Supreme Court sets aside regular bail rejection order by Justice Partha Sarthy in a rape case from Mohaniya, Kaimur, Bhabua

In Jokhan @ Jokhan Sant @ Dharmkant Sant vs. The State of Bihar Justice & Anr. (2026), Supreme Court's Division Bench of Justices Manoj Misra and Vijay Bishnoi passed a 4-page long order dated August 13, 2026, wherein, it set aside the order of Justice Partha Sarthy of Patna High Court. The order reads:"...we are of the view that the appellant is entitled to be released on bail at this stage. 9. Accordingly, the appeal is allowed. The order passed by the High Court rejecting the regular bail prayer of the appellant is set aside. 10. The appellant shall be released on bail on such terms and conditions as the trial court may deem fit to impose in the facts and circumstances of the case." 

The appeal arose from the order dated January 21, 2026 rejecting the regular bail prayer of the appellant in connection with P.S. Mohaniya, Kaimur, Bhabua. According to the prosecution case, the victim was found on the terrace of Ramakant’s house. Ramakant is the father of the appellant. The victim complained to her mother that she became unconscious because some scented handkerchief was put on her face by the appellant and, thereafter, she does not remember as to what happened. 

The order records: "5. It is not in dispute that her medical examination was conducted promptly and the medical report found no injury and no signs of recent sexual intercourse. Even to the Doctor, she had not reported any incident of sexual intercourse or sexual assault on her. 6. The submission on behalf of the appellant is that he has been falsely implicated; there is no medical report to corroborate the allegations which were leveled as an afterthought; and they never appeared in the First Information Report or in the statement of the victim made to the Doctor. In such circumstances, it is submitted that the appellant, who has no previous criminal antecedents and has suffered incarceration for a period exceeding one year, is entitled to be released on bail at this stage." The counsel for the State-respondent opposed the prayer for bail but could not dispute that there was no specific allegation of sexual assault in the First Information Report and there is no corroboration of the aforesaid allegation in the medical examination report. 

Earlier, in Jokhan @ Jokhan Sant @ Dharmkant Sant vs. The State of Bihar & Anr (2025), Justice Partha Sarthy had passed a 2-page long order dated January 21, 2026, wherein, he had concluded:"6. Having heard learned counsel for the parties and taking into consideration the facts and circumstances of the case, the material that has transpired in course of investigation specially the contents of the statement of the victim recorded under section 183 B.N.S.S., the Court is not inclined to enlarge the petitioner on bail and the application is rejected. 7. Liberty is granted to the petitioner to renew his prayer for bail after six months or on framing of charge, whichever is later."

The petitioner had approached the High Court for grant of regular bail in connection with Mohaniya P.S. Case no. 676 of 2025 registered under sections 126(2), 115(2), 76, 64 and 62 of the Bharatiya Nyaya Sanhita (BNS), 2023 and sections 8 and 12 of the POCSO Act. As per the prosecution case, the petitioner was accused of having assaulting and outraging the modesty of the minor daughter of the informant as a result of which she fell unconscious and regained consciousness after three to four hours in the hospital. The counsel for the petitioner had submitted that the petitioner has been falsely implicated in the case as a result of differences between the parties who are next door neighbours. The petitioner has no criminal antecedent and he is in custody since August 5, 2025. Referring to the order of the trial Court, it was submitted that even as per the medical report, there is no finding of rape. The application for bail is opposed by APP for the State who submitted that the petitioner was named in the FIR and there is direct allegation against him. Even in her statement under section 183 B.N.S.S., the victim had given a detailed description of the assault etc by the petitioner.

Section 126 of the BNS defines and penalizes the offense of wrongful restraint, which occurs when someone voluntarily stops a person from moving in a direction they have a legal right to go. It replaces Section 341 of the IPC. 

Section 115 of BNS deals with voluntarily causing hurt. It replaces the old Section 323 of the Indian Penal Code (IPC).

 Section 76 of the BNS deals with the offense of assaulting or using criminal force against a woman with the intent to disrobe her or force her to be naked.

Section 64 of BNS has replaced Section 376 of the IPC to define the punishment for rape, mandating at least 10 years of rigorous imprisonment, potentially extending to life imprisonment, and a fine. Section 62 of BNS provides for punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.

