Supreme Court reverses anticipatory bail denial order by Justice Rudra Prakash Mishra

In Amarjit Yadav @ Amarjit Kumar vs. The State of Bihar (2026), Supreme Court's Division Bench of Justices Aravind Kumar and Prasanna B. Varale passed a 5-page long order dated February 20, 2026. The order reads: "....we do not find any good ground to deny the prayer sought for by the appellant. Hence, appeal is allowed and appellant is ordered to be enlarged on anticipatory bail by the jurisdictional Investigating Officer...." It reversed the 3-page long order dated June 27, 2025 by Justice Rudra Prakash Mishra of the Patna High Court. The appellant had approached the Supreme Court apprehending his arrest in the FIR registered on May 13, 2025 under Sections 30(a), 32(c) and 41(1)(2) of the Bihar Prohibition and Excise (Amendment) Act, 2022 after denial of anticipatory bail by the High Court. 

The gist of the prosecution case is that appellant was a prospective purchaser of 260.250 liters of Indian made Foreign Liquor, which was being transported in a truck from Haryana to Bihar and the driver of the truck Sunil Paswan in his statement had disclosed the name of appellant as the potential buyer.

The Court observed: "It is an admitted fact that the contraband has not been seized from the possession of appellant and it is based on the co-accused statement, the appellant has been roped in as an accused. The courts-below had rejected the prayer of the appellant on the ground of his criminal antecedents, however none of the offences alleged are under the Bihar Prohibition and Excise (Amendment) Act, 2022. Be that as it may, pursuant to our interim order, appellant has appeared before the Investigating Officer and has cooperated with the investigation which is also fairly admitted by the learned standing counsel appearing for the respondent."

Before the High Court, the counsel for the petitioner had submitted that the petitioner was innocent and was falsely implicated in the case. The petitioner had no concern with the alleged recovery of liquor. He also submitted that the petitioner was not present at the place of occurrence. It was submitted that the petitioner was neither owner nor driver of the truck in question. Name of the petitioner transpired in this case on the basis of confessional statement made by co-accused person as the petitioner was receiver of the seized items and the same has got no evidentiary value. He submitted that similarly situated co-accused was granted regular bail by this Court vide order dated April 2, 2025 passed in Cr. Misc. No. 19754 of 2025. There is no compliance of Section 103 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

In his order Justice Mishra had concluded: "6. Considering the aforesaid facts and circumstances of the case and criminal antecedents of the petitioner, this Court is not inclined to grant anticipatory bail to the petitioner. 7. The prayer is rejected. However, the petitioner is directed to surrender in the Court below and pray for regular bail. If any such application is filed, the Court below shall consider and dispose of the same on its own merit without being prejudiced by this order." 

 

Supreme Court reverses bail rejection order by Justice Prabhat Kumar Singh

In Munna Prasad @ Sanjiv Prasad vs. The State of Bihar (2025), Supreme Court's Division Bench of Justices J.K Maheshwari and Vijay Bishnoi passed a 4-page order dated November 4, 2025, wherein, it concluded:''we direct that in the event of arrest, the petitioner shall be released on bail on furnishing suitable bail bonds and sureties and on such other terms and conditions as may be deemed fit by the Station House Officer of the concerned police station.'' The order reads: ''we deem it appropriate to confirm the order of interim protection and deem it appropriate to release the petitioner on anticipatory bail.'' 

The petitioner had approached the Supreme Court apprehending his arrest in connection with FIR dated May 20, 2025 registered at Police Station Manjhauliya, District West Champaran (Bettiah), Bihar for the offences punishable under Sections 30(a) of the Bihar Prohibition and Excise Amendment Act, 2022. The Court had granted interim relief by its order dated September 19, 2025 by directing that nocoercive steps subject to cooperation in the investigation, was issued.

