Ram Vinay Yadav vs The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.431 of 2019 Arising Out of PS. Case No.-261 Year-2018 Thana- BISFI District- Madhubani ====================================================== Ram Vinay Yadav, son of Upendra Yadav Resident of Village - Godhaul, PO- Sadullahpur, Head PO- Kamtaul, Gorhaul, District-Madhubani. ... ... Appellant. Versus The State of Bihar ... ... Respondent. ====================================================== Appearance : For the Appellant/s : Mr. Y.V. Giri, Sr. Adv. Mr. P.K. Shahi, Sr. Adv. Mr. Ansul, Amicus Curiae Mr. Rajesh Ranjan, Amicus Curiae Mr. Dr. Anshuman, Amicus Curiae Mr. Prabhat Ranjan, Amicus Curiae Mr. Ajay Kumar Thakur, Adv. Mr. Bindhyachal Singh, Adv. Smt. Soni Srivastava, Adv. Mr. Madhusudan Kumar, Adv. For the U.O.I : Mr. S.D. Sanjay, ASG Mr. Mohit Agrawal, Adv. For the State : Mr. Lalit Kishore, A.G. Mr. Prabhu Narayan Sharma, AC to A.G. Ms. Prachi Pallavi, AC to A.G. ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI and HONOURABLE MR. JUSTICE ASHUTOSH KUMAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI)

Date : 17 -05-2019

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 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 2/118

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 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 3/118

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 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 4/118

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 wherein the above

referred order was placed and the learned Bench held that

presence of Section 76 of the Excise Act (State list) happens to be

repugnant to Section 438 of Cr.P.C., (concurrent list) on account

thereof, there was requirement of assent at the end of the President

as provided under Article 254(2) of the Constitution of India and,

being deficient thereupon, the amendment enforceable from 2nd

October, 2016 was not at all valid one. The Bench also observed

that in the background of aforesaid infirmity, the barrier so

prescribed under Section 76 of the Excise Act would not be Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 5/118

legally acknowledgeable and thus, while granting anticipatory bail

to the petitioner, the matter was referred to the Division Bench,

more particularly in the background of shutter having affixed over

the registry by the earlier bench in accepting petitions and further,

to adjudicate upon the propriety of the Section 76(2) of the Act.

During course of analyzing the ambit and scope in cursory way,

the order so passed under Ashok Sahani has been stamped as "per-

incurium". Before the matter was to be listed before the Division

Bench, a new interpretation came out from another Bench while

considering the prayer in Cr. Misc. No.42985/2017 (Barun Kumar

vs. The State of Bihar) whereunder, referring standing order

no.3/1994 in connection with the Rule-12 of Chapter-XXI-C of

the Patna High Court Rules, it has been held that the single Bench

while considering Manish case was not at all competent enough to

penetrate over vires, as the sphere belongs to Division Bench. And

also substantiated the same by referring Ranchi Timber Traders

Association & Ors. vs. State and Ors. Reported in 1997(1) PLJR

133. In the aforesaid background, observed that Ashok Sahani still

commands the field whereupon petition for anticipatory bail

would not be maintainable. The Division Bench while considering

the same observed that as the vires of the act is subjudice before

the Apex Court on account thereof, forbidded to lay hands over Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 6/118

the same, however, the hurdle having been led by the earlier bench

directing the registry not to accept any petition relating to seeking

relief of anticipatory bail under Excise Act, removed by strucking

it down Apart from this, it is also evident therefrom that while

adjudicating upon the aforesaid issue, the learned Division Bench

took into cognizance the principle decided by the Apex Court in

Vilas Pandurang Pawar vs. State of Maharastra reported in

(2012) 8 SCC 795 relating to SC ST (POA) Act, having similar

kind of provisions and for better appreciation the relevant para is

quoted below:

"(8) Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail. (9) The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence." Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 7/118

7. Even thereafter, respective Benches having at

variance caused anxiety to the Chief Justice and thus, constitution

of the instant Full Bench.

8. The Chief Justice formulated following 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 the case of Ashok Sahani (supra) and as further explained in the case of Barun Kumar (supra) lays down the law correctly or whether the conflicting view in the case of Manish Kumar (supra) reflects the correct position of Law? (3) Whether the learned Single Judge in the case of Manish Kumar (supra) 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 Apex Court in the case of State of Bihar vs. Kalika Kuer reported in (2003) 9 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 8/118

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 06.11.2017

was justified in not resolving the dispute on the ground of the pendency of the two writ petitions before the Apex 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 Apex 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 this Court?

9. Considering the importance of the terms of reference

as well as legal jugglery imbibed therein, apart from hearing the

learned counsel for the petitioner as well as learned Advocate Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 9/118

general, learned Additional Solicitor General, also been invited

and allowed participation of large number of learned counsels as

an amicus curiae who actively participated and adorned the Bench

with their legal accumane with illuside submissions, and those are

Sri Y.V. Giri, Sr. Adv., Sri P.K. Shahi, Sr. Adv., Sri Ajay Kumar

Thakur, Adv, Sri Bindhayachal Singh, Adv., Smt. Soni Srivastava,

Adv, Sri Prasant Kumar, Adv., Sri Ansul, Adv., Sri Rajesh Ranjan,

Adv. Dr. Anshuman, Adv.

10. Before coming to submissions having raised on

behalf of learned respective counsels, they all are unanimous that

in the background of pendency of SLP before the Apex Court and

further, staying the further proceeding of two subsequent writs

having been so filed challenging the amended provision which

also encompasses Section 76, the High Court could not indulge in

scrutiny of reference no.4 and 5, as it will tantamount to

interference within arena of superior court being in seisin of the

matter. In likewise manner, it has also been submitted that in the

background of pendency of aforesaid SLP, the remaining points

also found waddled as, disability of checker, will Grading over

shadow. Hence, the issue in hand, till pendency of SLP would not

attract nor this court in the aforesaid circumstances could lay its

verdict in finality. That means to say, only stop gap arrangement Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 10/118

has to be found out, and for that purpose constitution of Full

Bench is not at all justifiable as, Division Bench in Manish Kumar

had already resolved the issue by laying down correct procedure

to be followed during intervening period, till finalization of the

issue by the Apex Court. It has also been canvased that the full

bench, for the present could not answer contrary to Manish Kumar

decided by the Division Bench. Furthermore, it has also been

urged that after verdict of Division Bench in Manish Kumar, no

more controversy subsists, more particularly relating to Question

no.1,2. So far Question no.3 is concerned, the finding of the

Division Bench made the issue redundant.

11. However, the following points have also been raised

in order to properly assist the Bench.

12. It has been argued at the end of the learned Senior

Counsel Sri Y.V. Giri that Article 47 duly acknowledges activity of

the State (directive principle of State) which should be read in

conjunction with Article 246 of the Constitution of India and

under guise thereof, the seventh schedule stood acknowledges

three categories of charter part first union list, part two the State

list and part third the concurrent list having under each others

dominion. It is evident therefrom that the excise is found under

State list and that being so, the State happens to be within Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 11/118

exclusive domain to prescribe procedure, relating to offences in

violation thereof as well as sentence. Now, coming to present

theme, as is evident, it encompasses eventualities. The first one,

whether the State is competent enough to expand over the area

occupied by the centre, and more particularly, the Cr.P.C, falling

under concurrent list could the State without following the

procedure engrafted under Article 254(2) of the Constitution of

India, that means to say without having assent of President of

India, decadences certain provisions thereof, in spite of presence

of Section 4(2) as well as Section 5 Cr.P.C. duly acknowledging

the procedure so sketched with regard to special law. However, as

the learned counsel has submitted, the aforesaid activity would be

recognizable only when the act has got validity over its germane.

Has there been, then in that circumstance, its procedure even

barricading the provisions for anticipatory bail as provided under

Section 76 of the Act would survive otherwise not. Being deficient

thereupon, there happens to be repugnancy in between

whereupon , the central act would prevail, governing the subject in

terms of Article 254(1) of the Constitution of India and that being

so, petition for anticipatory bail in accordance with Section 438 of

the Cr.P.C. would be entertainable.

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 12/118

In an alternative it has also been submitted that as per

Article 21 read with Article 14 of the Constitution of India, duly

recognizes the personal liberty of a citizen. Further, Article 21 has

some sort of rigidity while shielding personal liberty of a citizen,

but having an exception gain saying under due process of law.

Though, bail could not be a fundamental right but it happens to be

a legal right. When this happens to be a legal right then, in that

circumstance, its deprivation should be within the ambit of the

law. Because of the fact that there happens to be ambiguity over

the present enactment due to absence of assent of the President, on

account thereof, it could not be enforceable, whereupon visibility

of any kind of embargo would not be perceptible.

13. In its continuity, the learned Senior Counsel also

raised the doctrine of classification but cautiously. Also referred

AIR 1995 SC 1198, (2012) 8 SCC 795, (2014) 3 SCC 1, (2017) 3

SCC 545, (2016) 10 SCC 165, (2018) 6 SCC 454.

14. The learned Senior Counsel Sri P.K. Shahi during

course of his submission has raised other issues also including that

of whatever been argued at the end of learned Senior Counsel Sri

Y.V. Giri. The first and foremost argument having been made at

his end relates with the Canadian theory of pith and substance and

submitted that to some extent encroachment was permissible in Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 13/118

the background of Article 246 of the Constitution of India relating

to the subject falling under concurrent list but, for that the assent

of President was necessary in tune of requirement so prescribed

under Article 254(2) of the Constitution of India and that being so,

the aforesaid theory was not at all applicable. In an alternative, it

has also been submitted that even if State is found within its

domain to legislate such enactment, even then, it has got no

legislative power to sterile the Central Act that too in absence of

assent of the President. Further urged that due acknowledgment of

State Act within its jurisdiction, relating to concurrent list is

subject to assent, and for want thereof, is repudiatable.

15. Furthermore, it has also been argued that the barrier

having so prescribed under Section 76(2) of the Excise Act is not

at all found legally entertainable because of the fact that unless

and until there happens to be proper consideration by a Court of

Law whether the allegations whatever been alleged did attract

application of Excise Act. Mere leveling thereof in the format of

the FIR would not constitute an offence punishable under the

Excise Act. That being so, irrespective of barrier the power of

court still survives in order to trace out whether a case of excise

Act is made out or not. If not, then certainly, an accused would be Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 14/118

entitled for anticipatory bail otherwise, the same would be non-

maintainable.

16. In order to buttress his plea, it has further been

submitted that in corresponding enactment such as Money

Laundering Act, Scheduled Caste Scheduled Tribe (POA) Act,

TADA Act etc. not only the provision of Section 438 Cr.P.C. has

been eclipsed rather some sort of barrier has also been inflicted

relating to regular bail which, repeatedly been subject to

consideration before the Hon'ble Apex Court and repeatedly, it

has been observed that all the enactments are subject to judicial

scrutiny and that being so, irrespective of bar so inflicted by way

of special provision having under the relevant act, been considered

and diluted with regard to appropriate cases. In support thereof,

the learned Senior Counsel has also relied upon (1994) 3 SCC 569

(Kartar Singh vs. State of Punjab (Constitution Bench), AIR

1997 SC 1125 (D.K. Basu v. State of West Bengal), AIR 1990

SC 2072 (Vijay Kumar Sharma & Ors. Vs. State of Karnataka

& Ors.), (2001) 7 SCC 469 (Ratansingh v. Vijay Singh).

17. The learned counsel Shri Ajay Kumar Thakur has

submitted that constitution of Full Bench is not at all required in

the background of the fact that as per terms of reference itself, it is

evident that the matter of controversy is found duly answered by Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 15/118

the Division Bench in Manish Kumar case. Furthermore, it has

also been urged that as per judicial norms, the judgment of the

Division Bench is to be followed by the Single Bench which the

respective Single Bench ought to have. Because of the fact that the

respective Single Judge failed to adhere the finding recorded by

the Division Bench, whereupon such acrimonious situation has

arisen.

18. The learned counsel Shri Bindhayachal Singh while

supporting the above view has submitted that as there happens to

be no controversy on account thereof, nothing remains to be

answered by the Full Bench in the background of finding so

recorded by the Division Bench with regard to Manish Kumar

case.

19. Shri Ansul, Shri Rajesh Ranjan, Dr. Anshuman have

challenged the propriety of Section 76(2) of the Bihar Prohibition

and Excise Act and on that very score, it has been submitted that

by way of introduction of 76(2) of the Act, the State has

transgressed its legislative power by way of annulling the

applicability of Section 438 of the Cr.P.C. a central enactment

falling under concurrent list as per third list so prescribed under

Article 246 of the Constitution whereupon, the enactment required

assent of President and being deficient on that score, would not Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 16/118

found valid and that being so, rightly been declared ultra vires by

the Single Judge in Manish Kumar. The learned respective

counsels also referred different citations. It has also been

submitted that by way of introduction of Section 76, virtually

power of the High Court has been infringed and then, in that

circumstances, as required under Article 200 of the Constitution of

India the assent of President was necessary in accordance with

Article 201 of the Constitution of India and so, on this score also

the present Act could not be considered to be the intra vires.

