Supreme Court reverses Patna High Court's order, "the material against the petitioner falls short of the threshold required for refusal of anticipatory bail"

In Santosh Kumar vs. The State of Bihar (2026), Supreme Court's Division Bench of Justices J.B. Pardiwala and Vinod Chandran passed a 3-page long order dated September 9, 2026, wherein, it concluded:" 2. The petitioner is accused of unlawfully dealing in illicit foreign liquor, which was seized from a motorcycle bearing registration No.BR/31/AU/6305, registered in his name. The said motorcycle was being ridden by two boys, who has been arrayed as co-accused. Upon searching the motorcycle, one bottle containing 750 ml of illicit foreign liquor was recovered. 3. The petitioner was denied anticipatory bail by the High Court considering the fact that he is the owner of the aforementioned motorcycle from which recovery was effected. 4. After considering the facts and circumstances of this case, we are of the opinion that the material against the petitioner falls short of the threshold required for refusal of anticipatory bail. 5. Therefore, we order that in the event of arrest of the petitioner in connection with the offence enumerated above, he shall be released on bail, subject to terms and conditions that the Investigating Officer may deem fit to impose. He is also required to cooperate and submit the evidentiary materials as required by the I.O. 6. Once the petitioner is released on bail by the IO, on directions issued by the IO or summons issued by the jurisdictional court, the petitioner shall appear before the jurisdictional court and furnish fresh bail bonds and ensure due appearance in the trial. 7. With the aforesaid, this petition stands disposed of."

The petitioner was denied anticipatory bail by page 1-page long order dated August 10, 2026 by Justice Prabhat Kumar Singh of Patna High Court in connection with FIR being No.5104015260260/2026 dated April 14, 2026 registered with Vaishali Thana (Police Station, Vaishali) District Vaishali, Bihar, for the offence punishable under Section 30(a) Bihar Prohibition and Excise Act, 2016. Justice Singh had concluded:" 4. Considering the fact that petitioner is registered owner of the motorcycle, from which, aforesaid recovery has been effected, the prayer for anticipatory bail of petitioner is rejected."

The petitioner had approached the High Court apprehending his arrest in a case registered for offence under Section 30(a) of Bihar Prohibition and Excise Act.

Justice Ansul quashes, sets aside judgment of conviction, order of sentence by 1st Additional District & Sessions Judge-cum-Special Judge Excise, Jamui, modifies order by 2nd Additional District & Sessions Judge, Bhojpur

In Aneesh Manjhi vs. The State of Bihar  (2026), Justice Ansul of Patna High Court delivered a 6-page judgement dated January 27, 2026 wherein, he quashed and set aside the impugned judgment of conviction and order of sentence dated June 30, 2021 passed1st Additional District & Sessions Judge-cum-Special Judge Excise, Jamui in a case of 2018. He took oath as a judge of the High Court on January 27, 2026, taking total number of working judges in the High Court to 38. The court has 53 sanctioned posts, which means that even after his joining, 15 posts still remain vacant. 

In his first judgement as judge, Justice Ansul observed:"....it appears that there is no independent witness to support the prosecution case and all the witnesses are official witnesses and the breath analyzer machine has not been produced to substantiate the charge under Section 37(b) of Bihar Prohibition and Excise Act, 2016 and also there is nothing on record to suggest that whether breath analyzer machine was capable to give correct report. Again no blood test of accused seems to have been conducted which is a major flaw. The procedure for search and seizure has not been followed, therefore, it creates a serious doubt and thus the appellant deserves to be acquitted of the charges levelled against him." 

The trial court had convicted the appellant for the offence punishable under Section 37(b) of the Bihar Prohibition and Excise Act, 2016 and awarded sentence to a fine of Rs. 50,000/- and on default of payment of fine the appellant will have to suffer imprisonment for three months. The High Court noted that the appellant had already suffered prior to conviction, the same shall be adjusted against three months sentence. Consequently, the appellant was acquitted from the charges levelled against him. Since the appellant was on bail, he was discharged from his liabilities of bail bonds and sureties.

As per fardbeyan of informant, namely, Kamlesh Kumar Singh, ASI, Malaypur Police Station, the case of the prosecution was that he had lodged a written report stating that on August 20, 2018 at about 14.30 o'clock when he along with his patrolling party proceeded he got an information on mobile that the appellant was in inebriated condition and creating nuisance in the locality. In order to verify his intoxicating condition, he was examined by breath analyzer machine and it was found that he has consumed 0.19 Ml alcohol, thereafter, on the basis of the written report the case, i.e., Malaypur P.S. Case was registered for the offences under Section 290 of the IPC and 37(b) of Bihar Prohibition and Excise Act, 2016. The trial court after perusal of materials collected during investigation and hearing the accused/appellant took cognizance on February 28, 2019 under Section 290 IPC and Section 37(b) of Bihar Prohibition and Excise Act, 2016, thereafter, the charges were framed on May 4, 2019 under Section 290 IPC and Section 37(b) of Bihar Prohibition and Excise Act, 2016 against the appellant, which was explained to the appellant, to which, he pleaded not guilty and claimed to be tried. To substantiate its case, the prosecution examined six witnesses.

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Sentencing order by 2nd Additional District & Sessions Judge, Bhojpur modified  

In Jitendra Singh @ Jitendra Kumar Singh vs. The State of Bihar (2026), Justice Ansul of Patna High Court delivered a 7-page judgement dated January 27, 2026 wherein, he concluded:"13. Having carefully considered the witnesses', testimony and the medical evidence, I find no grounds to interfere with the appellant's conviction. 14. However, the matter arises out of a land dispute and no previous conviction has been proved against the appellant. He has remained in custody for six years six months and is facing prosecution for last nine years and is in his 30's. Taking a holistic view, ends of justice would be saved if he is sentenced to period already undergone. Accordingly, the sentence awarded to the appellant is reduced to the period already undergone by him. 15. In the result, the appeal is dismissed with the aforesaid modification in the sentence."

The appeal was preferred by the appellant for setting aside the impugned judgment of conviction and order of sentence dated July 9, 2021 and July 31, 2021 respectively passed by 2nd Additional District & Sessions Judge, Bhojpur at Arrah in a case of 2019 which arose out of a P.S. Case of 2017, whereby the concerned Trial Court convicted the appellant for the offence punishable under Section 307 of the IPC and sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 50,000/- only and for the offences under Section 504/34 IPC one year and six months R.I. and fine of Rs. 10,000/- only. 

The prosecution case, as per fardbeyan of informant, namely, Harendra Singh (P.W.-2) was that the appellant who was the cousin of the informant Harendra Singh came to his native village on April 24, 2017. On the same day, due to a domestic dispute, the appellant, appellant's brother namely, Krishna Singh and his mother Parvati Devi were abusing the informant at around 02:00 P.M. and when the informant and his mother stopped them from abusing, the accused suddenly came out of the room with a pistol in his hand and fired a shot at the informant, which hit him on his back and he fell down. After falling down, the accused fired another shot. Upon the informant's shouting the accused left the house with the pistol in his hand and said that whoever comes in his way will be shot. The informant's father and a villager Yogendra Singh took the injured to the police station and then to Sadar Hospital Arrah for treatment where after primary treatment by the doctor, he was referred to P.M.C.H., Patna where he was treated from April 24, 2017 to April 29, 2017. During this period no statement was recorded by any police officer. Due to this, the informant gave a written application to Arrah Mufassil on May 1, 2017. Based on the written application of the informant, Arrah Mufassil P.S. Case was registered under Sections 341, 323, 504, 307 read with 34 of the IPC and under Section 27 of the Arms Act against the appellant and other co-accused persons namely Krishna Singh and Parvati Devi. 

After completion of investigation and on the basis of materials collected during investigation, the Investigating Officer of this case submitted charge-sheet dated April 30, 2018 under Sections 341, 323, 504, 307/34 of the IPC and Section 27 of the Arms Act against the appellant before the Trial Court. The trial court after perusal of materials collected during investigation and hearing the accused/appellant took cognizance on May 16, 2018 under Sections 341, 323, 504, 307/34 IPC and Section 27 of the Arms Act, thereafter, the charges were framed on August 9, 2019 under Sections 341, 323, 504, 307 and 34 of the IPC against the appellant, which was explained to the appellant, to which, he pleaded not guilty and claimed to be tried. To substantiate its case, the prosecution examined altogether five witnesses. On the basis of evidences/circumstances which emerged during the trial, the trial court examined the appellant/accused under Section 313 of the CrPC, wherein, he completely denied the evidences during the trial and claimed his complete innocence. The Trial Court had convicted the appellant for the offences under Section 307 of the IPC and sentenced him. 

