[Cites 14, Cited by 0]
Patna High Court
Dr. Sitaram Sharma @ Dr. Sitaram Mistri vs The State Of Bihar on 10 March, 2026
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.356 of 2022
Arising Out of PS. Case No.-284 Year-2021 Thana- AMARPUR District- Banka
======================================================
1. Dr. Sitaram Sharma @ Dr. Sitaram Mistri Son of Late Kedar Mistri,
Resident of Village - Mahamadpur, P.S. - Amarpur, District - Banka, Bihar-
813101.
2. Rajiv Kumar @ Dr. Rajiv Kumar Son of Dr. Sitaram Sharma @ Dr. Sitaram
Mistri, Resident of Village - Mahamadpur, P.S. - Amarpur, District - Banka,
Bihar- 813101.
3. Vindhvansi Sharma Wife of Dr. Sitaram Sharma @ Dr. Sitaram Mistri,
Resident of Village - Mahamadpur, P.S. - Amarpur, District - Banka, Bihar-
813101.
4. Sanjiv Kumar Sharma Son of Dr. Sitaram Sharma @ Dr. Sitaram Mistri
Resident of Village - Mahamadpur, P.S. - Amarpur, District - Banka, Bihar-
813101.
5. Rakesh Ranjan Son of Dr. Sitaram Sharma @ Dr. Sitaram Mistri Resident of
Village - Mahamadpur, P.S. - Amarpur, District - Banka, Bihar- 813101.
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Director General of Police, Bihar, Patna.
3. The Home Secretary, Bihar, Patna.
4. The Inspector General of Police, Bhagalpur Division at Banka. Bihar
5. The Deputy Inspector General of Police, Bhagalpur Division at Banka. Bihar
6. The District Magistrate, Banka. Bihar
7. The Superintendent of Police, Banka. Bihar
8. The Station House officer, Amarpur Police Station, Banka. Bihar
9. Arvind Kumar Rai, Sub- Inspector, Amarpur Police Station Bihar
10. Rakesh Kumar Singh, Sub- Inspector, Amarpur Police Station. Bihar
11. Shalini Sharma Wife of Rajiv Kumar @ Dr. Rajiv Kumar, Daughter of Shri
Ajay sharma Resident of Village - Mahamadpur, P.S. - Amarpur, District -
Banka, Bihar- 813101.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Amitabh Sohan, Advocate
Mrs. Pallavi Singh, Advocate
For the State : Mr. Suman Kumar Jha, AC to AAG-3
Patna High Court CR. WJC No.356 of 2022 dt.10-03-2026
2/10
For the Resp. No.9 : Mr. Jagjit Roshan, Advocate
Mr. Anjani Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Date : 10-03-2026
The present writ petition has been preferred by the
petitioners seeking writ of mandamus directing the respondent
authorities to initiate departmental proceeding against the police
officials and Judicial Magistrate. The petitioners are also
seeking initiation of contempt proceeding against the police
officials.
2. The factual background of the case is that one
police case bearing Amarpur P.S. Case No. 284 of 2021 was
lodged on 13.06.2021 for offence punishable under Sections
341, 323, 504 read with Section 34 of the Indian Penal Code on
the report of Smt. Shalini Sharma/ Respondent No.11, who is
wife of petitioner No.2/Rajiv Kumar. It further transpires that
vide order dated 22.06.2021 learned Chief Judicial Magistrate
issued show cause to the concerned Investigating Officer why
Section 498A of I.P.C. was not applied in the said F.I.R. despite
sufficient allegation in the F.I.R. by the informant. Subsequently
on 22.06.2021 petitioner No.2/Rajiv Kumar was arrested and
thereafter, on 23.06.2021 Section 498A of IPC was added by
learned Chief Judicial Magistrate on application of the police
Patna High Court CR. WJC No.356 of 2022 dt.10-03-2026
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and after investigation, charge-sheet has been submitted on
08.08.2021
only against petitioner No.2/Rajiv Kumar keeping
investigation pending against rest accused persons who are
family members of petitioner No.2/Rajiv Kumar. Subsequently
on 02.11.2021 cognizance was taken against the petitioner
No.2/Rajiv Kumar for offence punishable under Sections 341,
323, 504, 307 and 498A read with Section 34 of the Indian
Penal Code. It further transpires that on 18.01.2022 the
petitioner No.2/Rajiv Kumar was released on regular bail by a
Co-ordinate Bench of this Court. It is also stated by learned
counsel for the petitioners that one Criminal Miscellaneous No.
