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Patna High Court

Shailendra Sah @ Shelendra Sah @ Huro SahversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The court held that the petitioners are entitled to bail, subject to conditions, as the requirements for a justified arrest were not satisfied.

Summary

The petitioners, a father and son, were implicated in a police case (Dhoraiya PS Case No. 255 of 2025) for alleged sale and purchase of a stolen motorcycle, alleged offences under Sections 317(5) and 3(5) of the Bharatiya Nagrik Suraksha Sanhita, 2023. They applied for pre‑arrest bail, contending that the motorcycle was not proven to be the subject of the offence and that, under Section 41A of the Cr.P.C. and Section 35(3) of the BNSS, the police must show necessity of arrest for offences punishable up to seven years. The State opposed the bail. Relying on the Supreme Court’s directive in Arnesh Kumar v. State of Bihar (2014) that arrests must be justified, the court examined the petitioners’ clean antecedent and the lack of concrete evidence linking the motorcycle to the crime. The court ordered that the petitioners be released on bail, subject to a bond of Rs.10,000 with two sureties and the condition that one bailor be a close family member, and directed that they surrender within four weeks if arrested. The order was made under Section 482(2) of the BNSS, 2023.

Issues considered

  • Whether the police are required to record reasons for arrest under Section 41A Cr.P.C. and Section 35(3) BNSS for offences punishable up to seven years.
  • Whether the petitioners are entitled to pre‑arrest bail in the absence of clear evidence linking the stolen motorcycle to the alleged offence.
  • Applicability of the principles laid down in Arnesh Kumar v. State of Bihar to the present case.

Legislation cited

Subjects

  • pre‑arrest bail
  • Section 41A Cr.P.C.
  • Bharatiya Nagrik Suraksha Sanhita
  • stolen property
  • father and son
  • Arnesh Kumar principle
  • bail conditions

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.92036 of 2025
                      Arising Out of PS. Case No.-255 Year-2025 Thana- DHORAIYA District- Banka
                 ======================================================
           1.     Shailendra Sah @ Shelendra Sah @ Huro Sah S/O Late Bangali Sah R/O
                  Village- Ghasiya, P.S- Dhoraiya, Distt.- Banka.
           2.    Amrit Sah @ Amrit Kumar S/O Shailendra Sah @ Shelendra Sah @ Huro
                 Sah R/O Village- Ghasiya, P.S- Dhoraiya, Distt.- Banka.

                                                                                  ... ... Petitioner/s
                                                       Versus
                 The State of Bihar

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :       Mr. Suraj Kumar Tiwari, Adv.
                 For the Opposite Party/s :       Mr. Ramesh Chandra, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
                                       ORAL ORDER

2   28-01-2026                  Heard the learned Advocate for the petitioners and the

                   learned Additional Public Prosecutor for the State.

                                2. The petitioners are apprehending their arrest in

                   connection with Dhoraiya P.S. Case No. 255 of 2025, registered

                   for the offences punishable under Sections 317(5) and 3(5) of

                   the B.N.S., 2023.

                                3. The allegation against the petitioners is of involved

                   in sale and purchase of stolen motorcycle and on the alleged

                   date of occurrence, one motorcycle having without number plate

                   was recovered from the shop of the petitioners.

                                4. Learned Advocate for the petitioners submitted that

                   on the fateful day, one customer had come on his motorcycle to
Patna High Court CR. MISC. No.92036 of 2025(2) dt.28-01-2026
                                            2/3




          sell some junk materials, however, noticing the police party, it is

          he, who succeeded in fleeing away, after leaving the motorcycle.

          The petitioners have nothing to do with the motorcycle,

          moreover, it has not been disclosed till date that the motorcycle,

          in question, was subject matter of which offence. It is further

          contended that admittedly the offence, as alleged in the FIR, are

          punishable up to seven years and, as such, the police must

          record reason showing necessity of arrest, as contemplated in

          Section 41(A) of Cr.P.C./ Section 35(3) of the BNSS, 2023. To

          support the aforesaid contention, reliance has also been placed

          on a decision of the Apex Court in case of Arnesh Kumar Vs.

          State of Bihar & Anr., [(2014) 8 SCC 273]. It is lastly

          contended that be that as it may, the petitioners are father and

          son, having fair antecedent, and they undertake before this

          Court that they will fully co-operate in the proceeding of the

          Court.

                       5. On the other hand, learned Advocate for the State

          opposed the pre-arrest bail application.

                       6. Having considered the submissions advanced by

          learned Advocate for the respective parties and taking note of

          the aforenoted submissions, as also the mandate of the Apex

          Court in case of Arnesh Kumar (supra), besides their fair
            Patna High Court CR. MISC. No.92036 of 2025(2) dt.28-01-2026
                                                        3/3




                      antecedent, let the petitioners above named be released on bail,

                      in the event of their arrest or surrender before the court below

                      within     a    period      of    four    weeks      from   the   date   of

                      receipt/production of a copy of this order, upon furnishing bail

                      bonds of Rs.10,000/- (ten thousand) each with two sureties of

                      the like amount each to the satisfaction of the learned A.C.J.M.-

                      I, Banka in connection with Dhoraiya P.S. Case No. 255 of

                      2025, subject to the conditions laid down in Section 482(2) of

                      the Bharatiya Nagrik Suraksha Sanhita, 2023 with the further

                      condition that one of the bailors shall be the own/close family

                      members of the petitioners.



                                                  (Harish Kumar, J)
shivank/-

U      T


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