Justice Ansul observed: "11. It appears from perusal of record that altogether five witnesses have been examined during trial. P.W.-1, Sunaina Devi, who is mother of the informant has deposed that the appellant has shot two bullets which hit on the back of the informant. Thereafter, he was taken to the hospital. She has further deposed that due to partition of land in the family the present occurrence has taken place. P.W.-2, Harendra Singh, the informant of this case has supported the prosecution case as narrated above. P.W.-3, Rekha Devi has been declared hostile during trial. P.W-4, Dr. Ashok Kumar Pandey, who is the doctor and had examined the informant, has deposed that oval shaped wound injury below the neck, i.e., 0.6 cm X 0.4 cm was found on the informant. P.W-5, Sambhunath Panday, the Investigating Officer of this case has supported the case of the prosecution. 12. It also appears that there is delay of six days in lodging the FIR. The delay is sought to be explained by treatment at PMCH. It seems that neither the treatment record at PMCH nor the version provided at PMCH has been brought on record thus making the initial version unavailable. This casts shadow of doubt on the prosecution version in view of Hon'ble Supreme Court decision rendered in the case of Thulia Kali vs. The State of Tamil Nadu reported in (1972) 3 SCC 393." Being aggrieved with the trial court's judgment of conviction and order of sentence, the appellant had preferred the appeal before the High Court. 
 

Justices Rajeev Ranjan Prasad led Division Bench directs I.G. Prisons and Correctional Services, Bihar, to issue appropriate guidelines to all Jail Superintendents to abide by Constitutional Mandate against unauthorized detention

High Court awards a consolidated amount of Rs. 2 lakh to the petitioner by way of compensation for his unauthorized detention by the Jail Superintendent, Central Jail, Gaya Jee 

In Neeraj Kumar @ Neeraj Singh Vs. The State of Bihar through the Principal Secretary (Home), Police Department, Bihar (2025), Patna High Court's Division Bench of Justices Rajeev Ranjan Prasad and Sourendra Pandey delivered a 12-page long judgement dated November 13, 2025, wherein, it concluded:"Having considered the entire materials and the submissions as recorded hereinabove, we are of the considered opinion that a consolidated amount of Rs.2,00,000/- (Rupees Two Lakhs) would be a reasonable amount which may be awarded to the petitioner by way of compensation for his unauthorized detention by the Jail Superintendent, Central Jail, Gaya Jee. 12. Since we have come to know that this practice is going on in other jurisdictions of the Jail Superintendents in the State, the I.G., Prisons and Correctional Services is directed to issue appropriate guidelines to all the Jail Superintendents in the State of Bihar requiring them to strictly abide by the Constitutional Mandate and order of the Court without any exception. Such guideline shall be issued within a period of two weeks from today. The Respondent State of Bihar shall pay the compensation amount of Rs.2,00,000/- (Rupees Two Lakhs) to the petitioner within one month from today. Following the settled principle as discussed in the case of K.K. Pathak (supra), we direct that the amount so paid to the petitioner shall be realized from the erring official in accordance with law." Pranav Kumar, I.G. Prisons and Correctional Services, Bihar, the respondent no.3 was present through virtual mode during the hearing. 

The other nine respondents were:Director General of Police, Bihar, Inspector General of Prisons and Correctional Services, Bihar, Jail Superintendent , Central Jail District-Gaya, Deputy Jailor, Central Jail, District-Gaya, Senior Superintendent of Police, District-Gaya, SHO Sarbahda Police Station, District-Saran, District Magistrate, Gaya, Senior Superintendent of Police, Gaya and Officer-in-Charge, Sarbahda P.S., District- Gaya.

This writ application was taken up for consideration on November 12, 2025. The writ application raised an issue of serious concern for a Constitutional Court. It is well said that a Constitutional Court acts as a guardian to protect the fundamental rights of a citizen when it comes to protect his Right to Life and Liberty. In the case, the petitioner was confined in the Central Jail at Gaya Jee in connection with Sarbahda P.S. Case of 2025 registered on July 31, 2025 for the offences punishable under Section 30(a) and 37 of the Bihar Prohibition and Excise Act, 2016. In the said case, he was granted bail vide order dated September 23, 2025 by the competent Court and the Exclusive Special Excise Judge, Court No. 2, Gaya Jee issued a warrant to release him unless he is liable to be detained for some other matter. The warrant of release dated September 29, 2025 was communicated to the Superintendent, Central Jail at Gaya Jee.What happened thereafter are some disturbing features of this case. It appears that prior to receipt of the warrant to release, the Superintendent of Jail, Gaya Jee had received a production warrant from the court of learned Chief Judicial Magistrate, Buxar requiring production of the petitioner in connection with Buxar P.S. Case No. 87 of 2025. The counter affidavit filed on behalf of Respondent Nos. 1, 3, 4 and 5 has been filed enclosing certain documents. Annexure ‘R-1/B’ is the order requiring production of the petitioner in the court of learned Chief Judicial Magistrate, Buxar (Bihar) on 04.09.2025 by 10:00 AM as he was involved in a case of theft punishable under Section 303(2) of the Bhartiya Nyay Sanhita. Despite receipt of the production warrant, the Superintendent of Jail, Gaya Jee did not produce the petitioner in the learned Chief Judicial Magistrate Court at Buxar on 04.09.2025. 

The counter affidavit to show that the Superintendent of Jail, Gaya Jee informed the learned court of Exclusive Special Judge, Excise, 2nd Gaya Jee, the Senior Superintendent of Police, Gaya Jee and the learned Chief Judicial Magistrate, Buxar with regard to the requirement to produce the petitioner in the light of the production warrant. The Superintendent of Jail was looking for adequate force and vehicle with fuel from the Senior Superintendent of Police, Gaya Jee in order to produce the petitioner in Buxar Court. The respondents have not brought on record any other communication by way of response from the office of the Senior Superintendent of Police, Gaya Jee. It is also not clear whether the court at Gaya Jee was moved for seeking an order to take the petitioner to Buxar Court. The fact remains that even after his release order, the petitioner continued in detention.

The attention of the High Court was drawn towards the communication as contained in letter dated 06.10.2025 written by the Superintendent of Central Jail, Gaya Jee to the Senior Superintendent of Police, Gaya Jee wherein he has clearly recorded that after receipt of the release order from the local court, the petitioner has been released but had been kept confined on the strength of a production warrant. It is to be kept in mind that the date fixed in the production warrant was 04.09.2025 which had already expired. This is why it has also been submitted on behalf of the petitioner that in terms of Section 304 read with Section 305 of the Bhartiya Nagrik Suraksha Sanhita, 2023, once the date fixed in the production warrant expired and the order of release had already reached in the hand of the Superintendent of Central Jail, Gaya Jee, he had no option but to release the petitioner. It is pointed out that prior to receipt of the release order, the present authority could have requested the Buxar Court to issue a fresh warrant of production and the petitioner could have been produced on the strength of a fresh warrant of production before receipt of the release order. It was submitted that, in fact, in his communication dated 06.10.2025, the Superintendent, Central Jail made a wrong statement that after receipt of the release order, the petitioner was already released. His own statement in the said letter that the petitioner was still kept confined in the jail on the strength of the production warrant demonstrates that the continued detention of the petitioner was not authorized by any competent court of law, thus, his confinement in jail is in breach of the fundamental right of the petitioner. He was kept in jail for days even after release without there being any order of a competent court.

The Court noted the submission of P.N. Sharma, AC to AG that perhaps, this practice was an ongoing practice, though, it was not placed on affidavit and he has no specific instruction in his regard but what was gathered from his experience at the Bar as an Officer of the Court perhaps, this was the practice which is being followed.

