could have given only one evidence as to what was the place of occurrence. His non-examination or the non-examination of the persons of the neighbourhood to us do not appear material inasmuch as when a little child of 6-7 years was giving evidence forthrightly in court to the incident, it was immaterial for the court to look for any other evidence." 

Supreme Court issues notice, grants relief to co-accused who was denied pre-arrest bail by Justice Harish Kumar

In Abhay Kumar @Yogi vs. The State of Bihar (2025), Supreme Court's Division Bench of Justices Manoj Misra and N. K. Singh passed an order dated July 3, 2025 granting relief to the appellant. The order reads:"if the petitioner is arrested in connection with FIR No.897/2023, he shall be released on personal bond of Rs.25,000/- (Rupees twenty five thousand only) subject to undertaking that he will cooperate in the investigation/trial and shall not tamper with the evidences or threaten the witnesses." The Court issued notice returnable within four weeks. The counsel for the petitioner submitted that that the other co-accused persons, who have been ascribed similar role, has been granted the benefit of anticipatory bail by the High Court whereas the petitioner has been denied the benefit only on the ground that he has criminal antecedents. It is stated that the criminal antecedents was of 2019. Insofar as the present case was concerned, there was a cross version of the incident and the petitioner also suffered injuries. The Court opined: "The matter requires consideration."

In Vikash Kumar & Ors. vs. The State of Bihar (2025), Justice Harish Kumar of Patna High Court passed an order dated May 5, 2025 denying bail to Abhay Kumar, one of the four petitioners saying, "So far the petitioner no. 2 is concerned, considering his criminal antecedent, this Court is not inclined to accord the privilege of anticipatory bail. Let the petitioner no. 2 be surrendered before the Court below preferably within a period of four weeks from today. In case the petitioner no. 2 abide by the order of this Court, the learned Court below shall consider the prayer for bail of the petitioner no. 2, without being prejudice by the present order." But it granted pre-arrest bail to the three other petitioners. 

The petitioners including Abhay Kumar apprehend their arrest in connection with Maner P.S. case of 2023, registered for the offences punishable under Sections 341, 323, 307, 379, 504 and 506. All the petitioners had caught hold the grandson of the informant and brutally assaulted him and snatched Rs. 15,000. 

The counsel for the State had opposed the pre-arrest bail application of Abhay Kumar and others. He submitted that so far the compromise between the parties is concerned, the offence is not compoundable in view of the fact that FIR has been instituted under Section 307 and other allied sections of the Indian Penal Code.  

An offence that is "not compoundable" means it cannot be settled or resolved through a compromise or agreement between the parties involved. These are generally serious offenses that are considered harmful to society as a whole, and therefore require a full legal process for resolution. Compoundable Offences are offenses where the victim and the accused can reach a compromise or settlement, often with the court's permission. The legal proceedings may be discontinued if the victim withdraws their complaint. The examples include certain types of assault, wrongful confinement, and defamation. 

Non-compoundable offences are offenses where a compromise or settlement is not permitted by law. The case must go through a full trial, and the court will ultimately decide the outcome. These are typically serious offenses like murder, rape, and kidnapping.  The examples of non-compoundable offences include  murder (Section 302), rape (Section 376), kidnapping (Section 363, voluntarily causing grievous hurt by dangerous weapons (Section 326) and criminal breach of trust by a public servant (Section 409).

Justice Rudra Prakash Mishra denies bail for cyber offences at Digital Online Examination Center, Purnia under Public Examination (Prevention of Unfair Means) Act, 2024

In Dharmveer Kumar & Anr. vs. The State of Bihar (2025), Patna High Court's bench of Justice Rudra Prakash Mishra passed an order dated April 15, 2025 denying bail to the residents of Nalanda in connection with Purnea Cyber P.S. case of 2024 instituted for the offences under Sections 318(4), 319(2), 338, 336(3), 340(2), 61(2), 111 of the Bhartiya Nyaya Sanhita, 2023, Sections 65, 66(C), 66(D) of the Information and Technology Act, 2000 and Sections 9, 10 and 11 of the Public Examination (Prevention of Unfair Means) Act, 2024. Digital Online Examination Center at Hansda Road, Gulabbag, Purnia. The order of Justice Mishra has been challenged in the Supreme Court passed an order dated July 2025 issuing notice to the respondents returnable within three weeks in  Dharmveer Kumar vs. The State of Bihar  & Anr. (2025). 

