Chief Justice V. Kameswar Rao, Justice Partha Sarthy to hear case of indpendence of prosecutor for admission, will Justice Dr. Anshuman's verdict be declared per incuriam?

In Punit Kumar Srivastava vs. The State of Bihar through the Additional Chief Secretary, Home, Government of Bihar & Ors. (2026), Patna High Court's Division Bench of  Chief Justice V. Kameswar Rao  and Justice Partha Sarthy to hear a LPA against the 8-page long judgement by Justice Dr. Anshuman who has concluded:"13. In light of the provisions under Rule 27 of the Bihar Prosecution Manual, 2003, the contention of the petitioner is not sustainable in the eyes of law that, being a Prosecution Officer, he shall always be posted as a District Prosecution Officer, as the Rules governing him, namely the Bihar Prosecution Manual, 2003, itself provide specific provisions for appointment/deputation in other departments as well, wherever the Government or the parent department is in need. 14. So far as the judgment on which the petitioner relied shall not applicable upon the petitioner as those judgments are of 1996 and of 1992 when the Bihar Prosecution Manual has not been enacted. This Court is of the firm view that the services of the petitioner shall be guided by the Bihar Prosecution Manual, 2003 and not by any other law till the said prosecution manual any of its provision shall not be declared ultra vires by the Court of competent jurisdiction. Working in any office on deputation cannot be said to be worked under the administrative and disciplinary control of the said department due to the reason that the petitioner is ultimately the employee of Bihar Prosecution Service and the rule framed under Rule 31 of the Manual shall also binding upon upon. 15. In the light of the discussions and reasons mentioned above, this Court is of the firm view that petitioner has no case and, hence, this writ petition is dismissed." The case was filed on January 28, 2025. It was registered on February 1, 2025.  The LPA is listed for hearing on admission. 

The L.P.A was field on June 9, 2026 and registered on June 10, 2026. The four other respondents are: 2.  The Additional Chief Secretary, Home Department, Government of Bihar, 3. The Secretary, Home Department, Government of Bihar, 4. The Director, Prosecution, Directorate of Prosecution, Home Department, Bihar and 5. The District Prosecution Officer, In-charge, Rohtas, Sasaram. It arose from Civil Writ Jurisdiction Case No. 1855 of 2025.  Notably, Clause 3 of Prosecution Manual, 2003 provides for constitution of Bihar Prosecution Service. Working in any department on deputation puts the one who has been deputed under the administrative and disciplinary control of the department. A joint reading the decision by Justice Dr. Anshuman and the Supreme Court's decision in S.B. Sahane vs. State of Maharashtra & Ors. AIR 1995 SC 1628 reveals that the former is per incuriam as it did not refer to the latter, which has settled the law. 

In M/s Bajaj Alliance General Insurance Co. Ltd. vs. Rambha Devi & Ors. 2024 INSC 840, the 5-Judge Constitution of Bench of the Supreme Court has held, “… when dealing with the ignorance of a statutory provision, we may bear in mind the following principles. These may not however be exhaustive: 

(i) A decision is per incuriam only when the overlooked statutory provision or legal precedent is central to the legal issue in question and might have led to a different outcome if those overlooked provisions were considered. It must be an inconsistent provision and a glaring case of obtrusive omission. 

(ii) The doctrine of per incuriam applies strictly to the ratio decidendi and does not apply to obiter dicta. 

(iii) If a court doubts the correctness of a precedent, the appropriate step is to either follow the decision or refer it to a larger Bench for reconsideration. 

(iv) It has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam. In exceptional instances, where by obvious inadvertence or oversight, a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply.”

In Parveen Kumar @ Parveen Chauhan vs. State of Haryana & Ors. 2026 INSC 667, Supreme Court has reiterated that a judgment is per incuriam: (a) when its ratio is not reconcilable with an earlier decision rendered by a Bench of equal or higher strength; or (b) when a particular provision, a statute, a rule or a regulation has not been brought to the attention of the Court. 

Now it is for the Division bench of Chief Justice V. Kameswar Rao and Justice Partha Sarthy to ascertain how through a questionable subordinate legislation an attempt  has been made to orient the prosecutors towards securing  more convictions through executive instructions compromised the independence of prosecutors. The undue political influence is manifest in the manner in which criminal cases are withdrawn from prosecution.  Withdrawal from prosecution allows for weaker cases to fall out of the system, however  in practice negligible numbers of cases are  withdrawn in Bihar. The power is mostly usurped by state government to manipulate  the criminal justice system and use it as a site for electoral politics. This practice of the state government combined with the relatively limited discretion prosecutors in Bihar enjoy at the investigation stage and the early stage of a criminal trial  makes them vulnerable to executive interference. While independence from the investigating agencies has been secured, independence from the state executive is  equally important for optimal functioning of the office of public prosecution. The institutional arrangement under which public prosecutors operate have a significant influence on the discharge of their responsibilities inside the courtroom. 