AC to AG further submitted that prima-facie, it cannot be denied that the petitioner was not actually released from jail even after the receipt of the release order. He was produced in Buxar Court only on 17.10.2025. During the intervening period, there was no authorized detention of the petitioner.

Justice Prasad observed:"....this Court has no iota of doubt that in this case, the life and liberty of the petitioner has been curtailed to a great extent by keeping him in confinement for 18 days without any authorized detention order from a competent court of law. This Court is further disturbed from the fact that perhaps the same thing is happening as a matter of practice in the State of Bihar. This is a wider issue. While holding that the action of the State respondents in not releasing the petitioner actually from jail and keeping him confined in jail for 18 days without any authorized detention order is wholly illegal and is to be held as a breach of the fundamental right of the petitioner, we propose to award adequate compensation to the petitioner for his illegal detention and such compensation would be required to be realized from the erring official. It is wellsettled in law that if because of misuse of power by an executive/officer acting on behalf of the State, any compensation is required to be allowed to a citizen, such compensation should not go from the public exchequer, rather such money should be realized from the erring official.

The High Court noted that AC to AG informed that the petitioner was made to appear virtually before the In-charge, Chief Judicial Magistrate, Buxar on 04.10.2025 and he had been remanded to custody until 17.10.2025. Thus, his submission is that, in fact, it is not 18 days confinement without any authorized detention order, the actual unauthorized detention would come down to five days if counted from 29.09.2025 which was the date of the receipt of the release order of the petitioner in Sarbahda P.S. Case No. 91 of 2025.

Pranav Kumar, I.G., Prisons and Correctional Services submitted that on perusal of the entire records, he noticed that the petitioner was confined in jail even after September 29, 2025 without there being any order of a competent court of law, according to him, this was occasioned due to the intervening Durga Puja Holidays. The High Court, pointed out to him that even during Durga Puja Holidays, an In-charge Court was always available for this purpose and, in fact, the virtual appearance of the petitioner was done on October 4, 2025 which was during the Puja Holidays only, therefore, it cannot be allowed to be contend that the illegal detention of the petitioner from September 29, 2025 until his virtual production on October 4, 2025 was due to any reason beyond the control of the Jail Superintendent, Central Jail, Gaya Jee. The I.G., Prisons and Correctional Services was immediately realised this and was admitted that “Yes, there is an illegal detention for atleast five days”. 

Justice Prasad observed: "7. There being an admitted position that it is a case of unauthorized detention of the petitioner from 29.09.2025 until 04.10.2025 and this practice is going on without drawing much attention of the Department, this Court being a Constitutional Court cannot remain a silent spectator. The I.G., Prisons and Correctional Services has informed this Court that he has taken action against the Jail Superintendent, Central Jail, Gaya Jee in administrative side and will take it to a logical end, however, keeping in view the admitted facts of the case as we have already held that it is a case of illegal detention, we proceed to award compensation to the petitioner."

The judgement reads: "8. On the quantum of compensation, we have invited even I.G., Prisons and Correctional Services to say as to what would be a reasonable amount of compensation to the petitioner. He has submitted that a sum of Rs.10,000/- may perhaps be appropriate. Learned AC to AG has submitted that the Court should take a lenient view of the matter and a sum of Rs.10,000/-for each day of detention would be an appropriate amount of compensation."

The judgement recorded that the counsel for the petitioner vehemently submitted that the quantum of compensation to be fixed by the High Court should not be an indicative and symbolic one. "It is a matter in which admittedly, the liberty of the petitioner has been curtailed without following the established procedure of law, therefore, a clear case of violation of the Constitutional mandate under Article 21 of the Constitution of India has been made out. It is submitted that in such cases, in fact, the Government should have a policy to award ex-gratia compensation to an illegal detenue and such amount which are required to be paid to a person for his illegal detention be realised from the erring official so that the Public Exchequer which is the Custodian of public money should not be burdened with cost and compensation. He has relied upon a judgment of a learned Writ Court in case of K.K. Pathak @ Keshav Kumar Pathak Vs. Ravi Shankar Prasad and Others reported in 2019 (1) PLJR 1051 in which this principle has been discussed. It has also been pointed out that an appeal preferred against this judgment of the learned Writ Court in SLP (Crl) No. 003566/2019 before the Hon’ble Supreme Court did not succeed and the same was dismissed vide order dated 26.04.2019."

The counsel for the petitioner had prayed for an adequate compensation which according to him should not be less than Rs.1,00,000/- (Rupees One Lakh) per day. He had relied upon a 9-page long judgment of the Delhi High Court in the case of Pankaj Kumar Sharma vs. Government of NCT of Delhi & Others reported in 2023 SCC OnLine Del 6215 in which a Writ Court of Delhi High Court's Justice Subramonium Prasad was pleased to award a compensation of Rs.50,000/- to the petitioner for his illegal detention for about half an hour. 

The Delhi High Court relied on the judgement of the Supreme Court in D. K. Basu vs. State of West Bengal, 1997 (1) SCC 416, wherein it had directed the following requirements to be fulfilled in case of arrest. Paragraph 35 of the said judgment (D.K. Basu) reads as under:-

“35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of W.P.(C) 3851/2023 Page 4 of 9 arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also W.P.(C) 3851/2023 Page 5 of 9 examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. “

The Delhi High Court emphasised the Supreme Court’s observations in Para 44 in D K Basu (supra) also observed as under (Para 11):-

“44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.

The Delhi High Court judgement also relied on the Nilabati Behera case [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] in which heirs of a victim of custodial torture were granted compensation.

46. In Nilabati Behera case [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] , it was held: (SCC pp. 767-68, para 32) “

Adverting to the grant of relief to the heirs of a victim W.P.(C) 3851/2023 Page 7 of 9 of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party.

The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve „new tools‟ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law.

While concluding his first Hamlyn Lecture in 1949 under the title „Freedom under the Law‟ Lord Denning in his own style warned: „No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do.

But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age.

They must be replaced by new and up-to-date machinery, by declarations, injunctions and actions for negligence…. This is not the task of Parliament … the courts must do this. Of all the great tasks that lie ahead this is the greatest.

Properly exercised the new powers of the executive W.P.(C) 3851/2023 Page 8 of 9 lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country.‟ 

The Delhi High Court judgement, also relied on Nilabati Behera v. State of Orisa & Ors., 1993 (2) SCC 746, while dealing with the power of a constitutional court to award compensation rather than relegating such person to file a suit for recovery of damages, the Supreme Court observed as under:- (Para 12)

“22. The above discussion indicates the principle on which the court’s power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] and others in that line have to be understood and Kasturilal [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965) 2 Cri LJ 144] distinguished therefrom.

We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son.”

It was submitted that the High Court has recently in the case of Arvind Kumar Gupta vs. State of Bihar and Others reported in 2025 (6) BLJ 52 dealt with this aspect of the matter, though, in case of illegal arrest resulting in unauthorized detention and has been pleased to award Rs.1,00,000/- to each of the Respondents Nos. 9 and 11 for their unauthorized detention in police custody. 

The attention of the High Court was drawn towards the judgment in Arvind Kumar Gupta (supra) which we quote hereunder for a ready reference:-“27. In the case of Rudal Sah vs. State of Bihar and Another reported in AIR 1983 SC 1086 while dealing with a case of unlawful detention in jail, the Hon’ble Supreme Court has held: “...In these circumstances, the refusal of this court to pass an order of compensation in favour of the petitioner will be doing mere lipservice to his fundamental right to liberty which the State Government has so grossly violated.”

