Dismissed

Nisar Khan v. The State of Bihar

Patna HC16 Sept 2019CR. MISC./57898/2019

Case brief

AI extract

What is this about?

This bench held that anticipatory bail petitions are not maintainable for offences under the Prohibition Act, 2016 due to Section 76(2). The petitioners were directed to surrender.

What did the court decide?

Anticipatory bail petition dismissed; petitioners directed to surrender and seek regular bail before the lower court.

What the court decided

Nisar Khan Vs The State of Bihar — Constitutional and Fundamental Rights | Patna HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.57898 of 2019

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Arising Out of PS. Case No.-492 Year-2019 Thana- TURKAULIYA District- East Champaran

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======================================================

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NISAR KHAN S/o Late Safi Mahamad @ Safi Ahmad Khan R/O vill Sapahi Shekh Toli, P.S. Raghunathpur (O.P.), Dist. East Champaran.

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Ramesh Ram S/O Late Bangali Ram R/O vill Sapahi Shekh Toli, P.S. Raghunathpur (O.P.), Dist. East Champaran.

... ... Petitioner/s

Versus

The State of Bihar

... ... Opposite Party/s

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====================================================== Appearance : For the Petitioner/s : Mr.Dhannjay Kumar No 2 For the Opposite Party/s : Mr.Kanhaiya Kishore ====================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER

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2 16-09-2019 Heard learned counsel for the petitioners and learned APP for the State.

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The petitioners apprehend their arrest for the offences alleged under Sections 272,273/34 IPC and Section 30(a) of the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as ‘the Prohibition Act, 2016’) registered in connection with Turkawaliya (Raghunathpur) P.S. Case No. 492 of 2019.

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At the very outset, this Court takes note of an order passed by a co-ordinate Bench of this Court in Ashok Sahani Vs. The State of Bihar, 2017(3) PLJR 632 . After a detailed deliberation over the effect of Section 76(2) of the Prohibition Act, 2016, it was categorically opined in paragraph-14 that the privilege of pre-arrest bail under Section 438 of the Cr. P.C. is not available to person accused of having committed an offence under the Prohibition Act, 2016. Certain guidelines (not exhaustive) were also laid out in paragraph-30, indicating circumstances where bail should normally be granted to the accused persons on their production by the police or on their surrender. The Registrar General was also directed to ensure that

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Patna High Court CR. MISC. No.57898 of 2019(2) dt.16-09-2019 2/4

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stamp reporters would not place applications filed under Section 438 of the Cr. P.C. arising out of the cases under the Prohibition Act, 2016 before the Bench as defect free cases henceforth.

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The aforesaid order in Ashok Sahani’s case ( supra ) came to be considered of another co-ordinate Bench of this Court passed in Cr. Misc. No. 21578 of 2017 (Manish Kumar @ Lokesh Kumar Vs. The State of Bihar) which, by order dated 10.08.2017, held the earlier judgment per incuriam , apart from holding the provisions of Section 76(2) of the Prohibition Act, 2016 as void in view of Article 254 of the Constitution of India. The question whether the Registry could be restrained from entertaining anticipatory bail petitions as directed in Ashok Sahani’s case ( supra ), was referred to a larger Bench.

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By another judgment dated 03.10.2017 passed by a third co-ordinate Bench of this Court in Cr. Misc. No. 42985 of 2017 (Barun Kumar Vs. The State of Bihar) , the issue relating to maintainability of anticipatory bail petitions in respect of offences under the Prohibition Act, 2016 came to be considered yet again. The decision in Manish Kumar’s case ( supra ) was found to have been passed in oversight of the relevant provisions of the Constitution of India as well as Section 4 of the Cr. P.C. which could not be placed before it. As such the decision in Ashok Sahani’s case ( supra ) was held to be binding on a co-ordinate Bench wherein it had been held that an anticipatory bail petition under Section 438 of the Cr. P.C. cannot be maintained in cases of offences arising out of the Prohibition Act, 2016.

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The reference to the Larger Bench in Cr. Misc. No. 21578 of 2017 (Manish Kumar @ Lokesh Kumar Vs. The State of Bihar) was answered by the Division Bench in its order dated 06.11.2017, opining that the Registry could not be restrained from entertaining anticipatory bail petition in compliance of the order passed in Ashok Sahani’s case ( supra ). However, in paragraph-9 of the said order, it was specifically stated that the aspect of the vires/validity/repugnancy of Section 76(2) was not being considered as the same was already subjudice before the Apex Court. The principles noticed by an earlier Division Bench in Bisheshwar Mishra vs. The State of Bihar, 2016 (4)

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Patna High Court CR. MISC. No.57898 of 2019(2) dt.16-09-2019 3/4

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PLJR 1058 in the context of a similar bar to grant of anticipatory bail under the provisions of SC/ST Act in the light of the Apex Court’s decision in Vilas Pandurang Pawar Vs. State of Maharashtra, (2012) 8 SCC 795 were taken note of in paragraph-13, which cast a duty upon the Court considering the pre-arrest bail of an accused, to look into the allegations made in the F.I.R./Complaint to find out whether ingredients of the offence under the SC/ST Act were prima facie made out or not before exercising its judicial discretion under Section 438 of the Cr. P.C. It was therefore held that the law regarding consideration of an application under Section 438 of the Cr. P.C. for grant of pre-arrest bail to the accused under an Act where there is a bar to grant of anticipatory bail, had been settled as such.

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7 . It is relevant to take note that an order dated 14.02.2019 was passed by this Bench in Cr. Misc. No. 8719 of 2019 (Nishikant Tiwary and Anr. vs. the State of Bihar) rejecting the prayer for anticipatory bail as not maintainable in view of Section 76(2) of the Prohibition Act, 2016. The said order was assailed before the Hon’ble Supreme Court giving rise to Special Leave to Appeal (Criminal) No. 2324 of 2019 which, in a recent development, came to be disposed of on 11.03.2019, inter alia , with the following observations --

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“ We do not find any reason to interfere in the impugned order passed by the High Court. The Special Leave Petition is, accordingly, dismissed.

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Pending application filed in the matter also stands disposed of.

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The petitioners are directed to surrender before the appropriate Court immediately and upon such surrender, if they file an application for bail, the said Court after hearing the parties on the application for bail, consider the same and pass appropriate orders expeditiously and in accordance with law.”

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Learned counsel for the petitioners has also not been able to show that any material change on the question of maintainability has come about as a result of the recent judgment dated 17.05.2019 of a Full Bench of this Court in Criminal Appeal (SJ) No. 431 of 2019 (Ram

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Patna High Court CR. MISC. No.57898 of 2019(2) dt.16-09-2019 4/4

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Vinay Yadav vs. The State of Bihar).

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Further, learned counsel for the petitioners has not been able to satisfy this Court that looking to the allegations made in the FIR, the ingredients of the offences alleged against the petitioners have not been made out.

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In view of the above, this Court has no hesitation in holding that the anticipatory bail petition in respect of offences alleged against the petitioners under the Prohibition Act, 2016 is not maintainable.

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The anticipatory bail petition accordingly stands dismissed.

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If the petitioners surrender and seek regular bail before the learned Court below the same shall be considered on its own merit in accordance with law on the same day, without being prejudiced by any observation in the present order.

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(Vikash Jain, J)

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Chandran/-

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U T

Nisar Khan v. The State of Bihar

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Nisar Khan v. The State of Bihar

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