Significantly, unlike Bombay High Court, the Supreme Court, the Patna High Court, Allahabad High Court and Punjab and Haryana High Court have upheld the need to ensure prosecutorial autonomy in the past. For prosecutorial autonomy and neutrality to translate into reality, questionable provisions under subordinate legislations like the Bihar Prosecution Manual 2003 and notifications under it which undermine prosecutorial autonomy ought to be read down to ensure compliance with Supreme Court's directions in S.B. Shahanae vs.State of Maharashtra. AIR19951628:1995 SCC (Cri)787, wherein, it has held that the appointment of officers or prosecutors of the Police Department as Assistant Public Prosecutors must be free them from the administrative and disciplinary control of the Police Department and its officers. The Supreme Court set aside the Bombay High Court's judgment, which impaired prosecutorial neutrality. 

In Jai Pal Singh Naresh & Ors. vs. State of Uttar Pradesh & Ors. 1976 CRILJ 3, the Allahabad High Court has held:“...if administrative and disciplinary control over the public prosecutors was entrusted to the officers of the Police Department, the very purpose for which Section 25 was enacted would be frustrated...The State government appoints Assistant Public Prosecutors and it can alone dismiss or remove them but that does not mean that the police officers to whom immediate disciplinary control has been entrusted will cease to have any right to exercise powers over the Assistant Public Prosecutors...Once they are liable to answer to the Superintendent of police and Inspector General of Police, in substance they are subordinate officers to them and they would be liable to carry out their orders and directions. The State Government while exercising its power of dismissal or removal is bound to be affected by the reports and opinion of those Police officers who have administrative and disciplinary control over the public prosecutors, therefore the contention that since the ultimate control vests with the State Government the immediate control of Police officers would not affect the independence of the prosecuting agency is fallacious.” 

In Krishan Singh Kundu vs. State of Haryana & Ors. 1989 CRILJ1 309, Punjab and Haryana High Court has held: "That the action of the respondent State of Haryana, in appointing a police officer as Director of Prosecution, that is, in charge of the Prosecution Agency of the State, is wholly illegal and violative of the very letter and spirit of Sections 24 and 25 of the Code of Criminal Procedure. We, therefore, by issuing a writ of certiorari, quash the appointment of the Director of Prosecution, Haryana, who happens to be an officer of the Police Department, and by issuing further a writ of Prohibition, we forthwith restrain the State of Haryana from permitting any police officer to occupy the office of the Director of Prosecution."

Earlier, the petitioner had filed the writ petition for issuance of writ of certiorari to quash the order of transfer vide Notification No. 145 dated January 16, 2025 at Serial No. 2 from the post of Sub Divisional Prosecution Officer, posted in the District Prosecution Office, Rohtas, Sasaram to the office of Vigilance Investigation Bureau, Bihar as law Officer and further prayer for quashing the relieving order No.8/2025 contained in Memo No. 144 dated April 4, 2025. The counsel of the petitioner submitted that the petitioner was appointed as Assistant Prosecution Officer vide Notification No. 1011 dated September 25, 2017 and was subsequently promoted to the post of Sub-Divisional Prosecution Officer vide Notification No. 2513 dated October 31, 2023, both issued by the Directorate of Prosecution, Home Department, Government of Bihar, Patna. It was also submitted that the petitioner, vide Letter No. 20 dated January 17, 2025, made a representation before the Director of Prosecution requesting that he be posted in any District Prosecution Office by rectifying or omitting his name at Serial No. 2 of the transfer notification. A similar representation was also submitted before respondent no. 2, namely, the Additional Chief Secretary, Home Department, Government of Bihar, Patna, but no relief was granted. The counsel also submitted that the High Court, vide order dated November 14, 1995 passed in CWJC No. 5573 of 1995, had directed the State authorities to create a separate prosecution cadre independent of the police department in terms of Section 25 of the Code of Criminal Procedure, so as to ensure that no Assistant Public Prosecutor remains subordinate to police officers. The order was challenged by the State of Bihar in LPA No. 294 of 1996, which came to be dismissed by a Division Bench of vide order dated November 4, 1996. The Special Leave Petition preferred before the Supreme Court was also dismissed.    

Prior to this in The Bihar Prosecution Officer's Association through its General Secretary & Ors. vs. .The State of Bihar through the Chief Secretary, Government of Bihar & Ors. (2013), Justice Samarendra Pratap Singh of Patna High Court has delivered a 35-page long judgement dated January 24, 2013, wherein, he observed:"It is relevant to state that the Law Commission of India suggested that the post of Public Prosecutor must always be filled by the member of the Bar from panel prepared by the District Magistrate in consultation with the Sessions Judge. The Commission further suggested that 50% of the post of Additional Public Prosecutor in a district must always be filled by the bar from the panel prepared by the District Magistrate under section 24(4) in consultation with the Sessions Judge and remaining 50% of the post of Additional Public Prosecutor in a district should be filled from amongst Public Prosecutor who are in regular cadre of Prosecuting officer. The Commission suggested that 50% post of Additional Public Prosecutor to be filled by the Assistant Public Prosecutor should be from a penal prepared by the State Level Committee consisting of (a) a retired High Court Judge/sitting High Court Judge, nominated by the Chief Justice of that High Court, (b) the Law Secretary in the State Government, (c) an officer of the rank of Secretary of that State and (d) Director of Prosecution." 