The High Court held that in Pankaj Kumar Sharma vs. Government of NCT of Delhi & Ors. reported in 2023 SCC OnLine Del 6215, a Single Judge of the Delhi High Court had reviewed the case laws on the subject and upon finding that the petitioner was made to suffer in the lockup for only half an hour, the Single Judge directed for payment of compensation of Rs.50,000/- to the petitioner recoverable from the salaries of Respondent Nos. 4 and 5 who were the erring officials. Having regard to the well settled law on the subject, in the admitted facts of this case where these police officials have contravened the procedures and thereby caused injustice to Respondent Nos. 9 and 11 by keeping them in police custody without any sanction of law, we are of the considered opinion that Respondent Nos. 9 and 11 both are entitled for a compensation of Rs.1,00,000/- (Rupees One Lakh) each. The State shall be liable to pay Rs.1,00,000/- to each of Respondent Nos. 9 and 11 within a period of 30 days from today and recover the same from Respondent Nos. 7, 8 and 12 who have admitted the violation of the fundamental rights of Respondent Nos. 9 and 11 by not complying with the established procedure of law. It is well-settled that for any misuse of power by an officer of the State, if the State is being saddled with cost or compensation, the same be recovered from the erring officials. Reference in this regard may be made to the judgment of this Court in the case of K.K. Pathak @ Keshav Kumar Pathak vs. Ravi Shankar Prasad and Others reported in 2019 (1) PLJR 1051 which attained finality as the same has not been interfered with by the Supreme Court in SLP (Crl) No. 003566/2019.

Justice Prasad observed:"11. Having considered the entire materials and the submissions as recorded hereinabove, we are of the considered opinion that a consolidated amount of Rs.2,00,000/- (Rupees Two Lakhs) would be a reasonable amount which may be awarded to the petitioner by way of compensation for his unauthorized detention by the Jail Superintendent, Central Jail, Gaya Jee."

Also read: Fate of a Habeas Corpus petition, after disposal of the case by High Court, CBI finds Rajnath Sharma, the "absconding person" was killed, burnt in police custody

 

Supreme Court sets aside anticipatory bail rejection order by Justice Prabhat Kumar Singh which cited High Court's Full Bench opinions in Ram Vinay Yadav case

In Punam Devi @ Rupan Devi & Anr. vs. The State of Bihar (2025), Supreme Court's Division Bench of Justices Sanjay Karol and N. K. Singh passed a 4-page long order dated October 17, 2025, wherein, it set aside the 1-page long order dated July 17, 2025 by Justice Prabhat Kumar Singh of Patna High Court. Justice Singh had rejected the prayer for anticipatory bail under Bihar Prohibition and Excise Act. The appellants had challenged the order. Supreme Court's order reads: ''We allow the present appeal by confirming the order dated 03.09.2025, passed by this Court, with a direction to the appellants to continue to cooperate during the investigation/trial and not to take any unnecessary adjournment.....9.The impugned order dated 17.07.2025 in Criminal Miscellaneous No. 46580 of 2025 passed by the High Court of Judicature at Patna titled “Punam Devi @ Rupan Devi & Anr. vs. State of Bihar” is set aside.''

This order assumes significance in the light of the importance of bail which has been set out in detail in Gurucharan Singh & Ors. vs. State (Delhi Administration); (1978) 1 SCC 118 and Shri Gurbaksh Singh Sibbia & Ors. vs. State of Punjab; (1980) 2 SCC 565. 

In Punam Devi @ Rupan Devi & Anr. vs. The State of Bihar (2025), Prabhat Kumar Singh of Patna High Court passed a 1-page long order dated July 17, 2025, wherein, he concluded:''Considering the Full Bench decision of this Court rendered in the case of Ram Vinay Yadav vs. The State of Bihar reported in 2019(2) P.L.J.R. 1089 (F.Β.), the prayer for anticipatory bail of petitioners is rejected.'' The petitioner had approached the HighCourt apprehending their arrest in a case registered for the offence punishable under Section 30(a) of the Bihar Prohibition and Excise Act. As per the prosecution case, 5.940 liters of foreign liquor were recovered from the house of these petitioners. The petitioner no. 2 was Manohar Goswamy @ Manoj Sah @ Manohar Kumar. The case was filed in the High Court on June 25, 2025 and registered on July 5, 2025. 

It is germane to examine the 118-page long judgement dated May 17, 2019 by the Patna High Court 's 3-Judge Bench of Justices Aditya Kumar Trivedi, Ashutosh Kumar and Aditya Kumar Trivedi in Ram Vinay Yadav vs. The State of Bihar (2019).  

In this case being master of the roster, Justice Amreshwar Pratap Sahi, the then Chief Justice of the High Court had constituted a Full Bench to dispel the existing confusion relating to entertainment, consideration and disposal of anticipatory bail purported to be under Section 438 of the Cr.P.C relating to an offence punishable under Bihar Prohibition and Excise Act, 2016, (amended, effective from 2nd October, 2016) in accordance with Chapter-II, Rule-11 of the Patna High Court Rules. 

Notably, Rule 1 of Chapter-V of the Patna High Court Rules, reads: Reference to a Full Bench “1. Whenever a Division Bench desires and the Chief Justice consents that any case shall be referred to a Full Bench, or whenever in any case a Division Bench differs from any other Division Bench upon a point of law or usage having the force of law such case shall be referred for decision by a Full Bench.” 

The Chief Justice had formulated following five issues for consideration as well as adjudication of Full Bench which are as follows:

(1) Whether the provisions of Section 438 Cr.P.C continue to apply in spite of the bar created under Section 76(2) of the Bihar Prohibition and Excise Act, 2016 and as to whether such an application under Section 438 Cr.P.C. for anticipatory bail is maintainable?
(2) Whether the law laid down in Ashok Sahani vs. The State of Bihar (Cr. Misc. No. 26109 of 2017) and as further explained in Barun Kumar vs. The State of Bihar (Cr. Misc. No. 42985 of 2017) lays down the law correctly or whether the conflicting view in Manish Kumar @ Lokesh Kumar vs. The State of Bihar (Cr. Misc. No. 21578) reflects the correct position of Law?
(3) Whether the learned Single Judge in the case of Manish Kumar (supra) vide an order dated August 10, 2017 while referring the matter for decision by a Larger Bench in deference to the judgment in the case of Ashok Sahani (supra) was justified in declaring it per incurium keeping in view the fact that the judgment was by a Co-ordinate Bench in view of the law laid down by the Supreme Court in State of Bihar vs. Kalika Kuer SCC 448 and the law laid down the in case of Rana Pratap Singh vs. State of U.P. (FB) reported in 1996 Criminal Law Journal 665, and further keeping in view the opinion expressed in the case of Barun Kumar (supra) that such an issue of vires under the High Court Rules could have been decided by a Division Bench only?
(4) Whether the Division Bench in the case of Manish Kumar (supra) vide order dated November 6, 2017 was justified in not resolving the dispute on the ground of the pendency of the two writ petitions before the Supreme Court relating to the challenge raised to the vires of the Bihar Prohibition and Excise Act, 2016?
(5) Whether even if the matter was pending before the Supreme Court the Division Bench in the case of Manish Kumar (supra) was denuded by any disability either on the ground of legality or propriety not to proceed to answer the reference made to it more particularly when there is no pronouncement by the Apex Court on the issue sought to be resolved, and when the matter did require an immediate resolution keeping in view the conflicting views of the Patna High Court?

As to Questionnaire No.1,2,4, 5, Justice Aditya Kumar Trivedi as part of the 3-Judge Bench of the High Court observed: ''The Division Bench in the case of Manish Kumar @ Lokesh Kumar vs. The State of Bihar reported in 2017(4) PLJR 369 has rightly shrinked itself in answering the terms of reference as, it would tantamounts to intrusion within the sphere of the Apex Court in the background of order passed in Special Leave to Appeal (C) Nos.29749/2016 inconsonance with Transfer Petition (Civil) Nos.2089-2090/2016. That means to say, till the vires is tested by the Apex Court, it will not be prudent for the full Bench to delve over the issue and record its finding.''

As to Questionnaire No. 3 Justice Trivedi observed: ''From perusal of the Manish Kumar (Single Bench-2017 (4) PLJR 369), it is evident that the Bench was not at all appraised with subsequent development after pronouncement of 2016(4) PLJR 369 having under challenge before the Apex Court wherein operation of the judgment has been stayed. Not only this, the stay of further proceeding of two writ petitions by the Apex Court concerning the issue in hand, (subsequent amendment in the Act) also not been brought up before the Bench. Had there been, then in that circumstances, no such finding would have. Be that as it may, as is evident in both the petitions, the subsequent development relating thereto (vires of the Act) has not been urged, hence the observation so made under para-12 of Manish Kumar (Single Bench) could not have been. Moreover, as per Patna High Court Rules, the Division Bench identified proper forum to decide the validity, legality of the Act. Apart from the fact that both the issue was beyond the subject. Moreover, recording of Single Judge in Manish Kumar, as per-incurium is also found duly covered with the lis so pending before the Apex Court as the same happens to be based in terms of non-adoption of procedure in accordance with Article 254(2) which, unless disproved by the Apex Court would not be. 38. Though there was no reference to the Division Bench (Manish Kumar) but the way it followed in order to search out the solution, relating to the existing controversy, is being approved keeping the power of the High Court under Article 226 of the Constitution as well as Section 482 Cr.P.C immuned.''

