Back
IN THE HIGH COURT OF JUDICATURE AT PATNA
HEMANT KUMAR SRIVASTAVA, ADITYA KUMAR TRIVEDI, ASHUTOSH KUMAR, JJ.
Ram Vinay Yadav, Son of Upendra Yadav - Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (SJ) No.431 of 2019
Decided On : 17-05-2019
Bihar Prohibition and Excise Act, 2016 – Section 76(2) – Criminal Procedure Code, 1973 – Section 438 – Whether provisions of Section 438, Cr.P.C continue to apply in spite of bar created under Section 76(2) of Bihar Prohibition and Excise Act, 2016 and as to whether such an application under Section 438, Cr.P.C. for anticipatory bail is maintainable – Matter relating to vires of main Act along with amended Act to be adjudicated upon analogously – Vires of amended Act is also before Apex Court – That being so, instead of taking the issue in hand having proper acknowledgment of fact that matter is pending since before Supreme Court – So, any effort to crystallize the issue relating to Section 76(2) of Act, would not be prudent. (Paras 23 and 26)
Cases Referred:
Confederation of Indian Alcoholic Beverage Companies vs. State of Bihar, 2016 (4) BLJ 123 (PHC) : 2016 (4) PLJR 369; Manish Kumar @ Lokesh Kumar vs. State of Bihar, 2017 (4) BLJ 288 (PHC); AIR 1995 SC 1198, (2012) 8 SCC 795, (2014) 3 SCC 1, (2017) 3 SCC 545, (2016) 10 SCC 165, (2018) 6 SCC 454; (1994) 3 SCC 569 (Kartar Singh vs. State of Punjab (Constitution Bench), AIR 1997 SC 1125 (D.K. Basu vs. State of West Bengal), AIR 1990 SC 2072 (Vijay Kumar Sharma vs. State of Karnataka), (2001) 7 SCC 469 (Ratansingh vs. Vijay Singh); Vilas Pandurang Pawar vs. State of Maharashtra, (2012) 8 SCC 795; Subhash Kashinath Mahajan vs. State of Maharashtra, 2018 (2) BLJ 90 (SC) : (2018) 6 SCC 454; Debjyoti Bhattacharyya vs. State of West Bengal C.R.M. 8302/2018; Vilas Pandurang Pawar vs. State of Maharashtra, (2012) 8 SCC 795; Bisheshwar Mishra vs. State of Bihar, 2016(4) PLJR 1058; 1995 Suppl. (3) SCC 434 (Chhavi Mehrotra vs. Director General Health Services; State of Maharashtra vs. Farook Mohammed Kasim Mapkar, (2010) 8 SCC 582; Confederation of Indian Alcoholic Beverage Companies vs. State of Bihar vide judgment dated 30.09.2016, 2016 (4) BLJ 123 (PHC) : 2016(4) PLJR 369; State of M.P. vs. Ram Krishna Balothia, (1995) 3 SCC 221; 2017 (4) BBCJ 301(HC); Manish Kumar @ Lokesh Kumar vs. State of Bihar, 2017 (4) BLJ 288 (PHC) : 2017(4) PLJR 369 – Referred.
Vilas Pandurang Pawar vs. State of Maharastra, (2012) 8 SCC 795; Chhavi Mehrotra vs. Director General Health Services, 1995 Suppl. (3) SCC 434; State of Maharashtra vs. Farook Mohammed Kasim Mapkar, (2010) 8 SCC 582; Chhavi Mehrotra vs. Director General Health Services, 1995 Suppl. (3) SCC 434; State of Maharashtra vs. Farook Mohammed Kasim Mapkar, (2010) 8 SCC 582; Jagat Prasad vs. State of U.P., (1998) 8 SCC 632; Kartar Singh vs. State of Punjab, (1994) 3 SCC 569; State of Gujrat vs. Salimbhai Abdulgaffar Shaikh, (2003) 8 SCC 50; State of M.P. vs. Ram Krishna Balothia, (1995) 3 SCC 221; P. Surendran vs. State of Inspector of Police, 2019 (2) PLJR (SC) 291; L. Chandra Kumar vs. U.O.I., AIR 1997 SC 1125; Asian Resurfacing of Road Agency Pvt. Ltd. vs. Central Bureau of Investigation, 2018 (2) BLJ 136 (SC) : (2018) 16 SCC 299 – Relied.
