Patna High Court
Rit Lal Yadav @ Rit Lal Rai vs The State Of Bihar Through The Chief ... on 31 October, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.2775 of 2025
Arising Out of PS. Case No.- Year-0 Thana- District- Patna
======================================================
Rit Lal Yadav @ Rit Lal Rai Son of Late Ramashish Rai Resident of village-
Kothwan, PS- Khagaul, Dist- Patna
... ... Petitioner
Versus
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna
2. The Additional Chief Secretary, Home Dept. Govt. of Bihar, Patna
3. The Director General of Police, Bihar, Patna Bihar
4. Inspector General Prison, Bihar, Patna
5. The Inspector General of Police, Patna
6. The Senior Superintendent of Police, Patna
7. The Sub Divisional Police Officer, Danapur, Patna
8. Jail Superintendent, Central jail, Beur, Patna, Bihar
9. Jail Superintendent, Central Jail, Bhagalpur, Bihar
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Y. C. Verma, Sr. Advocate
Mr. Gopal Krishna, Advocate
Mr. Ghanshyam Tiwary, Advocate
Mr. Vikas Kumar Jha, Advocate
Mr. Adarsh Singh, Advocate
Mr. Saloj Kumar Rai, Advocate
Mr. Khalil Faizan, Advocate
Mr. Harsh Kumar, Advocate
Mr. Rahul Deo Varman, Advocate
Mr. Abhinav Kumar, Advocate
Mrs. Prinyanka Singh, Advocate
For the Respondent/s : Mr. P. K. Shahi, Advocate General
Mr. P. K. Verma, AAG-3
Mr. Raju Patel, AC to AG
Mr. Suraj Sharma, AC to AAG-3
Ms. Vertikka K. Kashyap, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 31-10-2025
Heard Mr. Y. C. Verma, learned senior counsel
appearing on behalf of the petitioner and Mr. P. K. Shahi,
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
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learned Advocate General for the State.
2. The petitioner has approached this Court seeking
following relief(s):
"A. A writ in the nature of Mandamus
or any other appropriate writ/s, order/s,
direction/s, commanding the respondents for
the following: -
i. To provisionally release the petitioner
for a period of four weeks to enable him to
file his nomination for contesting the
election to the Bihar Legislative Assembly
from the Danapur segment on 16.10.2025
before the Returning Officer of the Danapur
Constituency, i.e., the Sub-Divisional
Magistrate, Danapur, and to canvass for his
candidature and take all necessary steps to
ensure proper campaigning and canvassing
related arrangements until 06.11.2025, the
date of polling, and to await the declaration
of results on 14.11.2025 in three cases
namely Khagaul P.S. Case No. 129 of 2025,
Khagaul P.S. Case No. 171 of 2025 and
Khagaul P.S. Case No. 206 of 2025.
ii. In the alternative, to allow the
petitioner custody parole in the three cases
referred to above for filing nomination,
campaigning, and canvassing.
B. To any other relief/s to which the
petitioner is found entitled to."
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3. Advancing his argument, Mr. Y. C. Verma, learned
senior counsel appearing on behalf of the petitioner, submits
that the petitioner has approached this Court seeking custody
parole/provisional bail since he is in prison in connection with
two cases, i.e., Khagaul P.S. Case No. 171 of 2025 and Khagaul
P.S. Case No. 129 of 2025. In first case, the bail petition of the
petitioner has been pending before the learned trial court and in
the second case, the bail petition of the petitioner has been
pending before this Court. Mr. Verma further submits that the
petitioner is a sitting Member of Legislative Assembly from
Danapur Constituency and he has been nominated by a National
Party as its candidate in the incoming Assembly Election.
Earlier the petitioner had been a Member of Bihar Legislative
Council for the period 2015 to 2020. Due to social and political
activities of the petitioner, a number of persons are hostile
towards him. Even present ruling party bears animosity against
him and as a result of such political considerations, the
petitioner has been falsely implicated in several criminal cases.
In most of the cases, he has either been acquitted or enlarged on
bail. He has not been convicted in any of the cases. Mr. Verma
further submits that the petitioner has been made accused in
altogether 39 cases, in which, he has been acquitted in 28 cases
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
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and is on bail in 09 cases. The petitioner has been allowed to file
his nomination by the orders of the learned trial court and
pursuant to the orders of the learned trial court, the petitioner
has already filed his nomination. Now, the petitioner has
approached this Court with simple prayer that he should be
allowed to campaign since the election is going to be held in his
Constituency on 06.11.2025. Mr. Verma further submits that in
order to succeed in an election, seeking votes through
campaigning/canvassing and reaching out to the electorates are
essential, and it is an inseparable parts of the democratic
process. Mr. Verma further submits that right to seek votes is
treated as fundamental right. It is also necessary to ensure a
level playing field for a just and fair election. Right to have a
free and fair election is part of fundamental rights and is treated
as basic structure of the Constitution. By extension, the ability
of the qualified citizens to contest and participate meaningfully
in such elections is, therefore, also an essential component of
that basic structure.