As to Question No.1, Justice Ashutosh Kumar as part of the 3-Judge Bench observed: the question no.1 is answered as follows:''Till the time, the vires of the Act of 2016 is tested/adjudicated by the Supreme Court of India, which would include a decision on the correctness / justification of a State Legislature in providing / legislating a complete bar to the grant of anticipatory bail to accused persons of offences under the Act, anticipatory bail petitions shall otherwise not be maintainable, unless from the facts of the case, it would prima facie appear that none of the ingredients of the offences under the Act of 2016 are made out for attracting the bar of Section 76 (2) of the Act. For coming to the aforesaid conclusion as to whether the offence can be said to be made out from the facts of the case, no detailed / roving enquiry is to be made. 89. While saying so, I have relied on the principles enunciated in Shri Gurbaksh Singh Sibbia; Nikesh Tarachand Shah; Joginder Kumar; Arnesh Kumar; Vilas Pandurang Pawar; and Shakuntala Devi (supra).'' He also relied on the Constitution Bench's  judgment in Kedar Nath Singh vs. State of Bihar; AIR 1962 SC 955. 

As to Question No. 2, Justice Kumar observed:''The principles laid down in Ashok Sahani and Barun Kumar (supra) are, I say so with deepest respect to the learned Judges, only partially correct. The reasons for coming to the aforesaid conclusion is binary: (i) existence of Section 76 (2) of the Act of 2016 and the (ii) legal interpretation by the Supreme Court in not treating such a provision like 76 (2) to be a complete bar for grant of anticipatory bail, which bar would apply only under the circumstances that the offence under the Act is prima facie made out and the implication of the accused is not for any oblique purposes. In other words, if the ingredients of the offence are not made out, anticipatory bail can be granted to an accused person.'' He added: ''93. The Principles laid down in Manish Kumar (supra, S.J.), it is, respectfully stated is not correct.''

With regard to Question No. 3, Justice Kumar observed: ''95. With all the reverence at my command, it is stated that the exposition of law by the learned Single Judge in Manish Kumar (supra) in holding Section 76 (2) of the Act of 2016 to be repugnant to Section 438 Cr.P.C., is erroneous. The reason for saying so are as follows: The Code of Criminal Procedure is in the Concurrent List, whereas the Act of 2016 is relatable to Entries 8, 51, 54 and 64 of the State List. Since the two legislations are not in the same field, no question of repugnancy under Article 254 arises. Apart from this, under Section 4 Cr.P.C., all the offences under any law, other than I.P.C., could be investigated, inquired into and tried or otherwise dealt with according to the same provisions, but being in force, regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. Section 5 Cr.P.C., which is in the nature of savings, further declares that nothing contained in the Cr.P.C. shall, in the absence of specific provisions to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred or any special forum of procedure prescribed, by any other law for the time being in force. 96. In view of the judgement of the Supreme Court in State of Bihar Vs. Kalika Kuer (supra), the learned Single Judge in Manish Kumar (supra) could not have held an earlier judgement rendered by another learned Single Judge to be per incuriam. There was also no justification of, thereafter, referring the matter to a larger Bench. The other aspect of the matter is that the learned Single Judge in Manish Kumar (supra), in view of the provisions contained in Patna High Court Rules, could not have decided the vires / validity of an Act or a Section. 97. The question, therefore, is answered accordingly.''

Regarding Question No. 4, Justice Kumar observed:''99. The Division Bench in Manish Kumar (supra) has rightly recused from testing the vires of Section 76(2) of the Act of 2016 as the two writ petitions which have been transferred from this Court to the Supreme Court would entail a thorough discussion for any authoritative pronouncement on the vires of the entire Act of 2016 including Section 76(2) thereof. Thus, the decision of the Division Bench in Manish Kumar (supra) in eschewing from commenting upon the vires of Section 76 of the Act of 2016 is justified. However, in my respectful opinion, the Division Bench in Manish Kumar (supra) was not prevented from testing the correctness/legality of the opinion of the learned Single Judge in Manish Kumar (supra) in holding the provision of 76 (2) of the Act of 2016 to be ultra vires, on the touchstone of repugnancy with a Central law on a subject falling in Concurrent List and the Act of 2016 being a legislation on the subjects exclusively falling in List-II of the 7th Schedule of the Constitution.''

As to the question No. 5, Justice Kumar observed:''101. Even if the issue relates to grant / refusal of anticipatory deals with the liberty of a person, it would still be a judicial overreach to decide an issue which is pending adjudication before the Supreme Court. The arrangement which has been suggested in Vilas Pandurang Pawar; Shakuntla Devi; and Biseshwar Mishra (supra), even after the vires of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, has been upheld, does provide a cornucopia for the respective rights and freedom of a person to be protected by looking into substratum of the allegation in the complaint/F.I.R and the Division Bench in Manish Kumar (supra) has taken note of such pronouncements of the Supreme Court.'' He added:''102. Even at the risk of repetition, I must clarify that the opinion rendered by me on the terms of reference would be subject to the outcome of the decision of the Supreme Court of India on the vires of the Act of 2016, particularly of Section 76 (2) thereof.''

Justice Hemant Kumar Srivastava observed: ''Re. Question nos. 1 and 4- Brother Shri Aditya Kumar Trivedi, J. as well as Brother Shri Ashutosh Kumar, J. while dealing with the reference (question no. 1) as well as reference (question no. 4) are unanimous on this point that the learned Division Bench in the case of Manish Kumar (Supra) rightly recused from giving any finding on the vires of Section 76(2) of the Act, 2016 till the vires is tested by the Hon’ble Apex Court in Special Leave to Appeal (C) Nos. 29749/2016 as well as Transfer Petition (Civil) Nos. 2089-2090/2016. Brother Trivedi, J. as well as Brother Ashutosh, J. are of the view that till final adjudication by the Hon’ble Apex Court in respect of vires of Section 76(2) of the Act 2016, the time gap arrangement as suggested by the learned Division Bench in continue because adjudication by this court on the aforesaid point shall amount to intrusion within the spheric of the Apex Court and judicial propriety demands from this court not to adjudicate vires of Section 76(2) of the Act 2016 till final adjudication by the Hon’ble Apex Court in respect of vires of Section 76(2) of the Act as it is bounded duty of this court to maintain its decorum and dignity. Therefore, in the aforesaid circumstance, I also endorse the views of Brother Aditya Kumar Trivedi, J. as well as Brother Ashutosh Kumar, J. on the aforesaid point.''