20. Learned counsel Shri Prabhat Ranjan during course

of his submission, first of all challenged the constitution of the

Full Bench. In order to justify his submission, it has been

submitted that as per Chapter-V, Rule-I of the Patna High Court

Rules the direct constitution of Full Bench would not have

occurred because of the fact that the same would have been only

after having been referred by the Division Bench that too, when

conflicting Division Bench views were prevailing since before and

further, the finding thereof has been doubted, by the said Bench.

Therefore, irrespective of the fact that Chief Justice happens to be

master of the roster, may constitute a Full Bench but would not

have referred the matter as, like present one. Further, elaborating

the issue it has been argued that constitution of Bench is other Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 17/118

matter, for which Chief Justice has been found to be master,

appropriated by several judicial pronouncement, but directly

referring the matter to the full bench, while judgment of Division

Bench (Manish Kumar) was already surviving over the issue,

happens to be out of jurisdictional avenue, as, the same could be

only be by fulfilling the criteria so prescribed therefor. In its

continuity, it has been submitted that Chief Justice while

discharging its function as single judge, would not usurp over

Division Bench. Then, it has been argued that the mater is found

properly answered by the Division Bench (Manish Kumar) in the

background of existing scenario. Whatever controversy arose, that

is only due to non-following of the finding of the Division Bench

which, the Single Judge was very much under obligation to abide.

Apart from this, it has also been submitted that according to terms

of reference itself, being volatile, made the reference intangible.

Question No.5 is indicative of the fact that the vires of the Act

happens to be under sub-jugation before Apex Court and that

being so, the Full Bench was not at all competent enough to

comment over the propriety of Section 76(2) of the Act which, the

Division bench in Manish Kumar case has duly acknowledged. Apart from this, it has also been submitted that after going through

the judgment of the Manish Kumar case, it is apparent that the Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 18/118

Division Bench have invented the stop gap arrangement in order

to ward of the stalemate after considering the principle laid down

by the Hon'ble Apex Court in connection with SC ST (POA) Act

pointing similar kind of barrier (pari materia) in Vilas Pandurang

Pawar & Anr. Vs. State of Maharashtra & Ors. reported in

(2012) 8 SCC 795 and the said view has been reiterated by the

Hon'ble Apex Court in Subhash Kashinath Mahajan v. State of

Maharashtra reported in (2018) 6 SCC 454. Also submitted that

recently in Debjyoti Bhattacharyya vs. The State of West

Bengal C.R.M. 8302/2018 the Calcutta High Court has observed

that mere registration of case under particular section would not

disentitled the accused to seek an anticipatory bail rather, for the

aforesaid purpose the allegation on its face has to be seen as

observed in Vilas Pandurang Pawar & Anr. Vs. State of

Maharashtra & Ors. reported in (2012) 8 SCC 795. It has also

been submitted that Division Bench of this Court in Bisheshwar

Mishra vs. The State of Bihar reported in 2016(4) PLJR 1058

has observed that for the purpose of adjudicating upon

maintainability of an anticipatory bail relating to SC/ST (POA)

Act, the allegation on its face has to be seen and if the court comes

to a conclusion that no case is made out then in that circumstance,

the court is fully empowered to grant anticipatory bail to the Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 19/118

accused relying upon Vilas Pandurang Pawar (Supra) case. So, it

has been submitted that the reference so made by the Chief Justice

is not at all found in tune with Patna High Court Rules. If it is held

that the reference is in accordance with law then, in that event, be

answered accordingly.

21. The learned Advocate General as well as learned

Additional Solicitor General argued in sameness on account

thereof, their argument is not at all discussed separately,

individually, independently save and except so required at an

appropriate juncture. The learned Advocate General has submitted

that vires of the original act 2016 was challenged in

Confederation of Indian Alcoholic Beverage Companies vs.

State of Bihar and Ors. wherein the same has been declared ultra

vires which happens to be the subject matter of Special Leave to

Appeal (C) Nos.29749/2016 before the Apex Court. It has further

been submitted that after introduction of new amended act, two

writs CWJC No.8640/2016 (Abhay Kumar Mishra vs. The

Union of India and Others) and CWJC Diary No.73098 of

2016 (Dr. Rai Murari vs. The State of Bihar & Ors.) have been

filed raising the germen of the amended enactment whereupon, the

State of Bihar moved transfer petition before the Apex Court so

that vires of the amended act be properly adjudicated upon along Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 20/118

with S.L.P (c) No.29749/2016 whereupon cognizance has been

taken by the Apex Court directing tagging of the same with

Special Leave to Appeal (C) Nos.29749/2016, meanwhile further

proceeding has also been stayed that tantamounts to inclination of

the Apex Court to consider the issue even in its original

jurisdiction with regard to vires of the amended act along with

SLP(C) No.29749/2016. In the aforesaid background, citing 1995

Suppl. (3) SCC 434 (Chhavi Mehrotra vs. Director General

Health Services & Ors. as well as State of Maharashtra vs.

Farook Mohammed Kasim Mapkar & Ors. reported in (2010)

8 SCC 582 , it has been submitted that it would not be prudent to

the High Court to deliberate the issue more particularly putting the

vires of the Act to litmus test. Then, it has been submitted that

there happens to be no controversy with regard to stop gap

arrangement invented by the Division Bench following the

principle laid down by the Apex Court in connection with Vilas

Pandurang Pawar & Anr. Vs. State of Maharashtra & Ors.

reported in (2012) 8 SCC 795. So submitted that in the aforesaid

background, as no controversy subsist therefore, there was/is no

occasion for constitution of the Full Bench in order to answer the

reference, nor it could be.

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 21/118

22. Before coming to the main issue, that means to say

over answering the terms of reference, certain salient features are

to be seen. From the order of the reference, it is evident that the

Bihar Prohibition and Excise Act, 2016 was declared ultra vires in

Confederation of Indian Alcoholic Beverage Companies vs.

State of Bihar and Ors. vide judgment dated 30.09.2016 reported

in 2016(4) PLJR 369. It is further evident that aforesaid order is

under challenge in Special Leave to Appeal (C) Nos.29749/2016

wherein notices have already been issued against the respondent

and till their appearance, by an interim order, the operation of the

judgment has been stayed. It is further evident that while the

aforesaid matter remains pending, there has been another set of

amendment in the Act enforceable since 02.10.2016 whereby the

present controversial section 76(2) has been introduced apart from

others which also been challenged under CWJC No.8640/2016

(Abhay Kumar Mishra vs. The Union of India and Others)

and CWJC Diary No.73098 of 2016 (Dr. Rai Murari vs. The

State of Bihar & Ors.) and aggrieved thereby, the State of Bihar

filed transfer petition before the Apex Court as Transfer Petition

(Civil) Nos.2089-2090/2016 wherein the Apex Court passed the

following order:

"Issue notice, fixing a returnable date within four weeks.

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 22/118

Tag with S.L.P. (C) Nos.27949-29763 of 2016. There shall be stay of further proceedings in C.W.J.C No.8640 of 2016, titled "Abhay Kumar Mishra vs. The Union of India and Others" and C.W.J.C Diary No.73098 of 2016 "Dr. Rai Murari vs. The State of Bihar & Others". Pending before the Patna High Court."

23. That is sufficient to show inclination of the Apex

Court that the matter relating to virus of the main Act along with

amended act to be adjudicate upon analogously. That means to say

the vires of the amended act is also before the Apex Court. That

being so, whether it would be plausible for the High Court to

delve over the same issue. If so, whether it will amount usurping

the arena of the Apex Court which ought not be.

24. How, such approach of the High Court has been

perceived by the Apex Court, at an earlier occasion could be seen

in Chhavi Mehrotra vs. Director General Health Services &

Ors. reported in 1995 Suppl. (3) SCC 434 wherein it has been

observed:

"Despite the whole matter being seized of by the court, the petitioner moved-and what is disturbing us is that the learned Single Judge of the High Court entertained an independent Writ Petition No.1508(M/S) of 1993 before the Lucknow bench of the High Court and obtained certain directions which would not only be consistent with the consequences of the implementation of this court's order but would Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 23/118

also interfere and detract from it. Learned counsel would say that it was a direct interference with the proceedings before this Court. It is a clear case where the High Court ought not to have exercised jurisdiction under Article 226 where the matter was clearly seized of by this court in a petition under Art.32. The petitioner was eo nominee a party to the proceedings before this court. It is an unhappy situation that the learned Judge of the High permitted himself to issue certain directions which, if implemented, would detract from the plenitude of the orders of this court. The learned Single Judge's perception of justice of the matter might have been different and the abstinence that the observance of judicial propriety, counsels might be unsatisfactory, but judicial discipline would require that in a hierarchical system it is imperative that such conflicting exercise of jurisdiction should strictly be avoided. We restrain ourselves from saying anything more. "

25. In State of Maharashtra vs. Farook Mohammed

Kasim Mapkar & Ors. reported in (2010) 8 SCC 582:-

"14. There is no dispute about the proposition and this Court reiterated that judicial discipline would require that in a hierarchical system, such conflicting exercise of jurisdiction should be avoided. However, the dictum laid down in that case is not applicable to the case on hand, because in Chhavi Mehrotra (supra), the same petitioner after filing writ petition under Article 32 and getting certain directions approached the High Court under Article 226 and the High Court had issued more directions. When this was brought to the notice of this Court, after pointing out the practice and procedure, this Court dissatisfied with the High Court's move."

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 24/118

26. That being so, the position so called out from the

aforesaid pronouncement is, instead of taking the issue in hand

having proper acknowledgment of the fact that matter is pending

since before the Supreme Court. So, any effort to crystallize the

issue relating to Section 76(2) of the Act, would not be prudent, as

taigling over the same, ultimately drag the issue of legislative

empowerment, competence, paving the way towards the

destination having been pre-occupied by the Apex Court.

27. So many enactments are prevalent wherein privilege

of anticipatory bail has been wiped out. Not only this, in the State

of U.P. though assent of President happens to be but Section 438

Cr.P.C. has been deleted by way of state amendment. Specifically

in Jagat Prasad vs. State of U.P. reported in (1998) 8 SCC 632,

the constituting of event has been put under challenged which has

been referred to larger Bench, and the ultimate result is not

known, However, it has consistently been held that bail is not

fundamental right of an accused as held by the Constitution Bench

in Kartar Singh vs. State of Punjab reported in (1994) 3 SCC

569. Apart thereof, the U.P., amendment act has also been tested

therein, upholding the same. Not only this, the provision of POA

has also been subject to consideration in State of Gujrat vs. Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 25/118

Salimbhai Abdulgaffar Shaikh reported in (2003) 8 SCC 50,

wherein it has been held:-

"12. Shri Amarendera Sharan, learned senior counsel for the respondents has submitted that the power of the High Court to grant bail under Section 439 Cr.P.C. has not been taken away by POTA and consequently the learned Single Judge had the jurisdiction to grant bail to the respondents in exercise of the power conferred by the aforesaid provision. Learned counsel has laid great emphasis upon Section 49 of POTA, especially Sub-section (5) thereof and has submitted that in view of the language used in this section, the power conferred upon the Court of Sessions and the High Court under Section 439 will remain intact. It has been urged that if the intention of the legislature was to make the provisions of Section 439 of the Code inapplicable in relation to offences under POTA, it would have made a provision similar to Sub-section (5) of Section 49 which expressly excludes the applicability of Section 438 Cr.P.C. We are unable to accept the contention raised by the learned counsel for the respondents. It is well settled principle that the intention of the legislature must be found by reading the Statute as a whole. Every clause of Statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole Statute. It is also the duty of the Court to find out the true intention of the legislature and to ascertain the purpose of Statute and give full meaning to the same. The different provisions in the Statute should not be interpreted in abstract but should be construed keeping in mind the whole enactment and the dominant purpose that it may express. Section 49 cannot be read in isolation, but must be read keeping in mind the scope of Section 34 whereunder an accused can obtain bail from the High Court by preferring an appeal against the order of the Special Court refusing bail. In view of this specific provision, it will not be proper to interpret Section 49 in the manner suggested by learned counsel for the respondents. In A.R. Antulay v. Ramdas Srinivas Nayak & Anr. 1984 (2) SCC 500, the scope of special Act making provision for creation of a Special Court for dealing with offences thereunder and the application of Code of Criminal Procedure in such circumstances has been considered and it has been held that the procedure in Cr.P.C. gets modified by reason of a special provision in a special enactment."

