Patna HC: Whether an offence under the NDPS Act is bailable if it involves the seizure of a 'small quantity' of narcotic drugs?

 As such, this Court unequivocally holds that the offence under Section 21(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985, which prescribes a punishment of imprisonment for a term not exceeding one years, is to be classified as a 'bailable offence'. Accordingly, where the contravention under the N.D.P.S. Act involves a 'small quantity' of narcotic drugs or psychotropic substances, as per the relevant notification, such offences shall be treated as "bailable" in nature. In the case of bailable offence, the right of bail is a matter of statutory right and in such circumstance, there is no any discretion available either to the police or the Court itself. The accused is entitled to be released on bail automatically upon arrest, subject only to the execution and furnishing of the requisite bail bonds or sureties, as may be directed. {Para 26}

 IN THE HIGH COURT OF PATNA

Criminal Miscellaneous Nos. 15800 of 2025 and 18113 of 2025

Decided On: 10.04.2025

Raju Kumar Vs. The State of Bihar

and

Roshan Kumar Vs. The State of Bihar

Hon'ble Judges/Coram:

Rudra Prakash Mishra, J.

Citation:  MANU/BH/1283/2025.

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Whether one co-sharer is entitled to get mesne profits from other co-sharer?

On the case of the petitioners themselves, they were co-sharers along with opposite party Nos. 1 to 3. The grievance of the petitioners is that opposite party Nos. 1 to 3 were in possession of the six rooms in spite of the order dated 10-10-1969 passed by the court below and on that basis as stated above, they claim mesne profits on the ground that they were deprived of the enjoyment of those six rooms to which they were entitled to in pursuance of the aforesaid order. But that alone, in our opinion, is not sufficient to entitle the petitioners to get mesne profits from opposite party Nos. 1 to 3. "Mesne profits" has been defined in sub-section (12' of Section 2 of the Code of Civil Procedure, which is as follows:--

"Mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession."

A bare reading of this sub-section shows that a person in wrongful possession alone is liable to pay mesne profit. Was the possession of opposite party Nos. 1 to 3 wrongful ? The answer to that is certainly in the negative because they were, according to the case of the petitioners themselves, co-sharers of the six rooms. It is settled that possession of a co-sharer can never be wrongful as he had right and interest in every inch of the undivided property. It is not said by the petitioner that the property has been divided by metes and bounds and these six rooms have been allotted to his share. All that is said is that the petitioners are entitled to exclusive possession of these six rooms on account of the orders passed on 10-10-1969. But this order cannot be construed as to deprive opposite party Nos. 1 to 3 from enjoyment of the undivided property. For these reasons, in our view, the petitioners cannot claim mesne profits against opposite party Nos. 1 to 3. The application therefore, fails and is dismissed; but in the circumstances there will be no order as to costs.

 IN THE HIGH COURT OF PATNA

Civil Revn. No. 1039 of 1977

Decided On: 16.08.1979

Shambhu Dayal Khetan and Ors. Vs. Motilal Murarka and Ors.

Hon'ble Judges/Coram:

S. Ali Ahmad and Maheshwar Pradesh Verma, JJ.

Citation: AIR 1980 Patna 106, MANU/BH/0026/1980.

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Whether provisions of S 468 of CRPC are applicable to Domestic violence Act proceeding before the stage of S 32 of said Act?

This Court is of the view that Section 468 of Cr.P.C.

has applicability in the matter of Domestic Violence only at the

stage of applicability of Section 32 of Domestic Violence Act

where question of taking cognizance is involved. So far as

applicability of Section 468 of Cr.P.C. is concerned, this section

shall not apply in Domestic Violence Act prior to Section 32 of

Domestic Violence Act.

 IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL REVISION No.993 of 2019

Amit Kumar  Ramanand Singh Vs State of Bihar

CORAM:  MR. JUSTICE DR. ANSHUMAN

Date : 11-04-2023.

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Whether a person can seek that he be added as party to a suit if there is any dispute between him and defendant?

 Point No. (i):- The interveners mainly contended that the property has wrongly been sold by Mahabir Singh his uncle even including the share of the intervener in favour of the defendant 1st party. In fact the intervener are the real owner and in possession of the property of their share. The sale deed is illegal sale deed. So far these allegations are concerned, there is nothing on record in support of these facts. According to the defendants, the properties were sold by Mahabir Singh who was one of the settlee. Now, therefore, this dispute raised by the intervener is dispute between defendants because if the intervener will be added, they will be defendant in the suit. In my opinion, therefore, the inter se dispute between the defendants cannot be decided in a suit filed by the plaintiff appellant. Order 1 Rule 10 CPC speaks about the jurisdiction of the Court and not the right of a party for being added as defendant. If the intervener are not necessary party and in absence of the interveners, if the dispute raised between the parties can be effectively decided by the Court, the Court should not add a person whose presence is not required for just decision of the case. Here, as stated above, the plaintiff approached the Court with a particular case which was denied by the defendants. This dispute is to be decided and the trial Court has dealt with the controversy between the plaintiff and the contesting defendants. Now, these interveners are raising another controversy against the contesting defendants for which neither there is any pleading nor there is any evidence. In such circumstances, for the purpose of setting aside the Judgment and Decree, the intervener cannot be added as a party after such a long period. The suit is of the year 1976 and the application has been filed in this First Appeal in the year 2015, i.e., after 39 years. Further the dispute as to whether the plaintiff has got title or not can very well be decided in absence of these interveners because they are not saying anything against the plaintiff but are making allegation against the contesting defendant. In my opinion, therefore the interveners are not at all necessary party and accordingly, this intervention application, i.e., I.A. No. 3490 of 2015 is hereby rejected. {Para 15}