4. Mr. Verma further submits that to exercise the right
to seek votes is an essential feature of a parliamentary
democracy and the Hon'ble Madras High Court in the case of
Habeeb Mohamed Vs. The Home Secretary & Ors., W.P.(MD)
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
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No. 9542 of 2014, has observed that right to vote is only
statutory right but right to seek votes is a fundamental right.
Therefore, any step which makes the right to seek votes
meaningless by keeping a candidate in custody, violates the
constitutional idea of representative democracy. Mr. Verma
further submits that the cases instituted against the petitioner
have been registered in a malicious and mala fide manner for
preventing him from exercise his constitutional and statutory
right to seek votes during the election and to prevent him to
participate in the democratic process. Mr. Verma further
submits that due to paucity of time, the petitioner was
compelled to move before this Court under its extraordinary
jurisdiction under Article 226 of the Constitution of India since
elections are going to be held on 06.11.2025 and the petitioner
is in custody in two cases. Under such circumstances, he has no
other alternative efficacious remedy. Mr. Verma further submits
that the Hon'ble Supreme Court has recognized the right of such
persons for temporary release or custody parole for election
purposes. Mr. Verma refers to the case of Mohd. Tahir Hussain
Vs. State of NCT of Delhi, 2025 SCC OnLine SC 135, wherein
one of the Hon'ble Judges having difference of opinion allowed
the under-trial prisoner to participate in the election process.
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Since there has been divergent view of the Hon'ble Judges, the
matter was referred to a three Judges Bench of the Hon'ble
Supreme Court in Special Leave to Appeal (Crl.) No(s).
856/2025, decided on 28.01.2025, wherein the Hon'ble
Supreme Court allowed the said petitioner to be released for
certain days under certain conditions. Thus, the said judgment
upheld the idea that time limited monitored release may be
permissible to reconcile for competing public interests of fair
trial and democratic participation and supports the case of the
petitioner for his interim release for canvassing the election
process.
5. Mr. Verma next refers to the decision in the case of
Arvind Kejriwal Vs. Enforcement Directorate, (2024) 9 SCC
577, wherein the Hon'ble Supreme Court granted interim
bail/temporary release to enable political leader to participate in
election campaigns while safeguarding ongoing investigation
and trial. Mr. Verma next refers to paragraph-23.3 of the
decision of Division Bench of Delhi High Court in the case of
Abdul Rashid Sheikh Vs. NIA (decided on 25.03.2025 CRL.A.
299/2025) in support of his contention, which reads as under:
"23.3 The settled position of law is that
undertrials are eligible to contest
Parliamentary Elections notwithstanding that
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
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they may be charged with heinous offences.
Having been duly elected, the appellant was
administered oath of his office, despite the fact
that he is an undertrial facing serious charges.
As a Member of Parliament, the appellant
owes to the people of his constituency the duty
and responsibility to represent them in
Parliament."
6. Mr. Verma further refers to the decision of Hon'ble
Supreme Court in the case of Subhash Prasad Yadav Vs. The
Union of India & Ors. (Decided on 08.11.2024 in Special
Leave to Appeal (Crl.) No(s). 15145/2024), wherein the
Hon'ble Supreme Court considering the fact that the regular bail
application of the petitioner therein was pending before the
High Court, did not express any opinion on the merits of the
said application and in view the peculiar facts and
circumstances of the case, the petitioner therein was directed to
be released on interim bail.
7. Mr. Verma further submits that allowing the
petitioner to contest the election and not allowing him to
campaign/canvass for his support would render the whole
election process to be farce. It is also to be taken note of that the
petitioner is not any ordinary contender, but he has been
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nominated by a National Party and since he has been in custody
in connection with two cases, unless his prayer for bail is
decided in those cases, there is no chance of his getting released
and for this reason, he has approached this Court under its
extraordinary jurisdiction under Article 226 since it is an
extraordinary situation. Mr. Verma reiterates that the elections
provide the occasion for people to elect their representatives and
thus, the voters have their fundamental right to elect the
candidates of their choice, for this reason, the persons contesting
elections have a commensurate right to interact with voters,
present their manifesto, articulate their views and convince the
voters to vote for them. This democratic exercise is possible
only if the contesting candidate is not confined to the jail and so
that the voters can know his position and promises. Mr. Verma
further submits that in order to allow the petitioner to effectively
participate in the election process, it is essential to allow the
petitioner to interact with his voters and for this reason, the
petitioner be released on provisional/interim bail/custody parole
for the remaining period of election process to enable him to
effectively participate in the election campaign.