Justice Singh recorded: "The Law Department, respondent no.5, has states in paragraph 7 of the supplementary counter affidavit that after due consideration of 197th report of the Law Commission of India, the Government of Bihar has accorded its assent to the suggestion of the Law Commission and views and comments of Government of Bihar has been communicated to the Ministry of Home, Government of India, New Delhi vide letter dated 27.7.2011. The relevant extract of 197th report of the Law Commission of India on Public Prosecutor‟s appointment is quoted hereinbelow:
“……….We have, therefore, suggested that the post of Public Prosecutor must always be filled by a member of the Bar from a panel prepared by the District Magistrate in consultation with the Sessions Judge, that 50% of the posts of Addl. Public Prosecutor in a District must also be filled by the Bar from the panel prepared by the District Magistrate under sec. 24(4) in consultation with the Sessions Judge and remaining 50% of the posts of Addl. Public Prosecutor in a District must be filled from among Asst. Public Prosecutors who are in the Regular Cadre of Prosecuting Officers. We have also recommended an express provision to be inserted in sec. 24(4) that the Sessions Judge must recommend names of lawyers who have personally conducted substantial number of Sessions cases and who bear good character. If such a Central amendment is brought, in case the State Amendments omit the provision of consultation with the Sessions Judge and the selection experience and good character, such a procedure will offend Art.14. Likewise, in regard to sec. 24(6), 50% of posts of Addl. Public Prosecutor, must be filled by Asst. Public Prosecutors from a panel prepared by a State Level Committee consisting of (a) a retired High Court Judge/sitting High Court Judge, nominated by the Chief Justice of that High Court, (b) the Law Secretary in the State Government, (c) an officer of the rank of Secretary of that State and (d) the Director of Prosecution. That Committee must assess the merit, experience, previous record of performance of the Asst. Public Prosecutors and it must be ensured that the persons selected bear good character. We have also stated that within six months of the proposed amendment to the Code, State Governments must constitute a Regular Cadre of Prosecuting Officers consisting of 50% of Posts of Addl. Public Prosecutors in a District and all the Asst. Public Prosecutors in the State. The above recommendations answer all the questions posed by the PMO in its letter to the Home Ministry.” It is expected that the State of Bihar would honour its own commitment and would act in terms of the recommendation of the Law Commission to which it has accorded its consent."

Justice Singh concluded:" In the backdrop of the aforesaid discussions made in the foregoing paragraphs, no mandamus can be issued directing implementation of section 24(6) Cr.P.C. in appointment of Public Prosecutor and Additional Public Prosecutor from Prosecuting Officers, as it would be in teeth of State Amendment substituted vide Act 16/84 substituting the word “may” in place of “shall” in section 24(6) Cr.P.C. of Explanation inserted by Act 25/2005 to the proviso to section 24(6) would not be of much help even assuming their exists even a regular cadre of Prosecuting officers, as long as the State amendment 16/84 to section 24(6) is not altered or declared invalid. Even the Prosecution Manual, 2003 on which the petitioners have placed reliance, also allows discretion under Clause 30¼d½ to the government in the matter of appointment of Public Prosecutor and Additional Public Prosecutor from amongst the Prosecution Officers. In the facts of the case, I issue following directions:
(i) As the cadre of Prosecuting Officers is working at the moment at less than half of its strength, I direct the Government to complete the process of selection for which requisition of 285 Assistant Public Prosecutor was made to B.P.S.C. between the years 2006 to 2010 expeditiously preferably within six months. All concerned would act accordingly to ensure compliance in public interest so that trial in Courts may not suffer.
(ii) The Government would take steps for appointment of 50% of Additional Public Prosecutor from cadre of Prosecution Officers as per its own affidavit and consent accorded to recommendation of Law Commission.
(iii) The Government in terms of earlier assurance as noted in foregoing paragraphs may in its discretion consider at least appointing 10% of Public Prosecutor under clause 30¼d½ as well as substituted section 24(6) amended under Act 16/84 from amongst Prosecution Officers.
(iv) The Government of Bihar would act in terms of section 25(A) inserted vide Act 25/2005 and take steps for appointment of a regular Director of Prosecution as well as Deputy Director of Prosecution to strengthen the functioning of Prosecution agency in absence of which the provision would remain only a paper worth." 

The Bihar Prosecution Officer's Association's case was adjudicated along with Shambhu Kumar & Ors. vs. The State of Bihar Through The Chief Secretary Government of Bihar & Ors. and Surya Nandan Tiwari & Ors. vs. The State Of Bihar Through The Chief Secretary Government of Bihar & Ors. (20213). Like Justice Dr. Anshuman and Justice Singh too missed the opportunity to draw on the Supreme Court's decision in S.B. Sahane vs. State of Maharashtra & Ors. AIR 1995 SC 1628, which conclusively settled the law. It held that the administrative and disciplinary control of police over the prosecutors is against the letter and spirit of Section 25 of the CrPC. The prosecutors must be fully free from the administrative and disciplinary control of the police department and its officers.  

Now it is for the Division Bench of Chief Justice V. Kameswar Rao and Justice Partha Sarthy to recognize the illegitimacy of encroachment by the state government's subordinate legisaltion to remove the checks on executive power in the matter of  appointments and through the set of rules and  instructions made by the state government that are intrinsically tied to the functioning of prosecutors. 

Also read: Will Bihar Prosecution Manual, 2003 prevail over High Court's judgments of 1992 and 1996?

Will Bihar Prosecution Manual, 2003 prevail over High Court's judgments of 1992 and 1996?

