Criminal antecedents, pendency of trial, not sufficient for denying benefit of suspension of sentence and bail: Patna High Court

In Mamlesh Kumar Singh vs. The State of Bihar, referring to Supreme Court's 6-page long order for suspension of sentence and release on bail in Jitendra and Ors. vs. State of Uttar Pradesh wherein it was held that "mere pendency of the other trial where the appellant-Narendra Singh is an accused (on bail) cannot be regarded as sufficient for denying him the benefit of suspension of sentence in this case. After all, he is presumed to be innocent till found guilty", the order of Patna High Court's division bench of Justices Vipul M. Pancholi and Alok Kumar Pandey observed: "it can be said that presence of antecedents of the accused is only one of the several considerations for deciding the prayer for bail made by the appellant/accused. If the accused makes out a strong prima facie case, depending upon the fact situation and period of custody, the presence of antecedents may not be a ground to deny bail." The Criminal Appeal (DB) was filed on May 16, 2024 against conviction. It was registered May 20, 2024. The case arose out of Ara Nawada thana, Bhojpur in 2017. 

The appeal was filed under Section 374(2) read with Section 389(1) of the Code of Criminal Procedure, 1973 against the judgment of conviction dated April 6, 2024 and the order of sentence dated April 18, 2024 rendered by the Additional Sessions Judge-XIII Bhojpur, in Sessions Trial Case, whereby the appellant was convicted for the offences punishable under Sections 302/34 and 307/34 of the Indian Penal Code (IPC) and Section 27 of the Arms Act was sentenced to undergo rigorous imprisonment (RI) for life and a fine of Rs. 50,000/- and, in default of payment of fine, the appellant was further to undergo RI for one year for the offence punishable under Section 302 of IPC. The appellant was also sentenced to undergo RI for ten years and a fine of Rs. 10,000/- and, in default of payment of fine, he was further convicted for three months for the offence punishable under Section 307 of IPC and RI for five years and a fine of Rs. 5,000/-, and, in default of payment of fine, the appellant was to undergo RI for one month for the offence punishable under Section 27 of Arms Act. All the sentence were to run concurrently.

The High Court also relied on 14 page-long judgement dated December 17, 2024 by Supreme Court's division bench of Justices Abhay S. Oka and Augustine George Masih in Ayub Khan vs. The State of Rajasthan, where it observed: "The presence of the antecedents of the accused is only one of the several considerations for deciding the prayer for bail made by him. In a given case, if the accused makes out a strong prima facie case, depending upon the fact situation and period of incarceration, the presence of antecedents may not be a ground to deny bail. There may be a case where a Court can grant bail only on the ground of long incarceration. The presence of antecedents may not be relevant in such a case. In a given case, the Court may grant default bail. Again, the antecedents of the accused are irrelevant in such a case. Thus, depending upon the peculiar facts, the Court can grant bail notwithstanding the existence of the antecedents. In such cases, the question of incorporating details of antecedents in a tabular form does not arise. If the directions in the case of Jugal Kishore are to be strictly implemented, the Court may have to adjourn the hearing of the bail applications to enable the prosecutor to submit the details in the prescribed tabular format.” The judgement of the Supreme Court was authored by Justice Oka. He observed:"No Constitutional Court can direct the Trial Courts to write orders on bail applications in a particular manner. One Judge of a Constitutional Court may be of the view that Trial courts should use a particular format. The other Judge may be of the view that another format is better." Justice Oka wrote: "A copy of this judgment shall be forwarded to the Registrar General of the High Court of Rajasthan who shall place the same before the Hon’ble Chief Justice of the said Court on administrative side."

In the case of Jugal Kishore vs. State of Rajasthan (2020) 4 RLW 3386, Rajasthan High Court had issued directions to the Trial Courts, which were to be implemented while deciding bail applications. Supreme Court observed that "the decision in the case of Jugal Kishore cannot be construed as mandatory directions to our Criminal Courts. At the highest, it can be taken as a suggestion which need not be implemented in every case. No Constitutional Court can direct the Trial Courts to write orders on bail applications in a particular manner. One Judge of a Constitutional Court may be of the view that Trial courts should use a particular format. The other Judge may be of the view that another format is better." The specific directions passed in Jugal Kishore case have been set aside by the Supreme Court in Special Leave Petition (Crl.) Nos.11675-11676 of 2022 (Rajasthan High Court v. State of Rajasthan and Anr.). 

The High Court's order has taken note of the 9-page long order dated May 13, 2024 in Manoj Manzil vs. The State of Bihar by the High Court's division bench of Justices Ashutosh Kumar and Jitendra Kumar which suspended the sentence and granted bail, during the pendency of the appeal, although there were eighteen cases against the Manoj Manzil from Bhojpur before Special Judge, M.P./M.L.A Court-cum-Additional Sessions Judge-III, Bhojpur at Ara in a Sessions Trial.  

The High Court observed:" if the details with regard to the antecedents of the appellant are carefully examined, we are of the view that when the appellant has been released on bail in all the cases except the present case and in majority of cases, the FIRs have been filed against him after the year 2018, when the appellant was in custody, we are of the view that false implication of the present appellant cannot be ruled out."

It also observed:"we are of the view that when there is a gross delay of 48 hours in lodging the FIR and there is a delay of three days in sending the same to the Magistrate, and more particularly in view of the evidence led by the prosecution including deposition of PW-8 (Investigating Officer), PW-6 namely, Ranjan Kumar Singh, it transpires that the police reached to the place of occurrence immediately on 27.04.2017 and prepared the seizure list, even statement of the said witness (PW-6) was recorded on the very same day despite which no FIR was lodged against the assailants. What was the version given by PW-6 on the very same day has been suppressed by the prosecution. There is a previous enmity between the parties. Even medical evidence, prima facie, does not support the version given by PW-5, informant, who has claimed to be an eye witness. Thus, looking to the aforesaid peculiar facts and circumstances of the present case, we are of the view that the present is a case where though the prosecution has pointed out about antecedents, as observed hereinabove, majority of cases were filed when the appellant was in custody, the request made by the appellant for grant of bail and for suspension of sentence requires consideration."

The order concludes: "appellant is ordered to be released on bail during pendency of the present appeal on executing bond of Rs. 15,000/- (Rupees Fifteen Thousand) and upon furnishing two sureties of the like amount each to the satisfaction of learned Additional Sessions Judge-XIII Bhojpur, in Sessions Trial Case
No. 42 of 2021 arising out of Ara Nawada P.S. Case No. 150 of 2017 and the sentence imposed by the trial court is suspended so far as this appellant is concerned. It is clarified that the aforesaid observations are tentative observations made by this Court while considering the request of the appellant for grant of bail." Justice Pancholi pronounced the order on February 13, 2025. 

The fact remains after the conclusion of the hearing and subsequent to the appreciation of the arguments, Justice Pancholi repeatedly made an oral observation that a case for acquittal has been made out.

High Court acquits Munger resident convicted by Trial Court

In Sunil Yadav vs. The State of Bihar (2025), Patna High Court's division bench of Justices Vipul M. Pancholi and Alok Kumar Pandey quashed and set aside the judgment of conviction dated June 8, 2018 and order of sentence dated June 13, 2018, passed by Additional District and Sessions Judge-IInd, Munger, in Sessions Trial No.241 of 2017, arising out of Kasim Bazar P.S. Case No.81 of 2017. The High Court's 24-page long judgement reads: "The appellant is acquitted of the charges levelled against him by the Trial Court. He is directed to be released from jail custody forthwith, if his custody is not required in any other case" because prosecution failed to prove the place of occurrence, the manner of occurrence and the time of occurrence. It miserably failed to prove the case against the appellant. The Trial Court has committed grave error while passing the impugned judgment of conviction and the order of sentence. The verdict was authored by Justice Pancholi.

The appeal was filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.PC) against the impugned judgment of conviction whereby the Trial Court had convicted and sentenced the present appellant for the offences punishable under Section 302 of the Indian Penal Code and also imposed a fine of Rs. 2,000/- and, on failure to deposit the same, the appellant shall serve simple imprisonment for three months. The appellant was to undergo three years of rigorous imprisonment and fine of Rs. 2,000/- for the offence punishable under Section 27 of the Arms Act and, in default of payment of fine, he shall have to undergo simple imprisonment for three months.

The prosecution story states that Fard-beyan of the informant, Savita Devi, wife of Sushant Kumar @ Fantush Yadav (deceased) came to be recorded on April 15, 2017 at 7 A.M. The informant has mainly stated that her husband Fantush Yadav returned to house at around 1A.M. in the night after watching day-night cricket match in the village and called her to open the gate, when she opened the gate, she saw that her elder brother-in-law (bhaisur) Sunil (appellant) and Khabri were standing there having pistol and cartridge. Sunil and Khabri shot at her husband in her presence. Her husband died there. When she started weeping, Sunil closed her inside the room and threatened her not to make noise else she and her children will be killed. It is further state in the fard-beyan that when she came out of the house after the door was opened, villagers and police were present there. Who opened the door, she does not know. On the basis of the aforesaid fard-beyan given by informant (Savita Devi), formal FIR came to be lodged in Kasim Bazar Police Station at 9:30 A.M. After registration of the F.I.R., the Investigating Agency carried out the investigation and, during the course of the investigation, the Investigating Officer recorded the statement of the witnesses and collected the necessary evidence. Prior to that inquest report was prepared on the spot and dead body of the deceased was sent for conducting the post mortem. The Investigating Officer arrested the accused/appellant and thereafter filed the charge-sheet against the appellant/accused before the Magistrate Court. As the case was exclusively triable by the Court of Sessions, the Magistrate committed the same to the Sessions Court under Section 209 of the Cr.PC, where the same was registered as Sessions Trial No.241 of 2017. At the trial, the prosecution examined eight witnesses and also produced documentary evidence. The defence judgment and order against which the appellant was preferred.

