Patna High Court - Orders
Suman Rai vs The State Of Bihar on 6 February, 2018
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.5950 of 2018
Arising Out of PS.Case No. -136 Year- 2017 Thana -RAJAPAKAR District- VAISHALI(HAJIPUR)
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Suman Rai, S/o Harichandra Rai, R/o Village- Posa, P.S.- Goraul, District-
Vaishali.
.... .... Petitioner
Versus
The State of Bihar
.... .... Opposite Party
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Appearance :
For the Petitioner/s : Mr. Rina Sinha, Advocate
For the Opposite Party/s : Mr. Rana Randhir Singh, APP
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
2 06-02-2018All the cases have been placed on the issue of maintainability of the applications in view of bar under Section 76(2) of the Bihar Prohibition and Excise Act, 2016.
This Court has called upon the lawyers to satisfy this Court that dehors to the fact mentioned in each case, whether the petition under Section 438 of the Cr.P.C. will be maintainable on the basis of the statement made in the F.I.R..
It will be relevant to quote Section 76(2) of the aforesaid Prohibition and Excise Act, 2016, which reads as follows:-
"76(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 (Act 2 of 1974) Patna High Court Cr.M isc. No.5950 of 2018 (2) dt.06-02-2018 2/5 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."
The issue of maintainability of anticipatory bail has been discussed and decided in two anticipatory bail applications with two conflicting views and, later on, this issue came for consideration before the Division Bench of this Court, and to draw final view, it will be appropriate to consider the views discussed in the aforesaid orders.
The first case with the issue of maintainability came for consideration in Cr. Misc. No. 26109 of 2017 wherein the Co- ordinate Bench of this Court has held that as there is a specific prohibition of entertaining anticipatory bail application as provided under Section 76(2) of the Prohibition Act, the office was directed not to entertain the application in view of the bar stipulated therein. The issue of maintainability again came for consideration before another Bench in the case of Manish Kumar @ Lokesh Kumar Vs. State of Bihar (Cr. Misc. No. 21578 of 2017) wherein learned Single Judge has held that the Bar 76(2) of the Prohibition Act is void but, for authoritative pronouncement, the Single Bench referred the matter to the Division Bench on Patna High Court Cr.M isc. No.5950 of 2018 (2) dt.06-02-2018 3/5 two points firstly, whether Section 76(2) of the Prohibition Act is void in view of non-compliance of the requirement of Article 254 of the Constitution of India and, secondly, whether the Registry can be restrained to entertain bail application in view of the order of Coordinate Bench dated 7.7.2017 passed in Cr. Misc. No. 26109 of 2017.
The case of Manish Kumar (supra) was considered by the Single Bench and the Division Bench, as per reference made by the Single Bench, the Division Bench has held that as the vires, validity and the repugnancy of the provision of Section 76(2) of the Act is subjudice before the Apex Court, in such circumstances, it will not be proper to go into the issue and decide the issue of repugnancy in view of non-compliance of the provision of Article 254 of the Constitution of India. So this issue with regard to voidness of Section 76(2) of the Excise Act has been left open but, the Court with regard to second issue of entertaining the application under Section 438 of the Cr.P.C., it has been held that the Registry does not have a jurisdiction to prohibit the registration of the application under Section 438 of the Cr.P.C., it is the Bench which will decide as to whether the case is made out under the Prohibition Act or not and if the case is made out under the Prohibition Act, the bar of Section 76(2) of Patna High Court Cr.M isc. No.5950 of 2018 (2) dt.06-02-2018 4/5 the Act will apply but, in a case, when the facts of case itself depict that no case is made out under the Prohibition Act, the power can be exercised under the 438 of the Cr.P.C. Thus, the fact of each case will decide the maintainability of the application under Section 438 Cr.P.C. and only because the Registry has registered the case will not ipso facto be treated to be maintainable but, it is the Bench, which will decide the maintainability and applicability of Section 76(2) of the Prohibition Act.
In view of the above, this Court now proposes to consider all the cases on its merit and the maintainability of petition will be dependent on the fact of each case.
Heard learned counsel for the petitioner and learned counsel for the State.
The petitioner is permitted to make necessary correction in paragraph no.1 of the bail application.
In this case, the petitioner is seeking anticipatory bail in connection with Rajapakar P.S. Case No. 136 of 2017, registered for the offence punishable under Sections 30(A) and 38(A) and (B) of the Bihar Excise Amendment Act, 2016.
From the F.I.R. it appears that the police party has raided the brick-kiln and from there the police has recovered Patna High Court Cr.M isc. No.5950 of 2018 (2) dt.06-02-2018 5/5 huge quantity of liquor and a mobile phone, which is being used by the present petitioner.
From the record, it appears that no any allegation has been made against the petitioner to have connected in the trade of liquor or keeping the liquor for sale or purchase. Merely recovery of mobile phone apart from other fact, this Court is of the view that prima facie the bar of Section 76(2) will not apply in the present case.
Looking to the aforesaid facts, let the petitioner, namely, Suman Rai, be released on anticipatory bail in the event of his arrest or surrender before the learned Court below within a period of six weeks from today, on furnishing bail bonds of Rs.10,000/- (Rupees Ten Thousand Only) with two sureties of the like amount each to the satisfaction of the Additional Session Judge, II-cum-Special Judge, Excise, Vaishali at Hajipur, in connection with Rajapakar P.S. Case No.136 of 2017, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.
(Shivaji Pandey, J) pawan/-
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