8. Mr. P. K. Shahi, learned Advocate General
appearing on behalf of State-respondents vehemently contends
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
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that there is no merit in the present petition and the present
petition is not even maintainable. Learned AG submits that the
petitioner has been in custody in connection with Khagaul P.S.
Case No. 171 of 2025 and Khagaul P.S. Case No. 129 of 2025
and he has already approached the courts concerned for grant of
regular bail but this fact was not initially mentioned in the
original petition, though the same has been subsequently
brought on record through supplementary affidavit. When the
petitioner is already before this Court in one such case seeking
regular bail, the course open to the petitioner was to approach
the Court for provisional bail and should not have approached
this Court in this manner by filing a criminal writ petition.
Learned AG further submits that the petitioner has even filed
quashing petition in FIR bearing Khagaul P.S. Case No. 171 of
2025 vide Criminal Misc. No. 52594 of 2025. Learned AG
further submits that the powers and jurisdiction of the High
Court under Article 226 have been clearly laid out in a number
of decisions of the Hon'ble Supreme Court and when there is
effective statutory remedy available, no writ petition under
Article 226 would lie.
9. Learned AG further submits that in the case of The
Assistant Commissioner of State Tax & Ors. Vs. M/s
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
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Commercial Steel Limited (decided on 03.09.2021, Civil
Appeal No. 5121 of 2021), the Hon'ble Supreme has held that
when alternative remedy is available, the power under Article
226 could be exercised only under certain exceptional
circumstances. Further, the learned AG refers to the decision in
the case of Arnab Manoranjan Goswami Vs. State of
Maharashtra & Ors., (2021) 2 SCC 427, wherein considering
the application for grant of bail under Article 226, the Hon'ble
Supreme Court held that the High Court must consider the
settled factors which emerge from the precedents of this Court
and summarized them in Paragraphs 64.1 to 64.6 as follows:
"64.1. The nature of the alleged
offence, the nature of the accusation and the
severity of the punishment in the case of a
conviction.
64.2. Whether there exists a reasonable
apprehension of the accused tampering with
the witnesses or being a threat to the
complainant or the witnesses.
64.3. The possibility of securing the
presence of the accused at the trial or the
likelihood of the accused fleeing from
justice.
64.4. The antecedents of and
circumstances which are peculiar to the
accused.
64.5. Whether prima facie the
ingredients of the offence are made out, on
the basis of the allegations as they stand, in
the FIR.
64.6. The significant interests of the
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public or the State and other similar
considerations."
The learned AG further submits that the petitioner is
accused for commission of serious offences and there is every
likelihood that once released, he would threaten the witnesses
and voters, considering his past history.
10. The Hon'ble Supreme Court further held that
these above-noted principles are equally applicable to the
exercise of jurisdiction under Article 226 of the Constitution
when the court is called upon to secure the liberty of the accused
and further held that the High Court must exercise its power
with caution and circumspection, cognizant of the fact that this
jurisdiction is not a ready substitute for recourse to the remedy
of bail under Section 439 of the CrPC.
11. Learned AG has stressed on the fact that when the
petitioner is already before this Court as well as before the
learned trial court seeking regular bail, there was no occasion
for the petitioner to approach this Court by filing the present
writ petition and refers to the decision of Hon'ble Supreme
Court in the case of The Assistant Commissioner of State Tax
& Ors. (supra), wherein the Hon'ble Supreme Court enumerated
the exceptional circumstances under which a writ petition could
be entertained, although alternative remedy might be available,
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
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like in the case of breach of fundamental rights, a violation of
the principles of natural justice, an excess of jurisdiction or the
challenge to the vires of the statute or delegated legislation.