The police officials reached at Digital Online Examination Center at Hansda Road, Gulabbag, Purnia and during verification caught 12 fake candidates including Dharmveer Kumar and Deepu Kumar, a resident of Nalanda, the petitioners were found using forged admit cards, Aadhaar cards and other documents and were arrested. On query, they confessed of appearing in the examination in place of actual students in exchange of money. They also disclosed that the original students were present in a nearby flat where their e-admit cards were being verified for ‘bio-metric In-Out’ access. Later on, the police raided the said flat and recovered e-devices and other incriminating materials. It was revealed that before the entry of the fake candidates, the owner of the lab Vivek Kumar, his partner Roshan Kumar S/o Suryadeo Mandal, Rahul Raj and other accomplices used to prepare the documents at the Purnia Digital Center. Subsequently, seven Purnia Digital staff members who are alleged to have helped in organizing the cheating process, were also arrested. The police also arrested two persons, namely Roshan Kumar s/o Ajay Singh and Kunal Kumar who were fleeing from the Center, in front of the Purnia Digital Examination Center on the road. From the place of location, connecting network wire and other technical items were recovered. From the flat of Suresh Chandra Saha, 14 original examinees, were also arrested and, on search, various documents including fake admit cards, Aadhaar cards, original IDs of the students etc. were recovered. From outside the flat, the police also seized Tata Harrier car with a cheque of Rs. 60,000/- and Rs. 4,20,400/- in cash. The police also recovered several incriminating articles from the Hotel Shine. Two motorcycles and one scooter were also seized.

The counsel for the petitioners submitted that the petitioners submitted that there is a non-compliance of Section 103 of the  Bharatiya Nagarik Suraksha Sanhita B.N.S.S., 2023 (Section 100 from Cr.PC) which creates a serious doubt in the prosecution case. The petitioners had no criminal antecedent and were languishing in judicial custody since November 14, .2024. Charge-sheet has been submitted in the case. 

Section 103 in BNSS reads: "103. Persons in charge of closed place to allow search. (1)Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. 

(2)If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 44.

(3)Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

 

(4)Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

 

(5)The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

 

(6)The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

 

(7)When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

 

(8)Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 222 of the Bharatiya Nyaya Sanhita, 2023."

Justice Mishra observed: "In the opinion of this Court, public examinations play a crucial role in shaping the educational and professional futures of individuals. The credibility and fairness of these examinations are fundamental to ensure equal opportunities for all candidates. In this case, it is alleged that the petitioners along with the other co-accused persons in connivance with criminal conspiracy and in organized way committed the offence of cheating, cheating by impersonation, forgery of valuable
security and fraudulently and dishonestly used as genuine any document or electronic record which they know or have reason to believe to be a forged document or electronic record. They have also committed an offence under the I.T. Act as well as the Public Examinations (Prevention of Unfair Means) Act, 2024 recently passed by the Parliament. Such type of offence undermines the principles of meritocracy, equal
opportunities, integrity of system and ultimately impacting the credibility of qualifications and the over all social fabric."

He concluded:"Considering the overall facts and circumstances of the case and after going through the entire records of this case as also taking into account the nature and gravity of the offence, this Court is not inclined to grant bail to the petitioners at this stage". He made it clear that if the trial is not concluded within the period of six months, the petitioners will be at liberty to renew their prayer for bail before the court below which will be disposed of on its own merit without being prejudiced by this order."

Bihar Bar Council Journal removes names of members of Bihar State Bar Council due to pending dispute before Central Election Tribunal

In Ratan Kumar Singh vs. The Chairman, Bihar State Election Commission & Ors. (2024), the 44th Chief Justice of Patna High Court, K. Vinod Chandran and Justice Partha Sarthy dismissed the petition with liberty to explore the alternative remedy. The 4-page long judgement dated September 4, 2024 observed:"There is an alternate remedy provided in the Rules itself which the petitioner would be entitled to pursue, if he so desires. We find no reason to interfere with the Rules, specifically the amendments brought in or the elections; which have been concluded and results declared. The intervenor application is also filed, which, in the circumstance of the main matter being rejected does not survive." Ratan Kumar Singh, the petitioner, a practicing Advocate had filed the writ petition challenging the amendment made in 2023 to the Bar Council of Bihar Election Rules, 1968. He had also challenged the elections conducted in the year 2023 to the State Bar Council. The petitioner had submitted that the State of Bihar has more Advocates than that listed in the voters list.

The petitioner had also challenged the substitution of Rule 49 which provided that, no election shall be conducted unless the process of verification of certificates of all the Advocates is complete as per the Certificate and Place Of Practice (Verification) Rules, 2015) of the Bar Council of India. It now provides for holding of elections even when the process of verification is not likely to be completed within the tenure of the elected members of the Council, with the permission and approval of the Bar Council of India. It was argued that this prescription goes against Rule 32 of the Verification Rules of 2015. 

