In Punam Devi @ Rupan Devi & Anr. vs. The State of Bihar (2025), Supreme Court's Division Bench of Justices Sanjay Karol and N. K. Singh passed a 4-page long order dated October 17, 2025, wherein, it set aside the 1-page long order dated July 17, 2025 by Justice Prabhat Kumar Singh of Patna High Court. Justice Singh had rejected the prayer for anticipatory bail under Bihar Prohibition and Excise Act. The appellants had challenged the order. Supreme Court's order reads: ''We allow the present appeal by confirming the order dated 03.09.2025, passed by this Court, with a direction to the appellants to continue to cooperate during the investigation/trial and not to take any unnecessary adjournment.....9.The impugned order dated 17.07.2025 in Criminal Miscellaneous No. 46580 of 2025 passed by the High Court of Judicature at Patna titled “Punam Devi @ Rupan Devi & Anr. vs. State of Bihar” is set aside.''
This order assumes significance in the light of the importance of bail which has been set out in detail in Gurucharan Singh & Ors. vs. State (Delhi Administration); (1978) 1 SCC 118 and Shri Gurbaksh Singh Sibbia & Ors. vs. State of Punjab; (1980) 2 SCC 565.
In Punam Devi @ Rupan Devi & Anr. vs. The State of Bihar (2025), Prabhat Kumar Singh of Patna High Court passed a 1-page long order dated July 17, 2025, wherein, he concluded:''Considering the Full Bench decision of this Court rendered in the case of Ram Vinay Yadav vs. The State of Bihar reported in 2019(2) P.L.J.R. 1089 (F.Β.), the prayer for anticipatory bail of petitioners is rejected.'' The petitioner had approached the HighCourt apprehending their arrest in a case registered for the offence punishable under Section 30(a) of the Bihar Prohibition and Excise Act. As per the prosecution case, 5.940 liters of foreign liquor were recovered from the house of these petitioners. The petitioner no. 2 was Manohar Goswamy @ Manoj Sah @ Manohar Kumar. The case was filed in the High Court on June 25, 2025 and registered on July 5, 2025.
It is germane to examine the 118-page long judgement dated May 17, 2019 by the Patna High Court 's 3-Judge Bench of Justices Aditya Kumar Trivedi, Ashutosh Kumar and Aditya Kumar Trivedi in Ram Vinay Yadav vs. The State of Bihar (2019).
In this case being master of the roster, Justice Amreshwar Pratap Sahi, the then Chief Justice of the High Court had constituted a Full Bench 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 2nd October, 2016) in accordance with Chapter-II, Rule-11 of the Patna High Court Rules.
Notably, Rule 1 of Chapter-V of the Patna High Court Rules, reads: Reference to a Full Bench “1. Whenever a Division Bench desires and the Chief Justice consents that any case shall be referred to a Full Bench, or whenever in any case a Division Bench differs from any other Division Bench upon a point of law or usage having the force of law such case shall be referred for decision by a Full Bench.”
The Chief Justice had formulated following five issues for consideration as well as adjudication of Full Bench which are as follows:
(1) 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?
(2) Whether the law laid down in Ashok Sahani vs. The State of Bihar (Cr. Misc. No. 26109 of 2017) and as further explained in Barun Kumar vs. The State of Bihar (Cr. Misc. No. 42985 of 2017) lays down the law correctly or whether the conflicting view in Manish Kumar @ Lokesh Kumar vs. The State of Bihar (Cr. Misc. No. 21578) reflects the correct position of Law?
(3) Whether the learned Single Judge in the case of Manish Kumar (supra) vide an order dated August 10, 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 State of Bihar vs. Kalika Kuer SCC 448 and the law laid down the in 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?
(4) Whether the Division Bench in the case of Manish Kumar (supra) vide order dated November 6, 2017 was justified in not resolving the dispute on the ground of the pendency of the two writ petitions before the Supreme Court relating to the challenge raised to the vires of the Bihar Prohibition and Excise Act, 2016?
(5) 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 not to proceed to answer the reference made to it more particularly when there is no pronouncement by the Apex Court on the issue sought to be resolved, and when the matter did require an immediate resolution keeping in view the conflicting views of the Patna High Court?