12. Learned AG further submits that the bail
applications of the petitioner are already pending for quite some
time but the same were not pressed by the petitioner and the
petitioner has approached this Court invoking its extraordinary
remedy as he fears he might not get bail in those cases due to
seriousness of accusation. Learned AG next refers to the
decision of Hon'ble Supreme Court in the case of Anukul
Chandra Pradhan Advocate Supreme Court Vs. Union of
India & Ors., (1997) 6 SCC 1, and quoting paragraph 8
submitted that a person who is in prison as a result of his own
conduct and is, therefore, deprived of his liberty during the
period of his imprisonment cannot claim equal freedom of
movement, speech and expression with the others who are not in
prison. The Hon'ble Supreme Court has further held that,
moreover, if the object is to keep persons with criminal
background away from the election scene, a provision imposing
a restriction on a prisoner to vote cannot be called unreasonable.
Learned AG, thus, submits that if the Hon'ble Supreme Court
has held that a prisoner could not have right to vote, canvassing
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
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in election being a natural corollary, could not be given a
different meaning.
13. Learned AG next refers to paragraph 6 of the
decision of one of the Judges of the Hon'ble Supreme Court in
the case of Mohd. Tahir Hussain (supra) wherein it has been
held that right to campaign or canvass is neither a fundamental
right nor a constitutional or a human right. It has further been
held that the involvement of the petitioner in as many as eleven
cases, dilutes and erodes his position as a law-abiding citizen
and one of the Hon'ble Judges considering the facts and case
law did not permit interim bail to the petitioner. Learned AG
further submits that when the matter was referred to three
Judges Bench in the case of Mohd. Tahir Hussain (supra),
while allowing the petitioner to be released for a period of six
days, the Hon'ble Supreme Court did not settle the issue
whether any person has a right to campaign or canvass during
election period, if he is an under-trial and is in custody and the
Hon'ble Supreme Court further held that the said order releasing
the petitioner therein was not to be treated as a precedent and
directed the High Court to consider the application for regular
bail on its own merits. Learned AG further submits that even the
Hon'ble Judge who differed from the view of his companion
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Judge, and allowed the interim-release, in Paragraph-25,
observed that he did not doubt the propositions of law
eloquently recorded by his Brother Judge. Learned AG further
submits that, moreover, the decision in the case of Mohd. Tahir
Hussain (supra) was against the refusal of grant of regular bail
and was not in matter arising out of refusal of release in a
criminal writ.
14. So far as contention made on behalf of the
petitioner about the case of Arvind Kejriwal (supra) is
concerned, the facts and circumstances were entirely different
and in that case it was taken into consideration that the appellant
therein was the Chief Minister of Delhi and leader of one of the
National Parties and was not having any criminal antecedent
and it was also observed that he was not a threat to the society.
But the same could not be said about the present petitioner who
is in custody in the case registered under Section 111 of BNS
for commission of offence of organized crime. If the petitioner
is allowed to campaign/canvass under such circumstances, it
would have a deleterious effect on the society in general.
Learned AG further submits that the reliance placed by the
learned senior counsel for the petitioner on the decisions cited
hereinabove are of no help to the cause of the petitioner because
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
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the facts are quite different. Every case is to be assessed on the
basis of its facts and circumstances and they cannot be blindly
relied since proposition of law varies according to the facts and
circumstances of each case. Moreover, the orders passed by the
Hon'ble Supreme are mostly under Article 142 and not in
normal circumstances. Learned AG further submits that this
Court has to strike a balance between the statutory right of an
individual to contest the election and the apprehension that his
release would traumatize the persons of the locality because the
petitioner is an accused in cases related to Khagaul or Danapur
or its nearby locality. If the petitioner is allowed interim bail for
canvassing in the said locality, the same would tantamount to
endangering the lives of the citizens who have their statutory
rights to vote in the said election and looking at the background
of the petitioner, there is no gainsaying he would try to
browbeat and threaten the voters to cast votes in his favour.
Learned AG further submits that the petitioner had enough time
to make an application for grant of bail/interim bail in Khagaul
P.S. Case No. 171 of 2025 and Khagaul P.S. Case No. 206 of
2025, which he did not avail and now he has directly
approached this Court under Article 226 of the Constitution on
this eleventh hour only to frustrate the administration of justice.
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If the petitioner has already approached this Court as well as
lower court seeking release on bail, he is not allowed to pursue
parallel remedy by filing the present writ petition and the
present writ petition is not maintainable. Learned AG further
submits that the petitioner is having a long criminal history and
he is not a normal politician who has been put behind bar to
frustrate his aspiration. Furthermore, the first phase of the
election is scheduled to be held on 06.11.2025 and election
campaign would come to an end on 04.11.2025 and as such, the
petitioner has sought the relief belatedly and seems to be an
academic exercise.