12667 of 2022 has been filed by the petitioners including Rajiv
Kumar under Section 482 Cr.PC for quashing of the F.I.R.
3. I heard learned counsel for the petitioners and
learned APP for the State.
4. Learned counsel for the petitioners submits that
petitioner No.2/Rajiv Kumar was arrested on 22.06.2021 in a
case in which the petitioners were alleged to have committed
offence punishable under Sections 341, 323 and 504 of the
Indian Penal Code and the maximum punishment provided for
the alleged offence is below seven years and in view of direction
of Hon'ble Supreme Court in Arnesh Kumar Vs. State of
Patna High Court CR. WJC No.356 of 2022 dt.10-03-2026
Bihar, as reported in (2014) 8 SCC 273, the police is not
authorized to arrest the accused without compliance of Section
41A Cr.PC. Hence, the arrest is illegal and hence, the concerned
police officials and the concerned Judicial Magistrate have
committed contempt of Court and hence, proceeding for
contempt of Court of Hon'ble Supreme Court be initiated
against the police officials as well as Judicial Magistrate.
Learned counsel for the petitioners also submits that police
officials and Judicial Magistrate are also liable for departmental
proceeding in view of violation of direction of Hon'ble Supreme
Court as given in Arnesh Kumar Case (supra).
5. However, learned APP for the State submits that
even if it is presumed that arrest made by the police was illegal
and remand made by the Judicial Magistrate was also not
sustainable in the eye of law, neither the arrest by the police nor
the remand by the Judicial Magistrate was challenged prior to
filing of the regular bail application by the petitioner No.2/Rajiv
Kumar before this Court and till date, the remand order passed
by learned Judicial Magistrate is unchallenged. As such, the
remand order is still absolute for want of any challenge against
this order before any Higher Court and hence, arrest stands
legal. Hence, it does not lie in the mouth of the petitioner to say
Patna High Court CR. WJC No.356 of 2022 dt.10-03-2026
that arrest was illegal and contempt and departmental
proceeding are required to be initiated against the police
officials and the Judicial Magistrate. Had the petitioner
challenged the arrest or remand before competent Court, the
compliance or no compliance of the direction of Hon'ble
Supreme Court as given in Arnesh Kumar Case (supra) could
have been looked into by this Court. But now it it too late to
look into the compliance of the direction of Hon'ble Supreme
Court as given in Arnesh Kumar Case (supra). The petitioner
has already acquiesced the legality of arrest and remand because
the petitioner No.2/Rajiv Kumar moved regular bail application
instead of challenging the arrest or remand before any Higher
Court. Hence, the writ petition is shorn of any merit and liable
to be dismissed. He also refers to and relies upon Lallan
Kumar Yadav vs. State of Bihar and Ors. [2026 (2) BLJ 414]
passed by this Court in Criminal Writ Jurisdiction Case No.
1049 of 2021.
6. I considered the submissions advanced by both the
parties and perused the material on record.
7. There is no dispute that the arrest and remand of
petitioner No.2/Rajiv Kumar is still unchallenged and
subsequently he moved regular bail application before this
Patna High Court CR. WJC No.356 of 2022 dt.10-03-2026
Court which was allowed and consequently, he has been
released on bail. Other petitioners have never been arrested till
date as per statement of learned counsel for the petitioners.
