A Full Bench of the Patna High Court has declined to adjudicate on the validity of Section 76(2) of the Bihar Prohibition & Excise Act 2016, which bars application for anticipatory bail for offences under the Act
The bench of Justices Hemant Kumar Srivastava, Aditya Kumar Trivedi and Ashuthosh Kumar also overruled the judgment in Manish Kumar v State of Bihar, which had declared the provision ultra vires
The bench reached the conclusion on the basis of the fact that the validity of the Act was being considered by the Supreme Court. Since the apex court is seized of the issue, it would not be proper for the High Court to adjudicate on the same, observed the bench.
The Bihar Prohibition and Excise Act 2016 had imposed absolute liquor prohibition in the state. This Act was held to be unconstitutional by Patna High Court in Confederation of Indian Alcoholic Beverage Companies v State of Bihar. The effect of this judgment was stayed by the Supreme Court in the appeal filed by the state government. After that, Section 76(2) was introduced by way of amendment on October 2, 2016. This provision was also challenged later in High Court. Later, the Supreme Court transferred to itself the petition challenging Section 76(2) on application by the state government to be considered along with the case concerning validity of the Act.
Following this, a single bench of the High Court ruled that applications for anticipatory bail for offences under the Act cannot be entertained. However, in Manish Kumar(supra), another bench took a contrary view, and held the provision to be repugnant to Section 438 of the Code of Criminal Procedure and referred the matter to Division Bench. The Division Bench held that it was not proper to adjudicate the issue when the apex court is considering the same. Meanwhile, conflicting judgments on this issue were rendered by other benches, occasioning the reference to the Full Bench.
The Full Bench approved the course adopted by the Division Bench in shirking the issue citing the pendency of the matter in Supreme Court.
"till the vires is tested by the Apex Court, it will not be prudent for the full Bench to delve over the issue and record its finding", observed the judgment written by Justice Aditya Kumar Trivedi.
In a separate judgment, Justice Ashutosh Kumar observed "Till the time, the vires of the Act of 2016 is tested /adjudicated by the Supreme Court of India, which would include a decision on the correctness / justification of a State Legislature in providing / legislating a complete bar to the grant of anticipatory bail to accused persons of offences under the Act, anticipatory bail petitions shall otherwise not be maintainable, unless from the facts of the case, it would prima facie appear that none of the ingredients of the offences under the Act of 2016 are made out for attracting the bar of Section 76 (2) of the Act."
According to him, it would be a "judicial overreach to decide an issue which is pending adjudication before the Supreme Court".
"legal interpretation by the Supreme Court in not treating such a provision like 76 (2) to be a complete bar for grant of anticipatory bail, which bar would apply only under the circumstances that the offence under the Act is prima facie made out and the implication of the accused is not for any oblique purposes. In other words, if the ingredients of the offence are not made out, anticipatory bail can be granted to an accused person", Justice Ashutosh Kumar added.
Justice Hemant Kumar Srivastava in his separate opinion endorsed the view that till final adjudication by the Hon'ble Apex Court regarding the vires of Section 76(2) of the Act, there is no need to give any answer to the reference.
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