The High Court has recorded that there is a delay of six hours in lodging the FIR, though the informant has projected herself as an eye-witness. It observed: "we are of the view that the medical evidence does not support the version given by the informant" because she as a eye-witness claimed that the firing was made from point blank range which is contrary to what Doctor, who had conducted the post-mortem of the dead body of the deceased, revealed. He deposed that he found circular lacerated wound ½ centimeter x ½
centimeter above the right eyeball with charring around the wound of entry, wound of entry had inverted margin deep to cranium. The doctor found charring around the wound of entry. He revealed that if a gunshot injury is caused by touching the skin of the injured/deceased, then it will be burnt and if gunshot injury is caused from some distance, then charring mark will be caused around the injury. In the present case, the Doctor found charring around the wound of entry. It means, the gunshot injury has been caused from some distance.

The High Court has recorded  that according to the Doctor, death was caused within 24 hours. From the post-mortem report, it transpires that the doctor received the dead body at 09:30 A.M. and commenced the post-mortem at 10:45 A.M. But the informant claimed that the incident took place during night hours at 1 A.M. The medical evidence does not corroborate the version given by the so-called eye-witness, PW-4 who is the informant and the wife of the the deceased.

The Court has also noted that Investigating Officer has admitted that blood was not found at the place of occurrence. "Even if blood was present at the place of occurrence, the Investigating Officer did not collect the blood or blood stained soil from the place of occurrence." It has recorded that "the so-called fire-arm used by the appellant at the time of occurrence has not been seized by the Investigating Agency. There is no recovery/discovery of the murder weapon in the present case." It underlined that near relatives of the deceased have been projected as eye-witnesses. From the other evidence led by the prosecution, it was inferred that the incident took place at some other place and thereafter the dead body was brought to the door of the deceased. The Court observed that deposition given by near relative of the deceased, who have projected themselves as eye- witnesses, is not trustworthy and reliable, hence, the same is required to be discarded. It was informed that the deceased was having criminal antecedents and number of cases have been registered against him.

Three cases closed and consigned by Patna High Court's division bench

In Chairman, Bihar Rajya Pul Nirman Nigam Limited vs. Shambhu Prasad Gupta & Ors. (2025), Patna High Court's division bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy condoned the delay of 740 days in preferring an appeal. Notably, the Court had earlier called for the records of C.W.J.C. No 4961 of 2022 and the contempt petition (M.J.C. No. 2175 of 2023) along with this appeal because a writ petition and contempt petition was kept pending by a Single Judge of the High Court after the State challenged the order passed by the Writ Court. The issue relates to the construction of Rail Over Bridge (ROB) in the Saharsa district. CWJC No. 4961 refers to Shambhu Prasad Gupta vs. The Union of India case.

The writ petitioner had sought a direction to the Authorities/respondents to review and shift the proposed plan of construction of ROB to some more convenient place or to redesign the proposed approach road connecting the ROB to some other place, which would have saved the main market places of Saharsa town from being displaced. The Writ Court had directed the respondents to re-consider shifting or changing the alignments and also include the writ petitioner in its discussions but writ petition was  not included in the meeting held to deliberate upon it. 

The judgement records that the Railway Administration found the plan and the design suggested by the petitioner to be unfeasible for the reason of safety and durability of the ROB.

The writ petitioner submitted that the recalcitrance of the Railway Authorities in not changing the plan or making a deviation in the site plan would only end up in usurpation of land belonging to the landholders but no process, as yet, has been started for acquisition of their lands, thus anticipating that it would be an “acquisition under ambush”, without following the procedures prescribed under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 with respect to the safeguards which inheres in the Act, guaranteeing the right to property under Article 300 (A) of the Constitution. 

The division bench observed:"We are afraid such was not the prayer in the writ petition. The writ petitioner had approached this Court only with the prayer for commanding the respondents to review the design of ROB, its alignment and the approach road. We are of the considered view that a mandamus could be issued only for enforcing a right and not for adjudication of rights." 

It further noted:"The technical decisions cannot be interfered with and no Court, in its wisdom, could substitute its opinion or the opinion of a writ petitioner for that of the specific inputs by the technocrats, who have taken an informed decision and have found the suggestions of the writ petitioner to be absolutely unviable." 

In its concluding para, the Court judgement reads: "Under these circumstances, in order to put a decent quietus to all these proceedings, we have examined all the three records, viz., L.P.A. No. 1259 of 2024, C.W.J.C. No 4961 of 2022 and M.J.C. No. 2175 of ,2023 and we find that it would be in the interest of everyone that all three are closed and consigned."

Prior to this Justice Sandeep Kumar had heard the case Shambhu Prasad Gupta vs. The Union of India (2022) and passed his first order dated July 6, 2022 saying, "No demolition shall be carried out till the next date of hearing." In his order dated September 5, 2022, he wrote:"In the facts of the case, it is desirable that the respondents meet once and discuss the matter in detail to find out a solution. It is expected that the Additional Chief Secretary, Road Construction Department, the Managing Director, Bihar Rajya Pul Nirman Nigam Limited and the General Manager, East Central Railway, Hajipur have a meeting and take a decision in the matter considering the facts of the case....The respondents will bring on record the decision taken by the Additional Chief Secretary, Road Construction Department, the Managing Director, Bihar Rajya Pul Nirman Nigam Limited and the General Manager, East Central Railway, Hajipur on the next date of hearing. Let this order be communicated to the Additional Chief Secretary, Road Construction Department, the Managing Director, Bihar Rajya Pul Nirman Nigam Limited and the General Manager, East Central Railway, Hajipur through FAX and e-Mail for its compliance forthwith. And their respective lawyers will also communicate the order of this Court to them. It is expected that the all the facts which have been raised by the petitioner shall considered by the respondents in their meeting."

In his order dated October 18. 2022, he wrote that the counsel for the Railway should apprise the Court "about the decision taken by the authorities so that the construction is made in such manner that public and government do not suffer." In his order dated November 22, 2022 wrote that the counsel for the Railways "will seek instructions from the General Manager, East Central Railway, Hajipur as to minimum time required for comprehensive study of traffic flow and integration of Railway Over Bridge (ROB) with future station development, which has been suggested in the meeting held on 08.11.2022 for construction of Railway Over Bridge (ROB) at Saharsa and possibility of planning of a subway."

In his order dated November 28, 2022, he wrote:"Bihar Rajya Pul Nirman Nigam Limited has filed a supplementary counter affidavit which is taken on record. Paragraph 7 thereof reads as follows:“7. That, however in view of the observation made by this Hon’ble Court vide order dated 05.09.2022, the respondents have reviewed the possibilities of deviation from the alignment of the proposed plan and have come up with the revised new alignment where under both arms of earlier alignments of the proposed plant at T-point Junction of Shenker Chowk (one arm in north direction towards Supaul District via D.B. Road and another one in sought direction towards Bangaon Maheshi via Bengali Bazar) have been removed and now one new arm has been designed under the new alignment which will pass towards Sarharsa Railway station via Sabjimandi, Saharsa which is evident from the General Arrangement of Drawing (GAD) of the new/revised alignment for the proposed ROB. Under the new/revised alignment, the issues involved in the present case have been looked in to (sic) and efforts have been made to sort out those issues.” His order reads: "List this case after three months for further hearing. On the next date of hearing, the Corporation will inform the Court about progress in the construction of the Railway, as per new proposal, as has been quoted above."

In his penultimate order dated January 20, 2025, High Court's division bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy observed: "A piquant situation has arisen for the reason of several proceedings remaining pending before a learned Single Judge, which in net effect has delayed even the commencement of the work of construction of Road Over Bridge (ROB) at a particular place in the district of Saharsa. One Shambhu Prasad Gupta had approached the High Court vide CWJC No. 4961 of 2022 seeking a direction to the respondents to review and shift the proposed plan of construction of ROB at Level Crossing No. 31 situated near Saharsa Railway Station from its present place to the Level Crossing No. 32, situated near the old bus stand, Ganjala or at some more convenient place/area or to shift or redesign the proposed approach road connecting the ROB to some other place by saving the main market place of Saharsa town. The writ petition was entertained by the learned Single Judge, who thought it to be desirable to direct the respondents to discuss the issue with aforenoted Shambhu Prasad Gupta/writ petitioner and find out a solution." 