8. Hence, at this stage the grievance of the petitioners
regarding compliance of Arnesh Kumar Case and initiating
departmental or contempt proceeding against the concerned
police officials or Judicial Magistrate is unwarranted. Under
similar facts and circumstances, this Court in Lallan Kumar
Yadav Case (supra) has held as follows:
"11. It also transpires that the petitioner never challenged
the arrest and the remand before the High Court or any
other Court. In stead, the petitioner filed an application for
regular bail and he got bail and released subsequently. As
such, for want of setting aside the remand order, passed by
the competent Criminal Court, arrest becomes legal and it
is absolute for want of any challenge to the higher Court
and getting it set aside. Though it appears from the perusal
of the case diary that the police officer before arresting the
petitioner in Sonepur P.S. Case No. 574 of 2020, he has
not complied with the direction of Hon'ble Supreme
Court. But this non-compliance of direction of Hon'ble
Supreme Court as given in Arnesh Kumar Case (supra)
should have been raised just after arrest or just after
remand, but he has not chosen to prefer any judicial
proceeding against this illegal arrest or the illegal remand
to the Writ Court. Instead, the petitioner preferred an
application for regular bail which amounts to
acquiescence of the petitioner that his detention was legal.
Thereafter, it does not lie in the mouth of the petitioner to
raise illegality of the arrest.
12. Hence, timing of challenging the arrest or remand
subsequently is wrong. Had the petitioner come prior to
filing of regular bail petition and just after remand by
learned Judicial Magistrate, the Writ Court could have
looked into the compliance of direction of Hon'ble
Supreme Court by the police or even learned Judicial
Magistrate at the time of remand. But now that time has
Patna High Court CR. WJC No.356 of 2022 dt.10-03-2026
passed and this is not the stage to look into the compliance
with the direction of Hon'ble Supreme Court in Arnesh
Kumar Case (supra), either by the police or by the
learned Judicial Magistrate. It is too late to look into such
plea taken by the petitioner. Hence, the present petition is
liable to be dismissed.
13. Accordingly, the present petition stands
dismissed.
14. However, dismissal of the present writ petition
does not mean that this Court is approving the conduct of
the police officers as well as learned Judicial Magistrate.
The perusal of the case diary shows that the concerned
police officer is totally oblivious of the direction of
Hon'ble Supreme Court as given in Arnesh Kumar Case
(supra). Even, unfortunately, learned Judicial Magistrate
appears to be ignorant about the guidelines issued by
Hon'ble Supreme Court in Arnesh Kumar Case (supra)
to be followed at the time of remand. Learned Judicial
Magistrate is equally duty bound to look into the
compliance by the police officer at the time of arrest in a
case in which maximum punishment provided is seven
years and if the Judicial Magistrate finds no compliance,
then the Judicial Magistrate is duty bound to reject the
application of the police for remand of the arrestee to
judicial custody or otherwise. But this duty has not been
done by the Judicial Magistrate. If the Judicial Magistrate
could have perused the case diary before passing remand
order, he could have rejected, because there is no whisper
regarding compliance of the direction of Hon'ble Supreme
Court as given in Arnesh Kumar Case (supra).
15. Here, it would be pertinent to refer to the
directions issued by Hon'ble Supreme Court in Arnesh
Kumar Case (supra) which reads as follows:
"11. Our endeavour in this judgment is to ensure that
police officers do not arrest the accused unnecessarily and
Magistrate do not authorise detention casually and
mechanically. In order to ensure what we have observed
above, we give the following directions:
11.1. All the State Governments to instruct its police
officers not to automatically arrest when a case under
Section 498-A IPC is registered but to satisfy themselves
about the necessity for arrest under the parameters laid
down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list
containing specified sub-clauses under Section 41(1)(b)
(ii);
11.3. The police officer shall forward the check list
duly filled and furnish the reasons and materials which
Patna High Court CR. WJC No.356 of 2022 dt.10-03-2026
necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of
the accused shall peruse the report furnished by the police
officer in terms aforesaid and only after recording its
satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the
Magistrate which may be extended by the Superintendent
of Police of the district for the reasons to be recorded in
writing;
11.6. Notice of appearance in terms of Section 41-A
CrPC be served on the accused within two weeks from the
date of institution of the case, which may be extended by
the Superintendent of Police of the district for the reasons
to be recorded in writing;
11.7. Failure to comply with the directions aforesaid
shall apart from rendering the police officers concerned
liable for departmental action, they shall also be liable to
be punished for contempt of court to be instituted before
the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons
as aforesaid by the Judicial Magistrate concerned shall be
liable for departmental action by the appropriate High
Court.
