Patna High Court - Orders
Manish Kumar @ Lokesh Kumar vs The State Of Bihar on 10 August, 2017
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.21578 of 2017
Arising Out of PS.Case No. -20 Year- 2017 Thana -PAKARIBARAW District- NAWADA
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Manish Kumar @ Lokesh Kumar, Son of Mukeshwar Singh , Resident of
Khakhari, Police Station - Kazichak in the district of Nawada.
.... .... Petitioner/s
Versus
The State of Bihar.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Sri Y.C. Verma
Sri Raj Kumar
Mr. Vijay Kumar
For the Opposite Party/s : Mr. Sri Bal Mukund Prasad Sinha
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
ORAL ORDER
3 10-08-2017The present petition was field under Section 438 of the Code of Criminal Procedure , 1973 for grant of bail in the event of arrest or surrender of the petitioner .
This anticipatory bail petition was filed on 1.5.2017 and by order dated 12.7.2017 a co -ordinate Bench of this court had summoned legible photo copy of the case diary and directed to list the case after receipt of the same. Since case diary was received in compliance with judicial order the office has placed the matter under the heading "For Admission" . When the matter was taken up Sri D.N. Tiwary , learned Additional Public Prosecutor raised an objection on the point of maintainability of the present petition. He submits that in view of Section 76 (2) of Patna High Court Cr.Misc. No.21578 of 2017 (3) dt.10-08-2017 2/9 the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as the "Act") an anticipatory bail is not maintainable . Besides this he has argued that recently a co-ordinate Bench of this court by its order dated 07.07.2017 passed in Cr. Misc. No. 26109 of 2017 has already held that in a case relating to offence under the Act an application under Section 438 of the Cr.P.C. is not maintainable either before this court or before the court below. He submits that since there is already an adjudication by a co- ordinate Bench, this court may not entertain the present anticipatory bail petition.
Sri Y.C. Verma, learned senior counsel assisted by Sri Raj Kumar, learned counsel for the petitioner has argued that the judgment of the single Bench in Cr. Misc. No. 26109 of 2017 is per incuriam since the judgment of the co-ordinate Bench has not noticed fact that section 76(2) of the Act particularly to the extent of taking away the power of anticipatory bail under Section 438 of the Cr.P.C. is itself void . He submits that criminal matter as well as Criminal Procedure Code is under Item - 1 and 2 of List - III i.e. the concurrent list of Schedule SEVENTH of the Constitution of India. According to him if on the issue there is already Parliamentary Act any legislation made by the State repugnant to the provision of the Parliamentary Act shall be Patna High Court Cr.Misc. No.21578 of 2017 (3) dt.10-08-2017 3/9 deemed to be void and as such, since the very provision of Section 76 (2) of the Act relating to anticipatory bail is void and contrary to the Central Act, there is no need to take any notice of Section 76 or judgment of the co-ordinate Bench . He has further argued that in the order dated 07.07.2017 in Cr. Misc. No. 26109 of 2017 a co- ordinate Bench had given certain guideline with observation that learned Magistrate in the event of surrender or appearance in a case relating to the offence under the Act may consider to grant bail. He submits that at least in the present case offence was alleged under section 30 (a) of the Act, which prescribes minimum sentence of ten years which may extend to life . He submits that once a person is accused in a case in which sentence is up to life , there is bar under Section 437 (1)(ii) of the Cr.P.C. to grant bail by the learned Magistrate. He submits that if applying the ratio of the co- ordinate Bench any innocent person is made accused for an offence relating to the Act he is bound to be taken into custody and he can only be extended privilege of bail by the learned Sessions Judge. He has argued that the judgment of the co-ordinate bench in Cr. Misc. No. 26109 of 2017 is per incuriam and as such the bar imposed by the co- ordinate Bench for entertaining anticipatory bail petition is not sustainable.
Patna High Court Cr.Misc. No.21578 of 2017 (3) dt.10-08-20174/9
Besides arguing on maintainability, Sri Verma on merit of the case has argued that petitioner's name has come only on confessional statement of one of the co -accused. Though the co -accused with others was arrested on a Maruti Van from which huge quantity of country made liquor was recovered and some accused persons were arrested. One of the arrested accused in malicious manner had taken name of the petitioner and as such on confession of co -accused petitioner has been arrayed as accused in the present case. Learned counsel for the petitioner has also drawn my attention to Annexure -2 to the petition to show animosity with the accused who had given the name of the petitioner. He submits that in the year 2016 itself this petitioner had made some complaint against the co- accused who had given the name of the petitioner. Accordingly it has been prayed to extend the privilege of anticipatory bail to the petitioner.