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 26/118

28. On the anvil of Article 14 of the Constitution, the

vires of the SC ST (POA) Act, more particularly relating to

ceasing of provision of anticipatory bail, has been the subject

matter of consideration in State of M.P. vs. Ram Krishna

Balothia reported in (1995) 3 SCC 221 wherein it has been held:-

"6. It is undoubtedly true that Section 438 of the Code of Criminal Procedure, which is available to an accused in respect of offences under the Penal Code, is not available in respect of offences under the said Act. But can this be considered as violative of Article 14? The offences enu- merated under the said Act fall into a separate and special class. Article 17 of the Constitution expressly deals with abolition of "Untouchability" and forbids its practice in any form. It also provides that enforcement of any disability arising out of "Untouchability" shall be an offence punishable in accordancewith law. The offences, therefore, which are enumerated under Section 3(1) arise out of the practice of "Untouchability". It is in this context that certain special provisions have been made in the said Act, including the impugned provision under Section 18 which is before us. The exclusion of Section 438 of the Code of Criminal Procedure in connection with offences under the said Act has to be viewed in the context of the prevailing social conditions which give rise to such offences, and the apprehen-Scheduled Castes persons eat inedible sub- sion that perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail. In this connection we may refer to the Statement of Objects and Reasons accompanying the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill, 1989, when it was introduced in Parliament. It sets out the circumstances surrounding the enactment of the said Act and points to the evil which the statute sought to remedy. In the Statement of Objects and Reasons it is stated:-

"Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 27/118

humliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons.

2............... When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Castes persons eat inedible sub-stances like human excreta. and attacks on and mass killings of helpless Scheduled Castes and Schedules Tribes and rape of women belonging to the Scheduled Castes and the Schedules Tribes.................... A special legislation to check and deter crimes against them committed by non-Schedules Castes and non Schedules Tribes has, therefore, become necessary.

The above statement graphically describes the social conditions which motivated the said legislation. It is pointed out in the above Statement of Objects and Reasons that when members of the Schedules Castes and Schedules Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. In these circumstances, if anticipatory bail is not made available to persons who commit such offences, such a denial cannot be considered as unreasonable or violative of Article 14, as these offences form a distinct class by themselves and cannot be compared with other offences.

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 28/118

29. However, subsequently the Apex Court while

considering the aforesaid issue, expanded the arm by staling the

rigidity as observed in Balothia case, and laid down the following

principle relating to Vilas Pandurang Pawar & Anr. Vs. State of

Maharashtra & Ors. reported in (2012) 8 SCC 795:-

"8) Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.

9) The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.

10) Learned counsel appearing for the petitioners, relying on the decisions of the Delhi High Court in Dr. R.K. Sangwan & Anr. vs. State, 2009 (112) DRJ 473 (DB) and in Crl. M.C. No. 3866/2008 and Crl. M.C. No. 1222/2009 titled M.A. Rashid vs. Gopal Chandra decided on 23.03.2012 and a decision of the Orissa High Court in Ramesh Prasad Bhanja & Ors. vs. State of Orissa, 1996 Cri. L.J. 2743, submitted that in spite of the specific bar under Section 438 of the Code, the Courts have granted anticipatory bail to the accused who were charged under Section 3(1) of the SC/ST Act.

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 29/118

11) In view of the specific statutory bar provided under Section 18 of the SC/ST Act, the above decisions relied on by the petitioners cannot be taken as a precedent and as discussed above, it depends upon the nature of the averments made in the complaint."

30. It is further evident that aforesaid view has also been

followed by the Division Bench in Bisheshwar Mishra vs. The

State of Bihar reported in 2016(4) PLJR 1058. It is further

evident that same view has also been reiterated by the Apex Court

in Subhash Kashinath Mahajan v. State of Maharashtra

reported in (2018) 6 SCC 454 with more splendourly.

31. While the matter has come up before the Division

Bench (Manish Kumar) as reported in 2017 (4) BBCJ 301(HC),

the sole question of reference was:-

"If the provision i.e. Section 76(2) of the Bihar Prohibition and Excise Act 2016 (for short the Act) is void in view of requirement of Article 254 of the Constitution of India, the registry can be restrained to entertain anticipatory bail petition in compliance of the order of the co-

ordinate bench i.e. order dated 07.07.2017 passed in Cr. Misc. No.26109/2017."

32. During course of consideration the Division Bench

constrained itself preferred to keep the issue on the other hand in

abeyance in the background of pendency of matter before the

Apex Court, but searched out another way and for that relevant

paras are quoted below:-

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 30/118

"9. The scope of reference in the instant proceedings is limited. This Court is also conscious of the fact that we are not exercising appellate jurisdiction over the order dated 10.08.2017 passed in Cr. Misc. No. 21578 of 2017. It is also an admitted position that the issue of vires/validity/repugnancy of the provisions of the Act including Section 76(2) is sub judice and yet to be decided by the Apex Court in the pending proceedings discussed above, though the same apparently was not brought to the notice of the learned Single Judge while passing the order of reference dated 10.08.2017. We, therefore, shall not go into the aspect of repugnancy.

10. The order of reference calls upon this Court to examine and settle as to whether if the provision i.e. Section 76(2) of the Act is void in view of requirement under Article254(2) of the Constitution of India, the Registry of the Court, in the facts of the case, can be restrained to entertain anticipatory bail petition in compliance of the order dated 07.07.2017 passed in Cr.

Misc. No. 26109 of 2017. The submission of Mr. Y.C.Verma is that the vires of the provisions of the Act is not required to be gone into by this Court as there is no pleading to this effect. The order of reference also does not require this Court to delve into this aspect of the matter. He has argued that his alternative submission be examined by this Court in light of the order of reference. Learned Advocate General has not advanced much submission on the issue whether the Registry of the Court or the Stamp Reporter can be restrained from accepting filing of the petition under Section 438 of the Code in respect of any offence under the Act."

33. In the background of finding so recorded under para-

10, the Division Bench took sincere effort to search out and

propagate an alternative arrangement, for the time being, which

could be gathered from the following paras-

"11. Having detailed the narrow confines of our consideration we would consider to examine the submission made by the counsel for the petitioner. It has been argued repeatedly by Mr. Verma that whether the Court would exercise its jurisdiction under Section 438 of the Code be left to the judicial consideration/discretion of the High Court keeping in view the legal position arising from the relevant Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 31/118

provisions of the Act under which the petitioner is accused. In a given case, merely Sections of the Act may be added by the police without there being any foundational fact/ allegation. In such cases the offence under the Act may not be made out at all. It has been argued that remedy as provided under section 438 of the Code, in view of the bar provided under Section 76 of the Act, would be barred only for the offences committed under the Act and not in cases where the ingredients of the offences under the Act are not made out.

12. Having considered the various submissions we observe that the present one is not a solitary case where the statute has barred remedy under Section 438 of the Code. A Bench of this Court in the case of Bisheshwar Mishra vs. The State of Bihar [2016(4) PLJR 1058] considered in great length issue regarding grant or refusal of the pre-arrest bail by this Court in relation to offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ( for short 'SC/ST Act') wherein also remedy of Section 438 of the Code has been barred. The Division Bench relying upon the judgment of the Hon'ble Apex Court in the case of Vilas Pandurang Pawar v. State of Maharashtra [(2012) 8 SCC 795] has ruled as under:-

"25. It is clear from a close reading of the decision of the Supreme Court, in Vilas Pandurang Pawar (supra), that though Section 18 of the Act creates a bar in invoking Section 438 of the Code, a duty is cast on the Court to verify the averments in the Complaint/First Information Report to find out whether an offence, under Section 3 of the Act has been prima facie made out against the accused seeking pre-arrest bail or not. In case, a prima facie case, under the Act, is made out against the accused, the bar, under Section 18 of the Act, would, immediately, come into play.

26. On a careful consideration of the provisions prescribed under Section 18 of the Act, the law laid down by the Patna High Court Cr. Misc. No. 25276 of 2016 Supreme Court, in State of M.P. vs. Ram Kishna Balothia (supra) and Vilas Pandurang Pawar (supra) and by the Full-Bench of the Rajasthan High Court, in Virendra Singh (supra), and othe other decisions of the different High Courts noticed hereinabove the answer to the first three questions framed by us becomes abundantly clear.

27. In view of specific embargo of Section 18 of the Act and the binding precedents of the Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 32/118

Supreme Court noticed above, we hold that pre-arrest bail, under Section 438 of the Code, is not available to persons committing offences under the Act. We further hold that Section 18 of the Act totally bars a court from either making a judicial scrutiny of the case or granting pre-arrest bail to the accused of committing offence under the provisions of the Act. However, from the law laid down by the Supreme Court in Vilas Pandurang Pawar (supra), it becomes clear that notwithstanding the embargo created by Section 18 of the Act against grant of pre-arrest bail, a duty is cast upon the Court, hearing an application under section 438 of the Code, to determine, on the basis of the statements, made in the complaint/First Information Report, if the ingredients of any offence, under the Act, are made out or not. If the ingredients of the offence are attracted against a person seeking pre-arrest bail, the embargo of Section 18 of the Act would, Patna High Court Cr. Misc. No. 25276 of 2016 immediately, come into play against such person; but merely because a criminal case is instituted against a person under the Act without there being any allegation against him of having committed an offence under the Act, the Court can very well entertain an application under Section 438 of the Code and under such circumstance, the embargo, created under Section 18 of the Act, would not come into play inasmuch as the legislative intent is to exclude the power of the Court to grant pre-arrest bail to a person apprehending arrest, who is alleged to have committed an offence under the Act and not a person, whose name finds place in the column of the accused either in Complaint or in the First Information Report without there being any accusation against him of having committed an offence under the Act."

34. Similar situation has come up before the Apex Court

in P. Surendran vs. State of Inspector of Police reported in 2019

(2) PLJR (SC) 291 and for that posed a question, "we are only

concerned with the question whether Registry could have Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 33/118

questioned the maintainability of the Petition" and answered the

same exemplifying the same in following manner:

"9. The nature of judicial function is well settled under our legal system. Judicial function is the duty to act judicially, which invests with that character. The distinguishing factor which separates administrative and judicial function is the duty and authority to act judicially. Judicial function may thus be defined as the process of considering the proposal, opposition and then arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice. A Constitution Bench of five judges in Jaswant Sugar Mills Ltd., Meerut vs. Lakshmichand and Ors., AIR 1963 SC 677, formulated the following criteria to ascertain whether a decision or an act is judicial function or not, in the following manner:-

(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of preexisting legal rule;

(2) it declares rights or imposes upon parties obligations affecting their civil rights; and (3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.

(emphasis added) The act of numbering a petition is purely administrative. The objections taken by the Madras High Court Registry on the aspect of maintainability requires judicial application of mind by utilizing appropriate judicial standard. Moreover, the wordings of Section 18A of the SC/ST Act itself indicates at application of judicial mind. In this context, we accept the statement of the Attorney General, that the determination in this case is a judicial function and the High Court Registry could not have rejected the numbering.

10. Therefore, we hold that the High Court Registry could not have exercised such judicial power Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 34/118

to answer the maintainability of the petition, when the same was in the realm of the Court. As the power of judicial function cannot be delegated to the Registry, we cannot sustain the order, rejecting the numbering/registration of the Petition, by the Madras High Court Registry. Accordingly, the Madras High Court Registry is directed to number the petition and place it before an appropriate bench."

35. However, it is evident that during consideration of

aforesaid eventuality, the inherent power of the High Court in

terms of Section 482 Cr.P.C as well as under Article 226, 227 of

the Constitution of India have not properly been taken into

consideration. Although times without number, it has been settled

at rest that the aforesaid powers are imbibed in the High Court by

way of its constitution as observed by the Constitution Bench in

connection with L. Chandra Kumar vs. U.O.I. reported in AIR

1997 SC 1125 as well as Asian Resurfacing of Road Agency

Private Ltd. & Anr. Vs. Central Bureau of Investigation

reported in (2018) 16 SCC 299. Moreover, the above powers are

not at all found eclipsed by the Act itself as no saving clause is

there.

36. In the aforesaid backdrop now the terms of

references are being answered in following terms:-

Questionnaire No.1,2,4, 5, -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 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 35/118

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.

Questionnaire No. 3-Before answering the same first of all

the matter is to be seen. In Ashoka Sahani case none of the parties

referred, about pendency of appeal before the Apex Court at the

instance of State against an order of this Court declaring the Act

ultra vires, and in likewise manner, with regard to other writ

petitions challenging the vires of amendment Act followed with

subsequent order of the Apex Court staying. In likewise manner,

on the issue of absence of assent at the end of President in

compliance with Article 254(2) of the Constitution also being

subject to consideration hence, the High Court, (Single Bench)

would not have taken recourse in a manner, as adopted. In

likewise manner, when the judgment of Manish Kumar (Single

Bench) 2017(4) PLJR 369 has been gone through. Two important

quotations recorded at different stages need to be recorded.