Earlier, in Munna Prasad @ Sanjiv Prasad vs. The State of Bihar (2025), Patna High Court's Justice Prabhat Kumar Singh passed a 2-page long order dated July 2, 2025 concluded:''Considering the nature of accusation and the fact that huge quantity of illicit liquor was recovered from the poultry farm of the petitioner, the prayer for grant of anticipatory bail to the petitioner is rejected.'' 2. The petitioner apprehends his arrest in a case registered for the offence punishable under Section 30(a) of the Bihar Prohibition and Excise Act. 

According to the prosecution case, 240 litres of illicit liquor was recovered from poultry farm of the petitioner. 

The counsel appearing on behalf of the petitioner submitted that petitioner was quite innocent and had committed no offence. No incriminating article was been recovered from conscious possession of this petitioner and he has falsely been implicated in this case merely on suspicion. The alleged illicit liquor has been recovered from an open place, which is accessible to one and all.The A.P.P. for the State had vehemently opposed the prayer for grant of anticipatory bail to the petitioner and submitted that huge quantity of liquor was recovered from the poultry farm of the petitioner.

Justice Partha Sarthy dismisses application seeking appointment on compassionate ground on Class IV post under Munger Judgeship

In Ajay Kumar vs. The High Court of Judicature at Patna, through the Registrar General, Patna High Court, Patna & Ors. (2025), Justice Partha Sarthy of Patna High Court delivered a 6-page long judgement dated October 30, 2025 dismissing the application. Justice Jha concluded: ''12. So far as the facts of the instant case is concerned, even taking into consideration the 5% strength to be, as evident from the report of Nazir, there are already 20 persons working as Class-IV employees having been appointed on compassionate ground. 13. In view of the facts and circumstances stated herein above, the Court finds no merit in the instant application and the same is dismissed.'' 

The judgement reads:"From perusal of the records, it transpires that a decision was taken by the Patna High Court on its administrative side and which was communicated to all the District and Sessions Judges of Bihar by letter dated 4.1.2016 of the Registrar (Admn.) I/c which was to the effect that the appointment on compassionate ground is to be considered with a restriction that the total strength of compassionate appointees would not exceed 3% of the sanctioned strength of the cadre in which such appointment is being considered. A perusal of the minutes of the meeting of the Appointment Committee of Munger Judgeship held on 7.1.2025 and brought on record as annexure to the reply filed on behalf of the petitioner would show that a report was submitted by the Nazir, Civil Court, Munger stating that the sanctioned post of Class-IV employee in the Judgeship is 170 and 5% thereof would be 8.5. As there are already 20 Class-IV employees who have been appointed on compassionate ground and all of them are working in the Judgeship, no further appointment can be made. It may be mentioned here itself that the report talks about 5% employees working on compassionate ground for the reason that subsequent to the above-mentioned decision of 3%, the same had been increased to 5%."

Justice Partha Sarthy observed:"So far as the contention of learned counsel for the petitioner about the restriction of 3% being prospective and not retrospective is concerned, in the opinion of the Court, the same has been applied in a prospective manner, the father of the petitioner having died on 5.6.2016 subsequent to the said decision having been taken and communicated on 4.1.2016. So far as reliance placed on the judgment dated 9.2.2023 passed in L.P.A. no. 127 of 2022 is concerned, in the opinion of the Court, the same is of no assistance to the petitioner. In the facts of the said case, the application of the petitioner therein was rejected on ground of restriction of 3% taken by the High Court on 4.1.2016...."

He added:"The Court while dealing with the policy of the State Government had observed that as it is the practice of the State of preserving 5% of the total sanctioned strength in a district for compassionate appointment and a new rule i.e. The Bihar Civil Court Officers and Staff (Recruitment, Promotion, Transfer and Other Service Conditions) Rules, 2022 had been promulgated which provided for 5% cap on compassionate appointment, the case of the petitioner may be considered by the High Court Administration taking the same into consideration."

The petitioner had prayed for issuance of writ of certiorari for setting aside the decision of meeting of Appointment Committee of Munger Judgeship held on June 11, 2018, whereby and whereunder the appointment of petitioner on compassionate ground was denied. He had also prayed for issuance of writ of mandamus commanding the Respondent authorities directing them to appoint the petitioner on compassionate ground on Class IV post under Munger Judgeship treating the case of petitioner on humanitarian ground.