Justice Arun Kumar Jha sets aside Appellate Court's order in a juvenile's case

In XXX S/o Jeebachh Yadav @ Jivach Yadav Being Minor represented through under guardian ship of her mother namely Ramkumari Devi vs, The State of Bihar (2925),  Justice Arun Kumar Jha of Patna High Court delivered a 8-pagr long judgement dated November 4, 2025, wherein he concluded:''12. Therefore, having regard to all the facts and circumstances and considering the provisions of law applicable to grant of bail to a child in conflict with law, I am unable to agree with the finding recorded by the learned Appellate Court and therefore, the order of the learned Appellate Court dated 07.05.2025 is set aside and the present revision petitioner is allowed. Hence, the petitioner/juvenile in conflict with law is directed to be released on bail, on furnishing bail bonds of Rs.10,000/- (Rupees Ten Thousand Only) each with two sureties of the like amount each to the satisfaction of learned Additional Sessions Judge-I-cum- Special Judge, Children Court, Madhubani/concerned court, in connection with Juvenile Appeal No. 07 of 2025 arising out of Khutauna P.S. Case No. 19 of 2024, subject to the following conditions: (i) One of the bailors will be the mother of the petitioner and other bailor will also be relative of the petitioner having no criminal antecedent. (ii) The petitioner shall remain present before the Board on each and every date of trial of the case fixed by the Board.'' The judgement was upon hearing the criminal revision petition.  

The petitioner was a juvenile in conflict with law and the revision petition has been filed for setting aside the order dated 07.05.2025 passed in Juvenile Appeal No. 07 of 2025 arising out of Khutauna P.S. Case No. 19 of 2024 registered under Section 399, 402, 120B of the Indian Penal Code and 25(1-b)a, 26, 35 of the Arms Act by the Additional Sessions Judge-I-cum-Special Judge, Children Court, Madhubani whereby and whereunder the Appellate Court rejected the appeal of the petitioner and the prayer of the petitioner for grant of bail.

According to the prosecution case, police apprehended the petitioner and three other co-accused persons while they assembled for making preparation to commit crime and 2-3 persons managed to escape from the spot taking advantage of darkness. Recovery of arms, ammunition and mobile phones were made from other co-accused persons. From the possession of the petitioner a mobile phone was recovered.

The counsel for the petitioner submitted that the impugned order is not sustainable and the Appellate Court has passed the order without considering the facts and law. The Appellate Court rejected the prayer for bail on the ground of the Social Investigation Report of the petitioner but the said report has been prepared with false averments by submitting that petitioner was not in control of his mother and there was absence of moral and ethical values in the house and for this reason, there was possibility of involvement of the petitioner in anti-social activities after his release. But the petitioner never indulged in any illegal activities and his mother undertakes to take control of her son in future and not to allow him to indulge in any criminal activities. The counsel also submitted that petitioner was a minor and seriousness and gravity of offence could not be considered while granting bail to the petitioner who is a child in conflict with law. The Social Background Report and the Social Investigation Report have been prepared on the basis of wrong facts. It is the requirement of law that unless reasonable grounds are available to believe that in the event of grant of bail, the petitioner would go into association of any known criminals and he would be exposed to moral, physical and psychological danger or that the release of the petitioner would defeat the ends of justice, the prayer for bail ought not to be rejected. But the Appellate Court in general and vague terms and without considering the express provisions of law went on to reject the prayer for bail of the petitioner and at the same time also mentioned that the allegation against the petitioner was serious in nature. The same could not be a consideration for rejection of bail of the petitioner. The counsel for the petitioner further submitted  that the petitioner and other co-accused persons were apprehended by the police party with allegation that they had been making plan for committing dacoity and some of the co-accused persons were apprehended with firearms and ammunition but from the possession of the petitioner recovery of only a mobile phone was made and no firearm or ammunition were recovered from his possession. The petitioner had been made accused in two more cases on the basis of confessional statement of co-accused Pankaj Kumar and prior to that there was no criminal antecedent of the petitioner. Both the cases were lodged on 19.01.2024 and subsequently the petitioner was apprehended in this case on 23.01.2024 showing as one of the accused persons and since then the petitioner is in custody. Other co-accused persons were n granted bail by Co-ordinate Bench of the High  Court vide order dated 30.07.2024 passed in Cr. Misc. No. 47886 of 2024, order dated 05.09.2024 passed in Cr. Misc. No. 60492 of 2024 and order dated 04.12.2024 passed in Cr. Misc. No. 82496 of 2024. The counsel submitted that since no grounds are forthcoming for believing that release of petitioner was likely to bring him into association of any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice, the order of the learned Appellate Court is not sustainable. 08. Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads: “Section 12 Bail to a person who is apparently a child alleged to be in conflict with law.

1) When any person, who is apparently a child and is alleged to have committed a a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person: Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the persons release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision. 
(2) When such person having been apprehended is not released on bail under sub-section (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation
home 1[or a place of safety, as the case may be] in such manner as may be prescribed until the person can be brought before a Board. (3) When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.(4) When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail.” Therefore, there exists a non-obstante clause that child in conflict with law shall be released on bail notwithstanding anything contained in the Code of Criminal Procedure, 1973. 

The relevant portion of Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for the general principles of care and protection of children and are extracted herein below:- 
“Section 3 : General principles to be followed in administration of Act. (i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years.  (iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential. (v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be. (xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances.” 