"11. In view of the facts and circumstances particularly constitutional provision the court is of the considered opinion that there is no restriction either for the Registry to accept such petition or to any person apprehending his/her arrest relating to a offence under Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 36/118

the Act to approach this court for grant of anticipatory bail under Section 438 of the Cr.P.C. Accordingly the objection raised by learned State counsel stands over- ruled and it is held that anticipatory bail even in case relating to allegation under the Bihar Prohibition and Excise Act, 2016 is maintainable and Registry is required to entertain anticipatory bail petition. On perusal of the of the judgment of the co-ordinate bench i.e. judgment dated 07.07.2017 passed in Cr. Misc. No. 26109 of 2017 it is evident that the point regarding the legislative competence was not argued before him however since there is already co-ordinate Bench judgment of this court it would be appropriate for this court to refer the matter to the division bench to settle as to whether if the provision i.e. Section 76(2) of the Act is void in view of requirement of Article 254 of the constitution of India, the Registry can be restrained to entertain anticipatory bail petition in compliance with the order of co-ordinate bench i.e. order dated 07.07.2017 in Cr. Misc. No. 26109 of 2017 . Accordingly this matter is directed to be placed before the Hon'ble the Chief Justice so that this issue may be finally be adjudicated by a larger Bench.

12. It is made clear that since I am of the opinion that judgment of the single Bench is per incuriam as well as section 76 (2) of the Act is void in view of Article 254 of the Constitution of India there is sufficient reason to entertain the present petition on merit. On merit it is evident that petitioner name has come only on confessional statement of co-accused and as such it is a fit case for grant of privilege of anticipatory bail."

37. 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 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 37/118

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.

39. At last, we must pay gratitude to the learned

counsels or the valuable suggestions, arguments in order to

resolve the terms of reference having their end.

(Aditya Kumar Trivedi, J.) Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 38/118

(Per: Hon'ble Mr. Justice Ashutosh Kumar, J.)

I have had the advantage of going through the

opinion of my esteemed brother Aditya Kumar Trivedi, J.

on the terms of reference placed before the Full Bench

with regard to the questions relating to (i) maintainability

of an anticipatory bail petition under Section 438 Code of

Criminal Procedure, 1973 (hereinafter referred to as the

Cr.P.C.) for an offence under the Bihar Prohibition and

Excise Act, 2016; (hereinafter referred to as the Act of

2016) notwithstanding the existence of Section 76 (2) of

the Act of 2016; (ii) whether the decision rendered in

Ashok Sahani Vs. The State of Bihar (Cr. Misc. No. 26109

of 2017) and as explained in Barun Kumar Vs. The State

of Bihar (Cr. Misc. No. 42985 of 2017) reflect the correct

position of law; (iv) whether the Division Bench in Manish

Kumar @ Lokesh Kumar Vs. The State of Bihar (Cr. Misc.

No. 21578) was justified in refusing to answer the

question referred to it on the ground of pendency of two

writ petitions, viz., Abhay Kumar Mishra Vs. The Union of Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 39/118

India & Ors. (C.W.J.C. No. 8640 of 2016) and Dr. Rai

Murari Vs. The State of Bihar & Ors. (C.W.J.C. No. 17277

of 2016) in the Supreme Court; and (v) whether the

pendency of the matter relating to the vires of the Act of

2016 before the Supreme Court, without any authoritative

pronouncement by the Apex Court, denudes the High

Court of its power/responsibility to resolve the controversy

even when it relates to individual freedom and liberty of

persons.

2. Brother Trivedi, J. has approved of the

judgement of the Division Bench in Manish Kumar (supra)

and has himself, likewise, restrained from giving any

opinion on such issues as it would be, in his estimation, an

intrusion into the decision making process of the Supreme

Court, especially in view of the order of stay of

proceedings in two of the writ petitions which were filed

before this Court, in which the vires of the Act of 2016

and has been questioned and which petitions have been

tagged along with another case, viz., Special Leave to Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 40/118

Appeal (C) Nos. 29749-29763 of 2016 [arising out of the

judgement of this Court in Confederation of Indian

Alcoholic Beverage Company Vs. State of Bihar & Ors.;

2016 (4) PLJR 269].

3. With respect to the Question No. (iii), viz., the

competence and propriety of a learned Single Judge in

holding a judgement of Co-eval strength to be per

incuriam, more so when the provision contained in Section

76 (2) of the Act of 2016 was held to be repugnant to

Section 438 of the Code of Criminal Procedure, 1973,

which is a Central legislation, the subject matter of which

falls in the concurrent list of the Seventh Schedule of the

Constitution of India, in the light of the judgments of the

Supreme Court in State of Bihar Vs. Kalika Kuer; (2003)

9 SCC 448 and Ram Pratap Singh Vs. State of U.P. (FB);

(1996 Criminal Law Journal 665), Brother Trivedi, J. has

disapproved of the Single Judge holding the opinion of

another Single Judge to be per incuriam, for the reason

that the issue of repugnancy between the State law and Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 41/118

the Union law could only have been adjudicated by a

Division Bench of the High Court in view of the Standing

Order No. 3 of 1994 in Rule 12 of Chapter-XXI C of the

Patna High Court Rules and the judgement delivered in

Ranchi Timber Traders Association and Ors. Vs. State and

Ors.; 1997 (1) PLJR 133.

4. After having gone through the opinion of my

esteemed brother Trivedi, J., I, for my own reasons, would

like to answer the reference ab ovo.

5. The Bihar Prohibition and Excise Act, 2016 has

been promulgated for enforcing, implementing and

promoting complete prohibition of liquor and intoxicants in

the territory of State of Bihar and for matters connected

therewith or incidental thereto. The legislation was enacted

to provide a uniform law relating to prohibition of liquor

and intoxicant, levy of duties thereon and punishment for

the violation of law in the State of Bihar.

6. The Act of 2016 contains exclusive chapters, viz.,

Chapter-VI comprising Sections 30 to 65, relating to Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 42/118

offences and penalty; Chapter-VII (externment and

internment) comprising Sections 66 to 72 and finally

Chapter-VIII (detection, investigation and trial of offences)

containing Sections 73 to 91 and a separate Chapter-IX,

for appeals and revisions.

7. From the scheme of the Act of 2016, therefore, it

becomes very obvious that the orientation of the Act is

geared towards implementing complete ban / prohibition

of alcoholic drinks in the State of Bihar and treating the

violation of the same seriously, by providing stringent

punishment for specific offences and charting out a full-

fledged mechanism for detection, investigation and trial of

such offences. Juxtaposed to this was the Bihar Excise

Act, 1915, which had been principally promulgated to

control the import, export, transport, manufacture,

possession and sale of certain kinds of liquor and

intoxicating drugs. It may also be noted here that in the

State of Bihar, though Bihar Prohibition Act, 1938 had

been enacted, but it was never enforced and only the Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 43/118

provisions of Bihar Excise Act, 1915 was in operation,

which was nothing more than regulatory in nature, except

for Section 19(4) thereof, which inhered in it the seeds of

prohibition.

8. In the year 2015, the excise policy was

introduced by the State Government under the name of

the New Excise Policy of 2015, but it did not prescribe

complete and immediate ban on the consumption of

alcohol, but suggested the aim to be achieved in a phased

manner.

9. The aforesaid facts have been noted to highlight

the animus dedicandi of the Act of 2016 for the purposes

of answering the reference. What I wish to indicate is

that Chapters-VI to IX of the Act of 2016 deal with

offences, their detection, trial and remedial measures.

This orientation, therefore, presupposes that there shall be

arrests, trials and convictions. In this background,

importance of such procedure, which would serve as a

safeguard against any arbitrary action by the investigating Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 44/118

agency or the authority implementing the Act, is required

to be deliberated upon.

10. In this context, it would be relevant to have a

look at Section 76 of the Act of 2016, which is the

fulcrum of all the debates in this reference. Section 76 of

the Act of 2016 is extracted here in below for the sake of

completeness :

"76. Offences to be Congizable 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 the Code of Criminal Procedure, 1973 (Act 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."

11. The offences under the Act of 2016 have been

made cognizable and non-bailable [section 76 (1)], which

part of the legislation does not give rise to any controversy

at all. What is under dispute is the correctness / Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 45/118

justification of the declaration that for offences under the

Act of 2016, the provision of Section 438 Cr.P.C., which

deals with the powers of the Courts to grant anticipatory

bail, and the Probation of Offenders Act, 1958 shall not

apply in relation to any case involving the arrest or

accusation of any person for an offence under the Act of

2016.

12. Abundans cautela non nocet, I have been

consistently reminding myself from the time when I began

answering reference and at all times thereafter, that if the

vires of the Act of 2016 is under challenge before the

Supreme Court of India, any discussion on the issue of

correctness or justification of Section 76 (2) of the Act of

2016 would, in some way, amount to treading into an area

which the superior Court is in seisin of. Nonetheless, till

the time there is an authoritative pronouncement by the

Supreme Court on the vires of the Act of 2016, which

definitely would include the decision with regard to the

vires of Section 76 thereof, eschewing from answering the Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 46/118

reference on the touchstone of decided case laws by the

Supreme Court, but without touching upon the issue of

vires, would amount to abdicating one's responsibilities

and duties. The Supreme Court has always cautioned that

mere filing/pendency of a petition in the Supreme Court

does not prohibit the competent Courts in deciding the

issues. In the present case, the writ petitions, challenging

the vires of the Act of 2016, have been tagged with a

pending case before the Supreme Court and an order of

stay to proceed in such matters has been passed. This

definitely precludes the High Court in commenting upon

the vires of the Act of 2016.

13. What would then, in the meanwhile, be the

correct approach in deciding the course of action in case of

whimsical arrests or any preposterous methods of

implementing the law which might shock the senses of

many.

14. In my opinion, a purposive interpretation,

without questioning the competence of the State Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 47/118

legislature or the vires of the Act (Section 76 in particular)

is required to be made by taking help of the settled

principles of law which have been adumbrated by the

Supreme Court in many of the cases and at the same

time, not violating the order of stay granted by the

Supreme Court in Special Leave to Appeal (C) Nos.

29749-29763 of 2016, to avoid injustice and harassment

to people.

15. Ad avizandum, then, the issue would be the

importance of bail / anticipatory bail in the event of faulty

implementation of the Act of 2016.

16. "Bail is a security given for the due appearance

of a prisoner in order to obtain his release from

imprisonment; a temporary release of a prisoner upon

security; one who provides bail" . This is how "bail" has

been defined in the Webster's 7th New Judicial Dictionary.

Similar is the explanation of "bail" in Stroud's Judicial

Dictionary, which defines a "baile", who, on his arrest and

his offering surety to those who have the authority to bail Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 48/118

him, is released for his appearance before the Justices at

the next Session.

17. Etymologically, the word "bail" is said to be

derived from an old French verb "bailor", which means "to

give or to deliver". There is another opinion regarding the

etymological origins of the word "bail" which is "bajulare",

which means to "bear a burden" in Latin.

18. The Supreme Court, therefore, has held it to

be a technique evolved for effecting a synthesis of two

basic concepts of human value, viz., the right of an

accused to enjoy his personal freedom and the public

interest on which a person's release is conditioned on the

surety to produce the accused person in Court to stand the

trial.

19. The concept of "bail" in England can be traced

back to the system of "frank pledges", adopted in England

after the Norman conquest. Under the aforesaid system,

the community as a whole was required to pledge its

property as a security for the appearance of an accused at Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 49/118

the trial. The community responsibility was later replaced

by a third party responsibility, which was subsequently

further improvised and replaced by the issuance of

forfeiture bonds of surety and imposition of penalty upon

the surety for failure to bring the accused to trial on the

appointed date. With the British rule in India and the

import of the common law rule, system of "bail" was

introduced, which now is statutorily recognized under the

Code of Criminal Procedure, 1973.

20. The Law Commission of India, in its 41 st report

on the Code of Criminal Procedure sought to streamline

the law of bail in the changed context of independent

India, guaranteeing personal freedom as one of the

fundamental rights of all citizens of India. The

recommendations are, therefore, geared towards

maintaining a constitutional equilibrium between the

freedom of person and interest of social/public order.

"Anticipatory bail" was also recommended by the Law

Commission of India in the aforesaid report, which led to Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 50/118

introduction of Section 438 in the Code of Criminal

Procedure in 1973 (in short Cr.P.C.), making provision for

"bail" in "anticipation of arrest".

21. Article 21 of the Constitution of India

mandates that "no person shall be deprived of his life and

personal liberty except according to the procedure

established by law".

22. In Gudikanti Narasimhulu & Ors. Vs. Public

Prosecutor, High Court of Andhra Pradesh; AIR 1978 SC

429, the Supreme Court of India succinctly observed as

follows:-

"Personal liberty, deprived when bail is refused, is too precious a value in our constitutional system recognised under Article 21 of the Constitution that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. The significance and sweep of Article 21 of the Constitution make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good, and State necessity spelt out in Article 19. Reasonableness Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 51/118

postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of the justice to the individual involved and the society affected."

23. While advocating introduction of the provision

for "anticipatory bail" in Code of Criminal Procedure, the

Law Commission recognized that the necessity for granting

anticipatory bail arose mainly because of the false

implication of the rivals of influential persons for the

purposes of disgracing them, which had become rampant

with the growth in the political rivalry. The other reason

which led to the recommendation for introduction of

"anticipatory bail" was the acceptance of the fact that if a

person who is not likely to abscond or misuse his liberty

while on bail, there would be no justification of requiring

him to, first submit to custody, remain in prison for some

days, and then apply for bail.