As to Questionnaire No.1,2,4, 5, Justice Aditya Kumar Trivedi as part of the 3-Judge Bench of the High Court observed: ''The Division Bench in the case of Manish Kumar @ Lokesh Kumar vs. The State of Bihar reported in 2017(4) PLJR 369 has rightly shrinked itself in answering the terms of reference as, it would tantamounts to intrusion within the sphere of the Apex Court in the background of order passed in Special Leave to Appeal (C) Nos.29749/2016 inconsonance with Transfer Petition (Civil) Nos.2089-2090/2016. That means to say, till the vires is tested by the Apex Court, it will not be prudent for the full Bench to delve over the issue and record its finding.''
As to Questionnaire No. 3 Justice Trivedi observed: ''From perusal of the Manish Kumar (Single Bench-2017 (4) PLJR 369), it is evident that the Bench was not at all appraised with subsequent development after pronouncement of 2016(4) PLJR 369 having under challenge before the Apex Court wherein operation of the judgment has been stayed. Not only this, the stay of further proceeding of two writ petitions by the Apex Court concerning the issue in hand, (subsequent amendment in the Act) also not been brought up before the Bench. Had there been, then in that circumstances, no such finding would have. Be that as it may, as is evident in both the petitions, the subsequent development relating thereto (vires of the Act) has not been urged, hence the observation so made under para-12 of Manish Kumar (Single Bench) could not have been. Moreover, as per Patna High Court Rules, the Division Bench identified proper forum to decide the validity, legality of the Act. Apart from the fact that both the issue was beyond the subject. Moreover, recording of Single Judge in Manish Kumar, as per-incurium is also found duly covered with the lis so pending before the Apex Court as the same happens to be based in terms of non-adoption of procedure in accordance with Article 254(2) which, unless disproved by the Apex Court would not be. 38. Though there was no reference to the Division Bench (Manish Kumar) but the way it followed in order to search out the solution, relating to the existing controversy, is being approved keeping the power of the High Court under Article 226 of the Constitution as well as Section 482 Cr.P.C immuned.''
As to Question No.1, Justice Ashutosh Kumar as part of the 3-Judge Bench observed: the question no.1 is answered as follows:''Till the time, the vires of the Act of 2016 is tested/adjudicated by the Supreme Court of India, which would include a decision on the correctness / justification of a State Legislature in providing / legislating a complete bar to the grant of anticipatory bail to accused persons of offences under the Act, anticipatory bail petitions shall otherwise not be maintainable, unless from the facts of the case, it would prima facie appear that none of the ingredients of the offences under the Act of 2016 are made out for attracting the bar of Section 76 (2) of the Act. For coming to the aforesaid conclusion as to whether the offence can be said to be made out from the facts of the case, no detailed / roving enquiry is to be made. 89. While saying so, I have relied on the principles enunciated in Shri Gurbaksh Singh Sibbia; Nikesh Tarachand Shah; Joginder Kumar; Arnesh Kumar; Vilas Pandurang Pawar; and Shakuntala Devi (supra).'' He also relied on the Constitution Bench's judgment in Kedar Nath Singh vs. State of Bihar; AIR 1962 SC 955.
As to Question No. 2, Justice Kumar observed:''The principles laid down in Ashok Sahani and Barun Kumar (supra) are, I say so with deepest respect to the learned Judges, only partially correct. The reasons for coming to the aforesaid conclusion is binary: (i) existence of Section 76 (2) of the Act of 2016 and the (ii) legal interpretation by the Supreme Court in not treating such a provision like 76 (2) to be a complete bar for grant of anticipatory bail, which bar would apply only under the circumstances that the offence under the Act is prima facie made out and the implication of the accused is not for any oblique purposes. In other words, if the ingredients of the offence are not made out, anticipatory bail can be granted to an accused person.'' He added: ''93. The Principles laid down in Manish Kumar (supra, S.J.), it is, respectfully stated is not correct.''