The division bench wondered:"We are afraid whether such objections by a citizen could have been entertained. Nonetheless, considering the direction and the expectation of the learned Single Judge, a meeting was held but the writ petitioner was not called in that meeting. However, the other part of the order dated 05.09.2022 indicates that the respondents were asked to bring on record the decision taken by the Additional Chief Secretary, Road Construction Department and the other respondents on the next date of hearing. The writ petition but was kept pending. The records reveal that even though the writ petitioner was not called in any one of the meetings, an attempt was made by the authorities to review the plan and a proposal was formulated which was sent to the Railways for further confirmation before the process of construction could have been resumed. It further appears from the record that the Railways found such changed proposal to be untenable for very many reasons."

The division bench recorded: "Thereafter a contempt petition was filed before the learned Single Judge vide MJC No. 2175 of 2023, which is also pending consideration. However, in the meantime, a supplementary affidavit was filed in the writ petition on behalf of the State stating that in view of the observations made by the learned Single Judge on 05.09.2022, the respondents reviewed the possibilities of deviation from the alignment of the proposed plan and came up with a revised new alignment where under both arms of earlier alignments of the proposed plan at T point junction of Shankar Chowk have been removed and now one new arm has been designed under the new alignment, which will pass towards Saharsa Railway Station via Vegetable Market, Saharsa. This was part of the General Arrangement for Drawing (GAD) of the new revised alignment for the proposed ROB. The supplementary affidavit further indicated that efforts are afoot to sort out the other pending issues as well. The revised GAD was sent to the Railways for affirmation but as noted above the same was not approved. The learned Single Judge vide order dated 28.11.2022, which is the subject order of appeal, extracted this part of the supplementary affidavit of the respondents and listed the matter for further hearing after three months with a direction that on the next date of hearing, the Corporation will inform the Court about the progress of the construction of the ROB as per new proposal." 

Justice Ashutosh Kumar led bench observed: "we do not find any reason to understand that the order comes in the way of the respondents continuing with their construction process as no embargo has been placed in any one of the orders passed by the learned Single Judge, either in the writ petition or in the contempt petition. However, the impact of such orders and the pendency of the writ petition has prevented the respondents and the Railways in continuing with the process of construction of ROB which enures in nobody’s favour. There are certain limitations in reviewing the design of such projects. The safety requirements also have to be taken into account which perhaps cannot be adjudicated in any writ petition. All that the writ petitioner can expect, in any circumstance, is that his grievance is put through the concerned authorities who would take a call and, if possible, formulate a solution which would neither be destructive of the plan nor would cause any inconvenience to the writ petitioner or many others as claimed." 

The division bench concluded: "We, therefore, request the learned Single Judge to decide all the issues and conclude the proceedings within a period of two weeks of the communication of this order to him. To facilitate this process, we direct for the listing of CWJC No. 4961 of 2022 and M.J.C. No. 2175 of 2023 before the learned Single Judge, who is hearing the contempt petition, on 27.1.2025 within first five cases. Let this appeal come up for consideration on 04.02.2025."

In his order dated January 27, 2025, Justice Sandeep Kumar wrote: "Heard learned senior counsel for the petitioner, Mr. P.N. Shahi, learned A.S.G. for the Union of India; Dr. K.N. Singh, learned counsel appearing for the Pul Nigam; Mr. Nadim Seraj and learned counsel for the intervenor; Sri Sanjay Kumar. These matters have been listed before this Court pursuant to the order of the Division Bench dated 20.01.2025 passed in LPA No. 1259 of 2024. Once the writ petition i.e., C.W.J.C. No. 4961 of 2022 was recalled by the Division Bench vide order dated 19.12.2024 passed in LPA No. 1259 of 2024, this Court does not think it desirable to hear the matter again. Let these matters be go out of my list and be placed before Hon’ble the Acting Chief Justice for assigning a new Bench." Notably, Letters Patent Appeal (LPA) was filed in the High Court on December 13, 2024 and registered December 16, 2024. On December 19, 2024, the division bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy passed an order saying: Post along with C.W.J.C. No.4961 of 2022 immediately after holidays."

The order dated February 4, 2025, the division bench of High Court's division bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy observed: "Let C.W.J.C. No.4961 of 2022 and M.J.C. No.2175 of 2023 be listed along with this appeal on 10.02.2025."

 

High Court's division bench requests Justice Purnendu Singh, not to insist Additional Chief Secretary, Education

In Letters Patent Appeal No.154 of 2025, in its order dated February 14, 2025, Patna High Court's division bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy concluded:"We request the learned Single Judge to fix a date for appearance, sometimes later but only after being satisfied that the presence of the officer would be required and the averments made in the affidavit fled on his behalf would not be sufficient. We further request the learned Single Judge not to insist for the presence of the officer on 14.02.2025 as directed by order dated 13.02.2025." The order was authored by Justice Kumar.

The Single Judge bench order of Justice Purnendu Singh was passed in Hriday Narayan Bharti vs. The State of Bihar (2025). This case from Sitamarhi was filed on January 17, 2025. It was registered on February 10, 2025. Justice Singh's order records: "This case was heard in pre-recess and learned counsel appearing on behalf of the State was requested to request the Additional Chief Secretary, Education Department, Government of Bihar to be present in the Court. Learned counsel appearing on behalf of the State informs that due to miscommunication and in absence of any written order on record, refusal has been made by the Additional Chief Secretary."

Justice Singh observed:"I find that the same amounts to contempt of court. State counsel represents on behalf of the functionaries of the State and such deliberate inaction on behalf of the Additional Chief Secretary calls to draw the proceeding of contempt against him. In the background of the matter, this Court wants to illustrate from the relief in the several writ petitions, which are being filed from time to time in respect of the promotion of the Niyojit Teacher as per the Bihar Panchayat Primary Teacher (Employment and Service Conditions) Rules, 2006 which was subsequently repealed in the year 2012 by Bihar Panchayat Teachers Rules, 2012, governing the Niyojit teachers at the Panchayat level, block level and district level and those teachers belonging to different local bodies established as per the provision of Article 243 of the Constitution of India. The Additional Chief Secretary is directed to appear before this Court tomorrow (14.02.2025) at 02:15 p.m. without fail. Re-notify the present writ petition on 14.02.2025 at 02:15 p.m. As the order has been passed in the open Court, learned counsel appearing on behalf of the State is directed to communicate the present order to the Additional Chief Secretary without waiting for the order to be pronounced. Let a copy of this order be communicated to the learned Advocate General forthwith."

The Advocate General approached division bench of the Court and mentioned it in the morning of February 14, 2028 for posting L.P.A No. 154 of 2025 which was filed on February 14, 2025 in the Registry against the order of Justice Singh. The division bench heard it "under extremely urgent circumstances".

The division bench observed: "While hearing a writ petition captioned CWJC No. 2354 of 2025, which was posted before the learned Single Judge on the first day on 13.02.2025, an order was passed asking the counsel for the State to inform and request Additional Chief Secretary, Education Department, Government of Bihar to be present in the Court on the same day in the second half of the Court working hours. The Court was informed that because of some miscommunication and absence of any written order on record, such a direction could not be complied with. The learned Single Judge held it to be contumacious enough to declare it to be contempt of Court and apart from referring to the merits of the case, directed the Additional Chief Secretary to appear before the Court on 14.02.2025 at 2:15 PM without fail."

Justice Kumar led division bench noted that Justice Singh passed order on the first day of the hearing of the case.

It is apparent from the order dated 13.02.2025 that the matter was taken up in the first half of the Court proceedings and the officer concerned was asked to appear in the second half, which directions, for some reason or the other, could not be complied with.

The division bench observed: "We consider it to be completely unnecessary to hold non-appearance of the officer in the second half of the Court proceedings to be contemptuous in any manner whatsoever. Nonetheless, we are of the view that the learned Single Judge ought to have given some time to the office by fixing another date, which might not be in distant future but time sufficient enough for the offer to prepare himself on the facts of the case for his personal appearance before the Court. Even otherwise, we do not find any urgency in the matter or the necessity of the officer being summoned with such urgent dispatch."

The division bench drew on the Standard Operating Procedure  (SOP) in terms of the judgment rendered by the Supreme Court in the State of Uttar Pradesh & Ors. Vs. Association of Retired Supreme Court and High Court Judges at Allahabad & Ors. 2024 (2) BLJ 106 enumerating the circumstances under which personal presence of the Officers of Government could be asked for. The SOP clearly identifies three different types of adjudication namely, (i) evidence based adjudication; (ii) summary proceedings and (iii) non-adversarial proceedings. While hearing non-adversarial proceedings,the SOP illustrates, a Court might require presence Government official to understand any complex policy or technical issue which the Law Officers of the Government would not be able to address. Similarly in evidence based adjudication involving evidence such as documents or oral statements wherein also a Government official would be required to be physically present for testimony or to present relevant documents and the governing statute with respect to the procedure would be the Code of Criminal Procedure, 1973. Other than in cases falling under these two categories, the issues could always be addressed through affidavit and other documents, thus obviating the necessity of any physical presence of the officers. The SOP does not preclude a Court from calling the office, where it is prima facie satisfied that specific information is not being provided or is being intentionally withheld or if the correct position is being suppressed or is being misrepresented.

