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Patna High Court

Kundan KumarversusThe State of Bihar

Decided
Disposal
DISPOSED

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

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
                                                         3/3




                       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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