24. While testing the constitutional validity of

Section 45 of the Prevention of Money Laundering Act of Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 52/118

2002, which imposed two conditions for grant of bail, viz.,

(i) the Public Prosecutor to be compulsorily given an

opportunity to oppose any application for release of bail

and (ii) the satisfaction of the Court about the accused not

being guilty of such offence and simultaneously not likely

to commit any offence while on bail, the Supreme Court in

Nikesh Tarachand Shah & Anr. Vs. Union of India & Anr.;

(2018) 11 SCC 1, recounted that the provision for bail

goes back to Magna Carta and quoted the translation of

Clause 39 thereof from Latin:-

"No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

25. The Supreme Court has categorically laid down

over the period of years that the object of Article 21 of

the Constitution of India is to prevent encroachment upon

the personal liberty by the executive save in accordance Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 53/118

with law and in conformity with the provisions thereof.

Whenever, the liberty of a subject is restricted, the Courts

are to satisfy themselves that the safeguards provided by

law have been scrupulously observed. (emphasis

provided)

26. The importance of bail 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.

27. Some of the offences listed in the Act of 2016

do not partake of the 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. Saying so would

defeat the very purpose of introducing the provisions of

anticipatory bail in the Cr.P.C. It would also be apposite to

refer to Sections 41 and 41-A of the Code of Criminal

Procedure, 1973, which lay down the circumstances under Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 54/118

which a person can be arrested without warrant and the

duties of the police before effecting arrests. Huge

importance has been accorded to "credible information"

and "reasonable suspicion" before exercising the powers of

arrest. The expression "reasons to believe" in Section 41

Cr.P.C. has to be read in conjunction with Section 26 of

the Indian Penal Code, which, inter alia, states that a

person is said to have reasons to believe a thing, if he has

sufficient cause to believe that thing, but not otherwise.

28. For balancing the right of liberty of an accused,

guaranteed under Article 21 of the 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 the necessity arises for a wise and not

carthusian exercise of judicial power, which would go a

long way in inevitably curtailing the evil consequences

which are likely to flow from such absolute provisions in Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 55/118

the Act, which takes away, in actuality, the right to liberty

by prohibiting the application of the provisions of Section

438 Cr.P.C.

29. A parallel here need be drawn with the

Scheduled Castes/Scheduled Tribes (Prevention of

Atrocities) Act, 1989, as there is a similar provision in the

aforementioned Act, proscribing the grant of anticipatory

bail in cases relating to offences under the Act. Section 18

of the Scheduled Castes/Scheduled Tribes (Prevention of

Atrocities) Act, 1989 reads as follows:

18. Section 438 of the Code not to apply to persons committing an offence under the Act.-

Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.

30. The vires of the aforesaid Section was put to

test in State of Madhya Pradesh & Anr. Vs. Ram Kishna

Balothia & Anr.; (1995) 3 SCC 221 , wherein it was held

that the provision is not violative of Articles 14 and 21 of

the Constitution of India. It was held by the Supreme Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 56/118

Court in the aforesaid case that the offence under the Act

had to be viewed in the context of prevailing social

conditions and the apprehensions that perpetrator of such

atrocities are likely to threaten and intimidate the victims

and prevent or obstruct them in the prosecution of those

offenders, if they are granted anticipatory bail. The

Supreme Court delved into the statement of objects and

reasons and found that the members of Scheduled Castes

and Scheduled Tribes are vulnerable and are very likely to

be subjected to humiliation and harassment.

31. However, in Vilas Pandurang Pawar & Anr. Vs.

State of Maharashtra & Ors.; (2012) 8 SCC 795 and

Shakuntla Devi Vs. Balijinder Singh; (2014) 15 SCC 521 ,

the Supreme Court did not construe Section 18 of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 to be an absolute bar for grant of

anticipatory bail if no prima facie case was made out, in

spite of the validity of Section 18 of the Act having been

upheld. However, in Vilas Pandurang Pawar (supra), the Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 57/118

Supreme Court specifically stated that the order, in that

case, cannot be taken as a precedent and it would depend

upon the nature of the averments made against the

accused in each case. At the same time, it was held that

Courts are not expected to indulge in critical analysis of

the evidence on record and the provision of the said Act

cannot be easily brushed aside by elaborately discussing

the evidence. Similar refrain has been expressed in

Shakuntla Devi (supra).

32. A somewhat different opinion has been

expressed in Bachu Das Vs. the State of Bihar & Ors.

(2014) 3 SCC 471 and Manju Devi Vs. Onkarjit Singh

Ahluwalia @ Omkarjeet Singh & Ors.; (2017) 13 SCC

439, wherein, after taking note of the judgement of the

Supreme Court in Vilas Pandurang Pawar (supra), Bachu

Das (supra) and Nirmal Jeet Kaur Vs. State of Madhya

Pradesh (2004) 7 SCC 558, the Supreme Court has held

that the bar to invoke Section 438 Cr.P.C. has to be

strictly interpreted in as much as a victim of molestation Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 58/118

and indignation is akin to an injured witness, whose

testimony should receive the maximum

weight/importance. This interpretation is also based on

the theory of absoluta sententia expositore non indiget

(when you have plain words capable of only one

interpretation, no explanation of them is required).

33. The Supreme Court, but, has, in a number of

cases, held that it may not be appropriate to adopt a

passive or negative role and remain a bystander of

violation of rights by taking shelter of procedural

technicalities. Such technicalities ought not to stand in the

way of enforcement of rights of an individual, which

principle is based on the theory "verba intentioni, non e

contra debente inservire" (words ought not to be made

subservient to the intent and not the other way about).

34. In Rajesh Kumar Vs. State through Government

of NCT of Delhi; (2011) 13 SCC 706, the Supreme Court

has been categorical in stating that until the decision of

the Supreme Court in Maneka Gandhi Vs. Union of India; Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 59/118

1978(1) SCC 248, Article 21 only embodied the rule of

law without which personal liberty of a person could not be

taken away by executive action; meaning thereby that if

there was any procedure / law, it would have been

sufficient to deprive a person of his liberty but post

Maneka Gandhi, protection is granted to a person not only

against an executive action, but also against legislation,

which deprives a person of his life and personal liberty

unless such law is reasonable, just and fair.

35. In Joginder Kumar Vs. State of U.P.; (1994) 4

SCC 260, the Supreme Court took note of the ever

expanding horizon of human rights and in the wake of

such developments, there came about a litany of

complaints of violation of human rights because of

indiscriminate arrests. Taking into account the aforesaid

increase in faulty execution of laws and whimsical arrests,

the Supreme Court in Som Mittal Vs. Government of

Karnataka; (2008) 3 SCC 753 reminded itself of Charles

Dicken's novel "A Tale of Two Cities", in which Dr. Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 60/118

Alexandre Manette was incarcerated in the Bastille for 18

years on a mere lettre de cachet of a French Aristocrat,

although he was innocent.

36. Even in the scriptures like "Gita", the value of

self respect has been propounded and death is stated to

be preferable to dishonour.

37. Similarly, in Arnesh Kumar Vs. State of Bihar

(2014) 8 SCC 273, the Supreme Court had the occasion

to look at the ever-burgeoning dockets of matrimonial

disputes and it was found that the arrests in relation to

such offences only brought humiliation, harassment and

oppression of accused persons which further reduced the

possibility of any rapprochement between the warring

spouses. The Supreme Court also viewed in it, viz., the

power of arrest, a potent and lucrative source of

corruption. In that background, after noting the

amendments in Section 41 of the Cr.P.C. in the light of

the recommendations of the Law Commission which

directed for arrests only in face of "credible information"

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 61/118

and "reasonable suspicion" and only if arrests were

necessary, several directions were issued to check such

reckless arrests. Long before that, the Supreme Court in

D. K. Basu Vs. State of West Bengal; (1997) 1 SCC 416

had suggested ways and means of curtailing the whimsical

and reckless police powers by directing the observance of

certain preventive measures. The importance of the

personal liberty of human beings and the necessity to

control the erratic use of the power to arrest further, led

the Supreme Court to declare that any wrongful arrest

violates Article 21 of the Constitution of India and the

victim of arrest is entitled to compensation (refer Dr. Rini

Johar and Anr. Vs. State of M.P. and Ors.; (2016) 11 SCC

703).

38. The afore-noted aspects shall be dealt with later

while answering the first question of the reference, viz.,

whether provisions of Section 438 Cr.P.C. could be

invoked, notwithstanding the bar of the grant of Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 62/118

anticipatory bail under Section 76(2) of the Bihar

Prohibition and Excise Act, 2016.

39. The other issue which needs to be expatiated

here is as to under what circumstances can a judgement /

decision of a Court be held to be per incuriam.

40. In Mamleshwar Prasad Vs. Kanhaiya Lal;

(1975) 2 SCC 232, the Supreme Court has held as

follows:

"7. Certainty of the law, consistency of rulings and comity of courts - all flowering from the same principle - converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight, a judgement fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgement per incuriam.

8. Finally it remains to be noticed that a prior decision of this Court on identical facts and law binds the Court on the same points in a later case. Here we have a Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 63/118

decision admittedly rendered on facts and law, indistinguishably identical, and that ruling must bind."

41. Lord Goddard in Moore Vs. Hewitt; (1947) 2 All

England Reports 270 (KBD) and Penny Vs. Nicholas;

(1950) 2 All England Reports 89 (KBD) explained that per

incuriam are those decisions which are given in ignorance

or forgetfulness of some inconsistent statutory provision

or of some authority binding on the Court concerned, so

that in such cases some part of the decision or some step

in the reasoning on which it is based, is found, on that

account to be demonstrably wrong (Refer to A. R. Antulay

Vs. R. S. Nayak; (1988) 2 SCC 602).

42. Etymologically "Incuria" means "carelessness".

In the State of Bihar Vs. Kalika Kuer (supra), the

Supreme Court has quoted from the case of Fuerst Day

Lawson Ltd. Vs. Jindal Exports Ltd.; (2001) 6 SCC 356 as

follows :

"A prior decision of the Supreme Court on identical facts and law binds the Court on the same points of law in a later case. In exceptional instance, where by Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 64/118

obvious inadvertence or oversight a judgement fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgement 'per incuriam'. It has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam."

43. The Supreme Court also took note of the

decisions rendered in Vijay Laxmi Sadho (Dr.) Vs. Jagdish;

(2001) 2 SCC 247 and Pradip Chandra Parija Vs. Pramod

Chandra Patnaik; (2002) 1 SCC 1, in which it was held

that to maintain proper judicial discipline, a Bench should

always refer the matter to a larger Bench rather than to

take a different view. It is well settled that 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 the matter be referred to a Larger Bench

for resolution of the issue rather than to leave two Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 65/118

conflicting judgements to operate, creating confusion. It is

not proper to sacrifice certainty of law. The Supreme

Court had gone on to say that "judicial decorum, not less

than legal propriety, forms the basis of judicial procedure

and it must be respected at all costs".

44. This brings me to the next important issue of

repugnancy which has been raised in one of the decisions

referred to in the reference in the context of holding

Section 76 (2) of the Bihar Prohibition and Excise Act,

2016 to be repugnant with the provisions contained in

Section 438 of the Code of Criminal Procedure, 1973,

which is a law made by the Parliament over a subject

matter of Concurrent List.

45. For ready reference, I deem it appropriate to

extract Article 246 and 254 of the Constitution of India in

its entirety, which read thus:

"246. Subject matter of laws made by Parliament and by the Legislatures of States-(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 66/118

the Seventh Schedule (in this Constitution referred to as the Union List).

(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List).

(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List."

"254. Inconsistency between laws made by Parliament and laws made by the legislatures of States. - (1) If any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, thereafter subject to the provisions of clause (2), the law made by Parliament, whther passed before or after the law made by the legislature of such State, or as the case may be, the Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 67/118

existing law, shall prevail and the law made by the legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to amending, varying or repealing the law so made by the legislature of the State."

46. Under the scheme of the Constitution, the

Parliament has exclusive powers to make laws with respect

to any of the matters enumerated in List-1 of Seventh

Schedule (Union List). Both, the Parliament as well as the

State Legislatures, have powers to make laws with respect

to any matter enumerated in List-3 of the Seventh

Schedule (Concurrent List). The State Legislature has

exclusive powers to make laws for such State or any part Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 68/118

thereof with respect to any of the matters enumerated in

List-2 of the Seventh Schedule, which is the State List and

the Parliament has the power to make laws with respect to

any matter for any part of the territory of India not

included in a State; notwithstanding that such matter is a

matter enumerated in the State List (refer to Article 246

of the Constitution of India).