The division bench observed:"A proscription, therefore, has been sounded that the Courts should not direct the presence of officials solely because the officials stance is different from the Court’s view. In such cases, if the matter could be resolved based on existing records, it should be decided on merits accordingly. Even with respect to calling for the personal presence of the officer, certain procedure has been delineated namely that the Court should allow, as a first option, the officer to appear before it through video conferencing. Whenever a personal presence of an official is directed, reason should be recorded as to why such presence is required. Due notice for any personal appearance giving sufficient time for such appearance must be served in advance to the official which would enable him to come prepared and render assistance to the Court for proper adjudication of the matter for which he is summoned. "

Supreme Court directs Bihar MLC's son to surrender within one week in PMLA case, sets aside Patna High Court's bail order

Kanhaiya Prasad, the son of Radha Charan Sah, the Member of Bihar Legislative Council (MLC) who was released on bail was directed by the Supreme Court to "surrender before the Special Court within one week" from February 13, 2025 although it has not "expressed any opinion on the merits of the case." 

Setting aside a judgement of Dr. Anshuman of Patna High Court, Supreme Court's division bench of Justices Bela M. Trivedi and Prasanna B. Varale observed: "The High Court has utterly failed to consider the mandatory requirements of Section 45 and to record its satisfaction whether any reasonable ground existed for believing that the respondent was not guilty of the alleged offence, and that he was not likely to commit any offence while on bail. Merely because the prosecution complaint had been filed and the cognizance was taken by the court that itself would not be the ground or consideration to release the respondent on bail, when the mandatory requirements as contemplated in Section 45 have not been complied with." The 16-page long judgement was authored by Justice Trivedi. 

Supreme Court's judgement reads: "As well settled, the offence of money laundering is not an ordinary offence. The PMLA has been enacted to deal with the subject of money laundering activities having transnational impact on financial systems including sovereignty and integrity of the countries. The offence of money laundering has been regarded as an aggravated form of crime world over and the offenders involved in the activity connected with the Proceeds of Crime are treated as a separate class from ordinary criminals. Any casual or cursory approach by the Courts while considering the bail application of the offender involved in the offence of money laundering and granting him bail by passing cryptic orders without considering the seriousness of the crime and without considering the rigours of Section 45, cannot be vindicated."

Some 20 FIRs were registered at the police stations at Patna, Saran and Bhojpur districts under Sections 38, 120B, 378, 379, 406, 409, 411, 420, 467, 468 and 471 of IPC, and under Section 39(3) of the Bihar Mineral, (Concession, Prevention of Illegal Mining, Transportation & Storage) Rule, 2019. It is alleged inter alia that M/s Broad Son Commodities Private Ltd and its Directors were engaged in illegal mining and selling of sand without using the departmental pre-paid transportation E-challan, issued by the Mining Authority Bihar, and thus had caused revenue loss of Rs.161,15,61,164/- to the Government Exchequer. Since the said FIRs contained Scheduled offences as defined under Section 2(1)(y) of the Prevention of Money Laundering Act, 2002 (PMLA), ECIRs dated March 15, 2023, addendum ECIR dated November 8, 2023 and dated May 4, 2024 came to be registered, and the investigation for the offences of Money Laundering was initiated.

During the course of investigation, search operations were carried out under Section 17 of PMLA at the various locations and premises related with the said Company and its Directors, including four premises of Radha Charan Sah, (father of the respondent). During the course of inquiry, the statements of the respondent-Kanhaiya Prasad, being son of the said Radha Charan Sah was recorded on September 1, 2023 and September 4, 2023 under Section 50 of the PMLA. It has been alleged by the appellant-ED that thereafter the respondent was issued summons to appear before the Directorate on September 11, 2023, September 12, 2023 and September 13, 2023, however, he failed to appear on the said dates. The respondent thereafter was arrested at the ED, Patna Zonal Office, Bihar on September 18, 2023. On production of the respondent before the concerned court, his custody was handed over to ED, on September 22, 2023.

From the documents seized from the premises of the Radha Charan Sah and from the statements recorded under Section 50 of the Witnesses, of the respondent and of his father, it was found that the Kanhaiya Prasad, the respondent-accused was actually involved in the process of concealing and the possession of the proceeds of crime amounting to Rs.17,26,85,809/- which were used for carrying out the renovation work in the resort at Manali and for the construction work of the school owned by his trust. It was also found that the respondent-accused had handled the proceeds of crime and transferred it by using hawala network for acquisition of the resort at Manali. It was also alleged that the entire work of family-owned LLP’s and of Maa Sharda Devi Buildings and Construction, was handled by Kanhaiya Prasad, the respondent to route the proceeds of crime generated by his father to portray it as untainted money. Kanhaiya Prasad  had allegedly layered and laundered the proceeds of crime generated by his father, being a syndicate member involved in illegal sale of sand using hawala network. The respondent also had allegedly concealed the proceeds of crime by way of purchasing properties, carrying out renovation work and constructions in the family owned trust property using the said proceeds of crime.

ED filed Prosecution Complaint against the respondent and other accused on November 10, 2023 for the offences under  Section 3 read with Section 4 of the PMLA. The specific role of the Kanhaiya Prasad is mentioned in the Prosecution Complaint. The PMLA Court had taken cognizance of the alleged offences on November 10, 2023.

Kanhaiya Prasad haf filed the application being Criminal Miscellaneous before the High Court seeking regular bail in connection with the Prosecution Complaint registered as Special Trial (PMLA Case) before the Special Judge, PMLA. 

ED's counsel objected to the High Court's judgement as it did not comply with requirements under Section 45 of the PMLA. The High Court has misinterpreted and misread the ratio of the relevant judgments particularly of the judgment of the 3-judge bench in Vijay Madanlal Choudhary & Ors. Vs. Union of India & Ors (2022), while holding that the provisions of Article 20(3) of the Constitution shall prevail upon Section 50 of the PMLA. 

In Vijay Madanlal Choudhary case, a bench headed by Justice A M Khanwilkar had dismissed concerns raised regarding the vast powers of the ED and possibility of misuse of the exacting standard for grant of bail in money laundering cases.

The counsel for the respondent relied upon the various decisions of the submitted that the respondent had cooperated with the ED during the course of enquiry, in as much as the respondent had remained present pursuant to the summons issued under Section 50 of the PMLA on September 1, 2023 and September 4, 2023 and had also paid the entire income-tax dues as were found to be allegedly due by the authorities.

Enforcement Directorate (ED) had challenged the legality of the impugned judgment and order of Patna High Court whereby the High Court had allowed released the respondent Kanhaiya Prasad on bail in connection with the Special Trial (PMLA) Case. 

Earlier, ED has provisionally attached 2 immovable properties to the extent of Rs. 26.19 crore acquired by Radha Charan Sah. 

Supreme Court observed: "the objective of the PMLA is to prevent money laundering which has posed a serious threat not only to the financial systems of the country but also to its integrity and sovereignty. The offence of money laundering is a very serious offence which is committed by an individual with a deliberate desire and the motive to enhance his gains, disregarding the interest of the nation and the society as a whole, and such offence by no stretch of imagination can be regarded as an offence of trivial nature."

The Supreme Court concluded: "The impugned order passed by the High Court being in teeth of Section 45 of PMLA and also in the teeth of the settled legal position, we are of the opinion that the impugned order deserves to be set aside, and the matter is required to be remanded to the High Court for fresh consideration." Justice Trivedi clarified: "we have not expressed any opinion on the merits of the case."

 

During the course of the hearing in the High Court, the counsel for Kanhaiya Prasad, the petitioner had submitted that "the petitioner has been made accused for an offence which is not schedule." He had also submitted that "evasion of income tax and the wrong under income tax does not come within the purview of the schedule offences as mentioned in the Prevention of Money and Laundering Act, 2002. He further submits that in the complaint itself, the Enforcement Directorate has intimated about 19 criminal cases pending and the petitioner is not an accused in any one of the 19 cases." He submitted that "all those cases come within the purview of the schedule offences, but petitioner is not an accused of the scheduled offence." These submissions are recorded in Dr. Anshuman's order dated March 14, 2024. Notably, this submission has not been disputed as yet. In this backdrop, it is significant that Supreme Court has not "expressed any opinion on the merits of the case."   