Notably, ahead of the elections of the Bihar State Bar Council, 9-page long notification regarding Bar Council of India Rules (for qualification/Disqualification and produce for election and code of conduct for the elections of S.B.C/B.C.I.) 2023 Rules and Amendments was published in The Gazette of India on June 26, 2023. It reads:"In order to improve the standard of the Bar Councils and to ensure the elections only of practicing Advocates as Member of Bar Councils, who have no bad antecedents and to stop the inclusion/election and/or continuation of Advocates having criminal antecedents or misconduct, the Council has resolved to make the following Rules and Code of conducts. The Rules are being framed under Section 7(1)(b), (d), (g), (e) read with Section 49(1)(a), (ah), (i) of the Advocates Act, 1961. The Hon’ble Members also raised the issue of laying down the qualifications and disqualifications for being a voter in the State Bar Council and for becoming and/or remaining a Member of State Bar Council and Bar Council of India. Accordingly, the office has framed and proposed the Rules for such qualifications and disqualifications and also certain Code of Conduct has been provided for the candidates contesting the elections of State Bar Council and Bar Council of India." 

The Court observed:" 4. We notice that Rule 32 only provides for the Bar Council of India to form Adhoc Committees due to the delay in the process of identification of non-practicing Advocates under these Rules or in case of delay in the preparation of the electoral role for the election to the State Bar Councils. It does not necessarily follow that if verification is not completed, then mandatorily there should be an Adhoc Committee formed. The State Election Rules provides for the elections to be held with the permission of the Bar Council of India, even when the verification is not complete."  

It may be recalled that like Ratan Kumar Singh's case, during the tenure of Braj Kishor Prasad 9th Chairman of the Bihar State Bar Council (April 10980-April 1989), in Young Lawyers' Association vs. Bihar State Bar Council & Ors. (1988), Patna High Court  was apprised by the petitioner that the majority of the advocates who have been enrolled by the State Bar Council and whose names, appear on the State Roll have not been included in the electoral roll prepared for the election to be held. This happened because the advocates, who were practising in the different district courts and Sub-Divisional Courts, had no information that before their names are entered in the electoral roll they had to furnish the details in the prescribed forms in terms of Rule 4 of the Bar Council of India Rules. In exercise of the powers under Sections 3(4); 15(2)(a) and 49(1)(a) and (ab) of the Act, in Part III Chapter I of the Rules, specific rules have been framed in respect of preparation of electoral roll, prescribing qualification and disqualification of advocates whose names have to be entered in such electoral roll. In view of Rule 1 every advocate, whose name is on the Electoral Roll of the State Bar Council shall be entitled to vote at an election. Rule 2 prescribes that the name of an advocate appearing in the State Roll shall not be on the Electoral Roll. Justice Nagendra Prasad Singh observed:"In view of the fact that this is the first election, which is being held, in accordance with amended rules, it can be presumed that the advocates practising in different district courts and sub-divisional courts did not have knowledge of the procedure regarding furnishing their particulars for being enrolled as voters...." Notably, Braj Kishor Prasad was also 10th and 12th Chairman of the Bihar State Bar Council during April 1989-April 1994 and April 1999-August 2000 respectively.

Prior to the tenure of Ramakant Sharma, the 20th Chairman, Bihar State Bar Council, Lalit Kishor was the Chairman during July 2017-May 2021. Before Kishor, Ram Balak Mahto was the Chairman during September 2015-July 2017. Mahto was preceded by Akhauri Mangla Charan Shrivastava, the 17th Chairman during November 2012-September 2015. The current chairman was a member of the Council at since the tenure of Baleshwar Prasad Sharma, the 16th Chairman during May 2010-November 2012. Prashant Kumar Shahi, the current Advocate General of Bihar since January 2023 was the 15th Chairman during March 2008-May 2010. He was Advocate General during during 2005-2010 as well.He is ex-officio member of the Bihar State Bar Council. Manan Kumar Mishra, the current 31st Chairman, Bar Council of India (BCI) is the representative of BCI in the Bihar State Bar Council. Mishra was 29th Chirman of BCI as well.   

