In Deepak Kumar vs. The State of Bihar (2025), order of Supreme Court's Division Bench of Justices Abhay S. Oka and Ujjal Bhuyan records that "a charge-sheet has been filed. Therefore, there is no occasion to arrest the appellant so long as he continues to appear before the Trial Court." Its order dated May 9, 2025 reads:"Accordingly, the interim order dated 7th April, 2025 is made absolute subject to condition that the appellant shall continue to appear before the Trial Court regularly and punctually and shall cooperate with the Trial Court for early disposal of the case."
Earlier, on April 7, 2025, the Supreme Court had passed an order saying, "the petitioner shall not be arrested in connection with First Information Report (FIR) No.JAM P.S.Case No.30/2024 dated 9th January, 2024 registered at Jamui Police Station, District Jamui, Bihar subject to condition that the petitioner shall always cooperate for investigation."
Relying on 118-page long judgement dated May 17, 2019 of Patna High Court's full bench of Justices Hemant Kumar Srivastava, Aditya Kumar Trivedi and Ashutosh Kumar in the case of Ramvinay Yadav v. State of Bihar PLJR 2019 (2), Justice Ramesh Chand Malviya of Patna High Court had passed an order dated January 24, 2025 declining anticipatory bail to the petitioner in a case registered for the offence punishable under Section 30(A) of the Bihar Prohibition and Excise Act, 2022.
Notably, in Ramvinay Yadav's case, Justice Aditya Kumar Trivedi's order had directed the office "to place the records of this case before Hon'ble the Chief Justice for the needful". It stated that the majority opinion on question No.2 of the reference is the opinion rendered by him and Justice Hemant Kumar Srivastava. The action by the Chief Justice is required to be ascertained.
Question No. 2 was: Whether the law laid down in the case of Ashok Sahani vs. The State of Bihar (Cr. Misc. No. 26109 of 2017) and as further explained in the case of Barun Kumar vs. The State of Bihar (Cr. Misc. No. 42985 of 2017) lays down the law correctly or whether the conflicting view in the case of Manish Kumar (supra) reflects the correct position of law?
Question No. (1) was: Whether the provisions of Section 438 Cr.P.C. continue to apply in spite of the bar created under Section 76 (2) of the Bihar Prohibition and Excise Act, 2016 and as to whether such an application under Section 438 Cr.P.C. for anticipatory bail is maintainable?
Question No. (3) was: Whether the learned Single Judge in the case of Manish Kumar @ Lokesh Kumar vs. The State of Bihar Cr. Misc. No. 21578 of 2017 vide an order dated 10.08.2017 while referring the matter for decision by a Larger Bench in deference to the judgment in the case of Ashok Sahani (supra) was justified in declaring it per incurium keeping in view the fact that the judgment was by a Co-ordinate Bench in view of the law laid down by the Supreme Court in the case of State of Bihar vs. Kalika Kuer reported in (2003) 9 SCC 448 and the law laid down in the case of Rana Pratap Singh Vs. State of U.P. (FB) reported in 1996 Criminal Law Journal 665, and further keeping in view the opinion expressed in the case of Barun Kumar (supra) that such an issue of vires under the High Court Rules could have been decided by a Division Bench Only?
Question No. (4) was: Whether the Division Bench in the case of Manish Kumar (supra) vide order dated 06.11.2017 was justified in not resolving the dispute on the ground of the pendency of the two petitions before the Apex Court relating to the challenge raised to the vires of the Bihar Prohibition and Excise Act, 2016?
Question No. 5 was: Whether even if the matter was pending before the Supreme Court, the Division Bench in the case of Manish Kumar (supra) was denuded by any disability either on the ground of legality or propriety to not proceed to answer the reference made to it more particularly when there is no pronouncement by the Supreme Court in the issue sought to be resolved, and when the matter did require an immediate resolution keeping in view the conflicting views of this Court?
The Chief Justice had formulated these questions/issues for consideration as well as adjudication of Full Bench. The Full Bench was constituted to dispel the existing confusion relating to entertainment, consideration and disposal of anticipatory bail purported to be under Section 438 of the Cr.P.C relating to an offence punishable under Bihar Prohibition and Excise Act, 2016, (amended, effective from 2ndOctober, 2016) by the Chief Justice purported to be in accordance with Chapter-II, Rule-11 of the Patna High Court Rules, being master of the roster. Before coming to terms of reference, which this Full Bench has to answer, it looks obligatory to flash the existing controversy in order to appreciate the legality, propriety of the reference. Since before existing Excise Act 1915 (Bihar & Orissa Act 11 of 1915) has been redrafted and introduced in the background of Article 47 duly couched by Article 19(1)(g) as well as Article 246 of the Constitution of India proclaiming complete prohibition having nomenclature Bihar Prohibition and Excise Act 2016 which has been subject to challenge under so many writs and vide order dated 30.09.2016 passed in connection with C.W.J.C. No.6675/2016 and other allied writs (Confederation of Indian Alcoholic Beverage Companies vs. State of Bihar and Ors. along with others) as reported in 2016 (4) PLJR 369, the same was declared ultra vires against which, State has preferred SLP before the Supreme Court bearing S.L.P. (C) No.29749/2016 and vide order dated 07.10.2016 notices have been issued during midst thereof, operation of the order impugned has been stayed. The aforesaid SLP is still pending. During the intervening period, again there happens to be an amendment in the Bihar Prohibition and Excise Act, 2016 which has been introduced since 2nd October, 2016 which has also been challenged under C.W.J.C. No.8640/2016 (Abay Kumar Mishra vs. The State of Bihar & Ors.) C.W.J.C. No.73098/2016 (Dr. Rai Murari vs. The State of Bihar & Ors.) whereupon, the State preferred transfer petition before the Apex Court and during consideration thereof, notices were issued and further directing to tag with the original SLP(c) Nos.27949-29763/2016 further proceeding was stayed. By such amendment 2016, apart from others Section 76 has been introduced curtaining the right of an accused to ask for pre-arrest bail, that means to say, Anticipatory Bail.
Section 76 reads: "Offences to be cognizable and Non-Bailable- (1) All offences under this Act shall be
cognizable and non-bailable and provisions of code of criminal procedure, 1973 (Act 2 of 1974) shall apply.
(2) Notwithstanding anything mentioned in sub-section (1) above, nothing in Section 360 of Code of Criminal Procedure 1973. Section 438 of Code of Criminal Procedure 1973 (2 of 1974) and Probation of Offenders Act, 1958 shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”
The Court recorded: "This sub-clause (2) is the root cause of controversy. As sub-section(2) begins with non-obstante clause, forbidding application of Section 438 Cr.P.C. (as under controversy) apart from others hence, became subject matter of consideration by different Benches (as per roaster). In Cr. Misc. No.26109/2017 (Ashoka Sahani vs. The State of Bihar), the Bench was of the view that on literal interpretation of Section 76(2) of the Bihar Prohibition and Excise Act, 2016 (amended Act) there happens to be complete de-recognition of prayer for anticipatory bail either before High Court or before lower court whereupon observed that no petition for anticipatory bail would be entertainable. In the aforesaid background, the registry was directed not to accept any petition purported to be under Section 438 of the Cr.P.C, levelling defect over maintainability."
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