In his 40-page long judgement dated May 6, 2024, Dr. Anshuman concluded: "let the petitioner above named, be granted bail on furnishing bail bonds of Rs.1,00,000/- (Rupees One lacs only) with two sureties of the like amount each to the satisfaction of learned Special Judge, PMLA -cum- District and Sessions Judge, Patna in connection with Special Trial (PMLA) Case...." He imposed the following terms and conditions:-
"a) The petitioner shall furnish a personal bond with a surety in the sum of Rs. 1,00,000 to the satisfaction of the Trial Court;
b) The petitioner shall give up his citizenship of Dominican Republic within a period of 1 week from the date of release and documentary proof of the same be placed before the learned Trial Court;
c) The petitioner shall not leave the country during the bail period and surrender his Dominican Republic passport at the time of release before the Trial Court;
d) The petitioner shall join the investigation as and when called by the ED authority concerned;
e) The petitioner shall appear before the Court as and when the matter is taken up for hearing;
f) The petitioner shall provide his mobile number to the ED authority concerned at the time of release, which shall be kept in working condition at all times. The applicant shall not switch off, or change the same without prior intimation to the ED authority concerned, during the period of bail;
g) In case he changes his address, he will inform the ED authority concerned and this Court concerned also;
h) The petitioner shall not indulge in any criminal activity during the bail period;

i) The petitioner shall not communicate with or intimidate or influence any of the prosecution witnesses or tamper with the evidence of the case"

 

In his clarificatory order dated May 14, 2024, Dr. Anshuman observed: "it is directed to the trial Court that he shall accept the affidavit filed by the pairvikar in this regard that petitioner has no citizenship of Dominican Republic and he is ready to surrender his Indian Passport and then after taking the affidavit and undertaking of the petitioner in the light of Clauses (b) and (c) of the conditions, he is directed to release the petitioner on bail immediately. The order passed today shall be treated as part of order dated 06.05.2024." It is not clear as to how the reference to "citizenship of Dominican Republic" came in the judgement dated May 6, 2024. The criminal miscellaneous petition was filed on February 17, 2024 and registered on February 29, 2024 in the High Court.

 

Notably, Sah, the father of Kanhaiya Prasad was arrested in 2023 in connection with a money laundering case, lodged by ED. He was granted regular bail on July 3, 2024 by Justice Dr. Anshuman. In his 34-page long order, Justice Dr. Anshuman observed that "The petitioner is in custody since 14.09.2023 having age of 70 years and suffering from medical ailments. This Court is also conscious of the fact that the accused is charged in case of PMLA of high magnitude, but at the same time, this is also going on in the mind of this Court that the Investigating agency has already completed the investigation and charge-sheet has been filed in the form of complaint before Special Judge, E.D., Patna on which the Special Judge, E.D., Patna has already taken cognizance. It is due to this reason, the presence of the petitioner in judicial custody may not be necessary for further investigation and therefore, considering the old age of the petitioner, this Court is of the opinion that there is no chance of commission of crime by the petitioner while on bail and hence, in view of the Court, petitioner is entitled to grant bail pending trial on stringent conditions in order to alike the apprehension expressed by the E.D. In view of the discussions above, this Court is of the considered opinion that the petitioner is entitled for grant of bail on merit. Hence, the petitioner is directed to be released on bail on furnishing bail bonds of Rs.10,00,000/- (Rupees Ten Lacs) with two sureties of the like amount each to the satisfaction of learned Special Judge, PMLA-cum-District & Sessions Judge, Patna in connection with Special Trial (PMLA) Case...." He imposed the following conditions on Sah:
a) The petitioner shall not leave the country during the bail period and surrender his passport at the time of release before the Trial Court;
b) The petitioner shall appear before the Court as and when the matter shall be taken up i.e. to say on each and every date.
c) The petitioner shall provide his mobile number to the ED authority concerned at the time of release, which shall be kept in working condition at all times and he shall not switch off or change the same without prior intimation to the ED authority concerned, during the period of bail.
d) In case, he changes his address, he will inform the ED as well as to the concerned Court.
e) The petitioner shall not indulge in any criminal activity during the bail period.
f) The petitioner shall not influence the prosecution witness directly or remotely. The prosecuting agency will be at liberty to file an appropriate application for modification/for calling the order passed by this Court for any reason or the petitioner violates any of the conditions imposed by this Court. 

It has come to light that the respondent's father used to help his father in his sweet shop in the 1970s. His job was to make jalebis and sell them outside the Ara railway station in Bhojpur. Later on, he started his own hotels, resorts, rice mils and cold storage units in Bihar and other States such as Uttarakhand and Himachal Pradesh. He was elected as an MLC from the Bhojpur-Buxar Local Authority Constituency— first from RJD and then from JD(U) in the 2022 elections. ED has alleged that the proceeds of crime has been used for the construction of a school in Ghaziabad. An application was filed seeking quashing of the order dated February 2, 2024 passed in Special Trial (PMLA) case of March 15, 2023 by the Court of Special Judge, PMLA-cum-District and Sessions Judge, Patna whereby the application dated January 23, 2024 seeking permission to attend the sitting of Bihar Vidhan Parishad on February 12, 2024 at 11.00 A.M. and from judicial custody under police escort, was rejected. It is recorded in High Court's order dated February 9, 2024. 

Sitamarhi Trial Court seeking "local bailor" from a Pakistani citizen for bail, Patna High Court to hear case of Khadija Noor

No person shall be deprived of his life or personal liberty except according to procedure established by law.

-Article 21, Constitution of India 

A criminal miscellaneous case Khadija Noor vs. The State of Bihar registered on March 7, 2024 came up for hearing on February 11, 2025 before Justice Chandra Shekhar Jha of Patna High Court in Court No. 108. The case arose out of a case filed in Sursand Thana, Sitamarhi district in 2022. The petitioner is the daughter of Md. Ishaoak, resident of Abdullahpur, Faisalabad, Pakistan. Yogesh Chandra Verma, senior advocate submitted on behalf of the petitioner that the requirement of "local surety" for the grant of bail is an onerous condition on a foreign national. The case is listed for further hearing on February 15, 2025.

Criminal Miscellaneous application has been  filed for grant of Regular bail to the petitioner, who has been made accused in connection for the offences under Section 467/468/471/420/34 of the Indian Penal Code and 14 Foreigners Act 2004. The petitioner has no criminal antecedent. 

The prosecution story as per the FIR is that on August 8, 2022 at around 1 P.M. the informant namely Bishan Das, Company Commander, SSB, Sitamarhi, while on duty at the India Nepal border found that 2 Persons (one male and one female) were coming from Nepal and entering into Indian territory. While entering into the Indian territory the female was stopped by the lady officer on duty and questioned but she could not answer anything about her identity. When her Aadhaar Number 646899362534 and the name Arzoo Baghdayia was checked then it was found that her Aadhaar Number was fake. On interrogation, it emerged that she is a Pakistani citizen. The person who was accompanying her was Jeevan Kumar Sah, a Nepali citizen. The petitioner is languishing in jail since August 8, 2022. The petitioner deserves to be enlarged on regular bail by relaxing the condition imposed by the Trial Court on October 18, 2022 in Sursand. The petitioner is prepared to furnish sufficient bail bond and further prepared to abide by the terms and conditions imposed by the Court. 

The petitioner had preferred his regular bail application before the court of District and Sessions Judge, Sitamarhi in Sursand which was heard and by order dated  October 18, 2022 passed by Sessions Judge, Sitamarhi with a condition that "Both the Bailor should be local resident" which is quite impossible for the petitioner to fulfill this condition. The petitioner is a resident of Pakistan and has no known person in Sitamarhi. It wad prayed that the petitioner be enlarged on regular bail by relaxing the condition imposed by the Court after furnishing sufficient bail bond. 

In Vaman Narain Ghiya v. State of Rajasthan (2008), the Supreme Court held that the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and a presumption of innocence in favour of the alleged criminal and an accused is not detained in custody with the object of punishing him on the assumption of his guilt. 

Prior to the hearing on February 11, on May 7, 2024, High Court's Justice Rudra Prakash Mishra's order had recorded:" the petitioner seeks permission of the Court to convert the present application into one under Section 482 of the Code of Criminal Procedure. Permission is accorded."

On October 22, 2024, High Court's Justice Chandra Prakash Singh passed an order saying, "the petitioner is permitted to make informant as O.P. No. 2 in course of the day. Learned counsel for the petitioner is directed to take steps for fresh service of notice upon the O.P. No. 2 through the Superintendent of Police, Sitamarhi, for which requisites under Speed Post with A/D, must be filed within a period of one week. The Superintendent of Police, Sitamarhi, is directed to get it served on the O.P. No. 2 who is the informant of Sursand P.S. Case No. 401 of 2022 and send a report to this Court within a period of one week from the date of its receipt. Put up this matter after appearance of the O.P. No. 2 or on receipt of service report, whichever is earlier, under appropriate heading." Opposite Party No. 2 is Bishan Das, Battalion Commander, SSB Bhithamore, Sursand, Sitamarhi. 

Notably, the petitioner is from Faisalabad which was conquered on February 22, 1849 by virtue of victory of British East India Company in Punjab. Faisalabad came into the control of the British Empire. Until 1977, Faisalabad was formerly known as Lyallpur. In 1890, it was named after Sir James Broadwood Lyall, the British lieutenant governor of the Punjab. It became headquarters of the Lower Chenab colony and in 1898 was incorporated as a municipality. In 1904, Lyallpur was given the status of district. In September 1977, the city of Lyallpur was renamed Faisalabad. Faisalabad was always part of undivided India. 

The FIR and seizure list reveals no incriminating material from the conscious possession of the petitioner. No objectionable material has been recovered from the conscious possession of the petitioner from Faisalabad. 