With regard to Question No. 3, Justice Kumar observed: ''95. With all the reverence at my command, it is stated that the exposition of law by the learned Single Judge in Manish Kumar (supra) in holding Section 76 (2) of the Act of 2016 to be repugnant to Section 438 Cr.P.C., is erroneous. The reason for saying so are as follows: The Code of Criminal Procedure is in the Concurrent List, whereas the Act of 2016 is relatable to Entries 8, 51, 54 and 64 of the State List. Since the two legislations are not in the same field, no question of repugnancy under Article 254 arises. Apart from this, under Section 4 Cr.P.C., all the offences under any law, other than I.P.C., could be investigated, inquired into and tried or otherwise dealt with according to the same provisions, but being in force, regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. Section 5 Cr.P.C., which is in the nature of savings, further declares that nothing contained in the Cr.P.C. shall, in the absence of specific provisions to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred or any special forum of procedure prescribed, by any other law for the time being in force. 96. In view of the judgement of the Supreme Court in State of Bihar Vs. Kalika Kuer (supra), the learned Single Judge in Manish Kumar (supra) could not have held an earlier judgement rendered by another learned Single Judge to be per incuriam. There was also no justification of, thereafter, referring the matter to a larger Bench. The other aspect of the matter is that the learned Single Judge in Manish Kumar (supra), in view of the provisions contained in Patna High Court Rules, could not have decided the vires / validity of an Act or a Section. 97. The question, therefore, is answered accordingly.''
Regarding Question No. 4, Justice Kumar observed:''99. The Division Bench in Manish Kumar (supra) has rightly recused from testing the vires of Section 76(2) of the Act of 2016 as the two writ petitions which have been transferred from this Court to the Supreme Court would entail a thorough discussion for any authoritative pronouncement on the vires of the entire Act of 2016 including Section 76(2) thereof. Thus, the decision of the Division Bench in Manish Kumar (supra) in eschewing from commenting upon the vires of Section 76 of the Act of 2016 is justified. However, in my respectful opinion, the Division Bench in Manish Kumar (supra) was not prevented from testing the correctness/legality of the opinion of the learned Single Judge in Manish Kumar (supra) in holding the provision of 76 (2) of the Act of 2016 to be ultra vires, on the touchstone of repugnancy with a Central law on a subject falling in Concurrent List and the Act of 2016 being a legislation on the subjects exclusively falling in List-II of the 7th Schedule of the Constitution.''
As to the question No. 5, Justice Kumar observed:''101. Even if the issue relates to grant / refusal of anticipatory deals with the liberty of a person, it would still be a judicial overreach to decide an issue which is pending adjudication before the Supreme Court. The arrangement which has been suggested in Vilas Pandurang Pawar; Shakuntla Devi; and Biseshwar Mishra (supra), even after the vires of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, has been upheld, does provide a cornucopia for the respective rights and freedom of a person to be protected by looking into substratum of the allegation in the complaint/F.I.R and the Division Bench in Manish Kumar (supra) has taken note of such pronouncements of the Supreme Court.'' He added:''102. Even at the risk of repetition, I must clarify that the opinion rendered by me on the terms of reference would be subject to the outcome of the decision of the Supreme Court of India on the vires of the Act of 2016, particularly of Section 76 (2) thereof.''
Justice Hemant Kumar Srivastava observed: ''Re. Question nos. 1 and 4- Brother Shri Aditya Kumar Trivedi, J. as well as Brother Shri Ashutosh Kumar, J. while dealing with the reference (question no. 1) as well as reference (question no. 4) are unanimous on this point that the learned Division Bench in the case of Manish Kumar (Supra) rightly recused from giving any finding on the vires of Section 76(2) of the Act, 2016 till the vires is tested by the Hon’ble Apex Court in Special Leave to Appeal (C) Nos. 29749/2016 as well as Transfer Petition (Civil) Nos. 2089-2090/2016. Brother Trivedi, J. as well as Brother Ashutosh, J. are of the view that till final adjudication by the Hon’ble Apex Court in respect of vires of Section 76(2) of the Act 2016, the time gap arrangement as suggested by the learned Division Bench in continue because adjudication by this court on the aforesaid point shall amount to intrusion within the spheric of the Apex Court and judicial propriety demands from this court not to adjudicate vires of Section 76(2) of the Act 2016 till final adjudication by the Hon’ble Apex Court in respect of vires of Section 76(2) of the Act as it is bounded duty of this court to maintain its decorum and dignity. Therefore, in the aforesaid circumstance, I also endorse the views of Brother Aditya Kumar Trivedi, J. as well as Brother Ashutosh Kumar, J. on the aforesaid point.''