IN THE HIGH COURT OF PATNA

First Appeal No. 530 of 1982

Decided On: 07.07.2015

Sahood Alam and Ors.  Vs. Nayyer and Ors.

Hon'ble Judges/Coram:

Mungeshwar Sahoo, J.

Citation: MANU/BH/0423/2015.

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Whether addition of the intervenor as party will create his interest in the suit property?

Having heard the learned senior counsel for the parties and on considering the material on record, it appears that learned Court below has considered the impleadment application and submissions made on behalf of the parties and passed the detailed and reasoned order exercising his jurisdiction in the facts and circumstances of the case. The learned Court below observed that plaintiff has also sought alternative relief of declaration of title and recovery of possession. The defendants denied relationship of landlord and tenant and asserted their independent title over the suit land. The Court framed issues on 28.05.2013 which includes issue of title as well. The petitioner challenged the deed of partition dated 19.12.1988 as fraudulent and illegal. So, the suit does not seems to be one of tenancy rather complex issue of title is involved here. The intervenor has no right to birth in the suit property is a matter of investigation. Mere addition the intervenor as party will not create an interest in the suit property. So, the learned Court below found the presence of the intervenor is necessary for efficacious adjudication of this case and the addition is also necessary for avoidance of multiplicity of suits. {Para 16}

IN THE HIGH COURT OF PATNA

Civil Writ Jurisdiction Case No. 1428 of 2016

Decided On: 08.08.2023

 Ratan Kumar Sarawgi  Vs. Vishwanath Sarawgi and Ors.

Hon'ble Judges/Coram:

Sunil Dutta Mishra, J.

Citation:  MANU/BH/0947/2023.

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Guidelines of Patna High court for suspension of sentence of convict by Appellate court

 Conclusion

111. The discussion, undertaken hereinbefore, may be summarized as follows:—

a. While considering an application for suspension of sentence, the Appellate Court has to record reasons, in writing. The requirement of recording of reasons must be preceded by careful consideration of the relevant aspects of the case at hand including issues of human rights or other relevant aspects as envisaged under Article 21 of the Constitution of India.

b. The mere fact that during the period, when an accused person was on bail during trial, ‘there was no misuse of liberty does not per se warrant suspension of execution of sentence and grant of bail. What really is necessary to be considered by the Court is whether reasons exist, on the merits of the case, to suspend the execution of sentence and, thereafter, grant bail to the appellant.

c. During pendency of an appeal against conviction or sentence or both, temporary or interim or provisional suspension of sentence, on some extremely rare circumstances, is inherent in the jurisdiction of the Appellate Court, under Sec. 389 Cr. P.C. by the doctrine of implied power. Such a recourse must be taken only when pressing circumstances are shown to exist and when the Court is of the opinion that further inquiry would be required before finally disposing of the application for suspension of sentence pending decision on the convict's appeal.

d. It may be equally necessary to mention that circumstances, which show existence of a right within the ambit Article 21 of the Constitution of India, may be considered as valid circumstances, while granting interim suspension pending disposal of an appellant's application seek ing suspension of sentence and bail.

e. Notwithstanding the fact that a prisoner's application for suspension of sentence and his consequent release on bail cannot be allowed on merit or has been rejected on merit, the Appellate Court still retains the power to suspend sentence for such period as the Court may consider imperative, particularly, when the Court finds that such suspension of sentence would make the right to life, guaranteed by Article 21, meaningful. Thus, inordinate delay, in disposal of appeal, terminal ailments, marriage of daughter, performing last rites, etc., are circum stances falling in the broader definition of “right to life” and can become valid grounds for suspension of sentence of a prisoner and his release on bail for a temporary period or until disposal of his substantive appeal.

In the High Court of Patna

(Before I.A. Ansari and V.N. Sinha, JJ.)

Chandra Shekhar Bharti Vs The State of Bihar 

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What is doctrine of Implied Power?

  We may pause, at this stage, to point out that though the Supreme Court's observation, in Sakiri Vasu (supra), to the effect that Section 156(3) empowers the Magistrate to monitor investigation has not been agreed to in its subsequent decisions, the concept of the doctrine of implied power, succinctly described in Sakiri Vasu (supra), has not been deviated from. The relevant observations, made in Sakiri Vasu (supra), are, therefore, quoted below:—

“17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section-156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include-all such incidental powers as are necessary for ensuring a proper investigation.