Everything has been said already, but as no one listens, we must always begin again. 

-Andre Gide, the winner of Nobel Prize in Literature (1947) in The Counterfeiters (1925)

The office of prosecutors shall be strictly separated from judicial functions.

- Guidelines on the Role of Prosecutors, Adopted by the Eighth United Nations Congress on the Prevention, of Crime and the Treatment of Offenders, 27 August-7 September 1990

In Punit Kumar Srivastava vs. The State of Bihar through the Additional Chief Secretary, Home, Government of Bihar & Ors. (2026), Patna High Court's Justice Dr. Anshuman delivered a-8page long judgement, wherein, he concluded:"13. In light of the provisions under Rule 27 of the Bihar Prosecution Manual, 2003, the contention of the petitioner is not sustainable in the eyes of law that, being a Prosecution Officer, he shall always be posted as a District Prosecution Officer, as the Rules governing him, namely the Bihar Prosecution Manual, 2003, itself provide specific provisions for appointment/deputation in other departments as well, wherever the Government or the parent department is in need. 14. So far as the judgment on which the petitioner relied shall not applicable upon the petitioner as those judgments are of 1996 and of 1992 when the Bihar Prosecution Manual has not been enacted. This Court is of the firm view that the services of the petitioner shall be guided by the Bihar Prosecution Manual, 2003 and not by any other law till the said prosecution manual any of its provision shall not be declared ultra vires by the Court of competent jurisdiction. Working in any office on deputation cannot be said to be worked under the administrative and disciplinary control of the said department due to the reason that the petitioner is ultimately the employee of Bihar Prosecution Service and the rule framed under Rule 31 of the Manual shall also binding upon upon. 15. In the light of the discussions and reasons mentioned above, this Court is of the firm view that petitioner has no case and, hence, this writ petition is dismissed." The case was filed on January 28, 2025. It was registered on February 1, 2025.  

The petitioner had filed the writ petition for issuance of writ of certiorari to quash the order of transfer vide Notification No. 145 dated January 16, 2025 at Serial No. 2 from the post of Sub Divisional Prosecution Officer, posted in the District Prosecution Office, Rohtas, Sasaram to the office of Vigilance Investigation Bureau, Bihar as law Officer and further prayer for quashing the relieving order No.8/2025 contained in Memo No. 144 dated April 4, 2025. The counsel of the petitioner submitted that the petitioner was appointed as Assistant Prosecution Officer vide Notification No. 1011 dated September 25, 2017 and was subsequently promoted to the post of Sub-Divisional Prosecution Officer vide Notification No. 2513 dated October 31, 2023, both issued by the Directorate of Prosecution, Home Department, Government of Bihar, Patna. It was also submitted that the petitioner, vide Letter No. 20 dated January 17, 2025, made a representation before the Director of Prosecution requesting that he be posted in any District Prosecution Office by rectifying or omitting his name at Serial No. 2 of the transfer notification. A similar representation was also submitted before respondent no. 2, namely, the Additional Chief Secretary, Home Department, Government of Bihar, Patna, but no relief was granted. The counsel also submitted that the High Court, vide order dated November 14, 1995 passed in CWJC No. 5573 of 1995, had directed the State authorities to create a separate prosecution cadre independent of the police department in terms of Section 25 of the Code of Criminal Procedure, so as to ensure that no Assistant Public Prosecutor remains subordinate to police officers. The order was challenged by the State of Bihar in LPA No. 294 of 1996, which came to be dismissed by a Division Bench of vide order dated November 4, 1996. The Special Leave Petition preferred before the Supreme Court was also dismissed. 

Notably, the reasoned order of the Supreme Court has not been cited in the order.  

It was also submitted that pursuant thereto, the Prosecution Manual, 2003 was framed and placed before this Court in MJC No. 2110 of 1997, whereby the Directorate of Prosecution and Prosecution Officers were freed from the administrative and disciplinary control of the police department. The counsel submitted that, after the enactment of the Code of Criminal Procedure, 1974, the prosecution service was intended to function independently of police control. The counsel also submitted that in a similar matter, where a Prosecution Officer was posted at Police Training College, Hazaribagh under the administrative control of the Principal-cum-D.I.G. of Police, a Division Bench of the High Court, vide order dated May 21, 1992 passed in CWJC No. 4287 of 1992, had stayed such transfer notification and directed appropriate posting. It was also submitted that despite settled legal position, the respondent authorities were ignoring the law as well as binding precedents of the High Court, inasmuch as Prosecution Officers cannot be placed under the administrative and disciplinary control of the police department or its officers. It was submitted that the petitioner was not even afforded an opportunity to exercise his option for posting.

The counsel for the respondent-State submitted that the petitioner was an officer of the Bihar Prosecution Service and was presently holding the post of Sub-Divisional Prosecution Officer. In the interest of prosecution administration, the Government of Bihar, Home Department, Directorate of Prosecution, issued Notification No. 145 dated January 16, 2025, whereby 13 Prosecution Officers, including the petitioner, were transferred. It was submitted that all such officers, except the petitioner, joined their respective places of posting. It was submitted that the petitioner was transferred to the Vigilance Investigation Bureau, Patna, as a Law Officer against a sanctioned post, where several Prosecution Officers were already posted and drawing their salaries. The counsel submitted that the petitioner was duly relieved by the District Prosecution Officer In-charge, Rohtas (Sasaram), vide Order No. 8/2025, Memo No. 144 dated April 4, 2025, in compliance with the notification. The counsel further submitted that as per Resolution Memo No. 4521 dated April 3, 1989 issued by the Department of Personnel and Administrative Reforms, Government of Bihar, a gazetted officer was required to join the transferred place of posting within seven days of receipt of the transfer order, failing which departmental proceedings, including suspension, may be initiated. It was also mandated that the controlling officer must relieve such officer within the stipulated period. 