As to Reference (question nos. 2 and 3), Justice Srivastva observed: ''The aforesaid questions have been dealt with by Brother Justice Trivedi and Brother Justice Ashutosh at length. Brother Trivedi, J. and Brother Ashutosh, J. are of the view that the learned Single Judge in Mansih Kumar (Supra) could not have held the judgment delivered in Ashok Sahani (Supra) case as per incuriam in the view of decision of State of Bihar vs. Kalika Kuer reported in (2003) 9 SCC 448 and the law laid down in case of Rana Pratap Singh vs. State of Uttar Pradesh (Full Bench) reported in 1996 Criminal Law Journal 665 and also in the light of the relevant rules of Patna High Court and accordingly, reference (question nos. 2 and 3) have been answered. I do not have any different opinion on the aforesaid issues and I endorse the views taken by the Brother Aditya Kumar Trivedi, J. as well as Brother Ashutosh Kumar, J. but I would like to mention here that Brother Ashutosh Kumar, J. while answering the reference (question no. 2) held that principles laid down in Ashok Sahani and Barun Kumar (Supra) cases are partly correct whereas Brother Aditya Kumar Trivedi, J. has not given any answer in respect of reference (question no. 2) perhaps keeping in mind that the testing of vires of Section 76(2) of the Act 2016 is still pending before the Apex Court. I am of the opinion that Brother Aditya Kumar Trivedi J. rightly recused himself from expressing any opinion regarding the principles laid down in Ashok Sahani and Barun Kumar (Supra) cases because the testing of vires of Section 76(2) of the Act 2016 is still pending before the Hon’ble Apex Court and it would not be proper to hold for the present that principles laid down in Ashok Sahani and Barun Kumar (Supra) cases in respect of maintainability of petition filed under Section 438 of the Cr.P.C. in the cases registered under the provisions of Act 2016 are correct view. The fate of principles laid down in Ashok Sahani and Barun Kumar (Supra) cases depends upon the testing of vires of Section 76(2) of the Act 2016 which is still pending before the Apex Court. Therefore, in my view, Brother Aditya Kumar Trivedi, J. rightly restrained himself from giving any finding on the principles laid down in Ashok Sahani and Barun Kumar (Supra) cases and recused himself from giving answer to the reference (question no. 2). I fully endorse the view of Brother Aditya Kumar Trivedi, J. and I am of the view that till final adjudication by the Hon’ble Apex Court regarding the vires of Section 76(2) of the Act, there is no need to give any answer to the reference (question no. 2).'' He added:''in my view, the Division Bench in Manish Kumar (Supra) case rightly recused to give answer to the reference made to it and, therefore, I endorse the views of my esteemed Brothers Aditya Kumar Trivedi, J. and Ashutosh Kumar, J. The reference (question no. 5) is answered accordingly.

Having perused these observations of the judges of the 3-Judge Bench, Justice Trivedi concluded:''it is evident that there is unanimity of opinion with respect to question Nos.1,3, 4 and 5. The answers to the aforesaid questions under reference is thus construed accordingly. So far as the view expressed on question No.2 of the reference is concerned, there is slight variance in the opinion of Hon'ble Mr. Justice Ashutosh Kumar with the opinions rendered by me and Hon'ble Mr. Justice Hemant Kumar Srivastava. Thus, the majority opinion on question No.2 of the reference is the opinion rendered by me and Hon'ble Mr. Justice Hemant Kumar Srivastava. Office is, accordingly, directed to place the records of this case before Hon'ble the Chief Justice for the needful.''

In view of the answers to the questions formulated by the Chief Justice, it is evident that the Full Bench did not arrive at any conclusive decision because the matter was pending before the Supreme Court. Therefore, it is not clear as to why Justice Prabhat Kumar Singh had referred to High Court's Full Bench decision in Ram Vinay Yadav vs. The State of Bihar reported (2019) to reject the anticipatory bail.  

Provisions under Bihar Prohibition and Excise Act suffer from infirmities:Patna High Court

In Mahendra Prasad Singh @ Mahendra Singh vs. The State of Bihar through the Principal Secretary Excise and Prohibition Department, Government of Bihar & Ors. (2025), in his 29 page long judgement dated September 1, 2025, Patna High Court's Division Bench of Justice S. B. Pd. Singh and Acting Chief Justice P. B. Bajanthri concluded:"the respondent authorities are directed to release the house of the petitioner henceforth which was seized in connection with Prohibition Case No. 1217 of 2024." The respondent authorities were: The State of Bihar through the Principal Secretary Excise and Prohibition Department, Government of Bihar, the Excise Commissioner, Bihar Excise, Patna, the Divisional Commissioner, Magadh Division, Patna, the District Magistrate-cum-Collector, Patna, the Superintendent of Excise, Madh Nishedh Bihar, Patna, the S.H.O. of Excise, P.S. Patna and the Investigating Officer, Excise and Prohibition Case no. 1217/2024, namely Devendra Singh, S.I. Excise and Prohibition, P.S. Patna, District Patna. The judgement was authored by Justice Singh. 

The petitioner had sought issuance of writ/writs, order/orders, direction/directions in the nature of Mandamus seeking directing the respondents S.I. Madh Nishedh Excise, P.S., Patna, so that to immediately release the seized ground floor building, which was earlier given on rent to respondent no. 8, on rent each month Rs. 1500/- total area 300 sq. feet ground floor building of the petitioner, which was earlier on rent utilized by Randhir Kumar, the respondent no. 8, but the same room was seized by the S.H.O. of Excise P.S., Patna in connection with Prohibition case no. 1217/2024, dated 21.05.2024 registered under Sections 30(A), 32 and 56(B) of Bihar Prohibition and Excise Act, 2016 and (Amendment) Act, 2022, which was illegally seized by the police. He also prayed for directing the respondent to immediately release the ground floor of building house of the Bihar, which was earlier seized by the police in Excise Case but the petitioner is being the house owner of the said premises, which was used by the respondent no. 8 after agreement on rent. It also sought a direction for the respondent to freeze/seize the house of the petitioner which is subject matter of Excise Case which was seized by the S.H.O. of Excise P.S., Patna but that property which was utilised by the tenant that is respondent no. 8, so far, the petitioner was given the said property ground floor house on a rent on the basis of an agreement dated October 1, 2023, and in the said ground floor there is a water logging, because in the said premises the respondent no. 8 have kept some goods items, therefore, in view of the under Section 45 of the Cr. P. C., the said building order for custody and disposal property pending trial in certain cases must be released in favour of the petitioner, because the petitioner has got no knowledge about the said building, which was used by the tenant respondent no. 8 and doing some illegal business having without knowledge of the petitioner.  

The counsel of the petitioner submitted that from bare perusal of the FIR, it was evident that the name of the petitioner transpired in the present case only for the reason that he was the owner of the said building from where the alleged recovery has been made. The premises in question was given on rent is not in dispute. There was not even iota of evidence which could suggest that the petitioner was facilitating the culprit or providing access for storage of incriminating articles. Either directly or indirectly, he did not contravene Section 30 of the Bihar Prohibition and Excise Act, 2016 and for this reason his premises was not liable to be confiscated under Section 56 of the Act. The counsel also submitted that the petitioner had given the said house on rent much prior to the alleged incident and for this reason, no case would be made out against the petitioner as he was not in possession of any incriminating article in contravention of any provisions of the Act and neither he was having any knowledge of running of illegal business by the tenant Dr. Randhir Kumar. When the petitioner was able to satisfy the authorities that the premises in question was let out on rent and nothing came on record suggesting the knowledge of the petitioner about the storage of several types of Homeopathic medicines in the premises in question, seizure of premises of the petitioner appears to be arbitrary, unreasonable and illegal. These authorities did not take into consideration the rights of the petitioner under Article 19 (1) (g) and Article 300 (A) of the Constitution of India, whereunder, the petitioner had a right to own the property and he had also  got right to carry on any occupation, trade or business. The action of the authorities was arbitrary, unreasonable and shows complete non-application of mind when the fact was crystal clear that the premises owned by the petitioner was undisputedly being used by the tenant under a valid deed of agreement. 

Referring to the specific offences under the Bihar Prohibition and Excise Act, 2016 under which the petitioner was charged, Justice Singh observed:"....it seems that whenever offence punishable under this Act has been committed, any premises or part thereof used for committing any offence might be seized/confiscated and released upon penalty. It leaves no doubt that a premises can be seized and even confiscated and auctioned merely upon its involvement in any offence under the Act. This is indeed a draconian provision and so it must be used with complete circumspection. The existing provisions of the Act gives unfettered and unguided and arbitrary powers to the authorities. In the absence of any specific guidelines, such powers can be abused or misused and such powers can be exercised arbitrarily insofar as alleged proven charge and commensurate penalty could be seen in the better legislation- like provisions of Criminal Procedure Code read with Indian Penal Code, where the sentence/conviction is proportionate to the proved charges. 12. We have noted some disturbing trends with regard to the aforesaid provisions. Though the Act talks about necessary directions, guidelines, regulations, instructions to be issued by the State Government with respect to mode and manner of search and seizure, destruction and confiscation, we have provisions only under Section 57 B of the Act and Rules 12 B, 13 B and 14 of the Bihar Prohibition and Excise Rules, 2021 to meet such situations. These provisions are clearly insufficient and authorized officers are very likely to misuse the provisions and the decisions are taken arbitrarily."