As to Reference (question nos. 2 and 3), Justice Srivastva observed: ''The aforesaid questions have been dealt with by Brother Justice Trivedi and Brother Justice Ashutosh at length. Brother Trivedi, J. and Brother Ashutosh, J. are of the view that the learned Single Judge in Mansih Kumar (Supra) could not have held the judgment delivered in Ashok Sahani (Supra) case as per incuriam in the view of decision of State of Bihar vs. Kalika Kuer reported in (2003) 9 SCC 448 and the law laid down in case of Rana Pratap Singh vs. State of Uttar Pradesh (Full Bench) reported in 1996 Criminal Law Journal 665 and also in the light of the relevant rules of Patna High Court and accordingly, reference (question nos. 2 and 3) have been answered. I do not have any different opinion on the aforesaid issues and I endorse the views taken by the Brother Aditya Kumar Trivedi, J. as well as Brother Ashutosh Kumar, J. but I would like to mention here that Brother Ashutosh Kumar, J. while answering the reference (question no. 2) held that principles laid down in Ashok Sahani and Barun Kumar (Supra) cases are partly correct whereas Brother Aditya Kumar Trivedi, J. has not given any answer in respect of reference (question no. 2) perhaps keeping in mind that the testing of vires of Section 76(2) of the Act 2016 is still pending before the Apex Court. I am of the opinion that Brother Aditya Kumar Trivedi J. rightly recused himself from expressing any opinion regarding the principles laid down in Ashok Sahani and Barun Kumar (Supra) cases because the testing of vires of Section 76(2) of the Act 2016 is still pending before the Hon’ble Apex Court and it would not be proper to hold for the present that principles laid down in Ashok Sahani and Barun Kumar (Supra) cases in respect of maintainability of petition filed under Section 438 of the Cr.P.C. in the cases registered under the provisions of Act 2016 are correct view. The fate of principles laid down in Ashok Sahani and Barun Kumar (Supra) cases depends upon the testing of vires of Section 76(2) of the Act 2016 which is still pending before the Apex Court. Therefore, in my view, Brother Aditya Kumar Trivedi, J. rightly restrained himself from giving any finding on the principles laid down in Ashok Sahani and Barun Kumar (Supra) cases and recused himself from giving answer to the reference (question no. 2). I fully endorse the view of Brother Aditya Kumar Trivedi, J. and I am of the view that till final adjudication by the Hon’ble Apex Court regarding the vires of Section 76(2) of the Act, there is no need to give any answer to the reference (question no. 2).'' He added:''in my view, the Division Bench in Manish Kumar (Supra) case rightly recused to give answer to the reference made to it and, therefore, I endorse the views of my esteemed Brothers Aditya Kumar Trivedi, J. and Ashutosh Kumar, J. The reference (question no. 5) is answered accordingly.
Having perused these observations of the judges of the 3-Judge Bench, Justice Trivedi concluded:''it is evident that there is unanimity of opinion with respect to question Nos.1,3, 4 and 5. The answers to the aforesaid questions under reference is thus construed accordingly. So far as the view expressed on question No.2 of the reference is concerned, there is slight variance in the opinion of Hon'ble Mr. Justice Ashutosh Kumar with the opinions rendered by me and Hon'ble Mr. Justice Hemant Kumar Srivastava. Thus, the majority opinion on question No.2 of the reference is the opinion rendered by me and Hon'ble Mr. Justice Hemant Kumar Srivastava. Office is, accordingly, directed to place the records of this case before Hon'ble the Chief Justice for the needful.''
In view of the answers to the questions formulated by the Chief Justice, it is evident that the Full Bench did not arrive at any conclusive decision because the matter was pending before the Supreme Court. Therefore, it is not clear as to why Justice Prabhat Kumar Singh had referred to High Court's Full Bench decision in Ram Vinay Yadav vs. The State of Bihar reported (2019) to reject the anticipatory bail.
No comments:
Post a Comment