It was also contended that Rule 27 of the Bihar Prosecution Manual, 2003 permits posting/deputation of Prosecution Officers in other departments for legal work. The petitioner, being a government servant, is bound by the applicable rules and regulations. Accordingly, it was submitted that the writ petition was devoid of merit and is liable to be dismissed. 

Responding to the State's counsel, counsel for the petitioner submits that Rule 27 of the Bihar Prosecution Manual, 2003 does not authorize posting of Prosecution Officers under the administrative department or its officers, which would be contrary to the settled legal position. It was also submitted that such action is also in violation of Rule 31 of the Prosecution Manual, 2003. 

Justice (Dr.) Anshuman observed: "11. After hearing the parties and perusal of the record, it transpires to this Court that with a view to adjudicate this matter, it is necessary to quote the relevant extract of Bihar Prosecution Manual, 2003, which has been published in the Bihar Gazette (Extraordinary) No.177 dated 21st April, 2003. Article 309 of the Constitution of India empowers the appropriate legislature to regulate the recruitment and conditions of service for public servants serving the Union or a State. Admittedly, the petitioner who is an Officer of Bihar Prosecution Service and working as Bihar Prosecution Officer whose services have been guided by the Bihar Prosecution Manual, 2003. The State relied on Rules 27 and 31 of the said Manual. It transpired to the High Court that every Prosecution Officer was to work under the Department of Home and according to Rule 27 of the Bihar Prosecution Manual, 2003, 5 percent of total sanctioned post shall be available as reserve post and their appointment/deputation may be made in other department for doing the legal work."

The lack of independence and responsibility for prosecutors has undermined  their role in prosecutorial functions such as initiating the prosecution, gathering relevant evidence and withdrawing the case, where the prosecutor enjoys discretion under the law. The Law Commission of India and decisions of the Supreme Court recommended separation of prosecution from the police department, which led to amendments to the Code of Criminal Procedure, 1973 (now BNSS) to enforce separation and establish independent office of Public Prosecution. The 2005 amendment to the Code had introduced section 25A which suggested the establishment of a Directorate of Prosecution separate from the control of police agencies and under the administrative control of the home department of the state governments.

But Bihar is one of the states which has extend had executive interference in the functioning of the office of prosecution through excessive control over the appointment of the prosecutor. It is reluctant to establish a prosecutorial cadre in the state. The power to appoint prosecutors for the High Court and the District Courts belongs to both the union government and the state governments. But this power is not absolute as the process requires consultation with the judiciary to act as a check on the executive power. The executive in Bihar has attempted to circumvent the consultation requirements by amending the provision of section 24 as they apply to the state. Such amendments are in breach of the statutory provisions and eliminate the role of the judiciary in the appointment of prosecutors to the courts. 

States such as Bihar have made it optional to appoint prosecutors through the regular cadre envisaged under Section 24 (6) through Code of Criminal Procedure (Bihar Amendment) Act 1983 disregarding Court's decisions. 

It is the prosecutor’s responsibility to apply independent mind and decide upon the withdrawal of prosecution. This responsibility cannot be betrayed in the favour of those who are  above them on the administrative side. Before providing consent to the withdrawal of prosecution, the court shall be satisfied that the prosecutor is exercising his/her functions independently and that it is not an attempt to interfere with the normal course of justice for any illegitimate purpose. It has been held in Balvant Singh vs. State of Bihar AIR 1977 SC 2265 and State of Bihar vs. Ram Naresh Pandey AIR 1957 SC 389. 

But amendments by Bihar government and rules enacted by it has curtailed this prerogative. 

Supreme Court in K.J.John vs. State of Kerala (AIR 1990 SC 1902 held that a ‘regular cadre’ as mentioned in section 24(6) of the Code comprised a service with Assistant Public Prosecutor at the lowest level and Public Prosecutor (PP) at the top. 

The prosecutor is empowered to address the court with an opening statement before the trial commences. The prosecutor is expected to assist the court in framing accurate charges. The complete power to frame charges rests with the court. But in practice the prosecutor usually submit to the court to frame charges as recommended in the ‘Final Report’. The current structure disables prosecutor's ability to assist the court in either the investigation or the decision to charge. This approach has been criticized by the Court in Ramnaresh vs. State of Madhya Pradesh 2016 SCC OnLine MP 838.

The judgement raises the million dollar questions:can Bihar Prosecution Manual, 2003, a subordinate legislation prevail over High Court's judgments of 1992 and 1996? Can subordinate legislations like the Manual prevail over judgements by Supreme Court and High Court's in general? Will the judgement survive even after scrutiny by a larger bench? 