Justice Singh added: "....there is no subjective assessment under Section 56 of the Act regarding involvement of the premises and the hardship which will be faced by the persons apparently without any fault of their own. Let us take certain examples to make issue clear. As in the present case, the premises was given on rent and apart from the tenant/lessee, the owner has been made accused. We can take another example of the joint family owned premises. Suppose a person of the joint family keeps a bottle of liquor in the premises without knowledge to other inmates, will that premises be seized and sealed and confiscation proceeding will be started ousting all the inmates of joint family property simply on the ground that the law provides so? Third example could be taken of a government quarter. If any recovery is made from a government quarter, will the State come forward and seize/seal/confiscate and auction the property? Then another issue which is to be considered is that there is no subjective relationship between the quantity of liquor seized and the premises sealed or the penalty imposed as we could decipher from the aforesaid provisions. Even the Rules, though provide for taking status of the individual, nature of his involvement in the crime, location of the premises and quantum of intoxicant recovered while deciding the quantum of the tine, yet the Rules also provide that the fine shall not be less than Rs. one lakh. This is simply absurd as to whether there is recovery of 100 ml. of intoxicant or 1,00,000 liters, minimum fine shall be Rs. one lakh. The provisions of law discussed here-in-before even give complete discretion to the confiscating authorities with regard to imposition of penalty since no guidelines have been provided. This may create anomalous situation as the jurisdictional authority in one area, in similar circumstances, may impose a lesser penalty, whereas for the same act, the jurisdictional authority in another area may impose higher penalty. 14. Enactment of law and rules in such manner may make such laws and rules arbitrary and the same goes against the spirit of Article 19 (6) of the Constitution...."

Article 19(6) of the Constitution of India reads: "Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,— 
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service,
whether to the exclusion, complete or partial, of citizens or otherwise”.

Justice Singh recalled the decision of the Supreme court in Romesh Thappar vs. State of Madras, reported in 1950 SCC 436, considered the possibility of law concerned being applied in unconstitutional manner and held such law be declared void.

He also referred to paragraph 85 of the Court's decision in E .P. Royappa vs. State of Tamil Nadu and another, reported in AIR 1974 SC 555. It reads: “85. ...Articles 14 and 16 strike at arbitrariness in State action an ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of Power and arbitrariness are different lethal radiations emanating from the same vice : in fact the latter comprehends the former. Both are inhibited by Arts. 14 and 16. It is also necessary to point out that the ambit and reach of Articles 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Arts. 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is, therefore, no answer to the charge of infringement of Articles 14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post. That might have some relevance to Art. 311 but not to Articles 14 and 16. We must, therefore, proceed to consider whether the transfer of the petitioner first to the post of Deputy Chairman and then to the post of Officer on Special Duty was arbitrary, hostile and in mala fide exercise of power. What was the operative reason for such transfer: was it the exigencies of public administration or extra administrative considerations having no relevance to the question of transfer? Was the transfer to the post of Deputy Chairman or Officer on Special Duty so irrational or unjust that it could not have been made by any reasonable administration except for colaterial reasons? These are the questions which call for our consideration”.

Justice Singh noted that although these observations were made in a different context, yet the underlying principle remain the same. There cannot be any arbitrariness in the matter of state policy and principles. 

Justice Singh also referred to the Supreme Court's decision in Menka Gandhi vs. Union of India, reported in (1978) 1 SCC 248, wherein it was held that that every law has to be just, fair and reasonable; otherwise it will be considered unconstitutional. 

Justice Singh observed that the provisions of law as framed under the Bihar Prohibition and Excise Act "does not appear to be perfect law and suffers from a number of infirmities. However, since the provisions of Act or the Rules framed therein are not in challenge, we refrain ourself from making any further comments on the provisions under the Act."

With regard to the case before him, he noted that it was undisputed that the premises in question was let out on rent. The said lease deed was prepared for 11 months between the parties which was effective from October 1, 2023 to August 30, 2024 and this period covered the alleged date of occurrence, pertaining to this case. He underlined in the penultimate paragraph of his judgement that in such a situation, "the petitioner could not be made to suffer for being the landlord/owner of the premises in question if recovery of some intoxicant materials have been made without his knowledge or intention."

As part of Division Bench Justice S. B. Pd. Singh authored all judgments dated September 2

Patna High Court's Division Bench of Acting Chief Justice P. B. Bajanthri and Justice S. B. Pd. Singh delivered seven judgements on September 2, 2025.All the judgements dated September 2 by this bench were authored by Justice Singh. 

In Bibek Kumar Jaiswal @ Vivek Kumar Jaiswal vs. Shabnam Jaiswal @ Sabnam Jaiswal (2025), a case from Supaul, Justice Singh held that Family Court rightly dismissed the matrimonial case of the appellant seeking divorce. 

In Nilu Kumari vs. Sanjay Kumar (2025), a case from Hajipur, Justice Singh set  aside the judgement and decree by Principal Judge, Family Court, Vaishali. 

In Shashi Bhushan Poddar vs. Gyan Bharti @ Rekha Poddar & Anr. (2025), a case from Bhagalpur, Justice Singh upheld Family Court's judgement and decree which dismissed the matrimonial case of the appellant seeking divorce. 

In Arun Kumar vs. Sushmita Kumari (2025), a case from Begusarai, Justice Singh set aside judgment and decree by Principal Judge, Family Court, Begusarai, which had dismissed the divorce case. 

In Md. Naushad Hussain vs. Shahida Khaton & Anr. (2025), a case from Darbhanga, Justice Singh concluded:"Considering the fact that Talaq has already been performed between the parties and in the entire evidence, the appellant-husband has not denied the aforesaid assertion of the respondent and the respondent herself does not want to continue matrimonial relationship with the appellant-husband, we are not inclined to interference with the impugned judgment. The Family Court has rightly dismissed the Matrimonial Case No. 209 of 2012 filed on behalf of the appellant husband."   

In Pramod Pasi vs. The State of Bihar through Secretary Excise and Prohibition Department Govt. of Bihar & Ors. (2025), a case from Gopalganj, the Court recorded that the recovery of illicit liquor was only 7.8 litres which is a meager quantity. Justice Singh concluded:"Considering the small quantity of liquor, the concerned authority is hereby directed to collect fine of Rs. 10,000/-(Ten Thousands) from the petitioner and release the motorcycle in his favour within a period of one week from the date of receipt of this order, for which petitioner has no objection." He observed: "We are conscious of the fact that alleged recovery is meager quantity and the aforesaid order has been passed while invoking extra ordinary jurisdiction under Article 226 of the Constitution of India for the reasons that unnecessarily petitioner shall not be subjected to various proceedings like Rule of 12A of the Bihar Prohibition and Excise Rules, 2021 read with amended sub Rule 2 of Rule 12A in the year 2022 and 2023, Sections 58, 92 and 93 of the Bihar Prohibition and Excise Act, 2016, for an issue of 7.8 litres of illicit liquor and such order is required to prevent the multiplicity of proceeding in the interest of justice."

In Yogendra Yadav vs, The State of Bihar through the Principal Secretary, Bihar Prohibition and Excise Department, Bihar & Ors. (2025), a case from Gaya, Justice Singh took note of the fact that the recovery of illicit liquor was only 1 litre which is a meager quantity. He observed: "Considering the small quantity of liquor, the concerned authority is hereby directed to collect fine of Rs. 5,000/-(Five Thousands) from the petitioner and release the motorcycle in his favour within a period of one week from the date of receipt of this order, for which petitioner has no objection." He added: We are conscious of the fact that alleged recovery is meager quantity and the aforesaid order has been passed while invoking extra ordinary jurisdiction under Article 226 of the Constitution of India for the reasons that unnecessarily petitioner shall not be subjected to various proceedings like Rule of 12A of the Bihar Prohibition and Excise Rules, 2021 read with amended sub Rule 2 of Rule 12A in the year 2022 and 2023, Sections 58, 92 and 93 of the Bihar Prohibition and Excise Act, 2016, for an issue of 1 litre of illicit liquor and such order is required to prevent the multiplicity of proceeding in the interest of justice."

Notably, a 17-page long judgement dated September 1, 2025 by the same Division Bench had set aside the judgment and decree dated February 25, 2019 passed by the Principal Judge, Family Court, Gopalganj. This judgement too was authored by Justice Singh.  