15. Learned AG further submits that in the case of
Mohd. Tahir Hussain (supra), there was divergent views of the
Hon'ble Supreme Court and in one of the views, it has been
held that in the event of interim bail being granted on the ground
of canvassing in election, it will open a pandora's box and this
will open up floodgate of litigation which ought not to be
permitted so as to widen the scope of grant of interim bail, more
particularly, when the regular bail application has been pending
consideration. If right to participate, canvass and contest
election is allowed to be treated as a ground for interim relief
then the necessary sequel of the same would be that the accused
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person ought to be allowed to vote in the election as well, which
would run counter to the provision of Section 62(5) of the
Representation of People's Act, 1951. Lastly, the learned AG
refers to the decision in the case of Vishwanath Pratap Singh
Vs. Election Commission of India and Anr. (decided on
09.09.2022
, Special Leave to Appeal (Civil) No. 13013 of
2022), wherein the Hon'ble Supreme Court quoting the decision
in the case of Javed v. State of Haryana, (2003) 8 SCC 369,
came to the finding that the right to contest an election is neither
a fundamental right nor a common law right. It is merely a
statutory right with statutory limitations.
Learned AG further submits that in the case of
Digambar Rohidas Agawane Vs. Directorate of Enforcement
and Anr., (decided on 24.10.2024 in Interim Application No.
4233 of 2024 in Bail Application No. 4054 of 2024), the
Hon'ble Bombay High Court quoted the decision of Hon'ble
Supreme Court in the case of Vishwanath Pratap Singh (supra)
and held that contesting election is not a fundamental right and
it is governed by statute. Thus, the learned AG submits that the
present petition is devoid of merit and the same be dismissed.
16. By way of reply, Mr. Verma submits that this
Court has got a very wide power under Article 226 of the
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
Constitution and the said power remains unfettered. In this
regard, Mr. Verma refers to the decision in the case of Whirpool
Corporation Vs. Registrar of Trade Marks, Mumbai & Ors.,
(1998) 8 SCC 1, wherein the Hon'ble Supreme Court has held
that the power to issue prerogative writs under Article 226 of
the Constitution is plenary in nature and is not limited by any
other provision of the Constitution. This power can be exercised
by the High Court not only for issuing writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and
certiorari for the enforcement of any of the Fundamental Rights
contained in Part III of the Constitution but also for "any other
purpose". The present case is not a normal case. The petitioner
is a duly nominated candidate of a National Party and stakes are
much higher. For this reason, the petitioner has approached this
Court under Article 226 for grant of provisional bail/custody
parole. The Court should further the cause of justice and not
inhibit it. There is very limited time available to the petitioner
and approaching this Court under criminal writ jurisdiction is
only efficacious remedy available to the petitioner and filing of
the present writ cannot be said to be wrong on this count. Mr.
Verma further submits that considering the larger cause, the
petitioner should be allowed to canvass and campaign in support
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
of his candidature and the present petition is not only
maintainable but should also be allowed.
17. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
18. The petitioner has approached this Court invoking
the extraordinary power under Article 226 of the constitution of
India seeking his release on provisional bail in order to canvass
for his candidature and to take necessary steps to ensure proper
campaigning. Alternative prayer has been made to allow the
petitioner custody parole in the cases bearing Khagaul P.S. Case
No. 129 of 2025 and Khagaul P.S. Case No. 171 of 2025.
Admittedly, the petitioner has also approached this Court as
well as the learned trial court seeking regular bail. In somewhat
similar circumstances of the case of Mohd. Tahir Hussain
(supra), the Division Bench of the Hon'ble Supreme Court took
divergent views and in one of the views in paragraph-6, the
Hon'ble Supreme Court held as under:
"6. It is important to note here that right
to campaign or canvass is neither a
fundamental right nor a constitutional or a
human right. It is not even a right recognized
under any statute. However, the petitioner is
an Indian citizen and we are conscious that
his rights as a citizen are to be protected.
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
Nonetheless, the involvement of the
petitioner in as many as eleven cases
including the present one, one pertaining to
PMLA and nine in relation to Delhi riots of
2020, dilutes and erodes his position as a
law-abiding citizen."