In Kasparek Petr vs. The State of Bihar & Ors  since the petitioner has been found to be without a Visa he could be deported to his own country but he cannot be detained in a prison. The order reads: "the Embassy of the Czech Republic in New Delhi is directed to take charge of the petitioner immediately within 7 days from the date of communication of this order to the petitioner and the petitioner shall be deported to his Country with the help of the Embassy of his Country within 15 days thereafter. During this period the petitioner will not be allowed to roam around outside the Embassy of the Czech Republic. Let a server copy of this order be sent to the Embassy of the Czech Republic through the learned Advocate for the petitioner for information and necessary action at the earliest." The order was passed on June 21, 2024.

This decision in Kasparek Petr case was quoted with approval in Agastin Chinet Nevot vs State of Bihar (2024), Patna High Court granted bail on July 20, 2024 to a petitioner from Nigeria. In his order Justice Sandeep Kumar noted that the petitioner was a monk associated with ISKCON, allowed the bail application considering petitioner’s submission that if he was granted bail, then he might be directed to stay in ISKCON Patna, and co-operate in the trial. The petitioner was the resident of Janakpur Dham, Vihar Kund, Hanuman Mandir, Nepal, was voluntarily serving as a ‘monk’ and was a bona fide member of International Society for Krishna Consciousness (ISKCON). The Court directed that after the grant of bail, petitioner would stay in ISKCON, Patna and till the conclusion of the trial, the President of ISKCON, Patna would take responsibility for the stay and appearance of petitioner in Patna ISKCON and the original passport of petitioner shall be deposited in the Trial Court. The Court accepted petitioner’s request for transfer of the case from the District Judge, Sitamarhi to the District Judge, Patna. 

In Moti Ram vs. The State of Madhya Pradesh (1978), Supreme Court's division bench of Justices V. R. Krishnaiyer and D. A. Desai held:"Bail covers release on  one's own bond with or without sureties, as the legal literature, Indian and Anglo-American on  bail jurisprudence  lends countenance  and the need for  liberal interpretation in areas of social justice individual freedom and indigent's rights  justifies. When sureties should be demanded and what sum should be insisted on are dependent on variables. [344 G, 347 C] A semantic smog overlays the provisions of bail in the Code  and prisoners'  rights,  when cast  in  ambiguous language become precarious. [345 C] 'Bail'  in s.  436 of the Criminal Procedure Code suggests 'with or without  sureties. And, 'bail bond` in s. 436(2) covers own bond. [345 E]  'Bail' in s. 437 (2) suggests release, the accent being on undertaking to appear. when directed, not on the production of  sureties. But s. 137(2) distinguishes between bail and bond, without sureties. [345 F-G] Section 445 suggests, especially  read with the marginal note  that deposit  of money  will do duty for bond 'with or without sureties'. [345 G] Superficially viewed, s. 441 (1) uses the words 'bail' and  'own bond' as antithetical,  if the  reading is liberal. Incisively  understood, Section 441(1) provides for both the  bond of  the accused and the undertaking of the surety being conditioned in the manner mentioned in the sub-section. To  read "ail" as including  only cases of release with sureties  will stultify  the sub-section, for then, an accused released  on his own bond without bail, i.e. surety, cannot be  conditioned to  attend at  the  appointed  place. Section 441(2) uses the  word 'bail'  to include 'own bond' loosely as  meaning one or the other or both. Moreover, an accused, in  judicial custody, actual or  potential, may be released by  the Court to further  the ends  of justice and nothing in s 441(1) compels a contrary meaning. S. 441(2) and  (3) use the  word  'bail'  generically because the expression  is intended  to  cover  bond  with or  without sureties; [345 H, 346 A-C] When the Court of appeal as per the import of s. '389(1) may  release a convict on  his  own  bond  without sureties, surely,  it cannot  be that an undertrial is worse off than a convict or that the power of the Court to release increases when the guilt  is established.  It is  not the Court's status but  the  applicant  guilt  status  that  is germane. That a guilty man may claim judicial liberation pro tempore without sureties while an undertrial cannot, is a reductio ad absurdum. [346 D-E]" 

Moti Ram case decision which authoritatively dealt with bail jurisprudence-Enlargement on bail with or without sureties-Scope of  Ss. 440(1), 441, 445 read with s. 389(1) of the CrPC is germane for the Khadija Noor's case. 

In  Sartori Livio vs. The State (2005), Delhi High Court's Justice Badar Durrez Ahmed passed an judgement on February 22, 2005 wherein he cited portion of High Court's decision dated July 31, 2000 in Nasimjon Komlov v. Customs in CRLM (M) No. 2038/2000 which reads:"It would be a shame if courts are going to keep persons incarcerated merely because they are of foreign origin even though prima facie no case is made out against them. This would be a negation of the valued principles of rule of law and violative of the constitutional mandate and principles of human rights." The decision in Sartori Livio case has been cited with approval in High Court's decision dated April 20, 2021 in Nastor Farirai Ziso vs. NCB (2021) by Rajnish Bhatnagar. These decisions are relevant for the Khadija Noor's case as well. 

Dr. Gopal Krishna

The author is a lawyer and a researcher of philosophy and law. His current work is focused on the philosophy of digital totalitarianism and the monetisation of nature. He has appeared before the Supreme Court's Committees, Parliamentary Committees of Europe, Germany and India and UN agencies on the subject of national and international legislation. He is the co-founder of the East India Research Council (EIRC). He is the convener of the Citizens Forum for Civil Liberties (CFCL) which has been campaigning for freedom from UID/Aadhaar/NPR and DNA profiling through criminal identification procedures since 2010. He had appeared before the Parliamentary Standing Committee on Finance that questioned and trashed the biometric identification of Indians through UID/Aadhaar Number. He is an ex-Fellow, Berlin-based International Research Group on Authoritarianism and Counter Strategies (IRGAC). He is also the editor of www.toxicswatch.org.)

Court is not powerless to grant relief of suspension of sentence and bail pending an appeal: Supreme Court

In Narcotic Control Bureau vs Lakhwinder Singh 2025 INSC 190, Supreme Court's division bench of Justices Abhay S. Oka and Ujjal Bhuyan observed:"in our view, if a case is made out for the grant of suspension of sentence and/or belt in deserving cases on merits, the Court is not powerless to grant relief of suspension of sentence and bail pending an appeal, even if an accused has not undergone half of the sentence. There cannot be a rule of thumb that a convict cannot be released on bail pending an appeal against conviction unless he has undergone half of substantive sentence. In the case of fixed term sentences, if the Courts start adopting rigid approach, in  a number of cases, till the appeal reaches the stage of the final hearing, the accused would undergo the entire sentence. This will be a violation of the rights of the accused under Article 21 of the Constitution. Moreover, it will defeat the right of appeal" in case related to offence under Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 

It pointed out that "the Appellate Court is bound by constraints of Section 17 of the NDPS Act while considering the prayer for the grant of bail during the pendency of an appeal. However, if, in the facts of the case, an accused has undergone substantial part of the substantive sentence and, considering the pendency of criminal appeals, his appeal is not likely to be heard before the accused undergoes the entire sentence the Appellate Court can exercise the over of releasing the scouted on bail pending the appeal. If the relief of bail is denied in such a factual situation only on the grounds of Section 37 of the NDPS Act, it will amount to the violation of the rights of the accused under Article 21 of the Constitution of India."

The Court concluded: "the appeal preferred by the respondent is not likely to be heard before he undergoes the entire sentence. He has already undergone a substantial part of his 10-year sentence. Therefore, there is no reason to interfere with the impugned order in the facts of the case. The Appeal is, accordingly, dismissed. However, if the respondent misuses the liberty granted to him under the impugned order, the appellant can always apply for cancellation of bail."

Notably, Justice Arvind Singh Sangwan, Punjab & Haryana High Court  had granted relief of suspension of sentence and bail to the respondent/accused pending an appeal against the conviction. The respondent was convicted for an offence punishable under the NDPS Act. The substantive sentence of the respondent is 10 years of rigorous imprisonment. In the appeal of the year 2021, the High Court had noted that the respondent had undergone incarceration for a period of 4 ½ years out of the fixed term sentence of 10 years. As the appeal was not likely to be heard before the completion of the sentence, the High Court had granted relief of suspension of sentence and bail to the respondent.

The judgement authored by Justice Abhay S. Oka was delivered on January 29, 2025. The case was filed on June 30, 2021. 

Disobedience of decree of injunction by judgment-debtor invites imprisonment or attachment of property or both

In the Bhudev Mallick Alias Bhudeb Mallick vs. Ranajit Ghoshal 2025 INSC 175, while dealing with compliance with Order XXI Rule 32 of CIvil Procedure Code (CPC) and jurisdictional error, the Supreme Court's division bench of Justices J. B. Pardiwala and H. Mahadevan on January 17,  2025 pronounced the imprisonment of judgment-debtor for disobedience of decree of injunction by judgment-debtor. 

The appeal against the judgement dated September 23, 2019 of Justice Sabyasachi Bhattacharya of Calcutta High Court was filed on January 28,  2020 was allowed.

The concluding paragraph of the 42-page long judgement reads:"The Registry is directed to circulate one copy each of this judgment to each of the High Courts with a further request that each of the High Courts shall circulate one copy of this judgment in their respective District Courts".