Notably, ahead of the Bihar State Bar Council elections in December 2023, The Gazette of India published a 2-page long notification dated June 23, 2023 on June 26, 2023 under the subject "The house in order to improve the Standard of Legal Profession further feels the need to repeal Rule 32 and new Rule 32 of Bar Council of India Certificate and Place of Practice". The new Rule 32 reads: "Rule 32. In case the term of elected members of any state Bar Council is likely to expire/expires due to delay in the process of identification of non-practicing advocates or verification of their certificates or delay in the preparation in the electoral roll for the election to the state Bar Councils due to the aforementioned reasons, the Bar Council of India may allow the elected members/and the office-bearers of the State Bar Council(s) to continue to function beyond their extended tenure under Section 8 of the Advocates’ Act, 1961 in order to complete the process of verification and in order to ensure that no non-practicing Advocate becomes a voter or a member of any state Bar Council. The State Bar Council(s) shall be required to complete the process of verification within a period of 18 months from the date of extension of their tenure by the Bar Council of India and shall complete the process of election within a period of 6 months therefrom. In case, of failure to complete the process of verification and the election within the said extended period as prescribed under this Rule, the Bar Council of India may dissolve the State Bar Council and shall proceed to constitute the Special Committee as provided under Section 8A of the Advocates Act, 1961." It also stipulates that "In case of any doubt or dispute as to the meaning, interpretation, execution of these Rules arises, the Bar Council of India shall be the final authority to settle such issues and its decision thereon shall be final."

Ratan Kumar Singh, the petitioner had filed in the High Court on February 16, 2024. It was registered on March 14, 2024. Arun Kumar, Prem Kumar Paswan, Ram Sandesh Roy, Alka Pandey, Pawan Kumar Singh, Farooque Ahmad Khan and Ram Jiban Pd. Singh were the counsels for the petitioner. The five other respondents were Chairman, Bar Council of India, Bihar State Bar Council, through its Chairman, Returning Officer, the Bihar State Bar Council Election- 2023, Chief Observer, Bihar State Bar Council Election- 2023 and all the Members of Bihar State Bar Council. 

The dispute regarding December 2023 election of the Bihar State Bar Council is pending before the Election Tribunal, one of the 15 committees of BCI. It is noteworthy that doctrine of ejusdem generis is relevant in this regard. The expression ejusdem generis-”of the same kind or nature”-signifies a principle of construction whereby words in a statute which are otherwise wide but are associated in the text with more limited words are, by implication, given a restricted operation and are limited to matters of the same class are genus as preceding them. If a list or string or family of genus-describing terms are followed by wider or residuary or sweeping-up words, then the verbal context and the linguistic implications of the preceding words limit the scope of such words. But the preceding words or expressions of restricted meaning must be susceptible of the import that they represent a class. It implies that the Election Tribunal, is essentially a committee of the BCI. 

In a significant development, given the fact that at present, Bihar State Bar Council does not have duly elected members, it has removed the page mentioning the names of members of the Bar Council from 2025 issue of the Bihar Bar Council Journal, although the same was mentioned in the 2024 issues. (Photo:Journals of Bihar Bar Council) Significantly, ahead of the Bihar State Bar Council election, three Central Election Tribunals/Committees were constituted on June 25, 2023 which published as the 18-page long notification dated October 9, 2023. The notification on the subject of "Regulations Governing the procedure for Election Petitions and applications Before the Central Election Tribunal/Committees of the Bar Council of India for resolution of issues relating to Election Disputes and other related matters of elections of the State Bar Councils and the Elections of Member Representatives to the Bar Council of India from the State Bar Councils" was published in The Gazette of India. The BCI claimed that it constituted these three Central Election Committees/Tribunals for looking into and ensuring free and fair elections of different State Bar Councils in the light of directions/observations of Supreme Court in the year 2017. Every Tribunal as per Rules in this regard is headed by a former Chief Justice of High Court who is the Chairman and two other former Judges of High Courts as per the prescribed Rules. Past experience has shown that at many places many Advocates, who fill up the verification forms, still go missing from the list of voters, while several names are included without any verification forms. This apart, thousands of names/father names/enrolment numbers are wrongly mentioned in voter lists. Sometimes very ugly scenes are created at polling booths, at the time of election, and/or during the counting of votes. Even there are complaints of large-scale adoption of corrupt practices, distribution of money etc. for votes, and the use of posters/hoardings against the norms and Rules of Bar Council of India, which makes the candidature of a candidate liable to be cancelled/rejected. The BCI constituted these Committee(s) to adjudicate and decide such issues/disputes and also to decide/resolve all the objections, issues relating to elections right from any objection relating to electoral roll, acceptance/rejection of nomination, matters/complaints relating to adoption of corrupt practices or use of unfair means in the elections and/or to decide any sort of dispute/matter relating to election of Members of State Bar Council or BCI as the case may be. The day to day affairs of the State Bar Councils are to be looked after by the State Bar Councils only, but the orders or directions of these Tribunals/Committees will be binding on the State Bar Councils, Returning Officers and/or the Observers with regard to the process of election. The Tribunal has been empowered to address and dispose off interim matters, complaints, or other applications expeditiously in a summary manner, and it may do so without requiring a formal hearing with the involved parties, on the basis of documentary evidence before it. Besides this, the Tribunal is empowered to take cognizance of some matters suo motto and is vested with the ability to proactively initiate proceedings in certain instances, and may issue directives or orders as necessary to uphold the principles of fairness and transparency throughout the election and counting processes. 