18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers, which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus, where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution.

19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd Edn., p.. 267):

“…If these details could not be inserted by implication, the drafting of legislation would be an interminable process and the legislative intent would likely be defeated by a most insignificant omission.”

20. In ascertaining a necessary implication, the court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein.

21. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective.

{Para 76}

78. While answering the question, posed above, the Supreme Court, in M.K. Md. Kunhi (supra), invoked the principle of implied power and held that it is a firmly established rule that an express grant of statutory power carries with it, by necessary implication, the authority to use all reasonable means to make such grant effective (Sutherland Statutory Construction, Third Edition-, Articles 5401 and 5402).

79. The Supreme Court, in M.K. Md. Kunhi, (supra), quoted, with approval, the observations made in Domat's Civil Law Cushing's Edition, Vol:— 1 at page 88, which read as under:—

“It is the duty of the Judges to apply the laws, not only to that appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it. It is, therefore, seen that in order to meet certain rare circumstances, Court have adopted the doctrine of implied power, of course, with abundant caution bearing in mind that no prejudice or hardship is caused to adverse party.”

In the High Court of Patna

(Before I.A. Ansari and V.N. Sinha, JJ.)

Chandra Shekhar Bharti Vs The State of Bihar 

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Under which circumstances Appellate court can provisionally suspend sentence of convict?

 Interim. Temporary or Provisional Suspension of Sentence

58. Interim, temporary, or provisional suspension of sentence is not explicit in Section 389(1) CrPC. However, one cannot lose sight of the fact that an order of suspension can be passed by an Appellate Court, upon hearing the Public Prosecutor, particularly, when the appellant has been convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years. The notice to Public Prosecutor, before passing an order of suspension, is not a mere formality as could be seen from a closer reading of the two proviso to sub-section (1) of Section 389 Cr. P.C. This apart, the show cause, which Public Prosecutor may file, has to be in writing.

59. Thus, when the Public Prosecutor is expected to give his objections, if any, in writing, to the prayer for suspension of sentence, such an objection cannot be a subjective and/or mechanical objection; rather, a show cause has to be objective and shall be based on matters on record.

 60. Now, under Section 382 Cr. P.C. every appeal shall be made in the form of a petition, in writing, presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against.

 61. Ordinarily, the prayer for suspension is made along with the presentation of appeal. At that point of time, only a’ copy of the judgment is available on the record of the Appellate Court. Thus, if the Court were to consider the prayer for suspension on bare perusal of the appeal petition, it may not arrive at a just finding.

 62. It is equally notable that even the Public Prosecutor is not expected to submit his show cause, in writing, on the mere reading of the appeal petition, for, such a show cause would only be a mere formality. The Public Prosecutor is, therefore, required to ascertain the correctness and sustainability of the grounds of appeal. This apart, the powers, vested by virtue of provisions of sub-section (1) of Section 389 CrPC, in Appellate Courts, are to be exercised by Appellate Courts after due consideration of a number of factors, which may be relevant.

 63. The requirement of recording reasons, in writing, as mandated by Section 389(1) CrPC, clearly indicates that there has to be careful consideration of the relevant aspects by the Appellate Court and the order, directing suspension of sentence and grant of bail, should not be passed as a matter of routine. The Appellate Court is duty bound to objectively

assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and’ grant of bail. The mere fact, that during the period, when the accused persons were on bail during trial, there was no misuse of liberties, does not per se warrant Suspension of execution of sentence and grant of bail. So observed the Supreme Court in Gomti (supra).

64. What really is necessary to be considered by the Appellate Court is whether reasons, on merit, exist to suspend execution of sentence and, thereafter, to consider whether the convict shall be released on bail or not. The grant of bail, following suspension, must also conform to the conditions imposable under Section 441 CrPC. Considered in this light, it becomes evident that solvency of surety and exclusion of the possibilities of disobedience to the conditions imposed are all relevant factors, which would determine the outcome of an application seeking suspension, because an order of suspension would be meaningless unless the convict is released from prison. The release from prison would depend on the collateral factor whether the convict is likely to abscond.

 65. In view of the factors, laid down in the case of Gomti (supra), which are required to be considered before suspending sentence, it becomes abundantly clear that it may become necessary, in a given case, for the Appellate Court to go through the entire case record and the evidence, which formed the conviction, in question. Even for the Public Prosecutor, the perusal of case record may be necessary to effectively submit his written show cause.

66. It will, thus, be seen that when an appeal is filed along with an application for suspension of sentence and before the case records have been called for, the Appellate Court may not be in a position to pass the order of suspension of sentence; but there may be a situation warranting immediate passing of an order of suspension of sentence.

 67. Illustratively, we may state that there may be an occasion before the Appellate Court, when, along with an appeal, a prayer for suspension of sentence is also made on the ground that father of the convict has died and the convict is required to perform the last rites. There may be a circumstance, when the appellant prays for suspension of sentence for 10-15 days in order to perform the marriage ceremony of his daughter or the appellant needs, in a case of life-threatening disease, medical treatment, which cannot be possibly received in prison. There may be umpteen circumstances, which may confront the Court thereby compelling it to keep aside the rigours of law and to take a lenient view of the matter.