Per Ashutosh Kumar, J.) (Assenting View)
Criminal Procedure Code, 1973 – Section 438 – Bihar Prohibition and Excise Act, 2016 – Section 76(2) – Constitution of India – Article 21 – Whether provisions of Section 438, Cr.P.C continue to apply in spite of bar created under Section 76(2) of Bihar Prohibition and Excise Act, 2016 and as to whether such an application under Section 438, Cr.P.C. for anticipatory bail is maintainable – Some of offences listed in Act of 2016 do not partake of nature of heinous offences; nonetheless stringent punishments have been provided for the same – It cannot be said with certainty that there are no false implications in this country – For balancing right of liberty of an accused guaranteed under Article 21 of Constitution of India which could be taken away only by a reasonable procedure and to check any abuse of power by police and injustice to a citizen, exercise of right of arrest is necessarily to be viewed with utmost care and circumspection – It is in this context that necessity arises for a wise and not Carthusian exercise of judicial power, which would go a long way in inevitably curtailing evil consequences which are likely to flow from such absolute provisions in the Act, which takes away, in actuality, right to liberty by prohibiting application of provisions of Section 438 Cr.P.C. (Paras 27 and 28)
Bihar Prohibition and Excise Act, 2016 – Section 76(2) – Criminal Procedure Code, 1973 – Section 438 – Whether provisions of Section 438, Cr.P.C continue to apply in spite of bar created under Section 76(2) of Bihar Prohibition and Excise Act, 2016 and as to whether such an application under Section 438, Cr.P.C. for anticipatory bail is maintainable – Till the time, vires of Act of 2016 is tested / adjudicated by Supreme Court of India which would include a decision on correctness / justification of a State Legislature in providing / legislating a complete bar to grant of anticipatory bail to accused persons of offences under the Act, anticipatory bail petitions shall otherwise not be maintainable, unless from facts of case, it would prima facie appear that none of ingredients of offences under Act of 2016 are made out for attracting bar of Section 76 (2) of Act. For coming to conclusion as to whether offence can be said to be made out from facts of case, no detailed / roving enquiry is to be made – If ingredients of offence are not made out, anticipatory bail can be granted to an accused person. (Paras 88 and 92)
Judicial Decorum – If a Bench of Coordinate jurisdiction disagrees with another Bench of Coordinate jurisdiction, whether on the basis of different arguments or otherwise, on a question of law, it is appropriate that matter be referred to a Larger Bench for resolution of the issue rather than to leave two conflicting judgements to operate, creating confusion – It is not proper to sacrifice certainty of law. (Para 43)
Bihar Prohibition and Excise Act, 2016 – Section 76(2) – Criminal Procedure Code, 1973 – Section 438 – Constitution of India – Articles 246 and 254 – Repugnancy in legislations – Substance of an enactment would be material and not merely form or outward appearance of it – If subject matter in substance is beyond powers of a particular legislature to legislate upon, it will be condemned even if it is caparisoned in such a manner as to give an appearance of falling within area of competence – Legislature cannot indirectly legislate on a topic which is not competent to legislate upon directly – Question of repugnancy under Article 254(1) of Constitution between a law made by Parliament and the law made by State Legislature arises only in cases when both legislation occupy same field with respect to matters enumerated in Concurrent List and there is a direct conflict between two laws – It has no application to cases of repugnancy due to overlapping found between List-II, on one hand, and Lists-I and III, on other – If such overlapping exceeds in any particular case, State law will be ultra vires – When both coincide, repugnancy is complete and whole of State law becomes void. (Paras 49, 53, 56 and 57)
Cases Referred:
Confederation of Indian Alcoholic Beverage Companies vs. State of Bihar, 2016 (4) BLJ 123 (PHC) : 2016 (4) PLJR 269; State of Bihar vs. Kalika Kuer; (2003) 9 SCC 448; Ram Pratap Singh vs. State of U.P. (FB); (1996 Cr.L.J. 665; Ranchi Timber Traders Association vs. State, 1997 (1) PLJR 133; Bachu Das vs. State of Bihar, (2014) 3 SCC 471; Manju Devi vs. Onkarjit Singh Ahluwalia @ Omkarjeet Singh, (2017) 13 SCC 439; Nirmal Jeet Kaur vs. State of Madhya Pradesh, (2004) 7 SCC 558; Maneka Gandhi vs. Union of India, 1978(1) SCC 248 – Referred.