19. Further, considering the issue before it that
whether a purpose based interim bail can be granted to contest
the election or for canvassing as the petitioner himself was one
of the candidates, the Hon'ble Supreme Court held that in the
event interim bail is made permissible on the ground of
contesting elections, it will open a Pandora's box inasmuch as in
this country election in some form takes place throughout the
year and the accused persons in jail may take undue benefit of it
and even if they are not serious in contesting elections, they
would move interim bail application for the purposes of
participating in the election knowing fully well they are likely to
lose or are not serious contenders. This will open a flood gate of
litigation which ought not to be permitted so as to widen the
scope of grant of interim bail, more particularly when the
regular bail application is pending consideration. In the
aforesaid decision of Mohd. Tahir Hussain (supra), a three
Judges Bench decision of the Hon'ble Supreme Court in the
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
case of Anukul Chandra Pradhan Advocate Supreme Court
(supra) has been quoted, which reads as under:
"8. There are other reasons
justifying this classification. It is well known
that for the conduct of free, fair and orderly
elections, there is need to deploy
considerable police force. Permitting every
person in prison also to vote would require
the deployment of a much larger police force
and much greater security arrangements in
the conduct of elections. Apart from the
resource crunch, the other constraints
relating to availability of more police force
and infrastructure facilities are additional
factors to justify the restrictions imposed by
sub-section (5) of Section 62. A person who
is in prison as a result of his own conduct
and is, therefore, deprived of his liberty
during the period of his imprisonment cannot
claim equal freedom of movement, speech
and expression with the others who are not in
prison. The classification of persons in and
out of prison separately is reasonable.
Restriction on voting of a person in prison
results automatically from his confinement
as a logical consequence of imprisonment. A
person not subjected to such a restriction is
free to vote or not to vote depending on
whether he wants to go to vote or not; even
he may choose not to go and cast his vote. In
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
view of the restriction on movement of a
prisoner, he cannot claim that he should be
provided the facility to go and vote.
Moreover, if the object is to keep persons
with criminal background away from the
election scene, a provision imposing a
restriction on a prisoner to vote cannot be
called unreasonable."
In the same vain, the Hon'ble Supreme Court held
that canvassing in an election can be done in many ways such
as through newspapers, social media, pamphlets, writing letters
and it is not necessary that it should be in the physical form such
as by holding meetings and by personal contact. Further, with
regard to canvassing and campaigning, in Para-18, the Hon'ble
Supreme Court held as under:
"18. This apart, the thrust of the
argument is that an interim bail for
canvassing is necessary for effectively
contesting the election. It is well known that
a person contesting election has to nurture
his constituency for years together and
canvassing for ten or fifteen days would not
suffice the purpose. If he has earned a good
reputation and his services are recognized
by the people, the canvassing in the last
days would not be very material. It is also
well accepted that a large number of people
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
in the past have contested elections sitting
behind the bars and they have won without
being released for the purposes of
canvassing. Therefore, there is no special
circumstance in the case of the petitioner to
grant him interim bail for that purpose. Most
of the times, the campaigning is done by the
party or its workers and if one person in the
party or the leader or even the candidate is
debarred from canvassing, it does not in any
way affect the legal right."
20. It is also apposite to take note of the observation
of the Hon'ble Supreme Court that the citizens of India deserve
a clean India, which means clean politics as well and for the
said purpose, it is necessary that people with tainted image,
especially those who are in custody and had not been granted
bail and those who are undertrial, even if out of jail, be
restricted in some way or the other from participating in the
election. The people of India should be given a choice to elect
people with clean image and antecedents and considering all
these facts, the Hon'ble Supreme Court held that interim bail
was not permissible for the purposes of contesting election
much less for campaigning. As divergent views came in the
decision of the Division Bench, having regard to the differing
views, the matter was referred to three Judges Bench but the
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
issue could not be settled as the petitioner therein confined his
prayer only to the extent of release on custody parole for a few
days and in the peculiar facts and circumstances, the Hon'ble
Supreme Court directed for release of the petitioner in police
protection for six days upon deposit of expenses with further
certain conditions. However, it was made clear that the said
order could not be treated as a precedent.
Prior to that, in the case of Anukul Chandra Pradhan
Advocate Supreme Court (supra), the Hon'ble Supreme Court
held in Paras- 9, 10 and 11 as under:
"9. It may also be mentioned that the
nature of right to vote has been held to be a
statutory right and not a common law right
because of which it depends on the nature of
right conferred by the statute. In N.P.
Ponnuswami v. Returning Officer, Namakkal
Constituency [(1952) 1 SCC 94 : 1952 SCR
218 : AIR 1952 SC 64] (SCR at p. 236), the
Constitution Bench held:
"The right to vote or stand as a
candidate for election is not a civil right but
is a creature of statute or special law and
must be subject to the limitations imposed by
it."