In this case earlier case diary was also called for and learned Additional Public Prosecutor has opposed the prayer for grant of anticipatory bail on merit also.
Besides hearing learned counsel for the parties I have perused the entire material available on record including the provision of law as well as judgment of the learned co -ordinate Bench dated 07.07.2017 passed in Cr. Misc. No. 26109 of 2017. Patna High Court Cr.Misc. No.21578 of 2017 (3) dt.10-08-2017 5/9 Before dealing with the objection regarding maintainability of the anticipatory bail petition it is necessary to incorporate certain provision of the Constitution of India. So far Criminal Law and Criminal Procedure Code is concerned both are under item - 1 and 2 respectively of List- III i.e. concurrent list in Schedule 7 of the Constitution of India. Meaning thereby that on those subjects Government of India as well as state are having concurrent jurisdiction to make enactment. However Article 254 of the constitution of India suggest that if state makes any legislation repugnant to the provision of the Parliamentary Act such enactment shall be treated as void. At this juncture it is necessary to incorporate Article 254 of the Constitution of India which is as follows:-
"254. Inconsistency between laws made by Parliament and laws made by 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 the Parliament which Parliament is competent to enact , or to any provision of an existing law with respect to one of the matters enumerated in a Concurrent List, then , subject to the provisions of clause (2) , the law made by Parliament, whether passed before or after the law made by the Legislature of such State , or , as the case may be , the 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 Patna High Court Cr.Misc. No.21578 of 2017 (3) dt.10-08-2017 6/9 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 the 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 "
Sri Y.C. Verma, learned senior counsel by way of referring to the Act submits that the said act is enactment by the State legislation and State Government has not obtained any assent of the President of India and as such this provision may not be protected under Article 254 ( 2 ) of the constitution of India.
Learned Additional Public Prosecutor was not in a position to satisfy the court as to whether this Act has got assent of the President of India in view of provision stated hereinabove of the Constituent of India.
It is made clear that if the State makes any legislation repugnant to the Parliamentary Act the said provision to that extent shall be treated as void unless in view of clause (2) of Article 254 of the Constitution of India State government before enactment takes assent of the president of India. While enacting no assent of the President was obtained. Certainly the provision Patna High Court Cr.Misc. No.21578 of 2017 (3) dt.10-08-2017 7/9 i.e. Section 76(2) of the Act being repugnant to the Central Act i.e. Code Of Criminal Procedure [ Section 438 of the Code of Criminal Procedure ] it may be termed as void and as such there can be no restriction to entertain anticipatory bail petition . Since there is also provision incorporated in the Code of Criminal Procedure which is a Central Act which gives a right to an accused to seek bail in any cognizable case in the event of arrest or surrender. Accordingly, the court is of the considered opinion that section 76 (2) of the Act being repugnant t o the Central Act i.e. Code of Criminal Procedure ( i.e. Section 438 of the Cr.P.C. ) shall be termed to be void and as such, there can not be any restriction either to file anticipatory bail petition or to maintain anticipatory bail petition.
It was further argued by Sri Verma, learned senior counsel that in any event Registry can not be restrained from entertaining any petition under Section 438 of the Cr.P.C. since question as to whether the alleged offence is really made out under the Act can not be examined by the Stamp Reporter which can be left open for examination by the Bench.
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 Patna High Court Cr.Misc. No.21578 of 2017 (3) dt.10-08-2017 8/9 petition or to any person apprehending his/her arrest relating to a offence under 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.
It is made clear that since I am of the opinion that Patna High Court Cr.Misc. No.21578 of 2017 (3) dt.10-08-2017 9/9 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.
Accordingly in the event of arrest or surrender within six weeks from today, let the petitioner namely Manish Kumar @ Lokesh Kumar be enlarged on bail on furnishing bail bond of Rs. 10000/- (rupees ten thousand ) with two sureties of the like amount each to the satisfaction of learned Additional Sessions Judge II, Nawada/ concerned court in connection with Pakribarawan (Dhamaula ) P.S. Case No. 20 of 2017 subject to the conditions as contemplated under section 438(2) of the Code of Criminal Procedure .
The Registrar General of the Patna High Court is required to communicate this order to all the District Judges.
(Rakesh Kumar, J) Praful/-
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