The notification provides details about the composition of the Tribunals. Tribunal No. 1 comprises of Justice L. Narasimha Reddy, Former Chief Justice, Patna High Court,  Justice Arun Tandon, former Judge, High Court of Allahabad and local former Judge to be nominated by the State Bar Council. Tribunal No. 2 comprises of Justice S. Mukherjee, Former Chief Justice, High Court of Karnataka,  Justice Shivaji Pandey, former Judge, Patna High Court and  local former Judge to be nominated by the State Bar Council. Tribunal No. 3 comprises of Justice Rajendra Menon, Former Chief Justice, High Court of Delhi, Justice M. Sathyanarayanan, former Judge, Madras High Court and local former Judge to be nominated by the State Bar Council.   

The notification states that "An appeal may be filed within 60 days of the Tribunal's order being communicated to the party as provided under Section-38 of the Advocates Act, 1961." It provides a note which reads: "On earlier occasions, the petitions were filed against the order passed by the Central Election Tribunal (s) of B.C.I. only before the Hon’ble Supreme Court." It implies that High Court need not entertain appeal against Tribunal's order. It also states that "Where no specific provision is made in the procedure/rules the direction of the Tribunal may be sought".

Also read: Make Audit Report of Bihar Bar Council, Bihar State Advocate Welfare Trust Committee online: Ram Jiban Prasad Singh, Candidate, Bihar State Bar Council 

What time Bar Council takes to constitute a committee is not within the domain of Patna High Court 

In Kaushal Kishore vs. The Bihar State Bar Council Patna through its Chairman & Ors. (2024), Justice Rajiv Roy of the High Court had heard the application seeking issuance of appropriate writ, order or direction to the Chairman, Bar Council of India and Chairman, Bihar State Bar Council to dispose of an Election Appeal no. 02/2023 which was pending before the Election Tribunal, Bihar State Bar Council, Patna within a shortest period. The matter related to the election of Office Bearers of the District Bar Association Patna Civil Court in which the petitioner was a candidate for the post of President but he was defeated. Subsequently, under Section 19(x) of the Uniform Rules for Bar/Advocates/Lawyers Association of Bihar, a petition was preferred before the Bihar State Bar Council on August 28, 2023 which led to Election Appeal No. 02 of 2023. The counsel for the petitioner had submitted that rule 19 (12) stipulates that the said election petition has to be disposed of in two months. The case was filed in the High Court on July 15, 2024 and registered on July 31, 2024.  

In his 4-page long order dated August 1, 2024, Justice Roy recorded: "6. The Bihar Bar Council is represented and it has been contended by learned counsel that due to election process was continuing in the Bihar State Bar Council, the matter could not be taken up. The committee came to be constituted in the month of February, 2024 only and the Election Tribunal of the Bihar State Bar Council has yet to be constituted." But the order does not mention the name of the counsel of Bihar Bar Council. 

The Court's order reads: "It is unfortunate that after stipulating a particular period for the disposal all the election petition, the Bar Council is sitting over the matter. Admittedly, even going by their assertion, the fresh committee has come into existence in the month of February, 2024 and we are today in the month of August, 2024." 

Justice Roy added:"In that background, what time the Bar Council takes to constitute a committee is not within the domain of the Patna High Court but can only advise/request that since number of such cases may be pending, the same should be constituted as early as possible and the present election petition no. 02/2023 must be taken to its logical conclusion. Though two months have been stipulated rules itself, the court expects that the final order will be passed by 31 st of December, 2024."  

 

Supreme Court's Division Bench stays Justice Bibek Chaudhuri's order for action against SP, Bettiah for failure to comply with directions of 3-judge bench of Supreme Court to preserve CCTV footage

In The State of Bihar & Ors. vs. Suresh Yadav (2025), Supreme Court's Division Bench of Justices Prashant Kumar Mishra and Manmohan issued notice and stayed the impugned 6-page order dated February 13, 2025 passed by Justice Bibek Chaudhuri of the Patna High Court directing departmental action against Superintendent of Police, Bettiah. Supreme Court's order reads:"In the meantime, the operation and effect of the order impugned passed by the High Court shall remain stayed." 