 

Bihar Government challenges quashing of excise case by Justice Bibek Chaudhuri Supreme Court

In Narendra Kumar Ram vs. The State Of Bihar Through The Sect. Excise Commr. Cum Inspector General of Registration, Bihar & Ors. (2025), Justice Bibek Chaudhuri of Patna High Court had passed a 5-page long order dated February  13, 2025, whereby, he quashed the Excise Police Station Case No. 559 of 2024 (Special Case No. 572 of 2024), dated May 2, 2024, registered for the offences punishable under Section 37 of the Bihar Prohibition and Excise Act, 2016. The writ petition was allowed.  

Bihar government has challenged this order before Supreme Court's Division Bench of Justices Sanjay Karol and Sandeep Mehta. It came up for hearing on August 20, 2025.

The case before the High Court was that the petitioner was allegedly found in an inebriated state at his temporary residence in Kishanganj on May 2, 2024, based on a breath analyzer test conducted by an excise team. He was immediately arrested and an F.I.R. was registered against him. The case was  before the Additional District and Sessions Judge-IV cum Special Judge-2 (Excise), Kishanganj.

The petitioner's counsel submitted that the entire prosecution case is based solely on the breath analyzer test, which cannot be a conclusive proof of consumption of alcohol. He also submitted that no confirmatory blood or urine test was conducted, which is mandatory under law.

Justice Chaudhuri recalled Supreme Court's decision in Bachubhai Hassanalli Karyani v. State of Maharashtra, reported in 1971(3)SCC930, wherein, the Court held that no conclusion with regard to consumption of alcohol by a person can be made on the facts that the appellant’s breathe was smelling of alcohol, that his gait was unsteady, that his speech was incoherent and that his pupils were dilated. Consumption of alcohol can only be ascertained by way of blood and urine test by a person suspected to have consumed alcohol.

In the case before the High Court, there was no allegation that at the time of arrest the gait of the original petitioner was unsteady, he was speaking incoherently or that his pupils were dilated.

Justice Chaudhuri stated that in the above-stated report, the Supreme Court found that the blood and urine examination of the appellant was not done and finally held that mere smelling of alcohol is not enough to hold that the petitioner consumed alcohol on the date of his apprehension.

The petitioner's counsel had submitted that the petitioner had visited Electro Homeopathy Institute, Patna on April 16, 2024 for stomach infection treatment, where he was prescribed liquid homeopathic medicines containing alcohol-based solvent. This could have led to the blood alcohol concentration reading of 41/mg/100 ml. in the breath analyzer test, but no further medical examination was conducted to establish the possibility of consumption of alcohol. The counsel for the petitioner also submitted that the F.I.R. and subsequent disciplinary action were initiated due to professional vendetta. The District Magistrate,Kishanganj directed for registration of the F.I.R. and personally pushed the case for departmental action, including suspension, which shows mala fide intent. The petitioner had earlier returned certain financial bills submitted by the Drawing and Disbursing Officer (DDO), Kishanganj, citing procedural errors, which might have triggered retaliatory action against him. 

The counsel for the petitioner further submitted that the criminal case and subsequent departmental action violate his fundamental rights under Articles 14 and 21 of the Constitution of India. The prosecution is based on arbitrary action, without following proper legal procedures, and the suspension without concrete evidence is also not acceptable in the eyes of law.

The counsel for the State had submitted that the petitioner was found in an inebriated condition at his residence with a breath analyzer test, confirming alcohol consumption of 41 mg./100 ml. The Bihar Prohibition and Excise Act, 2016 prohibits alcohol consumption in any form and government servants are specifically barred under Rule 4 of the Bihar Government Servants Conduct Rules, 1976. He further contends that the case was registered lawfully, the breath analyzer test was accurate and no procedural irregularities occurred. The petitioner’s claim of mala fide action are baseless and an attempt to evade legal consequences.

Justice Chaudhary had observed: "....this Court has no other alternative but to hold that the authorities failed to consider the observation of the Hon'ble Supreme Court, and based on breath analyzer report, which cannot be said to be a conclusive proof of consumption of alcohol, F.I.R. has been registered." Now the matter is before the Supreme Court. 

Supreme Court to examine validity of Section 58 of Bihar Prohibition and Excise Act, 2016 read with specific Rules

In The State of Bihar & Ors. vs. Shankar Baranwal (2025), Supreme Court's bench of Chief Justice B.R.Gavai. Justice K. Vinod Chandran and Justice N.V. Anjaria passed an order dated August 9, 2025. It issued notice as it is all set to to examine validity of Section 58 of Bihar Prohibition and Excise Act, 2016 read with Rules 12 A and 12 B of the Bihar Prohibition and Excise Rules, 2021. Its order reads:"Until further orders, there shall be stay insofar as the direction issued by the High Court to make the payment by the valuer is concerned. The case arose out of impugned 7-pag long final judgment and order dated April 16, 2025 in Shankar Baranwal vs. The State of Bihar & Ors. (2025) passed by the Patna High Court's Division Bench of Justices P. B. Bajanthri and S. B. Pd. Singh. 

The High Court's judgement was authored by Justice Bajanthri. The petitioner had prayed for issuance of writ in the nature of certiorari or any other appropriate writ, order or direction for quashing the order dated January 17, 2022 passed in Excise Revision Case No. 282/2021 by Additional Chief Secretary, Bihar, Patna whereby and whereunder the order dated September 10, 2021, passed in Excise Appeal Case No. 523/2021 by the Commissioner, Excise, Patna and order dated July 17, 2021, passed in Confiscation Case NO. 118/2021 by the District Magistrate, Kaimur at Bhabua, which arose out of Durgawati P.S. Case No. 74/2020 have been confirmed and Safari car bearing Registration No. UP-60V-0160 of the petitioner was confiscated and also for giving direction to release the aforesaid vehicle of the petitioner. 

Justice Bajanthri observed: "It is to be noted not even reference to value of the vehicle purchased and depreciation year wise with reference to any policy or the Government or General Insurance Company. In the absence of assessment and randomly evaluation of vehicle in wholesale is highly deprecated. Irrespective of movable and immovable property cannot be valued with the naked eye by the bureaucrats of the State of Bihar and proceed to undertake auction and causing the state exchequer under loss and for the concerned person. In almost each and every case Motor Vehicle Inspectors are evaluating valuation of the vehicle in wholesale without there being individual assessment of the vehicle or property with reference to evaluation like date of purchase and value of what would be value as on the date of seizure of the vehicle and on the date of auction. 5. Having regard to the facts that one liter of liquor has been seized from the subject matter of vehicle, petitioner shall not be penalized in seizing vehicle and auctioning the vehicle at throw away price and realised amount remitting arbitrary and illegal." 

In the light of these observations, the High Court concluded: "the confiscation order, appellate authority order and revision authority order stands modified to the above extent, while exercising extra ordinary jurisdiction under article 226 of constitution", in order to avoid further legal proceedings. 

Supreme Court says, "no coercive steps shall be taken as against the petitioner" after Justice Prabhat Kumar Singh refused anticipatory bail

In Meera Devi vs. The State of Bihar (2025), Supreme Court's bench of Justices B.V. Nagarathna and K.V. Viswanathan passed an order dated July 18, 2025 saying, "Till the next date of hearing, no coercive steps 1shall be taken as against the petitioner herein vis-a-vis FIR NO.1099 OF 2024 dated 21.09.2024 of the Police Station Kishanganj." The petitioner has challenged the order dated April 28, 2025 by Justice Prabhat Kumar Singh of Patna High Court. Justice Singh's order reads:"6. Considering the fact that petitioner is owner of the seized vehicle , prayer for anticipatory bail of the petitioner is refused." 

The petitioner had approached the High Court apprehending arrest in a case registered for the offences punishable under Section 30(a) of Bihar Prohibition and Excise Act. As per prosecution case, 250.500 liters of illicit liquor was recovered from the seized scorpio vehicle of which this petitioner was the registered owner. The counsel for the petitioner had submitted that no incriminating material was recovered from conscious possession of the petitioner. The petitioner had no concern with the alleged recovery but he was made accused in this case only on suspicion. 

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."