47. The power of a Legislature to enact legislation

within its legislative competence is plenary and the

competent legislature can enact laws on subject assigned

to it without any limitation of any legislative practice or

legitimate expectations. Such legislation by the respective

legislatures could be both prospective and retrospective

and each of the legislatures has the authority to make

validating laws as well. A plain reading of Article 246,

especially the non obstante clause, makes it very obvious

that if the legislative powers of Union and State

Legislature in Lists-I and II of the Seventh Schedule

cannot fairly be reconciled, the later must give way to the Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 69/118

former. To explain, if a subject is included both in Lists-I

and II, the Union Legislature alone will be competent to

legislate on that subject. Similarly, in case of any

overlapping between Lists-I and III, it is List-I that shall

prevail.

48. The entries in the lists are required to be

harmoniously construed for avoidance of any conflict. In

case of overlapping legislative powers of the two

legislatures, the width / ambit of such entry in relation to

the competence of the respective legislatures is measured

and concluded by assessing its true import and character,

which is commonly called "pith and substance". The power

to legislate on the topic of legislation carries with it the

power to legislate on an ancillary matter, which can be

said to be reasonably included in the power given and such

legislation would be ancillary legislation, which would be

within the competence of the respective legislation. There

ought not to be any transgression in the respective field of

the legislature, be it patent, manifest or direct Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 70/118

transgression or disguised, covered and indirect one, in

which case, it shall not be sustained on the ground of

suffering from the vice of colourable legislation.

49. Thus, what I wish to convey is that the

substance of an enactment would be material and not

merely the form or outward appearance of it and if the

subject matter, in substance, is beyond the 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 withing the area of

competence. The legislature, therefore, cannot indirectly

legislate on a topic which is not competent to legislate

upon directly.

50. Some controversies / disputes with respect to

the competence of the Union and the State legislatures

may arise as both the legislatures have been given the

powers to legislate on matters falling in Concurrent List. It

is for resolution of conflict in such a situation that Article

254 has been provided in the Constitution of India. The Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 71/118

provisions contained in Article 254 of the Constitution is

more or less similar to Section 107 of the Government of

India Act, 1935.

51. Clause 1 of Article 254 of the Constitution

enunciates the normal rule that in the event of a conflict

between the Union and the State law, the Union law shall

prevail.

52. In the aforesaid context, the law of the

Parliament on any matter in List-I is not within the scope

of this provision of the Constitution.

53. The question of repugnancy under Article

254(1) of Constitution between a law made by the

Parliament and the law made by the State Legislature

arises only in cases when both the legislation occupy the

same field with respect to the matters enumerated in the

Concurrent List and there is a direct conflict between the

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 the other. If such overlapping exceeds Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 72/118

in any particular case, the State law will be ultra vires

because of the non obstante Clause in Article 246 (1) read

with the opening words "Subject to in Article 246(3)". In

such a case, the State law will fail not because of

repugnancy to Union law but due to want of legislative

competence.

54. Clause 2 of Article 254 of the Constitution

enacts an exception to the Rule laid down in Clause-1,

where a State law on any matter in Concurrent List

contains any provision which is repugnant to the earlier

provisions made by the Parliament or an existing law with

respect to that matter, than the law so made by the

legislature of the State shall, if it has been reserved for

the consideration of the President, and has received his

assent, prevail in the State. The proviso to Clause-2 gives

the power to the Parliament to again supersede State

legislature which has been assented to by the President

under Clause-2 by making a law on the same matter. Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 73/118

55. Now the question arises as to what would

constitute "repugnancy"?

56. The conflict between the Statutes must be

direct and the laws made by the two legislatures must

operate in the same field. Another instance of

repugnancy, in the absence of any direct conflict between

the two provisions or in the occupied filed arises if the

State law is in conflict with the intention of the dominant

law to cover the whole field.

57. The effect of repugnancy, therefore, is that if a

law made by the State legislature is void because of

repugnancy to the law made by the Parliament or an

existing law, it is void only to the extent of repugnancy

with that law. The repugnancy or identity of the field may

relate to the "pith and substance" of the subject matter

and also the period of its operation. When both coincide,

repugnancy is complete and whole of the State law

becomes void.

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 74/118

58. In Innoventive Industries Limited Vs. ICICI

Bank & Anr.; (2018) 1 SCC 407, the Supreme Court,

while testing the correctness of the NCLAT judgment in

Innoventive Industries Ltd. Vs. ICICI Bank Ltd.; 2017

SCC OnLine NCLAT 70, holding that there was no

repugnancy between the Insolvency and Bankruptcy Code

of 2016 (which enactment is later than Maharashtra Relief

Undertakings) and the Maharashtra Relief Undertakings

(Special Provisions) Act, 1958 (MRU), as they both

operate in different fields, had the occasion to deal with

the constitutional position of repugnancy.

59. Reference was made to various cases which

were decided by the Supreme Court in 1950's and 1960's,

wherein liberal reference was made to the Australian

judgments, as Commonwealth of Australia Constitution Act

of 1900, enacted by the British Parliament, also had a

scheme by which Parliament had the power to make laws

with respect to 39 subjects of the Concurrent List and

Section 109 of the Act of 1900, referred to above, Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 75/118

indicated that when a law of State was inconsistent with

the law of Commonwealth, the later shall prevail and the

former shall, to the extent of inconsistency, be invalid.

60. In Zaverbhai Amaides Vs. State of Bombay; AIR

1954 SC 752, the Supreme Court, after referring to

Section 107 of the Government of India Act and Article

254 of the Constitution of India, found that the Bobmay

Act of 1947 with respect to essential supplies was

repugnant to the Parliamentary enactment of 1946,

amended in 1950, inasmuch as the Bombay Act provided

for higher punishment for the same offence as compared

to the Parliamentary enactment.[Also refer to Ch. Tika

Ramji & Ors., etc. Vs. The State of Uttar Pradesh & Ors.;

AIR 1956 SC 676 and G.P. Stewart VS. Brojendra Kishore

Roy Chaudhury; AIR 1939 Calcutta 628].

61. In Deep Chand Vs. The State of U.P. & Ors.;

AIR 1959 SC 648, the Supreme Court, after referring to

Zaverbhai Amaides and Ch. Tika Ramji (supra), held that Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 76/118

repugnancy between two statutes can be ascertained on

the following three principles :

(A) Whether there is direct conflict between the two

provisions;

(B) Whether Parliament intended to lay down an

exhaustive Code in respect of the subject matter, replacing

the Act of the State Legislature; and

(C) Whether the law made by Parliament and law

made by the State Legislature occupied the same field.

62. In M. Karunanidhi Vs. Union of India & Anr.; (1979) 3

SCC 431, the Constitution Bench of the Supreme Court

held as follows :

"1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.

2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.

3. That where the two statutes occupy a particular field, there is room or possibility of both the statutes, operating in the same field without coming into collision with each other, no repugnancy results. Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 77/118

4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field."

(Also refer to Hoechst Pharmaceuticals Ltd. Vs. State of Bihar;

(1983) 4 SCC 45; in Vijay Kumar Sharma Vs. State of Karnataka;

(1990) 2 SCC 562; and Rajiv Sarin Vs. State of Uttrakhand;

(2011) 8 SCC 708).

63. The case laws, referred to above, was

summed up in Innovative Industries Ltd. (supra) as

follows:

"51. The case law referred to above, therefore, yields the following propositions:

51.1 Repugnancy under Article 254 arises only if both the Parliamentary (or existing law) and the State law are referable to List III in the Seventh Schedule to the Constitution of India. (emphasis provided)

51.2 In order to determine whether the Parliamentary (or existing law) is referable to the Concurrent List and whether the State law is also referable to the Concurrent List, the doctrine of pith and substance must be applied in order to find out as to where in pith and substance the competing statutes as a whole fall. It is only if both fall, as a whole, within the Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 78/118

Concurrent List, that repugnancy can be applied to determine as to whether one particular statute or part thereof has to give way to the other.

51.3 The question is what is the subject-matter of the statutes in question and not as to which entry in List III the competing statutes are traceable, as the entries in List III are only fields of legislation; also, the language of Article 254 speaks of repugnancy not merely of a statute as a whole but also "any provision"

thereof.

51.4 Since there is a presumption in favour of the validity of statutes generally, the onus of showing that a statute is repugnant to another has to be on the party attacking its validity. It must not be forgotten that that every effort should be made to reconcile the competing statutes and construe them both so as to avoid repugnancy - care should be taken to see whether the two do not really operate in different fields qua different subject-matters.

51.5 Repugnancy must exist in fact and not depend upon a mere possibility.

51.6 Repugnancy may be direct in the sense that there is inconsistency in the actual terms of the competing statutes and there is, therefore, a direct conflict between two or more provisions of the competing statutes. In this sense, the inconsistency must be clear and direct and be of such a nature as to bring the two Acts or parts thereof into direct collision with each other, reaching a situation where it is Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 79/118

impossible to obey the one without disobeying the other. This happens when two enactments produce different legal results when applied to the same facts.

51.7. Though there may be no direct conflict, a State law may be inoperative because the Parliamentary law is intended to be a complete, exhaustive or exclusive code. In such a case, the State law is inconsistent and repugnant, even though obedience to both laws is possible, because so long as the State law is referable to the same subject-matter as the Parliamentary law to any extent, it must give way. One test of seeing whether the subject-matter of the Parliamentary law is encroached upon is to find out whether the Parliamentary statute has adopted a plan or scheme which will be hindered and/or obstructed by giving effect to the State law. It can then be said that the State law trenches upon the Parliamentary statute. Negatively put, where Parliamentary legislation does not purport to be exhaustive or unqualified, but itself permits or recognises other laws restricting or qualifying the general provisions made in it, there can be said to be no repugnancy.

51.8. A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject-matter. This need not be in the form of a direct conflict, where one says "do" and the other says "don't". Laws under this head are repugnant even if the rule of conduct prescribed by both laws is identical. The test that has been applied in such cases Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 80/118

is based on the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the State legislation or part thereof is identical with that of the parliamentary legislation, so that they cannot both stand together, then State legislation will be said to be repugnant to the Parliamentary legislation. However, if the State legislation or part thereof deals not with the matters which formed the subject-matter of Parliamentary legislation but with other and distinct matters though of a cognate and allied nature, there is no repugnancy.

51.9 Repugnant legislation by the State is void only to the extent of the repugnancy. In other words, only that portion of the State's statute which is found to be repugnant is to be declared void.

51.10 The only exception to the above is when it is found that a State legislation is repugnant to Parliamentary legislation or an existing law if the case falls within Article 254(2), and Presidential assent is received for State legislation, in which case State legislation prevails over Parliamentary legislation or an existing law within that State. Here again, the State law must give way to any subsequent Parliamentary law which adds to, amends, varies or repeals the law made by the Legislature of the State, by virtue of the operation of Article 254(2) proviso."

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 81/118

64. The other issue which would be relevant for

answering the reference is of judicial discipline and

avoidance of any judicial over-reach.

65. In this context, I deem it appropriate to refer to

two cases, viz., Chhavi Mehrotra Vs. D. G. Health

Services; 1995 Supp (3) SCC 434 and State of

Maharashtra Vs. Farook Mohammed Kasim Mapkar and

Ors.; (2010) 18 SCC 582.

66. In Chhavi Mehrotra (supra), the petitioner had

moved the Supreme Court under Article 32 of the

Constitution of India for her admission to M.B.B.S. course

against 15 % all India quota of 1992. The aforesaid writ

petition was heard along with other cases and a

comprehensive direction was issued with respect to

admission of students in the waiting list to various colleges

in the country. In defiance of an obedience to the

aforesaid direction by the Supreme Court, the Director

General of Health Services, by a notification, called the

candidates to indicate their willingness for admission under Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 82/118

the scheme evolved by the Supreme Court. While all this

was being done, Ms. Chhavi Mehrotra approached the

Lucknow Bench of the Allahabad High Court and a learned

Single Judge of the Court took up the matter and issued

certain directions which was in a way interference and

detraction from the directions issued by the Supreme

Court. The Supreme Court, taking into account that Ms.

Chhavi Mehrotra was eo nomine a party in the proceeding

before the Supreme Court, judicial discipline required that

in a hierarchical system, there should be no conflicting

exercise of jurisdiction and it must be avoided at all costs.

67. In State of Maharashtra Vs. Farook Mohammed

Kasim Mapkar (supra), the same principle was reiterated,

but in the facts of the case, the Supreme Court did not

apply the said principle as in the aforesaid case, writ

petition was filed in the High Court much prior to the filing

of the writ petition under Article 32 of the Supreme Court

and that too by a different person. There was no order by

the Supreme Court prohibiting the High Court from Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 83/118

entertaining the writ petition or proceeding further in the

case.

68. At this stage, it would be relevant to refer to

the strands of arguments advanced by the learned

Advocates. But for two of them, all other advocates

realized that there could not be any discussion on the vires

and justification of introduction of Section 76 (2) of the

Act of 2016. However, the learned Advocates, in a

cassandra like approach forebode the possibility of severe

misuse of the Act. With respect to the issue of

repugnancy, unfortunately, the arguments were not

focused and majority of the learned Advocates harped on

the fact that the Act of 2016 had not received the assent

of the President, which aspect was not at all necessary to

be taken note of in the event of the Act of 2016 being

within the legislative competence on a subject which

clearly fell in List-II of the Seventh Schedule of the

Constitution of India.