The order of Supreme Court's Division Bench staying High Court's order seems to be in breach of judicial discipline. It seems to oblivious of the judgement dated December 2, 2020 by the 3-Judge Bench of the Supreme Court in Paramvir Singh Saini vs. Baljit Singh AIR 2021 Supreme Court 64. The Chief Secretary, Government of Bihar was one of the respondents in the case. The 3-Judge Bench comprising Justices Aniruddha Bose, K.M. Joseph and R. F. Nariman recalled that the Court, vide order dated September 16, 2020 had impleaded all the States and Union Territories to find out the exact position of CCTV cameras qua each Police Station as well as the constitution of Oversight Committees in accordance with the order dated April 3, 2018 of the Court in Shafhi Mohammad vs. State of Himachal Pradesh (2018) 5 SCC 311. It also recalled that the Court, while considering the directions issued in D.K. Basu vs. State of West Bengal & Others (2015) 8 SCC 744, held that there was a need for further directions that in every State an oversight mechanism be created whereby an independent committee can study the CCTV camera footages and periodically publish a report of its observations thereon. 

The report of the amicus dated January 25, 2021 mentioned in Court's order dated January 27, 2021 reveals that Bihar government had filed an filed an affidavit of compliance. The Court's order dated March 2, 2021 reads:"So far as the State of Bihar is concerned, nothing has been indicated as to amounts to be allocated for the project despite which a timeline of 24 months to complete the project has been indicated. We are most displeased with this affidavit. It shows a complete lack of any regard for the citizens’ Fundamental Rights under Article 21 of the Constitution of India and for our orders. We make it clear that within an extended time frame having regard to the complexity and size of the State, compliance is mandated. Therefore, we direct the State of Bihar to allocate funds for the purposes mentioned in our orders within a period of four weeks from today. Thereafter, the timeline for compliance will be fixed at a period of eight months after the period prescribed for budgetary allocation, i.e. within nine months from today. Our orders should have been followed in letter and spirit." (p.11-12)

Supreme Court's order dated April 6, 2021 records that the Court perused the progress report qua the State of Bihar. The Paramvir Singh Saini case is pending. It was last heard on February 9, 2024. The Court is monitoring compliance with its judgement and orders. The case from Bettiah reveals that non-compliance with Supreme Court's order has become the norm. Bihar government's affidavit in the Court had submitted that it keeps "12 month back-up" of CCTV footage. 

But the affidavit of the respondents in the High Court reveals that CCTV footage is being maintained by outsourcing agencies they maintain only 20 days record in respect of CCTV footage in the hard-disk and footage beyond 20 days are automatically deleted from the Hard-disk    

In Suresh Yadav vs. The State of Bihar through The Director General of Police, Bihar & Ors. (2025), Justice Chaudhari bench of the High Court heard the petition filed in the High Court on May 22, 2024. It was registered on May 28, 2024. The other four respondents are: District Magistrate, West Champaran Bettiah, Superintendent of Police, District West Champaran at Bettiah Bettiah, West Champaran, Block Development Officer, Sadar Bettiah Sadar Bettiah and Manoj Kumar Singh, Inspector- Cum- Sho, Bettiah Muffasil Police Station Bettiah. Justice Chaudhari's order dated February 13, 2025 reads:"....this Court finds that the Superintendent of Police, Bettiah is prima-facie found responsible for dereliction of duty when he failed to take any action upon the application dated 03.05.2024 filed by the wife of the petitioner. Such inaction obviously will have adverse impact in the investigation of the case. In view of such circumstances, the Director General of Police, Bihar, Patna, is directed to take departmental action against the Superintendent of Police, Bettiah for the above inaction while supervising the investigation in respect to Bettiah Muffasil P.S. Case No.180 of 2024." 

The High Court's order should also have asked for the status report on the West Champaran District Level Oversight Committee (DLOC) which was required in compliance with Supreme Court's directions. 

The petitioner has prayed for issuance of a writ in the nature of mandamus or any other appropriate writ/order/direction to the respondent authorities for Inquiry in a fair, impartial and time-bound manner by special team officer of higher rank or investigation by any independent agency such as CBI on complaint of wife of petitioner having acknowledgment number 1632/PG dated May 3, 2024 regarding false implication by planting Charas by Bettiah Muffasil Police officials on the petitioner in connection with Bettiah Town Thana Case No.180 of 2024 dated April 19, 2024. Suresh Yadav, the petitioner has prayed for direction to the respondent to secure, preserve and place on record the CCTV footage dated April 19, 2024 between the time period of 12:30 PM to 5:30 PM of all the Cameras installed in and around Parking of Zila Parishad, Bettiah near Superintendent of Police Office of CCTV cameras installed at Collectorate, Gate, of CCTV cameras installed by Nagar Parishad between two gates of Bus stand, Bettiah in terms of the Supreme Court’s judgment dated December 2, 2020 passed in the case of Paramvir Singh Saini vs. Baljit Singh & Others. Special Leave Petition (Criminal) No.3543/2020. He sought appropriate writ or writs in the nature of certiorari for deleting the name of the petitioner from array of accused in connection with Bettiah Muffasil Case No.180 of 2024 dated April 19, 2024 registered under Sections 414 IPC, 8, 20(B)(ii)(c)/22(c), 23(c) of the N.D.P.S. Act and for quashing all other consequential proceeding thereafter. The petitioner was apprehended in this P.S. case. 