68. The question is whether, under the circumstances, as mentioned above, the Court must await the receipt of case records from the trial Court in order to decide the prayer for suspension of sentence and consequent release on bail of the appellant pending disposal of his application seeking suspension of his sentence and his release on bail?

 69. It needs to be borne in mind that when discretion is conferred on Court, it is unwise to discover a universal formula of its application, for, facts of each case may differ and thereby frustrate the very purpose of conferring discretion. No two cases are, generally, alike on facts and, therefore, the Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. Laying down the law that judicial discretion must be given some freedom, the Constitution Bench, speaking through Chandrachud, C.J., in Gurbaksh Singh Sibbia v. State of Punjab, reported in (1980) 2 SCC 565, observed:—

…life throws up unforeseen possibilities and offers new. challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges……

 70. We would not also, therefore, like to evolve a legal formula of universal application as to when a person, convicted of an offence, can be allowed to go on bail, consequent to suspension of sentence, on the ground of his sickness or some other exigencies; but we must indicate, as our duty is, as to what would be the minimum parameters of the Court's discretion, while considering the question as to whether to allow or not to allow the prayer for interim, temporary or provisional suspension of sentence before any final order, on an appellant's application seeking suspension of his sentence under Section 389(1) Cr. P.C. and his consequent release on bail, is disposed of.

 80. As a necessary corollary to the discussions held above, it can be safely held that at the time of presentation of appeal petition against conviction or sen tence or both, if an Appellate Court is faced with such rare circumstances, wherein interim, temporary or provisional order of suspension of sentence is called for, the denial of which may cause severe hardship to the appellant, the Appellate Court can, by taking resort to the doctrine of implied power, exercise its jurisdiction, under Section 389(1) Cr. P.C. by suspending the sentence temporarily and allowing the convict to go on bail for a specified period or until a decision is finally taken on the appellant's application, made under Section 389(1) Cr. P.C. seeking suspension of his sentence and consequent release on bail until disposal of his appeal.

 81. Such an order of interim suspension of/sentence will, thus, be wholly temporary in nature may not necessarily be based on the merits of the case, but on humanitarian considerations too or for enforcement of human rights as envisaged by Article 21 of the Constitution of India. Such a temporary, interim or provisional order of suspension of sentence has to be for a definite time frame depending on the facts of each case. On the expiry of the term for which the sentence is temporarily suspended pending an appellant's application seeking suspension of sentence and bail, the appellant shall have to surrender to the Court, as may have been directed by the Appellate Court, until the appellant's application, seeking suspension of sentence ‘and bail, is finally disposed of If further extension is prayed for, then, such extension can be allowed only if further emergent circumstances are shown to exist and not otherwise. It is advisable that on the date of expiry of the period of temporary suspension of sentence and bail, the petition for suspension of sentence be taken up for final hearing and necessary orders be passed.

In the High Court of Patna

(Before I.A. Ansari and V.N. Sinha, JJ.)

Chandra Shekhar Bharti Vs The State of Bihar 

Decided on January 27, 2014

Citation: 2014 SCC OnLine Pat 7874 : (2014) 2 PLJR 756 : (2014) 3 KLT (SN 31) 27 : 2014 Cri LJ 2953

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Whether police can file a chargesheet against the accused for an offence U/S 188 of IPC?

 Hence, on going through the provisions of Section 195 of the Cr.P.C., as also in the light of the ratio laid down by the Supreme Court in the decisions noted above, one can safely hold that there is a statutory bar to the court for taking cognizance unless a private complaint in writing is made by a public servant whose lawful order has not been complied with. As per ratio laid down by the Supreme Court, there is an absolute bar to the court for taking cognizance of a case registered under Section 188 of the Indian Penal Code except in the manner provided under Section 195 of the Cr.P.C.

27. Thus, I am of the considered opinion that the registration of the case by the police for the offence under Section 188 of the IPC was illegal and on the basis of such FIR, the investigation conducted by the police and the charge-sheet filed before the court was wholly illegal and without jurisdiction. Once, it is held that registration of FIR under Section 188 of the IPC was not permissible in law, the registration of FIR for other offences, which are non-cognizable and investigation of the same without the permission of Jurisdictional Magistrate was not permissible in view of the express bar created under sub-section (2) of section 155 of the Cr. P.C.

Patna High Court

Prakash Jha vs The State Of Bihar & Ors on 31 July, 2017

   CORAM:  MR. JUSTICE ASHWANI KUMAR SINGH

Read full Judgment here: Click here

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On which grounds appellate court can suspend the sentence of the convict?