The case of the petitioner was that the father of the petitioner having died in harness on June 5, 2016 while working in Class-IV post in the Office of the Sub-Divisional Judicial Magistrate at Munger, the petitioner applied for appointment on compassionate ground on September 27, 2016 before the District and Sessions Judge, Munger. He submitted the required papers including affidavits of his mother and brother, however,the Appointment Committee of the Munger Judgeship by a decision taken in its meeting held on June 11, 2018 rejected the application of the petitioner for his appointment on compassionate ground. 

The other four Respondents were:Registrar General, Patna High Court, District and Session Judge, Munger cum Chairman of Appointment Committee of Munger Judgeship, Additional District Judge, Munger cum Member No.1 of Appointment Committee of Munger Judgeship, and Additional District Judge II Munger cum Member No. II of Appointment Committee of Munger Judgeship. 

Supreme Court grants relief, Patna High Court's Justice Ramesh Chand Malviya had declined anticipatory bail

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."

57,537 undertrials in prisons without conviction in Bihar

Bihar has 57,537 undertrials at the end of 2022, which is 13.2% of all the undertrial prisoners in India, according to Prison Statistics India–2022 released by the National Crime Records Bureau (NCRB). Its Prison Statistics India (2022) Report (PSI). The PSI is based on the data furnished by the Prison Department of all 36 States/UTs for a calendar year i.e. January 01 to December 31, 2022, as per the NCRB prescribed proformae through an Application developed by NCRB. It reveals that above 75% prisoners are under- trials, The actual occupancy of prisons is 131%. There are 1.9% incidence of recidivism, the percentage of former prisoners who are rearrested for a similar offense. The report discloses that reasons of unnatural deaths of 63 prisoners in prisons is unknown. 

The number of undertrial prisoners in Bihar was 44,187 at the end of 2020. It constituted 11.9% of all the undertrial prisoners in India, according to Prison Statistics India–2020 released by NCRB. 

Most of these prisoners belong to SC, ST and OBC communities. 

In Re: Policy Strategy for Grant of Bail (2022), the Supreme Court recommended the release of undertrial prisoners by upholding the principle of presumption of innocence and the right to a speedy trial. 

An under-trial prisoner is one who has been remanded to judicial custody and lodged in prison upon an allegation of having committed some offence defined and made punishable under some penal law in force with a view to remaining available to meet the charges and face trial. When the trial concludes and the accused is held guilty, the accused becomes a convict lodged in the jail serving the sentence. He ceases to be an under-trial prisoner in the case in which he has been convicted. It may be that convict lodged in prison is taken on remand in another case. He then becomes an under-trial prisoner for the said another case.  

The Supreme Court’s judgment in 2014 held that undertrials can be released on bail on personal bonds provided half of the maximum period of sentence has already been spent inside the jail. 

Earlier, a report titled "Prisons of Bihar: Status Report-2015" by Smita Chakravarty, a researcher studied living conditions of all the 58 prisons of Bihar. She was assigned this study project by Justice V.N. Sinha, Judge of Patna High Court and Executive Chairman, Bihar State Legal Services Authority. It disclosed gross violation of human rights of the prisoners that are under the care and custody of the State. 

Notably, National Human Rights Commission had issued notices to the Chief Secretary and Director General of Prisons, Government of Bihar for factual reports.

The study is based on interview of 30070 inmates. The study highlighted the following issues:

" Complete absence of medical facilities in prisons, particularly for women;

" Bias against terror accused and undertrials by denying them even the copy of chargesheet in cases against them;

" Forced Labour by undertrials which is punishable under Indian Penal Code;

" Punishment of prisoners, under the discretionary powers provided by the Prison Manual Rules without supervision by an appellate body;

" Denial of free legal aid counsel to undertrials, as very few advocates meet the undertrials in the court and they are not represented when produced before the Magistrate;

" Condition of women prisoners and need of medical and psychiatric help etc.