The larger bench will be have the opportunity to establish objective standards and a comprehensive process for appointment of PPs, guide executive direction to appoint special PPs, expand the role of the prosecutor at the pre-trial stage, eliminate executive interference in withdrawal of cases and create a system to ensure prosecutorial accountability. 

Patna High Court's Division Bench refuses to interfere with Justice Reddy's Judgement

In Bholi Devi vs. The North Bihar Power Distribution Company Limited through its Nanaging Director, Patna & Ors. (2025), Patna High Court's Division Bench of Justices Ashutosh Kumar, Acting Chief Justice and Partha Sarthy refused to interfere with the impugned judgment dated September 30  2024 passed in CWJC No. 6968 of 2024, by Justice A. Abhishek Reddy, the Single Judge of the High Court, on finding that the appellant had an alternative and effective remedy of preferring an application under Section 42 (5) of the Electricity Act, 2003 before the Consumer Grievance Redressal Forum (C.GRF). The Single judge had relegated Bholi Devi to prefer such complaint before this authority.  

The Division Bench condoned the the delay of 13 days in preferring the appeal . It observed:"It would be open for the appellant to approach the C.G.R.F. within a period of six weeks, to be counted from today, which shall be entertained by the C.G.R.F. and necessary orders in accordance with law shall be passed.  It would be open for the appellant to challenge the aforesaid order before the appropriate forum, should she deem it necessary to do so.  The interim arrangement in the impugned judgment shall continue till the time the complaint is decided by the C.G.R.F."  The judgement dated April 2, 2025 was authored by Justice Ashutosh Kumar. 

The other respondents were:Managing Director, North Bihar Power Distribution Company Limited, Patna, Assistant Electricity Engineer, Electricity Supply Sub Division, Simari Bakhtiyarpur/Sonvarsha Raj, Saharsa and Junior Electricity Engineer, Electricity Supply Sub-Branch, Simari Bakhtiyarpur, Saharsa.

Justice Reddy's 2-page long judgement reads: "It is needless to observe that before passing any order, thep petitioner shall be given an opportunity of hearing. Any order passed shall be communicated to the party. Till such time the final orders are passed to the application filed by the petitioner,the electricity connection restored by the department pursuant to the interim order of this order on 07.05.2024 shall continue, however, it is made clear that the petitioner shall pay the current monthly charges levied by the department within the stipulated time."

Union Finance minister declines special category status to Bihar in Budget 2025-26

Disregarding Chief Minister Nitish Kumar's demand for grant of Bihar special category status, ahead of Bihar assembly election in November 2025, Nirmala Sitharaman, the Union Finance Minister donned Madubani Sari to refer to Bihar on three occasions in her 57-page long budget speech. All the States including Bihar have again been taken for a ride because the Union government has increased its share in import duties by raising the Agriculture Infrastructure and Development Cess (AIDC) but reduced the Basic Customs Duty (BCD), which is shared with states.

In her eighth speech budget speech, she announced the establishment of a Makhana Board in Bihar. The initiative aims to enhance production, processing, and value addition of Makhana in the state. She said, "A Makhana Board will be established in the state to improve production, processing, value addition, and marketing of makhana. The people engaged in these activities will be organized into FPOs. The Board will provide handholding and training support to makhana farmers and will also work to ensure they receive the benefits of all relevant Government schemes." FPOs refers to Farmer Producer Organizations. FPO is a generic name, which means farmer- producers’ organization incorporated/registered either under Part IXA of Companies Act or under Co-operative Societies Act of the concerned States. A Producer Organisation (PO) is a legal entity formed by primary producers, viz. farmers, milk producers, fishermen, weavers, rural artisans, craftsmen. A PO can be a producer company, a cooperative society or any other legal form which provides for sharing of profits/benefits among the members. FPO is one type of PO where the members are farmers. The ownership of the PO is with its members. It is an organization of the producers, by the producers and for the producers.

The minimum number of membership depends on the legal form of the PO. For example, 10 or more primary producers can incorporate a Producer Company under Section 581(C) of Indian Companies Act 1956 (same provisions are retained in the 2013 Act). Section 465(1) of the Companies Act, 2013 mentions that "the provisions of Part IX A of the Companies Act, 1956 (1 of 1956) shall be applicable mutatis mutandis to a Producer Company in a manner as if the Companies Act, 1956 has not been repealed until a special Act is enacted for Producer Companies." There is no restriction on the maximum number of membership. The Income derived by a Producer Company through agricultural activities as defined in Income Tax Act, 1961 as amended from time to time, is treated as agricultural income and is exempted from taxation.

Producer Organisation can be registered under any of the following legal provisions:
a. Cooperative Societies Act/Autonomous or Mutually Aided Cooperative Societies Act of the respective State
b. Multi-State Cooperative Society Act, 2002
c. Producer Company under Section 581(C) of Indian Companies Act, 1956, as amended  in 2013
d. Section 25 Company of Indian Companies Act, 1956, as amended as Section 8 in 2013
e. Societies registered under Society Registration Act, 1860
f. Public Trusts registered under Indian Trusts Act, 1882

The PO can undertake the following activities:
a. Procurement of inputs
b. Disseminating market information
c. Dissemination of technology and innovations
d. Facilitating finance for inputs
e. Aggregation and storage of produce
f. Primary processing like drying, cleaning and grading
g. Brand building, Packaging, Labeling and Standardization
h. Quality control
i. Marketing to institutional buyers
j. Participation in commodity exchanges
k. Export

The minister announced that the capacity of the Indian Institute of Technology (IIT), Patna will be expanded as part of a broader initiative to enhance IITs. This includes developing additional infrastructure across five IITs to accommodate 6,500 more students. 