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 84/118

69. One of the learned Advocates argued that

Section 4 (2) of Cr.P.C. dealt with any other law, the

offences under which would be investigated, inquired into,

tried and otherwise be dealt with according to the same

provisions, but subject to any enactment for the time

being in force regulating the manner or place of

investigating, inquiring into, trying or otherwise dealing

with such offences. It was thus urged that any other law

could be investigated, inquired or tried according to such

law if any provision was made therein, but such lee-way

was not provided for making any provision for grant or

refusal of bail. Perhaps, the learned Advocate, advancing

such argument, did not take into account the savings

clause in Section 5 of the Act. This argument was, thus,

only a burlesque, to say the least.

70. Another argument veered around the

competence of Hon'ble the Chief Justice to make the

instant reference to the Full Bench. A brief discussion

here, on that aspect, will be necessary.

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 85/118

71. Rule 1 of Chapter-V of the Patna High Court

Rules, reads as hereunder:

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."

72. It was urged that the Division Bench in Manish

Kumar (supra) did not ask for any further reference in the

matter nor was there any difference of opinion between

the two Division Benches over an issue of law which

required resolution by a larger Bench.

73. The aforesaid argument lacks substance and

merit for the reason that Rule 11 of Chapter - II specifies

that notwithstanding anything to the contrary in the Rules,

Hon'ble the Chief Justice may direct for any application,

petition, suit, appeal or reference to be heard by a Full

Bench. This is an overriding, independent and

discretionary power of the Chief Justice, which can be Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 86/118

exercised even if there be no conflict of orders or

otherwise. (refer to Narendra Mishra Vs. State of Bihar;

2015 (1) PLJR 650).

74. The rest of the arguments were tautological in

as much the effort was as only to draw parallels with

Section 18 of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 with special reference

to Vilas Pandurang Pawar and Shakuntala Devi (supra).

The details of the arguments advanced on behalf of the

counsels have already been noted by Brother Trivedi, J.

Recounting those arguments again would serve no useful

purpose.

75. Thus, the terminus a quo and terminus ad

quem of the entire discussion was limited to the liberty of

an individual.

76. Now to the beefy exercise of answering the

reference.

77. Re. Question No. (1) - Whether the provisions of

Section 438 Cr.P.C. continue to apply in spite of the bar created Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 87/118

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?

78. In Ashok Sahani (supra), a learned Single

Judge concluded that there could be no anticipatory bail

for an offence under the Act of 2016 and in view of

Section 76 (2) of the Act of 2016, had directed the

Registry to instruct the Stamp Reporters not to place

applications filed under Section 438 of the Cr.P.C. arising

out of the aforesaid Act before the Bench as "defect free"

cases. This observation was given on the learned Single

Judge finding that many other Benches of the Court were

entertaining anticipatory bail applications in cases arising

out of the Act. The purpose, therefore, it appears, was to

let the particular Bench know and be reminded of the bar

to grant anticipatory bail under Section 76 (2) of the Act

of 2016.

79. In Manish Kumar (supra), another learned

Single Judge of this Court held that the dictum in Ashok Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 88/118

Sahani (supra) was per incuriam on the ground that

Section 76 (2) of the Act of 2016 ran repugnant to

Section 438 Cr.P.C. and, therefore, violative of Article 254

of the Constitution of India. The additional ground of

there being no assent of the President of India was also

relied upon for holding that Section 76 (2) of the Act of

2016 could not be enforced against the provisions of

Section 438 Cr.P.C. The upshot of the aforesaid decision

was that even with respect to the offences under the Act

of 2016, anticipatory bail applications were maintainable.

The learned Single Judge, on finding that the issue with

respect to repugnancy between Section 76 (2) of the Act

of 2016 and Section 438 of the Cr.P.C. was not made

known to the learned Single Judge in Ashok Sahani

(supra), he directed the matter to be placed before the

Hon'ble Chief Justice for constitution of a larger Bench for

finally deciding the issue.

80. Close to the heels of the decisions in the

aforesaid two cases, another learned Single Judge in Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 89/118

Barun Kumar Vs. The State of Bihar (Cr. Misc. No. 42985

of 2017), held that since the decision in Manish Kumar

(supra) was rendered after Ashok Sahani (supra), both by

the learned Single Judges of this Court, the order in the

former could not have been held to be per incuriam. It

was also held that in Manish Kumar (supra), the learned

Single Judge ought not to have proceeded to test the vires

of the provision of the State Legislature enactment in view

of the Standing Order No. 3 of 1994 in Rule-12 of

Chapter-XXI-C of the Patna High Court Rules, which

mandates that such an issue could be adjudicated only by

a Division Bench. The said order reads as hereunder: Standing Order No. 3 of 1994

[(i) It is hereby ordered that until further orders all applications under Articles 226 and 227 of the Constitution of India shall be placed for admission and hearing before a single Judge except for issuance of writs of habeas corpus and for issuance of writs in cases of, externment from one State to another; deportation; validity of statutes and public interest litigation, which shall be placed for admission and hearing before a Division Bench:

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 90/118

Provided that the Chief Justice may direct any writ application to be posted before a Bench of two or more Judges.

(ii) Unless otherwise directed by Bench, all applications shall be placed for hearing before a single Judge, except cases which are admitted to hearing before a Division Bench or referred to hearing before a Division Bench by a Single Judge at the time of admission or hearing which shall be placed before a Division Bench for hearing.

It will come into effect from 2.1.95.

[Also refer to Ranchi Timbers Traders Association (supra)].

81. The learned Single Judge in Barun Kumar

(supra) thus agreed with the findings in Ashok Sahani

(supra).

82. It may also be noted here that a learned

Single Judge of this Court in Sushil Kumar Mishra and

Anr. Vs. The State of Bihar (Cr. Misc. No. 36582 of 2017)

referred the matter to the Hon'ble Chief Justice for

constitution of a larger Bench over another issue, viz.,

whether any bail application under Section 439 of the

Cr.P.C. could be preferred before the High Court in view Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 91/118

of the provision of appeal under Section 89 of the Act of

2016. Section 89 of the Act of 2016 reads as hereunder:

89. Appeal.- Any person aggrieved by any order of the Special Court may, within forty five days from the date of order, prefer an appeal in the High Court.

83. The reference over the aforesaid issue was

answered by a Division Bench of this Court on

17.08.2017, holding that the provisions of Sections 439

and 440 of the Code of Criminal Procedure shall apply to

the applications for bail under the Act of 2016 before the

High Court and words "any order" appearing in Section 89

of the Act of 2016 will not apply in cases where bail is

sought for in a proceeding under Section 439 Cr.P.C.

84. Since no reference in the present instance has

been made on the aforesaid issue, I would rest it at that.

85. The reference in the case of Manish Kumar

(supra) was heard by a Division Bench of this Court,

whereby vide order dated 06.11.2017, it was held that

since two writ petitions filed in this Court bearing C.W.J.C. Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 92/118

No. 8640 of 2016 (Abhay Kumar Mishra Vs. The Union of

India and Ors.) and C.W.J.C. No. 17277 of 2016 (Dr. Rai

Murari Vs. the State of Bihar and Ors.) and a Transfer

Petition (Civil) Nos. 2089-2090 of 2016, in which the

aforesaid two writ petitions were tagged along with SLP

(C) Nos. 29749-29763 of 2016 and the High Court was

restrained from proceeding in the aforesaid two writ

petitions, the question of vires of Section 76 could not

have been answered. However, the direction given in

Ashok Sahani (supra) by the learned Single Judge to the

Registry for not listing the anticipatory bail applications

"defect free" before the respective Benches, was set aside.

Though it must be noted here that the learned Single

Judge in Ashok Sahani (supra) never directed the Registry

for not listing the cases of anticipatory bail before the

respective Benches, but had only directed for not listing

such cases as "defect free" cases. It appears that perhaps

such direction was wrongly construed as a total ban on

listing of such cases before the respective Benches. It is in Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 93/118

this context that perhaps the Division Bench in Manish

Kumar (supra) set aside the aforesaid direction.

86. With respect to the application of mind of the

judges about the applicability of the Act to the facts of

each case, the Division Bench strongly relied upon

Bisheshwar Mishra Versus the State of Bihar ; 2016 (4)

PLJR 1058, which, in turn, had relied upon Vilas

Pandurang Pawar (supra) and held that a duty is cast upon

the Court considering such pre-arrest bail petition of an

accused to look into the allegations made in the F.I.R. /

complaint to find out whether the ingredients of the

offence prima facie is made out or not before exercising its

judicial discretion under Section 438 Cr.P.C.

87. There are other citations also in the reference,

viz., Vikash Kumar Vs. the State of Bihar (Cr. Misc. No.

5891 of 2018); Sikandar Miya @ Sikandar Ansari Vs. the

State of Bihar (Cr. Misc. No. 9085 of 2019); Ravi Kumar

Vs. the State of Bihar (Cr. Misc. No. 9083 of 2019); and

Shambhu Sahani Vs. State of Bihar (Cr. Misc. No. 12962 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 94/118

of 2019), which has resulted in collatio bonorum and

uncertainty about the position of law with respect to

maintainability / grant of anticipatory bail in an offence

relatable to the Act of 2016, providing the causa-causans

for the present reference.

88. Without being periphrastic, 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 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 95/118

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).

90. With profit and as a prop to the aforenoted

opinion, I may also refer to the Constitution Bench

judgment in Kedar Nath Singh Vs. State of Bihar; AIR

1962 SC 955, wherein it was observed as follows:

"26. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress [vide (1) Bengal Immunity Co. Ltd. v. State of Bihar and R.M.D. Chamarbaugwalla v. Union of India]. Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 96/118

27. We may also consider the legal position, as it should emerge, assuming that the main Section 124-A is capable of being construed in the literal sense in which the Judicial Committee of the Privy Council has construed it in the cases referred to above. On that assumption, is it not open to this Court to construe the section in such a way as to avoid the alleged unconstitutionality by limiting the application of the section in the way in which the Federal Court intended to apply it? In our opinion, there are decisions of this Court which amply justify our taking that view of the legal position. This Court, in R.M.D. Chamarbaugwalla v. Union of India has examined in detail the several decisions of this Court, as also of the Courts in America and Australia. After examining those decisions, this Court came to the conclusion that if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the impugned section or Act, the Court will take that view of the matter and limit its application accordingly, in preference to the view which would make it unconstitutional on another view of the interpretation of the words in question. In that case, the Court had to choose between a definition of the expression "Prize Competitions" as limited to those competitions which were of a gambling character and those which were not. The Court chose the former interpretation which made the rest of the provisions of the Act, Prize Competitions Act (XLII of 1955), with Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 97/118

particular reference to Sections 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty attached only to those competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act. The ratio decidendi in that case, in our opinion, applied to the case in hand in so far as we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace."

(Also refer to Pankaj D. Suthar Vs. State of Gujarat; (1992) 1 Gujarat LR 405 and Dr. Subhash Kashinath Mahajan Vs. State of Maharashtra and Ors.; (2018) 6 SCC 454).

91. Re. Question No. (2) - Whether the law laid down in the

case of Ashok Sahani (supra) and as further explained in the case

of Barun Kumar (supra) lays down the law correctly or whether the

conflicting view in the case of Manish Kumar (supra) reflects the

correct position of law?

92. 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 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 98/118

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.

93. The Principles laid down in Manish Kumar

(supra, S.J.), it is, respectfully stated is not correct.

94. Re. Question No. (3) - Whether the learned Single

Judge in the case of Manish Kumar (supra) 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 Apex Court in the case of State of Bihar

Vs. Kalika Kuer reported in (2003) 9 SCC 448 and the law laid Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 99/118

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?

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 subject to any enactment for the time Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 100/118

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 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 101/118

not have decided the vires / validity of an Act or a

Section.

97. The question, therefore, is answered

accordingly.

98. Re. Question No. (4) - 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?

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 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 102/118

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 7 th Schedule of the

Constitution.

100. This takes me to the last question, viz.,

Question No. 5, i.e., Whether even if the matter was pending

before the Apex 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 Apex 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?

101. Even if the issue relates to grant / refusal of

anticipatory bail, which is of extreme importance as it Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 103/118

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.

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.

103. The reference is answered accordingly. Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 104/118

104. Before parting, I must candidly lay bare my

heart that all through the process of answering the

reference, I have only tried to adhere to cause celebre

principle of salus populi est suprema lex (welfare of people

is the paramount law).

(Ashutosh Kumar, J.)

(Per:Hon'ble Mr. Justice Hemant Kumar Srivastava, J.)

The judgments of my esteemed Brothers, Shri Aditya Kumar

Trivedi, J. and Shri Ashutosh Kumar, J. which I have the benefit

of very patiently, minutely and carefully reading and analysing,

answer the questions which have been referred to this Full Bench.

However, I would like to pen down few more words in addition to

the views expressed by my Brothers Aditya Kumar Trivedi, J. and

Ashutosh Kumar, J.

