Patna High Court
Kundan KumarversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- ANSHUMAN
Holding
The High Court held that the Sessions Court must reconsider the petitioners' earlier surrender and bail and pass a fresh order, and therefore the present bail application is disposed with liberty to raise the point.
Summary
The petitioners, Kundan Kumar and Prabhat Kumar, were charged under several sections of the Bharatiya Nyaya Sanhita for assault with a knife. They voluntarily surrendered on 28‑11‑2024 and were granted bail by the Sessions Court, but later the police added Section 109 to the charge sheet and the court took cognizance on 07‑04‑2025, issuing summons. The petitioners filed an anticipatory bail application which was dismissed, and they feared arrest. They approached the Patna High Court seeking relief, contending that the lower court’s order failed to consider their earlier surrender and bail. The High Court observed that the lower court had indeed omitted this material fact and directed it to pass a fresh order taking the surrender and bail into account. Consequently, the High Court disposed of the bail application with liberty to raise the point before the Sessions Judge.
Issues considered
- Whether the addition of Section 109 to the charge sheet after the petitioners' surrender and grant of bail affects their right to bail.
- Whether the Sessions Court erred by not considering the petitioners' prior surrender and bail while taking cognizance.
- Whether the High Court can direct the lower court to pass a fresh order on the bail application.
Legislation cited
- Bharatiya Nyaya Sanhita, 2023 — s. 109, 115(2), 118(1), 126(2), 3(5), 352
Subjects
- bail
- anticipatory bail
- charge sheet amendment
- surrender
- cognizance
- criminal miscellaneous application
- Bharatiya Nyaya Sanhita
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.21674 of 2026
Arising Out of PS. Case No.-111 Year-2024 Thana- VISHAMBHARPUR District- Gopalganj
======================================================
1. Kundan Kumar S/o- Shyamsundar Yadav Village- Raghopur PS-
Bakhtiyarpur Distt- Patna
2. Prabhat Kumar S/o- Pramod Kumar R/v- Mehdi Nagar Bankat Ps- Baruraj
Dist- Muzaffarpur
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Neeraj Kumar @ Sanidh, Advocate
Mr. Shashank Shekhar, Advocate
Mr. Ashutosh Kumar, Advocate
For the Opposite Party/s : Mr. Jagdhar Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL ORDER
2 08-04-2026 Heard learned counsel for the petitioners and learned
APP for the State.
2. The petitioners are apprehending arrest in
connection with Vishambharpur P.S. Case No. 111 of 2024
lodged on 12.08.2024, for the offence punishable under Sections
126(2), 115(2), 118(1), 352 & 3(5) of the Bharatiya Nyaya
Sanhita, 2023, pending in the court of J.M. 1 st Class, Gopalganj.
Subsequently, section 109 of the BNS was added in the charge
sheet against the petitioners.
3. As per the prosecution, FIR has been lodged against
two named accused persons (both the present petitioners) and
three unknown persons. It has been alleged in the FIR that while
the informant was sitting in his college canteen, both the
Patna High Court CR. MISC. No.21674 of 2026(2) dt.08-04-2026
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petitioners along with three unknown persons, arrived there and
started abusing him. When the informant protested, petitioner
no. 1 attacked him on the head with a knife, due to which, injury
has been caused.
4. Learned counsel for the petitioners has specifically
pleaded in para 14 that before submission of charge sheet,
petitioners have voluntarily surrendered in the court below on
28.11.2024 and they have been granted bail by the court below
itself, but subsequently, police has submitted the charge sheet
against the petitioners under sections 126(2), 115(2), 118(1),
109, 352 & 3(5) of the BNS, 2023 and the court below took
cognizance against the petitioners on 07.04.2025 under sections
126(2), 115(2), 118(1), 109, 352 & 3(5) of the BNS, 2023 and
also issued summons against the petitioners. It has also been
pleaded that due to wrong advice, the petitioners have filed
anticipatory bail before the court below which was dismissed
and now, the petitioners have apprehension that if, they appear
before the court below without securing anticipatory bail, they
may be send behind the bar.
5. Learned APP for the State, on the other hand,
submits that in the rejection order dated 20.12.2025 passed by
the Principal Sessions Judge, Gopalganj in A.B.P. No. 1991 of
Patna High Court CR. MISC. No.21674 of 2026(2) dt.08-04-2026
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2025, this fact has not been discussed that the petitioners have
earlier surrendered before the court below and was granted bail
on 28.11.2024 and subsequently, section 109 of the BNS has
been added in the charge sheet in which, cognizance has been
taken.
6. The fact which has been discussed in the present
criminal miscellaneous application has not been discussed
anywhere in the impugned order passed by the Principal
Sessions Judge, Gopalganj in A.B.P. No. 1991 of 2025.
Therefore, this Court hereby grants liberty to the petitioners to
raise this point before the Principal Sessions Judge, Gopalganj,
who is directed to pass order afresh in A.B.P. No. 1991 of 2025
in the present facts and circumstances which has been discussed
in para no.14 of the present criminal miscellaneous application
about which, there is no whisper in the said order dated
20.12.2025.
7. Accordingly, with the aforesaid direction, this bail
application stands disposed off.
(Dr. Anshuman, J)
Divyansh/-
U T
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