At para 44-45, the Court observed:"Imprisonment of a judgment-debtor is no doubt a drastic step and would prevent him from moving anywhere he likes, but once it is proved that he had wilfully and with impunity disobeyed an order of injunction, the court owes it to itself to make the judgment-debtor realise that it does not pay to defy a decree of a court. Failure to exercise this power in appropriate cases might verily undermine the respect for judicial institutions in the eyes of litigants. The court's power under Order 21, Rule 32 is no more than a procedural aid to the harried decree-holder. Where the judgment-debtor disobeys a decree of injunction, he can be dealt with under this rule by his imprisonment or by attachment of his property or by both. But the court has to record a finding that the judgment-debtor wilfully disobeyed or failed to comply with the decree in spite of opportunity afforded to him. Absence of such finding is a serious infirmity vitiating the order". 

In its judgement, the Supreme Court observed:"we would like to put a question to the executing court as to why it did not deem fit to afford one opportunity of hearing to the appellants herein? What would have happened if the executing court would have permitted the appellants herein to place their written objections on record? It is true that there was some delay on the part of the appellants herein in responding to the summons issued by it, but at the same time, having regard to the severe consequences, the executing court should have been a little more considerate while declining even to take the objections on record and give one opportunity of hearing to the appellants before passing the order of arrest, detention in a civil prison and attachment of the property. This aspect unfortunately has been overlooked even by the High Court while affirming the order passed by the executing court. The High Court itself could have remanded the matter to the executing court with a view to give an opportunity of hear- ing to the appellants herein. The supervisory jurisdiction vested in the High Court under Article 227 of the Constitution is meant to take care of such situations like the one on hand."

It concluded: "In the overall view of the matter, we are convinced that the impugned order passed by the High Court is unsustainable in law. In such circumstances, we set aside the order passed by the High Court and also that of the executing court."

It clarified that "it shall be open for the respon- dents herein (decree-holders) to file a fresh application if at all there is any interference at the instance of the appellants herein (judgment-debtors) in so far as their possession of the property in question is concerned. If any such fresh application is filed, the executing court shall look into the same strictly keeping in mind the observations made by this Court in this or- der and decide the same on its own merits."

This appeal arose from the order passed by the Calcutta High Court dated September 23, 2019 by which the High Court rejected the CO filed by the appellants (judgment debtors) and thereby affirmed the order passed by the Executing Court dated September 4, 2019 in Title Execution Case arising out of Title Suit. The appellants are the judgment debtors and the respondents are the decree holders.

It all began in 1965 when the predecessor-in-interest of the decree holders instituted a Title Suit for confirmation of possession and in the alternative for recovery of possession based on title to the suit land and for permanent injunction. The respondents are the legal heirs of the original plaintiffs of the Title Suit of 1965. The Subordinate Judge 2nd Court, Hooghly decreed the suit by the judgment and decree dated June 26, 1976. 

The operative part of the decree reads:

“Considering the facts, circumstances and evidence on record I, therefore, hold that the plaintiff has been able to establish his title to the suit properties and possession follows title and the defendant has failed to prove his alleged title. So he had no occasion to disturb plaintiffs possession of the suit properties. The plaintiff is therefore, entitled to have a declaration of title and confirmation of possession and injunction with respect to peaceful possession of the suit properties against the defendants. The suit is also maintainable, issue nos.2 to 5 are thus disposed of with a remarks that there is no need for consideration of alternative prayer for recovery of possession in the aforesaid context." 

With regard to Issue No.6, the order reads:"In the result the suit succeeds.Court fees paid upon the plaint sufficient. Hence, ORDERED: "That the suit is decreed on contest with costs against defendant no. 1 Ka to Jha and 2 and without contest and without cost against the rest. Plaintiff's title with respect to Ka and Kha schedule is ereby declared and his possession thereof is hereby confirmed. The defendants are permanently restrained from disturbing possession of the plaintiff of the suit properties. The prayer for damage etc. is rejected under the present frame of the suit.”

Supreme Court recorded:"The appellants herein were permanently restrained from disturbing the peaceful possession of the respondents herein in so far as the suit property is concerned."

Being dissatisfied with the judgment and decree dated June 20, 1976, the appellants challenged the same by filing Title Appeal in 1976.

The Supreme Court recorded: "The record does not reveal in what manner the Title Appeal came to be disposed of, however, according to the appellants, the same was disposed of by the Appellate Court vide order dated 10.06.1980. Sometime in the year 2017, i.e., after a period of almost 40 years, the respondents herein filed an Execution Case seeking to execute the decree dated 26.06.1976 referred to above on the ground that the appellants herein were disturbing & creating trouble in their peaceful enjoyment of the property and thereby alleged that the appellants have committed breach of the decree of permanent injunction. The same came to be registered as Title Execution Case No. 1 of 2017. The appellants were served with the summons of the suit execution case. The application filed by the respondents herein (decree holders) which came to be registered as Execution Case No. 1of 2017 concerning title Suit No. 25/1965."

The application filed in the Court of Civil Judge Senior Division, Arambagh, Hooghly reads:"The defendants/debtors wilfully defying the Permanent Restraining order of the Court and creating obstacles to the peaceful possession of the plaintiff decree holder's property by the heirs of the plaintiff decree holder. Therefore, the instant petition is being field with the prayer that the Defendants/Debtors must be stopped from creating obstacles to the peaceful possession of the property by the heirs of the decree holders and the order/direction may also kindly be issued for sending the Defendants/Debtors to Civil Jail and their property should also be attached and auctioned so that the debtors cannot create obstacles on possession of the property of plaintiff 'decree holder's heirs by breaking the perpetual restraining order of the trial court and court assistance is required to attack and auction their property and to send them to Civil Jail.” 

The Supreme Court records: "It is the case of the appellants that although the summons was received by them yet due to non-availability of old records they were not in a position to appear before the court concerned and later learned that the execution case was fixed by the court for ex parte disposal. On 12.12.2018, the appellants herein filed their written objections to the execution case along with a petition requesting to accept the written objections & give them an opportunity of hearing."

The written objections lodged in writing by the appellant (judgment debtors) reads: 

“Objection against Application for Execution filed by the Decree Holders

1. That the application for Execution flied by the Decree Holders with respect to the original suit is not maintainable.

2. That the application Is vague and Indistinct. The decree holders in their petition has not stated the schedule of property and hence It is ambiguous and since the petition is handwritten it is ineligible to a huge extent and should be rejected.

3. That the properties described in the schedule of the plaint of the original suit was purchased by the predecessor of the Judgement debtors and at no point of time was possessed by the decree holders or their predecessors. The decree holders have obtained the judgement and decree on 26.06.1976 but even then they did not possess the suit property. The properties were all along in possession of the judgement debtors which was unaffected and even after procuring the alleged decree from the Ld. Lower Court the decree holders did not possess the same till today. Thus after such a long time the decree holders could not pray for relief for alleged violation of any order of injunction.

4. That after obtaining the alleged judgement and decree on 26.06.1976 the decree holders have filed several cases before the Ld. Executive Magistrate and in almost every case the possession of the Judgement debtors have been confirmed.

5. That the decree holders in order to snatch possession of the suit properties from the judgement debtors have filed the instant petition at this belated stage knowing very well that they never possessed the property. Moreover the decree holders in several applications have stated that they did not have possession over the suit properties.

6. That unless the truth regarding the possession comes before the Ld. Court the Instant execution is not maintainable.

7.  That the decree holders are putting forth claim on the basis of erroneous record of rights whereas the judgement debtors have come to own the suit properties by virtue of purchase. The judgement debtors have much better title than the decree holders which can be ascertained by seeking evidence.

8. That since the, decree holders did not claim possession over the suit properties the judgement debtors have been openly, as of their own right, uninterruptedly, without any protest from the decree holders have been possessing the suit tank since purchase and later on since 10.06.1980 i.e. from the date of disposal of the appeal case. The decree holders are thus stopped from putting forth illegal claim over the suit properties. Without taking due process of law the Ld. Court and in absence of due proceeding the Ld. Court could not pass any order in this case.

9. That the Judgement debtors. will be put to Irreparable loss and injury if the execution application filed by the decree holders is entertained.

10. That since the petition is illegible and since the order in the original suit has been passed more than 40 years ago the judgement debtors crave leave to file additional written objection if found necessary for proper adjudication of this case.

In the above circumstances the judgement debtor pray that the Ld. Court be kind enough to reject the execution application flied oy the decree holders. 

On January 21, 2019, the Executing Court declined to take the written objections on record saying that the same were not maintainable. The court fixed the matter for final arguments on 25.01.2019. The appellants being aggrieved by the order dated 21.09.2019 referred to above, preferred a Revision Application being C.O. No. 1120 of 2019 before the High Court. The High Court vide order dated 27.03.2019 admitted the Revision Application and stayed all further proceedings of the Title Execution Case No. 1 of 2017.  

Later the appellants herein filed an application dated July 26, 2019 in the High Court seeking extension of the interim order dated March 27, 2019 referred to above and accordingly informed the trial court about the pendency of the Revision Application of 2019 for extension of the interim order. 

However, on September 4, 2019, the Civil Judge Arambagh proceeded to pass an Order 21 in Title Execution Case against appellants herein by allowing the execution case ex parte. The Civil Judge ordered that the appellants herein (judgment debtors) shall be arrested and detained in civil prison for a period of 30 days and their property be attached in accordance with law. 