Conclusion

110. The discussion, undertaken hereinbefore, may be summarized as follows:--

a. While considering an application for suspension of sentence, the Appellate Court has to record reasons, in writing. The requirement of recording of reasons must be preceded by careful consideration of the relevant aspects of the case at hand including issues of human rights or other relevant aspects as envisaged under Article 21 of the Constitution of India.

b. The mere fact that during the period, when an accused person was on bail during trial, there was no misuse of liberty does not per se warrant suspension of execution of sentence and grant of bail. What really is necessary to be considered by the Court is whether reasons exist, on the merits of the case, to suspend the execution of sentence and, thereafter, grant bail to the appellant.

c. During pendency of an appeal against conviction or sentence or both, temporary or interim or provisional suspension of sentence, on some extremely rare circumstances, is inherent in the jurisdiction of the Appellate Court, under Sec. 389 Cr.P.C., by the doctrine of implied power. Such a recourse must be taken only when pressing circumstances are shown to exist and when the Court is of the opinion that further inquiry would be required before finally disposing of the application for suspension of sentence pending decision on the convict's appeal.

d. It may be equally necessary to mention that circumstances, which show existence of a right within the ambit Article-21 of the Constitution of India, may be considered as valid circumstances, while granting interim suspension pending disposal of an appellant's application seeking suspension of sentence and bail.

e. Notwithstanding the fact that a prisoner's application for suspension of sentence and his consequent release on bail cannot be allowed on merit or has been rejected on merit, the Appellate Court still retains the power to suspend sentence for such period as the Court may consider imperative, particularly, when the Court finds that such suspension of sentence would make the right to life, guaranteed by Article 21, meaningful. Thus, inordinate delay, in disposal of appeal, terminal ailments, marriage of daughter, performing last rites, etc., are circumstances falling in the broader definition of "right to life" and can become valid grounds for suspension of sentence of a prisoner and his release on bail for a temporary period or until disposal of his substantive appeal.

 IN THE HIGH COURT OF PATNA

I.A. Nos. 1746 in Cr. Appeal (DB) No. 1403 of 2010, 

Decided On: 27.01.2014

Chandra Shekhar Bharti Vs. The State of Bihar

Hon'ble Judges/Coram:

I.A. Ansari and V.N. Sinha, JJ.

Citation: MANU/BH/0232/2014

Authored By : I.A. Ansari, V.N. Sinha

I.A. Ansari, J.

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Landmark Judgment on grant of bail to juvenile and conduct of trial under Juvenile Justice Act 2015

We, thus, sum up the references by

holding as under:-

Q. (i). Under which provision of law, a

child, who has completed or is above the age

of 16 years and is alleged to have committed

a ‘heinous offence’ can maintain his

application during the pendency of

preliminary assessment by the Board under

Section 15 of the Act of 2015?

A. For the reasons recorded hereinabove, a

child, who has completed or is above the age of

16 years and is alleged to have committed a

‘heinous offence’ can maintain his application for

release on bail under Section 12 of the Act of

2015 during the pendency of preliminary

assessment by the Board under Section 15 of the

Act of 2015.

Q. (ii). Under which provision of law, a

child, who has completed or is above the age

of 16 years and is alleged to have committed

a ‘heinous offence’ can maintain his

application for release on bail after the

transfer of his case to the Children’s Court

for trial by the Board ?

A. For the reasons recorded hereinabove, a

child, who has completed or is above the age of

16 years and is alleged to have committed a

‘heinous offence’ can maintain his application for

release on bail under Section 12 of the Act of

2015 after the transfer of his case to the

Children’s Court.

Q. (iii). Whether the powers conferred

on the Board in the matter of bail to a

person, who is apparently a child alleged to

be in conflict with law are also available to

the Children’s Court ?

A. In view of clear, unambiguous and specific

stipulation in Section 8(2) of the Act of 2015,

which provides that the powers conferred on the

Board under the Act may also be exercised by the

High Court and the Children’s Court in the matter

of grant of bail to a person, who is apparently a

child and is alleged to have committed a bailable

or non-bailable offence, the powers conferred on

the Board under the Act of 2015 are also

available to the Children’s Court and the High

Court.

Q. (iv). Whether seriousness of the

offence alleged is a ground for rejecting the

bail in case of a child in conflict with law?.

A. Seriousness of the offence alleged cannot

be made a ground for rejecting bail under the Act

of 2015.

Q. (v). Whether an appeal under Section

101(5) of the Act of 2015 or an application

under Section 439 of the CrPC would be

maintainable before the High Court by any

person aggrieved by the order granting or

rejecting bail by the Children’s Court?

A. Against an order granting or refusing bail

passed by the Children’s Court, no application for

bail or cancellation of bail under Section 439(1)

or 439(2) of the CrPC shall lie before the High

Court and against such an order only an appeal

under Section 101(5) of the Act of 2015 would

be maintainable. The ‘phrase’ “in accordance with

the procedure specified in the Code of Criminal

Procedure” does not allude to application of the

entire CrPC to the Act of 2015. The said

reference to the CrPC in Section 101(5) of the

Act of 2015 only means that the procedure, and

not the substantive Sections, prescribed under

Chapter XXIX shall apply to the appeal that could

be filed under the said Section. To clarify further,

the appeal, in terms of Section 101(5) has to be

considered on the basis of material available on

the record, i.e., material produced before the

Board under Section 13 of the Act of 2015 and

considerations arrived at in terms of Section 12

of the Act of 2015 for the purpose of grant of

bail and not the considerations of grant of bail in

terms of Sections 437, 438 and 439 of the CrPC.