Gudikanti Narasimhulu vs. Public Prosecutor, High Court of Andhra Pradesh, AIR 1978 SC 429; Nikesh Tarachand Shahv vs. Union of India, (2018) 11 SCC 1; Gurucharan Singh vs. State (Delhi Administration); (1978) 1 SCC 118; Shri Gurbaksh Singh Sibbia vs. State of Punjab; (1980) 2 SCC 565; State of Madhya Pradesh vs. Ram Kishna Balothia, (1995)3 SCC 221; Rajesh Kumar vs. State through Government of NCT of Delhi; (2011) 13 SCC 706; Joginder Kumar vs. State of U.P., (1994) 4 SCC 260; Som Mittal vs. Government of Karnataka; (2008) 3 SCC 753; Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273; D. K. Basu vs. State of West Bengal; (1997) 1 SCC 416; Dr. Rini Johar vs. State of M.P., (2016) 11 SCC 703; Mamleshwar Prasad vs. Kanhaiya Lal; (1975) 2 SCC 232; Vijay Laxmi Sadho (Dr.) vs. Jagdish; (2001) 2 SCC 247; Pradip Chandra Parija vs. Pramod Chandra Patnaik; (2002) 1 SCC 1; Lord Goddard in Moore vs. Hewitt, (1947) 2 All England Reports 270 (KBD); Penny vs. Nicholas; (1950) 2 All England Reports 89 (KBD); A. R. Antulay vs. R. S. Nayak; (1988) 2 SCC 602; Fuerst Day Lawson Ltd. vs. Jindal Exports Ltd., (2001) 6 SCC 356; Innoventive Industries Limited vs. ICICI Bank, (2018) 1 SCC 407; Innoventive Industries Ltd. vs. ICICI Bank Ltd.; 2017 SCC OnLine NCLAT 70; Zaverbhai Amaides vs. State of Bombay; AIR 1954 SC 752; Ch. Tika Ramji etc. vs. State of Uttar Pradesh, AIR 1956 SC 676 ; G.P. Stewart vs.. Brojendra Kishore Roy Chaudhury; AIR 1939 Calcutta 628; Deep Chand vs. State of U.P., AIR 1959 SC 648; M. Karunanidhi vs. Union of India, (1979) 3 SCC 431; Hoechst Pharmaceuticals Ltd. vs. State of Bihar, (1983) 4 SCC 45; Vijay Kumar Sharma vs. State of Karnataka, (1990) 2 SCC 562; Rajiv Sarin vs. State of Uttrakhand; (2011) 8 SCC 708; Chhavi Mehrotra vs. D. G. Health Services; 1995 Supp (3) SCC 434; State of Maharashtra vs. Farook Mohammed Kasim Mapkar, (2010) 18 SCC 582; Narendra Mishra vs. State of Bihar, 2014 (4) BLJ 210 (PHC) : 2015 (1) PLJR 650; Kedar Nath Singh vs. State of Bihar, AIR 1962 SC 955 – Relied.
Per Hemant Kumar Srivastava, J.) (Assenting View)
Bihar Prohibition and Excise Act, 2016 – Section 76(2) – Criminal Procedure Code, 1973 – Section 438 – Whether provisions of Section 438, Cr.P.C continue to apply in spite of bar created under Section 76(2) of Bihar Prohibition and Excise Act, 2016 and as to whether such an application under Section 438, Cr.P.C. for anticipatory bail is maintainable – If accusation made against a person does not make out any offence under provisions of Act 2016 from perusal of FIR/complaint itself, court can entertain petition under Section 438 of the Cr.P.C. even if case has been registered for offences of Act 2016. (Para 6)
Cases Referred:
Ashok Sahani vs State of Bihar, 2017(3) BLJ 225 : 2017(3) PLJR 632; Manish Kumar @ Lokesh Kumar vs. State of Bihar, 2017 (4) BLJ 288 (PHC) : 2017(4) PLJR 369; Sushil Kumar Mishra vs. State of Bihar, 2017(4) PLJR 567 – Referred.
Vilas Pandurang Pawar vs. State of Maharashtra, (2012) 8 SCC 795; Bisheshwar Mishra vs. State of Bihar, 2016 (4) PLJR 1058; State of Bihar vs. Kalika Kuer, (2003) 9 SCC 448; Rana Pratap Singh vs. State of Uttar Pradesh (Full Bench), 1996 Cr.L.J. 665 – Relied.
JUDGMENT :
ADITYA KUMAR TRIVEDI, J.
1. This Full Bench has been 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 2nd October, 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.
2. 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 Apex 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.
3. 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 have been issued and further directing to tag with the original SLP(c) Nos. 27949-29763/2016 further proceeding has been stayed.
4. 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. For better appreciation, the same is quoted below:
"Section 76 - 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 (Act 2 of 1974). Section 438 of Code of Criminal Procedure 1973 (2 of 1974) and Probation of Offenders Act, 1958 (20 of 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."
5. 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.
6. Subsequently thereof, the matter has come up before another Bench in Manish Kumar @ Lokesh Kumar Vs. The State of Bihar Cr. Misc. No. 21578 of 2017
The main legal point established in the judgment is the binding effect of the settlement between the parties, the waiver of the right to seek re-employment by the workmen, and the entitlement of the ....
A lockout is justified if it is declared in response to an illegal strike or a strike that is in breach of a settlement or award.
The combination of eyewitness testimonies, recovery of the weapon used, and forensic examination results can establish guilt in criminal cases, even based on circumstantial evidence.
The conviction of an accused person under Section 27(3) of the Arms Act is not permissible in law if the accused is also charged with committing murder under Section 302 of the Indian Penal Code.
The court can enhance compensation based on the deceased's income and family dependency, and adjust the multiplier used by the Tribunal if found unjustified.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