The order passed by the Civil Judge reads: “Order No.21 dated 04.09.2019. The plaintiffs file hazira. The fact of the case in short is that this is a case for execution of permanent injunction passed by the Ld. Second Court of the Subordinate Judge, Hooghly, in T.S. No.25 of 1965. The plaintiffs of the original suit got the decree of permanent injunction in the form of permanent restrainment of the defendant/judgment debtors from disturbing possession of the plaintiffs in the suit property as well as the property over which the execution is prayed for. The present petitioners are the legal heirs of the deceased Chota Chandicharan Ghoshal i.e. the original plaintiff of the said T.S. 25 of 1965. The present execution case, prays in made by execution application dated 25.11.2017, praying for execution of contested judgment and decree in T.S. no.25/1965, dated 26.06.1976, of the Ld. Second Court of the. Subordinate Judge, Hoogly. It is averred in the application that the Jdrs. are willfully, in violation of the decree, disturbing the peaceful possession of the Dhrs upon decretal property and thus it is necessary to execute the same by relief of Civil Jail as well as attachment and sale of the properties of Jdrs. In argument Ld. Counsel for the Dhr Submits that they were granted a contested decree of declaration and permanent injunction, but the Jdrs are willfully violating the same, and which is apparent from the evidence on record and thus the decree maybe put into execution by putting the Jdrs in Civil Jail and by attachment of their properties. In this regard, the Ld. Counsel cited the landmark judgment passed by Ld. Punjab Haryana High court on 9th October, 1979 and which is published in AIR 1980 P and H. The impugned decree filed along with the execution application shows that the present applicants are Dhrs and that the defendants of the suit are Jdrs. The same was decreed on contest on 26.06.1965 declaring the title of the plaintiff/Dhrs in respect of the suit property and confirming their possession. The defendants/Jdrs were restrained by way of permanent injunction from disturbing possession of the plaintiff m the suit property.

It is noted that the Jdrs had appeared in such case and have knowledge of all averments reports. Moreover, the decree was contested decree. The police report shows that despite the decree, the Jdrs are claiming forceful possession. In Iyyam Perumal Vs Chinna Gounder, (1984) it was observed that direction of arrest may be restored to if there is adequatebproof of refusal to comply with a decree inspite of Jdrs possessing sufficient means to satisfy the same. Thus, there are enough circumstances to put the decree into execution as prayed for. Hence, it is, ORDER

That the execution case is allowed ex-parte and the Judgment Debtors are directed to be arrested and detained in civil prison for a period of thirty days and also to attach judgment Debtors properties as per the provision of law.  Thus this T.Ex.Case is disposed of.”

The appellants challenged the order passed by the Civil Judge referred to above, challenged the same by filing Revision Application of 2019 before the High Court invoking its supervisory jurisdiction under Article 227 of the Constitution. The High Court vide its impugned order dated September 23, 2019 rejected the revision application and thereby affirmed the order passed by the Civil Judge. 

The High Court in its impugned order observed thus: “The present challenge is directed at the behest of the judgment-debtors of a decree for permanent injunction. Learned counsel appearing for the petitioners argues that in view of the application filed for arrest and detention in civil prison of the petitioners, the same ought to have been - governed under Order XXI Rule 11A of the Code of Civil Procedure, which, it is argued, contemplates an affidavit being filed, stating the ground on which arrest is applied for. In the absence of such an affidavit in the present case, the executing court acted without jurisdiction in allowing the execution case.  The next contention of learned counsel for the petitioners is that the petitioners' written objection to the application for execution was not accepted due to delay, which was challenged in a civil revisional application before this Court. Although the petitioners prayed for stay of the execution case in view of pendency of an application for extension of stay granted in the previous revisional application, the executing court acted in hot haste in passing the impugned order, which was thus vitiated on such ground as well. The learned counsel appearing for the decree-Holders, on the other hand, points out that the previous revisional application challenging the non-acceptance of written objection by the present petitioners was dismissed by a co-ordinate bench on the ground that the same had become infructuous in view of passing of the order impugned herein. As such, there is no challenge existing at present to the order refusing to accept the written objection of the petitioner. In such view of the matter, the argument, that the petitioner did not get any opportunity to file written 'objection, has been rendered academic since there is no existing challenge pending against the same. Moreover, a plain reading of Rule 11A of Order XXI of the Code suggests that the same envisages an application being made for the arrest and detention in prison of the judgment-debtors, stating the grounds on which arrest is applied for, or be accompanied by an affidavit stating such grounds. The language of Order XXI Rule 11A of the Code suggests clearly that the grounds for arrest and detention may be contained either in the application or in the accompanying affidavit. In the present case, the execution application itself contained the ground, sufficient to entitle the executing court to pass an order of execution of the decree for permanent injunction. As such, no jurisdictional error was committed by the executing court in passing the impugned order. Accordingly, C.O. No. 3283 of 2019 is dismissed on contest. There will be no order as to costs. At this juncture, learned counsel for the petitioners prays for stay of the instant order for a limited period. However, since, in the opinion of this Court, no question of law of substantial importance is involved in this case, the prayer for such stay is refused.”

In such circumstances, the appellants (judgment debtors) reached the Supreme Court with the present appeal. 

On behalf of the appellants (judgement debtors), Joydeep Mukherjee, the counsel submitted that the High Court committed egregious error in passing the impugned order. He submitted that

the execution petition itself was not maintainable at the instance of the respondents after a lapse of almost 40 years from the date of passing of the decree of declaration and permanent injunction. He submitted that the Civil Judge committed a serious error in directing arrest of the appellants herein and their detention in civil prison for a period of 30 days with further order to attach their property.

The main bone of contention canvassed on behalf of the appellants herein is that the respondents had not filed any petition along with an affidavit as the same is a mandatory requirement under Order XXI Rule 11-A of the Code of Civil Procedure, 1908. He further submitted that the aforesaid aspect came to be overlooked even by the High Court while rejecting the revision application. 

The counsel submitted that the High Court should have at least permitted the appellants herein to file their written objections to the execution case. The learned counsel prayed that there being merit in his appeal the same may be allowed and the impugned order passed by the High Court and also the one passed by the civil court in execution case be set aside. 

On behalf of the respondents (decree holders), 

Lalita Kaushik, the counsel submitted that no error not to speak of any error of law could be said to have been bcommitted by the High Court in passing the impugned order. She submitted that the contention on behalf of the appellants that the execution petition could not have been filed after 40 years from the date of the original decree is without any merit. She submitted that once there is a decree of permanent injunction having attained finality; if thereafter at any point of time, the possession of the decree holders is sought to be disturbed then in such circumstances it is always open for the decree holder to seek appropriate relief from the court in accordance with law. She prayed that there being no merit in this appeal, the same may be dismissed. 

The fact remains freezing assets and salary should be a last resort. The liberty should not be frozen even for a temporary time.

Shivraj Singh Chouhan, Agriculture Minister declines reply on law for guaranteeing MSP

Responding to a question of Sachitanantham R and S. Venkatesan regarding whether the Ministry of Agriculture proposes to bring the law demanded by farmers guaranteeing MSP on the lines of M.S. Swaminathan Panel and whether the Ministry proposes to meet the farmer's demand and to implement the commitment/promise made by the Government.

Shivraj Singh Chouhan, Union Minister of Agriculture and Farmers Welfare responded without replying:"To make Minimum Support Prices (MSPs) more effective and transparent, a committee has been constituted on 12th July 2022. The subject matter of the committee also include (i) Suggestions on practicality to give more autonomy to Commission for Agricultural Costs and Prices (CACP) and measures to make it more scientific, and (ii) To strengthen the Agricultural Marketing System as per the changing requirements of the country to ensure higher value to the farmers through remunerative prices of their produce by taking advantage of the domestic and export opportunities. The meetings of this committee are being organized regularly and till date, 6 meetings have been held. Additionally, 39 meetings of various sub-committees have also been held.For benefits of farmers, Government has taken several initiatives which include following:

(i) After budget announcement in 2018-19, Government had fixed MSP of 22 mandated crops at a level of at least one and half times of the cost of production.

(ii) Pradhan Mantri Kisan Samman Nidhi (PM-KISAN)

(iii) Pradhan Mantri Fasal Bima Yojana (PMFBY)/Restructured Weather Based Crop Insurance Scheme (RWBCIS)

(iv) Pradhan Mantri Kisan Maan Dhan Yojana (PM-KMY)

(v) Agriculture Infrastructure Fund (AIF)

(vi) Formation and Promotion of 10,000 Farmer Producer Organizations (FPOs)

(vii) Pradhan Mantri Annadata Aay Sanrakshan Abhiyan (PM-AASHA)

(viii) Modified Interest Subvention Scheme (MISS)

(ix) National Bee Keeping and Honey Mission (NBHM)

(x) Agri Fund for Start-Ups & Rural Enterprises' (AgriSURE)

(xi) National Mission on Natural Farming

(xii) Krishonnati Yojana

(xiii) Rashtriya Krishi Vikas Yojana (RKVY)".