2. Issues referred by the Hon'ble Chief Justice for

consideration as well as adjudication have already been referred

by Brother Trivedi, J. at para 8 of the judgment and, therefore,

there is no need to repeat the issues as referred by the Hon'ble

Chief Justice for consideration and adjudication by this Full

Bench. However, I think it proper to repeat the factual background

in which the Hon'ble Chief Justice formulated the issues for Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 105/118

consideration and adjudication and referred the issues to this Full

Bench.

3. The State Government enacted Bihar Prohibition and

Excise Act, 2016 (hereinafter referred to as " Act 2016" ) which

was published in Bihar Gazette on 02.10.2016 and accordingly,

the said Act came into force on the day of publication in the Bihar

Gazette. The purpose of aforesaid Act was to enforce, implement

and promote complete prohibition of liquor and intoxicants in the

territory of State of Bihar and for matters connected therewith or

incidental thereto and also to provide for a uniform law relating to

prohibition and regulation of liquor and intoxicants, the levy of

duties thereon and punishment for the violation of law in the State

of Bihar. In the aforesaid Act 2016, Section 76 was introduced and

according to that section, all the offences under the above stated

Act 2016 have been made cognizable and non-bailable and

furthermore, the provisions of Code of Criminal Procedure, 1973

has also been made applicable. However, sub clause 2 of Section

76 of Act 2016 bars the application of Section 360 of Code of

Criminal Procedure, 1973, Section 438 of Code of Criminal

Procedure, 1973 and Probation of Offenders Act, 1958. It would

be proper to refer sub-section 2 of Section 76 of Act 2016 which

runs as follows:-

Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 106/118

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 (Act 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.

4. The perusal of issues referred to us go to show that in the

present matter we are not concerned with Section 360 of the

Cr.P.C. and Probation of Offenders Act, 1958 and this Full Bench

has been assigned to give answer regarding the applicability as

well as maintainability of Section 438 of the Cr.P.C. for the

offences committed under the Act 2016, particularly, in view of

the bar created under Section 76(2) of the Act 2016. The aforesaid

question arose when a learned Single Judge in the case of Ashok

Sahani vs The State of Bihar reported in 2017(3) PLJR 632 held

that in view of the specific embargo of Section 76(2) of the Act

2016, privilege of pre-arrest bail under Section 438 of the

Criminal Procedure Code is not available to the persons on

accusation of having committed an offence under the Act 2016

and also restrained the Registry of this court from entertaining the

petition filed under Section 438 of the Cr.P.C. However, another

learned Single Judge in the case of Manish Kumar @ Lokesh

Kumar vs The State of Bihar reported in 2017(4) PLJR 369 held Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 107/118

the judgment of Ashok Sahani (Supra) per incuriam on the

ground that Section 76(2) of 2016 Act was repugnant to Section

438 of the Cr.P.C. and further held the above stated provision void

under Article 254 of the Constitution of India as the Act 2016 did

not have the assent of the President of India and, therefore, the

application filed under Section 438 of the Code of Criminal

Procedure for pre-arrest bail for the offences punishable under the

Act 2016 would be maintainable. Again a learned Single Judge in

the case of Barun Kumar vs. The State of Bihar vide order

dated 03.10.2017 passed in Cr. Misc. No. 42985 of 2017 having

perused both the above stated decisions came to conclusion that

learned Single Judge who decided the case of Manish Kumar @

Lokesh Kumar (Supra) could not have entered into the issues of

vires of the Provision of Section 76(2) of Act 2016 because the

vires of the Act could have been adjudicated only by a Division

Bench of the High Court as per Rule 12 of Chapter 21 C of Patna

High Court Rules and furthermore, the learned Single Judge came

to conclusion that view expressed in Ashok Sahani case (Supra)

would prevail and, therefore, petition under Section 438 of the

Cr.P.C. is not maintainable in cases arising out of offences

punishable under the provisions of Act 2016. Furthermore, it is to

be noted that some Benches of this court entertained the petitions Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 108/118

filed under Section 438 of the Cr.P.C. in the cases arising out of

Act 2016 whereas some Benches refused to entertain petitions

filed under Section 438 of the Cr.P.C. in the cases arising out of

Act 2016 and not only this, some Benches held that an appeal

under Section 89 of the Act 2016 is maintainable against the

refusal of prayer of anticipatory bail as well as regular bail by the

Sessions Judge. It is also to be noted here that in the case of

Sushil Kumar Mishra and Another vs. The State of Bihar

reported in 2017(4) PLJR 567 a Division Bench vide judgment

dated 17.08.2017 held that the provisions of Section 439 and 440

of the Criminal Procedure Code would apply to applications for

bail filed under Act 2016 before this Court and Section 89 of Act

2016 will not apply in cases where bail is sought for in a

proceeding under Section 439 of the Cr.P.C. However, the

aforesaid Division Bench did not give any finding regarding the

filing of appeal against the refusal of anticipatory bail by the

Sessions Court. It is also to be noted that learned Single Judge in

Manish Kumar case (Supra) while holding Section 76(2) of the

Act, 2016 as void and while declaring the order passed in Ashok

Sahani case (Supra) as per incuriam referred the matter to the

Division Bench to finally adjudicate as to whether Registry of this Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 109/118

Court can be restrained to entertain anticipatory bail petition in

compliance with the order passed in Ashok Sahani case (Supra).

5. In pursuant to the above stated reference made by learned

Single Judge, a Division Bench was constituted and accordingly,

vide order dated 06.11.2017 the Division Bench held that the

Registry of this Court could not be restrained to entertain

anticipatory bail petition filed in the offences arising out of

offences of Act 2016 but recused to answer as to whether the

petition filed under Section 438 of the Cr.P.C. would be

maintainable in the offences arising out of Act 2016 or not on the

ground that vires/validity/repugnancy of the Act 2016 including

Section 76(2) is sub judice and yet to be decided by the Hon'ble

Apex Court. In the aforesaid backdrop, the Hon'ble Chief Justice

formulated the issues as stated by brother Trivedi Justice at para 8

of the judgment and referred the issues for adjudication before this

Full Bench.

6. It is not in dispute that Section 76(2) of the Act 2016

clearly bars the application of Section 438 of the Criminal

Procedure Code in the offences arising out of Act 2016 but from

perusal of sub-section (2) of Section 76 of Act 2016, it would

appear that above stated bar is applicable only if an offence under

the Act 2016 is made out because in sub-section (2) of Section 76 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 110/118

of the Act 2016 the sentence " on an accusation of having

committed an offence under this Act" has been used and,

therefore, it is explicit clear that if a person commits an offence

punishable under the Act 2016, in that event petition filed under

Section 438 of the Cr.P.C. cannot be entertained but if a person

does not commit any offence punishable under the Act 2016, then

in that event, the said person has right to file a petition under

Section 438 of the Cr.P.C. and the bar imposed under sub-section

(2) of Section 76 of the Act 2016 shall not come in his way.

Therefore, even if a person has been made accused in a case

registered under the provisions of Act 2016 but from bare perusal

of the accusation levelled against him does not disclose any

offence of the Act 2016, the said person has right to file petition

under Section 438 of the Cr.P.C. in spite of bar imposed under

Section 76 (2) of the Act, 2016 because if the offence under the

provisions of Act 2016 is not made out from the very face of the

accusation, the bar imposed under Section 76(2) of the Act 2016

shall not come in picture. In Vilas Pandurang Pawar & Anr. vs.

State of Maharashtra & Ors. reported in (2012) 8 SCC 795 and

in Bisheshwar Mishra & Anr. vs. The State of Bihar reported in

2016 (4) PLJR 1058, the Hon'ble Apex Court as well as Hon'ble

Division Bench of this court respectively while dealing with the Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 111/118

cases registered for the offences of SC/ST (Prevention of

Atrocities) Act, 1989 held that the court has power to look into the

allegations made in the FIR/ complaint to find out whether

ingredients of the offence under the SC/ST (Prevention of

Atrocities) Act, 1989 are prima facie made out or not before

exercising its judicial discretion under Section 438 of the Cr.P.C.

The perusal of above stated decisions of Hon'ble Apex Court as

well as Division Bench of this Court go to show that in spite of

bar imposed under Section 18 of SC/ST (Prevention of Atrocities)

Act, 1989 to entertain petition under Section 438 of the Cr.P.C. in

the offences arising out of SC/ST (Prevention of Atrocities) Act

1989, the Hon'ble Apex Court as well as Hon'ble Division Bench

of this Court held that court can examine prima facie case from

the very face of FIR/ complaint and if the court finds that no case

under the provisions of SC/ST (Prevention of Atrocities) Act,

1989 is made out from perusal of FIR/complaint, the court can

entertain petition filed under Section 438 of the Cr.P.C. even in

the cases registered for the offences punishable under SC/ST

(Prevention of Atrocities) Act, 1989. Almost, similar position is in

respect of Act 2016 and I am of the considered view that if

accusation made against a person does not make out any offence

under the provisions of Act 2016 from the perusal of Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 112/118

FIR/complaint itself, the court can entertain petition under Section

438 of the Cr.P.C. even if the case has been registered for the

offences of Act 2016. The learned Division Bench in Manish

Kumar @ Lokesh Kumar case (Supra) also dealt with the above

stated position at para 13 of the judgment and, therefore, it is

obvious that the learned Division Bench in Manish Kumar @

Lokesh Kumar case (Supra) has already answered the question

regarding the maintainability of the petition filed under Section

438 of the Cr.P.C. in the offences arising out of Act 2016.

7. 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 Manish Kumar (Supra) case should Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 113/118

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.

8. Reference (question nos. 2 and 3)- 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 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 114/118

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 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 115/118

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).

9. Admittedly, the Division Bench in the case of Mansih

Kumar (Supra) recused itself to give answer to the reference on

the ground of pendency of vires of Act 2016 as well as amended

Act 2016 before the Hon'ble Apex Court keeping in mind the

principle of judicial propriety. It is an admitted position that Act

2016 was challenged before this court and the same was declared

ultra vires in the case of Confederation of Indian Alcoholic

Beverage Companies & Anr. vs. The State of Bihar and others

reported in 2016 (4) PLJR 369. It is also an admitted position that

the State preferred S.L.P. (C) No. 29749 of 2016 before the

Hon'ble Apex Court against the judgment pronounced in

Confederation of Indian Alcoholic Beverage Companies

(Supra) and the Apex Court stayed the impugned order passed in

Confederation of Indian Alcoholic Beverage Companies

(Supra). However, it is also an admitted position that during Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 116/118

pendency of S.L.P. (C) No. 29749 of 2016, the State brought an

amendment in Act 2016 on 02.10.2016 and the aforesaid

amendment was also challenged before this court vide C.W.J.C.

No. 8640 of 2016 and C.W.J.C. Diary No. 73098 of 2016 but on

the prayer of State in a transfer petition filed before the Apex

Court, the Apex Court directed to tag the above stated writ

petitions with S.L.P. (C) Nos. 27949-29763/2016 and also stayed

the further proceeding. Admittedly, the above stated S.L.P. (C)

Nos. 27949-29763/2016 as well as writ petitions were pending

before the Supreme Court when Division Bench decided the case

of Manish Kumar (Supra). Brother Aditya Kumar Trivedi, J. as

well as Brother Ashutosh Kumar, J. dealt with the reference

(question no. 5) in their respective judgments and came to

conclusion that the Division Bench rightly recused to give answer

to the reference. No doubt, the matter of vires of Section 76(2) of

the Act is not separately pending before the Apex Court but

admittedly, the vires of entire Act of 2016 as well as amended Act

2016 have been challenged before the Hon'ble Apex Court in the

aforesaid special leave petitions and writ petitions. No doubt, the

Division Bench in the case of Manish Kumar (Supra) was not

denuded to give answer the reference made to it only because of

pendency of above stated special leave petitions and writ petitions Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 117/118

but when the vires of entire Act of 2016 as well as amended Act

2016 has to be tested by the Apex Court in above stated special

leave petitions and writ petitions, 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.

10. Since in respect of other aspects my esteemed brothers

have taken much pain to discuss all the relevant provisions as well

as decisions cited at the bar, I do not think it useful to repeat the

same and, therefore, in the aforesaid manner, all the questions

under reference are answered accordingly.

(Hemant Kumar Srivastava, J.)

(Per:Hon'ble Mr. Justice Aditya Kumar Trivedi, J.)

I have had the occasion to visit the judgments authored by

my esteemed Brothers Hon'ble Mr. Justice Hemant Kumar

Srivastava and Hon'ble Mr. Justice Ashutosh Kumar.

After going through the same, 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 Patna High Court CR. APP (SJ) No.431 of 2019 dt.17-05-2019 118/118

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.

(Aditya Kumar Trivedi, J.)

Prakash Narayan / S.K.M/ Praveen/Shahzad AFR/NAFR AFR CAV DATE 14.03.2019 Uploading Date 18.05.2019 Transmission Date 18.05.2019