10. In Jumuna Prasad Mukhariya v.
Lachhi Ram [(1955) 1 SCR 608 : AIR 1954
SC 686] (SCR at p. 610), the Constitution
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
Bench reiterated:
"... The right to stand as a candidate
and contest an election is not a common law
right. It is a special right created by statute
and can only be exercised on the conditions
laid down by the statute. The Fundamental
Rights Chapter has no bearing on a right like
this created by statute."
11. In Jyoti Basu v. Debi Ghosal
[(1982) 1 SCC 691] (SCC at p. 696), the law
on the point was restated thus: (SCC paras 7,
8)
"7. The nature of the right to elect, the
right to be elected and the right to dispute an
election and the scheme of the constitutional
and statutory provisions in relation to these
rights have been explained by the Court in
N.P. Ponnuswami v. Returning Officer,
Namakkal Constituency [(1952) 1 SCC 94 :
1952 SCR 218 : AIR 1952 SC 64] and Jagan
Nath v. Jaswant Singh [1954 SCR 892 : AIR
1954 SC 210] . We proceed to state what we
have gleaned from what has been said, so
much as necessary for this case.
8. A right to elect, fundamental though
it is to democracy, is, anomalously enough,
neither a fundamental right nor a common
law right. It is pure and simple, a statutory
right. So is the right to be elected. So is the
right to dispute an election. Outside of
statute, there is no right to elect, no right to
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
be elected and no right to dispute an election.
Statutory creations they are, and therefore,
subject to statutory limitation."
21. In the case of Anukul Chandra Pradhan
Advocate Supreme Court (supra), reliance has been placed to
the case of N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency, (1952) 1 SCC 94, a Bench of six Judges, wherein
it has been settled that the right to vote or stand as a candidate
for election is a statutory right and must be subject to the
limitations imposed by it. The relevant portion is quoted for
refernece:
"29. The points which emerge from this
decision may be stated as follows:
(1) The right to vote or stand as a
candidate for election is not a civil right but
is a creature of statute or special law and
must be subject to the limitations imposed by
it.
(2) Strictly speaking, it is the sole right
of the legislature to examine and determine
all matters relating to the election of its own
members, and if the legislature takes it out of
its own hands and vests in a Special Tribunal
an entirely new and unknown jurisdiction,
that special jurisdiction should be exercised
in accordance with the law which creates it."
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
22. It is also apt to take note of what the Hon'ble
Supreme Court held in paragraph-5 in the case of Vishwanath
Pratap Singh (supra) which reads as under:
5. We find that the writ petition before
the High Court was entirely misconceived
and so is the present special leave petition.
The right to contest an election is neither a
fundamental right nor a common law right. It
is a right conferred by a statute. In Javed v.
State of Haryana, (2003) 8 SCC 369, this
Court held that:--
"22. Right to contest an election is
neither a fundamental right nor a common
law right. It is a right conferred by a statute.
At the most, in view of Part IX having been
added in the Constitution, a right to contest
election for an office in Panchayat may be
said to be a constitutional right -- a right
originating in the Constitution and given
shape by a statute. But even so, it cannot be
equated with a fundamental right. There is
nothing wrong in the same statute which
confers the right to contest an election also to
provide for the necessary qualifications
without which a person cannot offer his
candidature for an elective office and also to
provide for disqualifications which would
disable a person from contesting for, or
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
holding, an elective statutory office.
23. Reiterating the law laid down in
N.P. Ponnuswami v. Returning Officer,
Namakkal Constituency [(1952) 1 SCC 94 :
AIR 1952 SC 64 : 1952 SCR 218] and Jagan
Nath v. Jaswant Singh [AIR 1954 SC 210 :
1954 SCR 892] this Court held in Jyoti Basu
v. Debi Ghosal [(1982) 1 SCC 691] : (SCC
p. 696, para 8)
"8. A right to elect, fundamental though
it is to democracy, is, anomalously enough,
neither a fundamental right nor a common
law right. It is pure and simple, a statutory
right. So is the right to be elected. So is the
right to dispute an election. Outside of
statute, there is no right to elect, no right to
be elected and no right to dispute an election.
Statutory creations they are, and therefore,
subject to statutory limitation."
Thus, there is no doubt that the right to canvass and
campaign for getting elected in an election is not a fundamental
right. It is only a statutory right on which restriction can be
imposed by statutes.