The prosecution story is that on April 19, 2024 two persons were apprehended while riding on a motorcycle and some Narcotic substance were recovered from their possession. Police seized the Narcotic substance, motorcycle and arrested the said two persons. In course of interrogation of the said two persons, they allegedly disclosed that Suresh Yadav, the petitioner was also in the racket. Suresh Yadav was arrested and commercial quantity of Narcotic substance, viz., 04 kgs. of Charas were recovered from the possession of Suresh Yadav. On May 3, 2024 the wife of the petitioner submitted an application wherein she stated that the motorcycle in connection with Bettiah Muffasil P.S. Case No.180 of 2024 was seized from a parking lot at Bettiah and the persons who were apprehended were not traveling by the said motorcycle. Suresh Yadav was implicated in the case on some false and concocted allegations. Therefore, she prayed for preserving CCTV footage dated April 19, 2024 during the period between 12:30 p.m. and 05:30 p.m. in respect of all Cameras installed in an around the parking lot of Zila Parishad, Bettiah, near the office of Superintendent of Police, Bettiah as well as cameras installed at the Collectorate Gate and Nagar Parishad between two gates of Bus Stand, Bettiah as per the direction of the Supreme Court in the case of Paramvir Singh Saini vs. Baljit Singh & Others, Special Leave Petition (Criminal) No.3543/2020.

Notably, the very first order dated June 5, 2024 passed by Justice Rajeev Ranjan Prasad of the High Court had directed the Superintendent of Police, Bettiah to look into the request of the petitioner. The order recorded that "the petitioner has already submitted a request in this regard in the Public Grievance Cell of Bettiah Police as back as on 08.05.2024 but till date, no action has been taken." The order reads:"Ajay, learned G.A. 5 appears for the State and submits that there is no objection to the said prayer of the petitioner. In the aforesaid view of the matter for the present, this Court directs the Superintendent of Police, Bettiah to look into the request of the petitioner and take steps to secure and preserve the CCTV footage in accordance with law as prayed in paragraph ‘1(ii)’ of the writ application as the same may be required to be considered at appropriate stage."

Justice Chaudhary's order dated February 13, 2025 records:"The respondents have filed a counter affidavit stating, inter-alia, that the record of CCTV footage is maintained by an outsourcing agency under the name and style of AIM and Company Pvt. Ltd. and they maintained 20 days record in respect of CCTV footage in the hard-disk and footage beyond 20 days are automatically deleted from the Hard-disk. Therefore, on the date of the order passed by this Court, CCTV footage dated 19.04.2024 was automatically deleted and it is not possible for retrieve the data." 

The High Court's order reads:"....this Court is of the view that when an application was filed on 03.05.2024, i.e. within 20 days from the date of the alleged incident for restoration of data of CCTV footage around the place of occurrence filed by the wife of the present petitioner before the Superintendent of Police, Bettiah, he ought to have passed the order of protection and restoration of such data for proper investigation. The Superintendent of Police, Bettiah must know that the investigation of a criminal case is not for implicating a person in a criminal offence, but to unearth the truth, when the family member of one of the accused demanded that the truth will be unearth, if the CCTV footage was examined failure to take any action on such application by the Superintendent of Police, Bettiah amounts to an act of police inaction, for which the Superintendent of Police, Bettiah is held liable."

Justice Bibek Chaudhuri of the Patna High Court factors in the directions of the Supreme Court for constitution of Oversight Committee at the  State and District levels. The State Level Oversight Committee (SLOC) consists of:

(i) The Secretary/Additional Secretary, Home Department;

(ii) Secretary/Additional Secretary, Finance Department;

(iii) The Director General/Inspector General of Police; and

(iv) The Chairperson/member of the State Women’s Commission.