The judgement reads: ''Underlying principle is the best interest of the child and gravity and nature of offences are immaterial for consideration of grant of bail to a child/juvenile in conflict with law. It is the duty of the Court to ensure that any decision taken in respect of the child must be based on the primary consideration of the best interest of the child. Proviso to Section 12 makes certain exceptions for refusal of bail to a child in conflict with law. Apparently, bail to a child in conflict of law could be denied only on certain conditions specially on the ground that the child in conflict with law would come into association of any known criminal or there would be moral, physical or psychological danger if the child is released on bail or that the ends of justice would be defeated by such release.''

Justice Jha observed: ''The Appellate Court has not discussed the issues except making bland assertion that the petitioner was an active member of a gang of robbers and was a criminal minded and was not under control of his parents. Though the petitioner is having antecedent of two cases, the circumstances around lodging of these two cases does not rule out the possibility of false implication. It has not been mentioned how the learned Appellate Court arrived at the finding that the child was not in control of his mother and there is absence of moral and ethical values in the house or that there was possibility of involvement of petitioner in anti-social activities after his release. Further, considering the serious nature of allegation against the petitioner for denying the bail was simply uncalled for and unwarranted.

High Court's Division Bench endorses termination of petitioner

In Deepak Dwivedi vs. The State of Bihar through the Principal Secretary, General Administration Department (2025), Patna High Court's Division Bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy, dismissed the appeal and approved the judgement of Justice Madhuresh Prasad, the single judge because the appellant never joined his duty and, therefore, he was never confirmed as he never passed the required examination nor did he appear for any competency test for typing on a typewriter or computer." 

Justice Prasad had recorded that the Department had constituted a Medical Board to verify/ascertain his claim of being medically unfit, he refused to appear before the Medical Board for being examined in spite of repeated opportunities being granted to him. In the circumstance, the authorities have found thep petitioner's conduct to be unsatisfactory and undesirable in the administrative set up. Under the 2007 Act, there is a provision that an Assistant, as the petitioner, initially is appointed on probation for two years from the date of appointment. It also provides that the period of probation may, if the appointing authority may deem fit, be extended but for total period which may not in any case exceed three years. Even in the extended period, the service is found to be unsatisfactory, service is liable to be terminated. It is in exercise of this power that the petitioner's service, having regard to the facts and circumstances, has been found to be unsatisfactory. The petitioner has rightly been terminated. The petitioner was still a probationer as per the 2007 Act under which he was appointed. The impugned order therefore does not require any interference."

The Division Bench concluded that "it would be presumed that his period of probation continued and during the period of probation, his services being found to be absolutely unsatisfactory, he was terminated from service." The other respondents were: Additional Secretary to the Govt. of Bihar, General Administration Department, Bihar Patna and Under Secretary, Minority Welfare Department. The judgement was authored by Justice Kumar. 

The Bihar Secretariat Services Act, 2007 would be applicable to the case of the appellant. Section 10 of the Act of 2007 provides that every person directly recruited to the grade of Assistant shall initially be appointed on probation. The period of probation shall be of two years from the date of appointment. The period of probation may, if the appointing authority deems fit, be extended but the total period of extension of probation shall not in any case exceed three years. In case of service being unsatisfactory in the extended period also, the service of the person may be terminated. It was noted that Section 10 has to be read with Section 12 which provides for the manner in which an employee is confirmed in service.

The petitioner's challenge to the order of termination failed before the Single Judge, on the ground that the appellant had never been confirmed in service and therefore there was no requirement before terminating his services to put him to the rigors of domestic proceedings, rejected the writ petition. The Court pointed out that it appears from the records that immediately after the appointment of the appellant as an Assistant on February 21, 2014, he was posted in the office of the Resident Commissioner, Bihar Bhavan on April 3, 2014. 

When he was transferred to the Minority Welfare Department of the Govt. of Bihar on October 10, 2014, he proceeded on leave on the ground of illness and remained on continued leave for a long time. The plea of the appellant was rejected and he was given 15 days time to resume his duties, failing which, disciplinary action would be taken for terminating his services. It could not fetch the appellant to his place of work. He later joined the services on 02.09.2015 along with a certificate of fitness from Allahabad. Since it was election time and there was requirement of man-power, therefore, the General Administration Department accepted his joining. The appellant again went on casual leave, never to return. In the meantime, two years passed by but because of the absence of the appellant, there was no confirmation and, therefore, he remained under probation.

It is essential to be noticed in this judgment that the appellant was asked to appear before a Medical Board for confirmation of his medical unfitness to join his duties and to test whether he had been malingering for all this while, but he refused to appear before the Medical Board for reasons inexplicable to the Department.

His services were terminated in this backdrop. The contention raised in the appeal was that the appellant had crossed the period of probation and therefore without subjecting him to departmental proceeding, his services could not have been terminated. The Division Bench observed:"A person appointed on probation after satisfactory completion of probation period as well as on completion of required training and on passing of required departmental examination and passing the test for competency in typing on typewriter or computer, shall be confirmed by the appointing authority."