Nirmal Kumar @ Hans Vivek v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.69985 of 2018 Arising Out of PS. Case No.-236 Year-2018 Thana- TEGHRHA District- Begusarai ====================================================== Nirmal Kumar @ Hans Vivek Son of Surendra Singh @ Surendra Prasad Singh, Resident of Village-Barauni-3, P.S. Teghra, District Begusarai. ... ... Petitioner/s
Versus
The State Of Bihar ... ... Opposite Party/s ====================================================== Appearance :
For the Petitioner/s :
Mr.Sada Nand Roy For the Opposite Party/s :
Mr.Sri Bisheshwar Ram ====================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER 28-02-2019 Heard learned counsel for the petitioner and learned A.P.P. for the State.
2. The petitioner apprehend his arrest for the offence alleged under Section 30 (a) of the Excise Act, 2016 (hereinafter referred to as The Excise Act, 2016) registered in connection with Teghra P.S Case No. 236 of 2018.
3. At the very outset, this Court takes note of an order passed by a coordinate Bench of this Court in Ashok Sahani Vs. The State of Bihar, 2017(3) PLJR 632. After a detailed deliberation over the effect of Section 76(2) of the Excise Act, 2016, it was categorically opined in paragraph-14 that the privilege of pre-arrest bail under Section 438 of the Cr.P.C is not available to person accused of having committed an offence under the Excise Act, 2016. Certain guidelines (non exhaustive)
2/5 were also laid out in paragraph-30, indicating circumstances where bail should normally be granted to the accused persons on their production by the police or on their surrender. The Registrar General was also directed to ensure that stamp reporters would not place applications filed under Section 438 of the Cr.P.C arising out of the cases under the Excise Act, 2016 before the Bench as defect free cases henceforth.
4. The aforesaid order in Ashok Sahani's Case (supra) came to be considered of another co-ordinate Bench of this Court passed in Cr. Misc. No. 21578 of 2017 (Manish Kumar @ Lokesh Kumar vs. The State of Bihar) which, by order dated 10.08.2017, held the earlier judgment per inacuriam, apart from holding the provisions of Section 76(2) of the Excise Act, 2016 as void in view of Article 254 of the constitution of India. The question whether the Registry could be restrained from entertaining anticipatory bail petitions as directed in Ashok Sahani's case (supra), was referred to a larger Bench.
5. By another judgment dated 03.10.2017 passed by a third co-ordinate Bench of this Court in Cr. Misc. No. 42985 of 2017 (Barun Kumar Vs. The State of Bihar), the issue relating to maintainability of anticipatory bail petitions in respect of offences under the Excise Act, 2016 came to be considered yet
3/5 again. The decision in Manish Kumar's case (supra) was found to have been passed in oversight of the relevant provisions of the Constitution of India as well Section 4 of the Cr.P.C which could not be placed before it. As such the decision in Ashok Sahani's case (supra) was held to be binding on a co-ordinate Bench wherein it had been held that an anticipatory bail petition under Section 438 of the Cr.P.C cannot be maintained in cases of offences arising out of the Excise Act, 2016.
6. The reference of the Larger Bench in Cr. Misc. No. 21578 of 2017 (Manish Kumar @ Lokesh Kumar Vs. The State of Bihar( was answered by the Division Bench in its order dated, opining that the Registry could not be restrained from entertaining anticipatory bail petition in compliance of the order passed in Ashok Sahani's case (Supra). However, in paragraph-9 of the said order, it was specifically stated that the aspect of the vires/validity/repugnancy of Section 76(2) was not being considered as the same was already sub-judice before the Apex Court. The principles noticed by an earlier Division Bench in Bisheshwar Mishra Vs. The State of Bihar, 2016 (4) PLJR 1058 in the context of a similar bar to grant of anticipatory bail under the provision of SC/ST Act in the light of the Apex Court's decison in Vilas Pandurang Pawar Vs. STAte of Maharashtra,
4/5 (2012) 8 SCC 795 were taken note of in paragraph-13, which cast a duty upon the Court considering the pre-arrest bail of an accused, to look into the allegaions made in the FIR/complaint to find out whether ingredients of the offence under the SC/ST Act were prima facie made out or not before exercising its judicial discretion under Section 438 of the Cr.P.C. It was therefore held that the law regarding consideration of an application under Section 438 of the Cr.P.C for grant of prearrest bail to the accused under an Act where there is a bar to grant of anticipatory bail, had been settled as such.
7. In view of the decision of this Court in Ashok Sahani's case (supra) as reiterated in Barun Kumar's case (supra), therefore this Court is constrained to hold that the anticipatory bail petition in respect of offences alleged against the petitioner under the Excise Act, 2016 is not maintainable.
8. Learned counsel for the petitioner has also not been able to satisfy this Court that looking to the allegations made in the FIR., the ingredients of the offences alleged against the petitioner have not been made out.
9. The anticipatory bail petition accordingly stands dismissed.
5/5
10. Considering the submission of the petitioner that e similarly situated co-accused persons have already been granted anticipatory bail vide order dated 21.08.2018 passed in Cr.Misc. No. 51258 of 2018, as such, if the petitioner surrenders and seeks regular bail before the learned court below, the same shall be considered on its own merit in accordance with law on the same day without being prejudiced by any observation in the present order.
(Vikash Jain, J) sudha/abhijeet U T