Setback for Nitish: Anticipatory bail in prohibition law maintainable, rules Patna HC
The clarification came from a division bench comprising Justice KK Mandal and Justice Madhuresh Prasad upon hearing a reference made in this matter by a single bench on the point of law.india Updated: Nov 06, 2017 21:20 IST
The Patna high court on Monday clarified that anticipatory bail petition is maintainable in the cases of alleged violation of new Bihar Prohibition and Excise Act, 2016, which came into force in October last year.
The clarification came from a division bench comprising Justice KK Mandal and Justice Madhuresh Prasad upon hearing a reference made in this matter by a single bench on the point of law in connection with maintainability of anticipatory bail application in the act.
The high court ruling came as a big setback for the Nitish Kumar government’s efforts to have a stern law in place to instill fear among the masses so as to facilitate maximum public compliance with complete prohibition being enforced in Bihar since April 2016.
For, the 2016 act has no provision for granting bail. Section 76 (1) of the act clearly states that all offences under the act are cognizable offences and are non-bailable. For the HC to hold that the plea for anticipatory bail was maintainable would diminish the fear of a law regarded by many as ‘harsh’, experts opined.
On July 7, 2017, a single judge bench had held that in a case relating to offence under the 2016 act an application under Section 438 of the Cr.P.C. (Anticipatory bail application) is not maintainable either before this court or before the court below.
Thereafter, another single judge bench on August 10, 2017, held that anticipatory bail was maintainable in prohibition Act.
It observed that “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 the Act (the Bihar Prohibition and Excise Act, 2016) to approach this court for grant of anticipatory bail under Section 438 of the Cr.P.C.”
The issue came before the division bench upon the point of law and in its judgement delivered on Monday, it found that anticipatory bail petitions could be entertained as per the provisions of the law.
In its order, the court observed: “In the result, this Court, in the light of the discussions made above (in the voluminous judgement of 27 pages), answers the reference by holding that the Registry (office where cases filed in court) cannot be restrained to entertain anticipatory bail petition in compliance of the order dated 07.07.2017 (passed by a single bench).
“Having answered the reference, we remit the matter to the learned Single Judge for disposal of the cases (a bunch of anticipatory bail application which are pending) in accordance with law.”