The reference in Section 101(5) to “procedure

specified in the Code of Criminal Procedure” does

not enlarge the scope of sub-sections to create a

substantive right in terms of Section 439 of the

CrPC in Section 101(5) of the Act of 2015.

Q. (vi). What is the scope of Section

19(1)(i) of the Act of 2015 in connection

with the trial of a child as an adult? Whether

the provisions of Section 19 of the Act of

2015 are mandatory or the Children’s Court

has to compulsorily follow the

recommendations of the Board made under

Section 15 read with Section 18(3) of the

Act of 2015 ?

A. Upon a case of a child having been

transferred to the Children’s Court, a duty has

been cast upon the Children’s Court to further

decide about the suitability of the child to be tried

as an adult. The words used in Section 19(1)(i)

and 19(1)(ii) of the Act of 2015 give two options

to the Children’s Court. First, to try the

transferred child as an adult and second not to

deal with child as an adult. The Children’s Court is

required to record its reason while arriving at a

conclusion whether the child should be treated as

child or an adult in view of Rule 13 (6) of the

Rules. In case, the Children’s Court decides to

deal with child as a child it has to conduct an

inquiry as a Board following the procedures for

trial of a summons case in accordance with the

provisions of Section 18 as would appear from

the words used in Section 19(1)(i) of the Act of

2015. In case, it decides to try the child as an

adult, it shall follow the procedure as prescribed

by the CrPC for the purpose of trial by Sessions

Court and pass appropriate orders after trial

without prejudice to the provisions of Sections 19

and 21 of the Act of 2015 considering special

‘needs of the child’ the tenets of ‘fair trial’ and

maintaining a ‘child friendly’ atmosphere as

provided under Section 19(1)(i) of the Act of

2015.

The provisions of Section 19(1) of the Act

of 2015 are mandatory. The Children’s Court

cannot dispense with the requirement of deciding

as to whether there is need to try the transferred

child as an adult or to deal with the transferred

child as a child.

Q. (vii). What is the scope of application

of the provisions of CrPC after the Board

transfers the trial of the case to the

Children’s Court having jurisdiction to try

such offences and the Children’s Court

decides that there is a need for trial of the

child as an adult?

A. The procedure followed by the Children’s

Court for trial of a child as an adult would be of a

warrant case and the proceedings in Chapter

XVIII prescribed under Sections 225 to 237 of

the CrPC, which deal with warrant cases by a

Court of Sessions only would be applicable while

trying a child as an adult, subject to exceptions

indicated under the Act of 2015.

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.2117 of 2019

LALU KUMAR @ LAL BABU @ LALLU,  Vs  The State of Bihar

CORAM: MR. JUSTICE ASHWANI KUMAR SINGH

and  MR. JUSTICE BIRENDRA KUMAR

(Per: MR. JUSTICE ASHWANI KUMAR SINGH)

Date :01-10-2019

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Whether the magistrate must give reasons while differing with the final report of police exonerating accused?

After going through the record, it is evident that the complaint petition was thoroughly investigated by the investigating agency and thereafter, it was found that it was not a case of criminal offence, rather the investigating officer had noticed that it was a civil dispute. Accordingly, petitioner's name was not included in column No. 11 of the charge-sheet. Meaning thereby that petitioner was not forwarded as accused in the case and final report was submitted. So far as point, which has been raised by the learned counsel for the complainant that even in business transaction, there can be case of criminal offence, this Court is in agreement with his submission, but in the present case, the case was investigated thoroughly by the statutory investigating agency and no sufficient material was found to forward the petitioner to face trial and his name was not incorporated in the charge-sheet as accused. The learned Chief Judicial Magistrate though was competent to pass order of cognizance, differing with the police report, it was essential on his part to assign reason succinctly for differing with the police report. On perusal of the impugned order, the Court is satisfied that no reason has been assigned by the learned Magistrate and as such, on this very point, the order of cognizance is liable to be set aside.

8. It goes without saying that if an investigating agency after thorough investigation submits final report exonerating accused persons, the said report may not be treated as waste paper. Once such report is submitted, the learned Magistrate at the time of differing with the police report is required to assign succinct reason. Since in the order impugned, no reason has been assigned, the Court is satisfied that order impugned is liable to be set aside, particularly; in view of nature of accusation, as has been levelled in the complaint petition.

IN THE HIGH COURT OF PATNA

Cr. Misc. No. 21406 of 2013

Decided On: 16.09.2016

S.M. Mahtab Ahmad  Vs. The State of Bihar and Ors.

Hon'ble Judges/Coram:

Rakesh Kumar, J.

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Whether the court can frame Charge against the accused without giving him a reasonable opportunity to examine police papers?

