MANISH KUMAR @ LOKESH KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The 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 .

(2.) 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 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 coordinate Bench, this court may not entertain the present anticipatory bail petition.

(3.) 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 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 coordinate Bench for entertaining anticipatory bail petition is not sustainable.