23. Coming back to the facts of the present case, the
petitioner is in custody in connection with two cases, i.e.,
Khagaul P.S. Case No. 129 of 2025 registered for the offences
under Section 308(5), 111(2), 111(3), 339 and 3(5) of BNS and
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
Khagaul P.S. Case No. 171 of 2025 registered for the offences
under Sections 111(4), 111(6), 111(7) of BNS. The issue before
this Court, in the given facts and cricumstnaces, is whether the
petitioner has got a right to seek release on interim bail in order
to canvass in support of his candidature and campaign for
himself. The answer would be an emphatic 'no'. When the right
of a citizen to vote is restricted by statutory provisions, the right
of a candidate to canvass for his candidature could not be put on
any higher pedestal than the right of a common citizen. It goes
without saying that this Court is a sentinel on the qui vive. This
court is for protection of rights of any person against the State as
well as any private person who tries to infringe any such rights.
But, this power of the Court could not be stretched and read to
mean that in each and every case, the Court should intervene.
When there is no breach of any fundamental right or even any
statutory rights, there is little scope for this Court to come to the
help of the petitioner as the petitioner has been continuing in
custody under procedure established by law.
24. The petitioner could not claim his case to be on
similar footing to the cases of other persons referred by Mr.
Verma who had been allowed interim bail because facts and
circumstances have been different for all such persons in the
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
authorities cited by learned senior counsel for the petitioner. In
the present case, the petitioner has to stand on his own legs in
support of his case. He could not get sustenance from the
authorities where the facts are not similar. In the case of the
petitioner, he is having antecedent of a number of cases and he
has been suffering incarceration in two cases and he is already
before this Court as well as before the learned trial court seeking
regular bail. As submitted by the learned AG that the petitioner
has ample time to seek bail in those cases or to make the same
prayer before the court concerned for his release on interim bail.
But the petitioner chose not to do so rather he approached this
Court under Article 226 of the Constitution at the very last
moment. But for release of a person under Article 226, the
Hon'ble Supreme Court has explained the circumstances in the
case of Arnab Manoranjan Goswami (supra), in Paragraphs-
64.1 to 64.6, which have already been referred here-in-before.
Prior to that, in case of Whirpool Corporation
(supra), the Hon'ble Supreme Court held in Para-14 as under:
"14. Under Article 226 of the
Constitution, the High Court, having regard
to the facts of the case, has a discretion to
entertain or not to entertain a writ petition.
But the High Court has imposed upon itself
certain restrictions one of which is that if an
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
effective and efficacious remedy is available,
the High Court would not normally exercise
its jurisdiction. But the alternative remedy
has been consistently held by this Court not
to operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the enforcement of
any of the Fundamental Rights or where
there has been a violation of the principle of
natural justice or where the order or
proceedings are wholly without jurisdiction
or the vires of an Act is challenged. There is
a plethora of case-law on this point but to cut
down this circle of forensic whirlpool, we
would rely on some old decisions of the
evolutionary era of the constitutional law as
they still hold the field."
(Emphasis supplied)
In the case of The Assistant Commissioner of State
Tax & Ors. (supra), the Hon'ble Supreme Court has held in
Paragraph 11 as under:
"11. The respondent had a statutory
remedy under section 107. Instead of availing
of the remedy, the respondent instituted a
petition under Article 226. The existence of an
alternate remedy is not an absolute bar to the
maintainability of a writ petition under Article
226 of the Constitution. But a writ petition can
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
be entertained in exceptional circumstances
where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural
justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute
or delegated legislation."
25. On combined reading these decisions, it is clear
that when alternative remedy is available, the power under
Article 226 could be exercised under certain
conditions/contingencies and none of these conditions are
present in the case of the petitioner. Therefore, the petitioner has
approached this Court under some misconceived notion. If the
petitioner was already before this Court by filing of bail petition
and also before the learned trial court seeking regular bail, an
equally efficacious remedy was available to the petitioner but he
did not pursue the said remedy.
26. Moreover, considering the antecedent and
background of the petitioner and pressing demand of the time
that the Indian polity should be purged of criminal elements, the
prayer of the petitioner could not be acceded to. A balance
should be struck between the rights of citizens who deserve a
clean India and rights of undertrial prisoners in custody who
Patna High Court CR. WJC No.2775 of 2025 dt.31-10-2025
want to participate in the election process. Obviously the
balance will tilt in the favour of common citizens. The people of
India should be given a choice to elect people with clean image
and antecedents and hence, this Court is of the considered
opinion that allowing a person with criminal antecedents of
serious nature, would not be in larger interest of the society and
would not further the cause of democratic institutions.
27. Therefore, having regard to the facts and
circumstances in totality, I am not inclined to entertain the
present writ petition and finding no merit, the present writ
petition stands dismissed.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 03.11.2025
Transmission NA
Date