Aggrieved by the impugned order, dated 6.6.2016, the petitioner, who is an accused in Mahila P.S. Case No. 15 of 2016, pending in the Court of learned Additional Sessions Judge, 1st-cum-Special Judge, Nalanda, at Biharsharif, has sought for, inter alia, quashing of the order, dated 6.6.2016, whereby and whereunder the learned Trial Court has framed charges against the petitioner on the same day the police papers were given to the petitioner without giving him any opportunity much less any reasonable opportunity to examine the police papers and seek legal remedy.

2. The order, dated 6.6.2016, passed in Mahila P.S. Case No. 15 of 2016, pending in the Court of learned Additional Sessions Judge, 1st-cum-Special Judge, Nalanda, at Biharsharif, framing of charge, is under challenge on the ground as indicated above that without giving the accused all those materials on which the prosecution relied upon, the charges were framed without giving any time for preparation to make his submission on the discharge.

3. The record reveals that on 6.6.2016, at 10:00 A.M., the copies of the statements and documents were furnished to the accused. The materials, so supplied, consisted of about 309 pages. This factual assertion, which has been made on behalf of the petitioner, has gone unchallenged.

6. We may pause here to point out that the learned Judge has given no indication at all as to what submission had been made by the accused and it is the case of the accused that though he wanted time to make his submission against framing of charge, he was not given adequate time enabling him to make his submission against framing of charges. From the hasty manner in which the case has been proceeded with leaves no room for doubt that no effective opportunity of hearing was given to the defence before the charges had been framed. A reference has been made, in this regard, by Mr. Jitendra Singh to a copy of the order, dated 17.7.2014, passed by learned Single Judge of this Court, in Criminal Miscellaneous Case No. 32938 of 2011. The relevant portion of the order reads:--

"In any view of the matter, it is one of the important rights of an accused in criminal case to prefer an application for discharge and the same has to be decided by the court, in seisin of the case, in accordance with law.

In view of the fact that the petitioner was deprived of the opportunity of placing his case of discharge before the trial court, the order framing charge is set aside."

7. It has been pointed out by Mr. Anjani Kumar, learned Additional Advocate General No. 6, that the Code of Criminal Procedure does not envisage making of any application for discharge. Though, as rightly pointed out, the Code of Criminal Procedure does not make any specific provision for making an application for discharge, such an application is not barred in law. What is, however, required is that all the documents and materials, which the prosecution seeks to rely upon, must be furnished to the accused and it is after having given adequate and effective opportunity to the accused that the hearing on the charge shall take place. If the Court is satisfied that the materials collected during investigation makes out a case against an accused, charges can be framed; or else, the accused needs to be discharged. However sensitive a case may be or whatever news value a case may have, miscarriage of justice cannot be permitted.

IN THE HIGH COURT OF PATNA

Cr.WJC No. 307 of 2016

Decided On: 04.07.2016

Raj Ballabh Prasad  Vs.  The State of Bihar and Ors.

Hon'ble Judges/Coram:

I.A. Ansari, Actg. C.J.

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Whether the order of Pocso court granting or refusing bail to accused involved in an offence both under Pocso Act and SC & ST Atrocities Act is appealable under Section 14A(2) of the SC/ST Act or S 439 of CRPC?

 In view of the foregoing discussions, especially, taking into consideration the decisions rendered in the case of Sarwan Singh (supra) and Ranjeet Kumar Sinha (supra) this Court is of the view that while harmoniously construing the provisions of two legislations, it is to be presumed that the legislature has enacted the later enactments with knowledge of the provision of the former legislation, and therefore a non-obstante clause in subsequent legislation, may be regarded as overriding in effect. The SC/ST Act was enacted in the year 1989, whereas the POCSO Act, being enacted in the year 2012. Section 42-A has given the POCSO Act, overriding effect over the provisions of any other law to the extent of inconsistency. It clearly indicates the intention of legislature to give overriding effect of POCSO Act over the SC/ST Act. So far the amendment in SC/ST Act is concerned, it having no clause for overriding effect vis-à-vis laws operating at that time. Therefore, the overriding effect as contemplated under Section 42-A of the POCSO Act, shall prevail over the SC/ST Act.

Therefore, in the considered opinion of this Court where any prosecution is brought for offences under both Acts i.e. POCSO Act and the SC/ST Act, the Special Court constituted under POCSO Act, alone would have jurisdiction in the matter at precognizance stage and post cognizance stage including trial, provided the accused may be charged at the same trial under the Code of Criminal Procedure, 1973.