A National Institute of Food Technology, Entrepreneurship, and Management will be set up in Bihar to promote food processing activities. She said,"The institute will provide a strong fillip to food processing activities in the entire Eastern region. This will result in (1) enhanced income for the farmers through value addition to their produce, and (2) skilling, entrepreneurship and employment opportunities for the youth." Besides the expansion of  the Patna airport, the minister announced a brownfield airport in Bihta, Patna. The minister announced financial support for the Western Koshi Canal ERM Project benefiting a large number of farmers cultivating over 50,000 hectares of land in the Mithilanchal region of Bihar.

Bihar government had submitted a 32-page long memorandum to the minister seeking Rs 13,000 crore in central assistance for flood management in North Bihar, additional borrowing limit, 1% GSDP rebate for Bihar until its per capita income reaches the national average. The State had asked for initiation of Pradhan Mantri Gram Sadak Yojana-5.0 to widen and strengthen rural roads, a 250 km Greenfield Corridor from Birpur to Deoghar to promote religious tourism, connecting Nepal’s Pashupatinath to Vaidyanath Dham in Bihar-Jharkhand, construction of a 270 km high-speed corridor from Ladaniya to Nawada and a 135 km Raxaul-Dighwara corridor to enhance regional connectivity and facilitate goods transport to Nepal, establishment of PM Gatishakti Railway University in Jamalpur, Bihta-Aurangabad and Sultanganj-Deoghar railway lines, creation of 10 new Kendriya Vidyalayas and renovation of Vikramshila University. The Union Budget 2024-25 had announced Rs 59,000 crore for road connectivity, power, and flood management in Bihar. One year after the announcement, there is nothing visible on the ground to demonstrate that these announcements in the Union Budget Speech are meaningful. 

Union Budget is the Annual Financial Statement (AFS), as provided under Article 112 of the Constitution of India. It shows the estimated receipts and expenditure of the Government of India for 2025-26 along with estimates for 2024-25 and also actuals for the year 2023-24. The receipts and disbursements are shown under three parts in which Government Accounts are kept viz., (i) The Consolidated Fund of India, (ii) The Contingency Fund of India and (iii) The Public Account of India. The Annual Financial Statement distinguishes the expenditure on revenue account from the expenditure on other accounts, as is mandated in the Constitution of India. The Revenue and the Capital sections together, make the Union Budget. 

The estimates of receipts and expenditure included in the Annual Financial Statement are net of refunds and recoveries respectively. The significance of the Consolidated Fund, the Contingency Fund and the Public Account as well as the distinguishing features of the Revenue and the Capital portions are as under:

The Consolidated Fund of India (CFI) draws its existence from Article 266 of the Constitution. All revenues received by the Government, loans raised by it, and also receipts from recoveries of loans granted by it, together form the Consolidated Fund of India. All expenditure of the Government is incurred from the Consolidated Fund of India and no amount can be drawn from the Consolidated Fund without due authorization from the Parliament.

Article 267 of the Constitution authorizes the existence of a Contingency Fund of India which is an imprest placed at the disposal of the President of India to facilitate meeting of urgent unforeseen expenditure by the Government pending authorization from the Parliament. Parliamentary approval for such unforeseen expenditure is obtained, ex-post-facto, and an equivalent amount is drawn from the Consolidated Fund to recoup the Contingency Fund after such ex-post-facto approval. The corpus of the Contingency Fund as authorized by Parliament presently stands at `30,000 crore.

Money held by Government in trust are kept in the Public Account. The Public Account draws its existence from Article 266 of the Constitution of India. Provident Funds, Small Savings collections, receipts of Government set apart for expenditure on specific objects such as road development, primary education, other Reserve/Special Funds etc., are examples of moneys kept in the Public Account. Public Account funds that do not belong to the Government and have to be finally paid back to the persons and authorities, who deposited them, do not require Parliamentary authorization for withdrawals. The approval of the Parliament is obtained when amounts are withdrawn from the Consolidated Fund and kept in the Public Account for expenditure on specific objects (the actual expenditure on the specific object is again submitted for vote of the Parliament for withdrawal from the Public Account for incurring expenditure on the specific objects). 

The Union Budget can be demarcated into the part pertaining to revenue which is for ease of reference termed as Revenue Budget and the part pertaining to Capital which is for ease of reference termed as Capital Budget.

The Revenue Budget consists of the revenue receipts of the Government (Tax revenues and Non-Tax revenues) and the revenue expenditure. Tax revenues comprise proceeds of taxes and other duties levied by the Union. The estimates of revenue receipts shown in the Annual Financial Statement take into account the effect of various taxation proposals made in the Finance Bill. Non-tax receipts of the Government mainly consist of interest and dividend on investments made by the Government, fees and other receipts for services rendered by the Government. Revenue expenditure is for the normal running of Government Departments and for rendering of various services, making interest payments on debt, meeting subsidies, grants in aid, etc. 

