Patna High Court
Shailendra Sah @ Shelendra Sah @ Huro SahversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- HARISH KUMAR
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
- Bharatiya Nagrik Suraksha Sanhita, 2023 — s. 35(3), 482(2)
- Code of Criminal Procedure, 1973 — s. 41(A)
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
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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
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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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