29. Now, this Court thinks it appropriate to clarify one more aspect of the matter that the jurisdiction of the Special Court under the POCSO Act at pre-cognizance and post-cognizance stage including trial of the offences, under both statutes as referred above, would invest ipso-facto that court power to hear bail application of the accused. For answering the second issue that an order of the Special Court POCSO rejecting the bail of an accused who also being prosecuted under SC/ST Act would be appealable under Section 14-A(2) of the SC/ST Act, or the accused would have a right to apply further for bail under Section 439 of the Cr.P.C. before the High Court, at this juncture this Court would take note of Section 31 of the POCSO Act, which contemplates that the provisions of the Code of Criminal Procedure, 1973, including the provisions of bail and bonds shall apply to the proceeding before a Special Court and for the purpose of the said provision the Special Court shall be deemed to be a Court of Session. Under Section 31 of the POCSO Act, there is. fiction that the Special Court for the purpose of its proceedings shall be deemed to be a Court of Session. Therefore, the Special Court under POCSO Act would exercise power to grant or refuse bail under Section 439 of the Cr. P.C. There is no fiction under the SC/ST Act or POCSO Act that the Special Court constituted under POCSO Act, while considering the application for bail in a case where one of the offences charged was under the SC/ST Act, would be deemed to be a Special Court constituted under the SC/ST Act, for the limited purpose of granting or refusing the plea of bail. Furthermore, in view of Section 14-A(2) of the SC/ST Act, an appeal shall lie to the High Court only against an order of the Special Court constituted under the Act, granting or refusing bail, not against the order granting or refusing bail by the Special Court constituted under the POCSO Act.

30. In view of the forgoing discussions and observations, in the opinion of this Court, where an order granting or refusing bail to an accused being passed by the Special Court constituted under POCSO Act, in connection with a case involving offences under both Acts i.e. POCSO Act and SC/ST Act, the same would not be appealable under Section 14A(2) of the SC/ST Act. In such circumstances the application for bail in terms of Section 439 of the Cr.P.C. would alone be maintainable before the High Court.

IN THE HIGH COURT OF PATNA

Cr. Misc. No. 52792 of 2019

Decided On: 07.11.2019

Guddu Kumar Yadav  Vs.  The State of Bihar

Hon'ble Judges/Coram:

Sudhir Singh, J.

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Whether proceeding under SC& ST Atrocities Act will be vitiated if court other than the special court has taken cognizance of an offence under the Act?

 Further, we feel expedient to clarify that in view of Section 14 of the Act, it is the Special Court or the Exclusive Special Court, which is competent to directly take cognizance and try the offences under this Act, after 26.1.2016, the amendment came into force. Now, the question would also arise that after the amendment came into force on 26.1.2016, if any other Court than the Special Court or Exclusive Special Court established or specified under "the Act" may have taken cognizance of an offence under "the Act", whether such irregularity does vitiate the proceedings?

21. Chapter XXXV of the Code of Criminal Procedure, 1973, deals generally with irregular proceedings. Certain irregularities are not treated as vital and fundamental. They are set out in Section 460 of the Code of Criminal Procedure, 1973, which reads thus:

"460. Irregularities which do not Vitiate proceedings.--If any Magistrate not empowered by law to do any of the following things, namely:--

(a) to issue a search-warrant under Section 94;

(b) to order, under Section 155, the police to investigate an offence;

(c) to hold an inquest under Section 176;

(d) to issue process under Section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction;

(e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190;

(f) to make over a case under sub-section (2) of Section 192;

(g) to tender a pardon under Section 306;

(h) to recall a case and try it himself under Section 410; or

(i) to sell property under Section 458 or Section 459, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered."

22. There is distinction between irregularity and illegality. An irregularity may be defined as deviation from or want of adherence to rule or mode of proceeding. An illegality, on the other hand, is an act not authorized by law and it denotes a radical defects going to the root of the matter resulting in failure of justice and incurable in nature.

23. The Hon'ble Supreme Court of India, in the case of Bhoor Singh v. State of Punjab, MANU/SC/0109/1974 : AIR 1974 SC 1256 observed that the Code neither uses the word "illegality" nor defines "irregularity". Thus the Code treats all errors, omissions or defects as irregularities and further need that "illegality can only mean an incurable illegality; incurable because of prejudice leading to a failure of justice".

24. In the case of Willie Slaney v. State of M.P., MANU/SC/0038/1955 : AIR 1956 SC 116, the Hon'ble Supreme Court held as under:

"We prefer this way of stating the law, for the distinction that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes us as unreal. The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to "substantial" denial of a trial as contemplated by the Code and understood by the comprehensive expression "natural justice"."

25. Taking into consideration, Section 460 of the Code of Criminal Procedure, 1973 and the judgments rendered by the Hon'ble Supreme Court, referred above, we are of the opinion that the cognizance of the offence under "the Act" taken under Clause (a) or Clause (b) of sub-section (1) of Section 190 of the Code by any other Court than the Special Court or Exclusive Special Court even after 26.1.2016, shall not vitiate the proceedings at all. 

IN THE HIGH COURT OF PATNA

Cr. Appeal (SJ) No. 832 of 2016

Decided On: 17.02.2017

 Ravindra Thakur  Vs  The State of Bihar

Hon'ble Judges/Coram:

Hemant Gupta, Actg. C.J. and Sudhir Singh, J.

Authored By : Sudhir Singh, Hemant Gupta

Citation:  2017 LAWSUIT PATNA 110

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