The District Level Oversight Committee (DLOC) comprises of:

(i) The Divisional Commissioner/ Commissioner of Divisions/ Regional Commissioner/Revenue Commissioner Division of the District (by whatever name called);

(ii) The District Magistrate of the District;

(iii) A Superintendent of Police of that District; and

(iv) A mayor of a municipality within the District/ a Head of the Zilla Panchayat in rural areas.

Supreme Court's judgement reads:" It shall be the duty of the SLOC to see that the directions passed by this Court are carried out. Amongst others, the duties shall consist of:

a) Purchase, distribution and installation of CCTVs and its equipment;

b) Obtaining the budgetary allocation for the same;

c) Continuous monitoring of maintenance and upkeep of CCTVs and its equipment;

d) Carrying out inspections and addressing the grievances received  from the DLOC; and

e) To call for monthly reports from the DLOC and immediately address any concerns like faulty equipment.

Likewise, the DLOC shall have the following obligations:

a) Supervision, maintenance and upkeep of CCTVs and its equipment;

b) Continuous monitoring of maintenance and upkeep of CCTVs and its equipment;

c) To interact with the Station House Officer (hereinafter referred to as the “SHO”) as to the functioning and maintenance of CCTVs and its equipment; and

d) To send monthly reports to the SLOC about the functioning of CCTVs and allied equipment.

e) To review footage stored from CCTVs in the various Police Stations to check for any human rights violation that may have occurred but are not reported."

The judgement further reads: "14. The duty and responsibility for the working, maintenance and recording of CCTVs shall be that of the SHO of the police station concerned. It shall be the duty and obligation of the SHO to  immediately report to the DLOC any fault with the equipment or malfunctioning of CCTVs. If the CCTVs are not functioning in a particular police station, the concerned SHO shall inform the DLOC of the arrest / interrogations carried out in that police station during the said period and forward the said record to the DLOC. If the concerned SHO has reported malfunctioning or non-functioning of CCTVs of a particular Police Station, the DLOC shall immediately request the SLOC for repair and purchase of the equipment, which shall be done immediately.

15. The Director General/Inspector General of Police of each State and Union Territory should issue directions to the person in charge of a Police Station to entrust the SHO of the concerned Police Station with the responsibility of assessing the working condition of the CCTV cameras installed in the police station and also to take corrective action to restore the functioning of all non-functional CCTV cameras. The SHO should also be made responsible for CCTV data maintenance, backup of data, fault rectification etc.

16. The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning in the respective State and/or Union Territory. Further, in order to ensure that no part of a Police Station is left uncovered, it is imperative to ensure that CCTV cameras are installed at all entry and exit points;  main gate of the police station; all lock-ups; all corridors; lobby/the reception area; all verandas/outhouses, Inspector's room; Sub- Inspector's room; areas outside the lock-up room; station hall; in front of the police station compound; outside (not inside) washrooms/toilets; Duty Officer’s room; back part of the police station etc.

17. CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power. The internet systems that are provided must also be systems which provide clear image resolutions and audio. Most important of all is the storage of CCTV camera footage which can be done in digital video recorders and/or network video recorders. CCTV cameras must then be installed with such recording systems so that the data that is stored thereon shall be preserved for a period of 18 months. If the recording equipment, available in the market today, does not have the capacity to keep the recording for 18 months but for a lesser period of time, it shall be mandatory for all States, Union Territories and the Central Government to purchase one which allows storage for the maximum period possible, and, in  any case, not below 1 year. It is also made clear that this will be reviewed by all the States so as to purchase equipment which is able to store the data for 18 months as soon as it is commercially available in the market. The affidavit of compliance to be filed by all States and Union Territories and Central Government shall clearly indicate that the best equipment available as of date has been purchased.

18. Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it.....

20. The SLOC and the COB (where applicable) shall give directions to all Police Stations, investigative/enforcement agencies to prominently display at the entrance and inside the police stations/offices of investigative/enforcement agencies about the coverage of the concerned premises by CCTV. This shall be done by large posters in English, Hindi and vernacular language. In addition to the above, it  shall be clearly mentioned therein that a person has a right to complain about human rights violations to the National/State Human Rights Commission, Human Rights Court or the Superintendent of Police or any other authority empowered to take cognizance of an offence. It shall further mention that CCTV footage is preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.

21. Since these directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and since nothing substantial has been done in this regard for a period of over 2½ years since our first Order dated 03.04.2018, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible. Affidavits will be filed by the Principal Secretary/Cabinet Secretary/Home Secretary of each State/ Union Territory giving this Court a firm action plan with exact timelines for compliance with today’s Order. This is to be done within a period of six weeks from today.....

23. The Supreme Court registry to send a copy of this Order to all Chief/Principal Secretaries of all the States and Union Territories,  both by physical as well as electronic means, today itself."