12. We hasten to add that the directions aforesaid
shall not only apply to the cases under Section 498-A IPC
or Section 4 of the Dowry Prohibition Act, the case in
hand, but also such cases where offence is punishable with
imprisonment for a term which may be less than seven
years or which may extend to seven years, whether with or
without fine."
16. The direction given by Hon'ble Apex Court in
Arnesh Kumar case (supra) has been reiterated by
Hon'ble Supreme Court in Mohd. Asfak Alam v. State of
Jharkhand as reported in (2023) 8 SCC 632. The
direction reads as follows:
"16. The impugned order of rejecting the bail and
directing the appellant, to surrender and later seek bail,
therefore, cannot stand, and is hereby set aside. Before
parting, the Court would direct all the courts seized of
proceedings to strictly follow the law laid down in Arnesh
Kumar v. State of Bihar, (2014) 8 SCC 273 and reiterate
the directions contained thereunder, as well as other
directions.
Patna High Court CR. WJC No.356 of 2022 dt.10-03-2026
16.1.(I) Arnesh Kumar v. State of Bihar, (2014) 8
SCC 273
"11. Our endeavour in this judgment is to ensure that
police officers do not arrest the accused unnecessarily and
Magistrates do not authorise detention casually and
mechanically. In order to ensure what we have observed
above, we give the following directions:
11.1. All the State Governments to instruct its police
officers not to automatically arrest when a case under
Section 498-AIPC is registered but to satisfy themselves
about the necessity for arrest under the parameters laid
down above flowing from Section 41CrPC;
11.2. All police officers be provided with a checklist
containing specified sub-clauses under Section 41(1)(b)
(ii);
11.3. The police officer shall forward the checklist
duly filled and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of
the accused shall peruse the report furnished by the police
officer in terms aforesaid and only after recording its
satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be
forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the
Magistrate which may be extended by the Superintendent
of Police of the district for the reasons to be recorded in
writing;
11.6. Notice of appearance in terms of Section 41-
ACrPC be served on the accused within two weeks from
the date of institution of the case, which may be extended
by the Superintendent of Police of the district for the
reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid
shall apart from rendering the police officers concerned
liable for departmental action, they shall also be liable to
be punished for contempt of court to be instituted before
the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons
as aforesaid by the Judicial Magistrate concerned shall be
liable for departmental action by the appropriate High
Court.
12. We hasten to add that the directions aforesaid
shall not only apply to the cases under Section 498-AIPC
or Section 4 of the Dowry Prohibition Act, the case in
Patna High Court CR. WJC No.356 of 2022 dt.10-03-2026
hand, but also such cases where offence is punishable with
imprisonment for a term which may be less than seven
years or which may extend to seven years, whether with or
without fine."
16.2.(II) The High Court shall frame the above
directions in the form of notifications and guidelines to be
followed by the Sessions Courts and all other and criminal
courts dealing with various offences.
16.3.(III) Likewise, the Director General of Police in
all States shall ensure that strict instructions in terms of
the above directions are issued. Both the High Courts and
the DGPs of all States shall ensure that such guidelines
and Directives/Departmental Circulars are issued for
guidance of all lower courts and police authorities in each
State within eight weeks from today.
16.4.(IV) Affidavits of compliance shall be filed
before this Court within ten weeks by all the States and
High Courts, through their Registrars."
17. Learned Registrar General is directed to circulate
a copy of this order amongst the Judicial Officers. He is
also directed to send a copy of this order to Director
General of Police, Bihar to circulate it amongst the police
officials, because despite several directions of Hon'ble
Supreme Court and this Court as well as guidelines of the
Government of Bihar, the Police Officers are not
complying with the direction as issued by Hon'ble
Supreme Court in Arnesh Kumar Case (supra) at the
time of arrest in a case maximum imprisonment provided
up to seven years."
9. Hence, I find no merit in the present writ petition.
Accordingly, it is dismissed.
(Jitendra Kumar, J.)
ravishankar/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 11.03.2026
Transmission Date 11.03.2026