Broadly, the expenditure which does not result in creation of assets for the  Government of India, is treated as revenue expenditure. All grants given to the State Governments/Union Territories and other parties are also treated as revenue expenditure in the books of Union Government even though some of the grants may be used for creation of capital assets by Grantee bodies/entities.

Capital receipts and capital payments together constitute the Capital Budget. The capital receipts are loans raised by the Government (these are termed as market loans), borrowings by the Government through the sale of Treasury Bills, the loans received from foreign Governments and bodies, recoveries of loans from State and Union Territory Governments and other parties and miscellaneous capital Receipts etc. Capital payments consist of capital expenditure on acquisition of assets like land, buildings, machinery, equipment, as also investments in shares, etc., and loans and advances granted by the Central Government to the State and the Union Territory Governments, Government companies, Corporations and other parties. 

The estimates of receipts and disbursements in the Annual Financial Statement and of expenditure in the Demands for Grants are shown according to the accounting classification referred to under Article 150 of the Constitution.

Article 113 of the Constitution mandates that the estimates of expenditure from the Consolidated Fund of India included in the Annual Financial Statement and required to be voted by the Lok Sabha, be submitted in the form of Demands for Grants. The Demands for Grants are presented to the Lok Sabha along with the Annual Financial Statement. Generally, one Demand for Grant is presented in respect of each Ministry or Department.

At the time of presentation of the Annual Financial Statement before the Parliament, a Finance Bill is also presented in fulfilment of the requirement of Article 110 (1)(a) of the Constitution, detailing the imposition, abolition, remission, alteration or regulation of taxes proposed in the Budget. It also contains other provisions relating to Budget that could be classified as Money Bill. A Finance Bill is a Money Bill as defined in Article 110 of the Constitution.

Kerala represents the cause of all the States, States' right to borrow referred to Constitution Bench

On April 1, 2024, in State of Kerala v. Union of India, Justices Surya Kant & K.V. Viswanathan bench of Supreme Court observed that "The main case be placed before Hon’ble the Chief Justice of India for constitution of an appropriate Bench." The original suit was filed on December 8, 2023. It was registered on January 6. 2024. The arguments were heard and the order was reserved on March 22, 2024. 

The State of Kerala had instituted the original suit under Article 131 of the Constitution of India against the Union of India. It has challenged amended Section 4 of the Fiscal Responsibility and Budget Management Act, 2003, whereby the Central Government is obligated to ensure that the aggregate debt of the Central Government and the State Governments does not exceed sixty percent of the gross domestic product by the end of Financial Year 2024-25. It challenged Union government's letter dated March 27, 2023 imposing a ‘Net Borrowing Ceiling’ on the State of Kerala, to restrict the maximum possible borrowing the State could make under law. It also challenged Union government's letter dated August 11, 2023 providing its consent to the State of Kerala to raise open market borrowing of Rs 1,330 crores underlining that the total open market borrowing allowed to the Plaintiff for the Financial Year 2023-24 was Rs 21,852 crores.

Under Chapter II, Part XII, Article 293 (1) of the Constitution which deals with "Borrowing by States", the Union of India does not have the power to regulate all the borrowings of a State and conditions can be imposed only on the loans sought from the Union Government. It reads: "293. Borrowing by States- 1) Subject to the provisions of this article, the executive power of a State extends to borrowing within the territory of India upon the security of the Consolidated Fund of the State within such limits, if any, as may from time to time be fixed by the Legislature of such State by law and to the giving of guarantees within such limits, if any, as may be so fixed." It is apparent that Union government has violated this provision of the Constitution by preventing Kerala to pursue its governmental duty under the four corners of Article 293 (1) of the Constitution of India. 

Kerala's cause is the cause of all the States. Meanwhile, Union had agreed to allow borrowing of Rs 13,608 crores if State withdrew its suit. This kind of approach amounts to blackmailing of States by the Union government. Why did Union of India, the defendant put a condition for withdrawal of the suit? Supreme Court rightly disapproved of the condition. There was a logical compulsion for Justices Surya Kant and K.V. Viswanathan to grant interim relief to Kerala against Union of India challenging limits imposed on State's borrowing capacities. In its 24 page long judgement, the Court records:"The Defendant has already made an offer to allow additional borrowing. In a meeting dated 15.02.2024, the Defendant first offered consent for INR 13,608 crores, out of which INR 11,731 crore was subject to the pre-requisite of withdrawal of the suit, a condition that we disapproved of. Subsequently, in a meeting dated 08.03.2024, the Union offered a consent for INR 5,000 crores. Further, vide circulars dated 08.03.2024 and 19.03.2024, the Union has accorded consent for INR 8,742 crores and INR 4,866 crores respectively, which comes to a sum total of INR 13,608 crores. Even if we assume that the financial hardship of the Plaintiff is partly a result of the Defendant’s Regulations, during the course of hearing this interim application, the concern has been assuaged by the Defendant – Union of India to some extent so as to bail out the Plaintiff – State from the current crisis. The Plaintiff thus has secured substantial relief during the pendency of this interim application." The State could secure "substantial relief" because Kerala, the plaintiff is on strong grounds.

Chief Justice Dr. D.Y. Chandrachud is likely to constitute a Constitution Bench of appropriate strength before July to affirm the recognized rights of the States. The rights of Union of India and States of India are limited by Constitution of India and the principles of constitutionalism.