MD. AHSAN ANSARI @ MD. AHSAN ANSARI vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.2183 of 2022
Arising Out of PS. Case No.-149 Year-2020 Thana- NAWADA District- Nawada
======================================================
Md. Ahsan Ansari @ Md. Ahsan Ansari S/o- Jumman Ansari, Resident of
Village- Pachamba, P.S.- Kadirganj O.P. Dist- Nawada.
... ... Petitioner
Versus
1. The State of Bihar
2. Awdhesh Matho, S/o- Rajendra Mahto, Resident of Village- Pachohiya, P.S.-
Kadirganj O.P. Dist- Nawada
... ... Opposite Parties
======================================================
Appearance :
For the Petitioner : Mr. Rajeev Ranjan Sinha, Advocate
For the State : Mr. Uday Pratap Singh, APP
For the Opp. Party No.2 : Mr. Anuj Kumar, Advocate
Mr. Prabhas Ranjan, Advocate
Mr. Kumar Jay, Advocate
Mr. Hazique Shams Ahmad, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
C.A.V. JUDGMENT
Date : 01-09-2026
The present application has been filed by the
petitioner-informant under Section 439(2) of the Code of
Criminal Procedure, 1973, praying for cancellation of the
anticipatory bail granted, to the opposite party no.2, namely,
Awadhesh Mahto, by the learned In-charge Additional District
& Sessions Judge-IV, Nawada, vide order dated 15.10.2020
passed in Anticipatory Bail Petition No.937 of 2020 (47 of
2020), in connection with Nawada P.S. Case No.149 of 2020,
which was registered for the offences punishable under Sections
279, 337, 338, 323, 302 read with 34 of the Indian Penal Code,
principally on the grounds that the said order was obtained upon
a suppression of the criminal antecedents of the opposite party

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
2/27
no.2 as also upon a suppression of the fact that an earlier
anticipatory bail petition filed by him, being A.B.P. No.773 of
2020, in which he had claimed the said petition to be his first
bail petition, had been dismissed as withdrawn. The petitioner
further assails the impugned order on the ground that it suffers
from improper reasoning and non-application of judicial mind.
2. The present application has been drafted and
filed in Hindi. It may be noted that the alternative use of Hindi
in the proceedings of this Court, including for the presentation
of applications in civil and criminal matters, stands authorised
under Article 348(2) of the Constitution of India read with
Section 7 of the Official Languages Act, 1963, the exception
being confined to petitions under Articles 226 and 227 of the
Constitution and tax references, as expounded by a Full Bench
of this Court in Krishna Yadav v. State of Bihar by Home
Secretary & Ors., reported as 2019 SCC OnLine Pat 594. The
present petition, being a criminal miscellaneous application
under Section 439(2) of the Cr.P.C., does not fall in the excepted
categories and its presentation in Hindi is, therefore, in order.
3. The prosecution case, as set out in the
fardbeyan of the petitioner-informant, Md. Ahsan Ansari,
recorded at Sadar Hospital, Nawada, on 12.02.2020 at 16:45

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
3/27
hours, is that his sister, Munsari Khatoon, an elected member of
the Panchayat Samiti of Gram Panchayat Ohari, was frequently
at dispute, in the discharge of her official functions, with the
opposite party no.2, Awadhesh Mahto, who is the husband of the
Mukhiya of the said Gram Panchayat, and had, about 8-9 months
prior to the occurrence, threatened her at her house, whereof
information was given to the Kadirganj O.P. It is further stated
that on 12.02.2020, when she was returning from Nawada as a
pillion rider on a motorcycle driven by one Hriday Kumar, and
reached near Tikuliya Morh on Roh Road, a Scorpio bearing
Registration No. BR-01PJ-9101, carrying four-five persons and
being driven at great speed and negligently, dashed the
motorcycle from behind, whereupon the opposite party no.2
alighted from the vehicle along with his associates, assaulted her
on the head and near her ear with an iron rod, and fled away in
the said vehicle. Both the injured were carried to Sadar Hospital,
Nawada, where Munsari Khatoon was declared dead and Hriday
Kumar, after primary treatment, was referred to a higher centre.
4. On the basis of the said fardbeyan , Nawada
P.S. Case No.149 of 2020 dated 12.02.2020 came to be
registered and the investigation thereof was taken up.
5. It is the case of the petitioner that the

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
4/27
opposite party no.2, apprehending his arrest, moved the learned
Sessions Judge, Nawada, by filing an anticipatory bail petition,
being A.B.P. No.773 of 2020, wherein, in paragraph no.2, it was
averred that the said petition was his first bail petition and that
he had neither moved the said Court nor any other Court for bail
earlier. The said petition was transferred to the Court of the
learned Additional Sessions Judge-VIII, Nawada, before whom,
on 11.09.2020, the learned counsel for the opposite party no.2
therein stated that he did not wish to pursue the petition and
prayed for permission to withdraw it, whereupon it was
dismissed as withdrawn by the following order:-
Þvkosnd vfHk;qä vo/ks'k egrks ds fo0 vf/koäk }kjk
bZ&esy ds ek/;e ls nkf[ky Urgent Application dks fofM;ks
dkUÝsfUlax ds }kjk Virtual (sic) Court (Video (sic) App) esa
çpkfyr fd;k x;kA
tekur ds fcUnq ij vkosnd vfHk;qä ds fo}ku vf/koäk ,oa
fo}ku vij yksd vfHk;kstd dks lqukA
vkosnd vfHk;qä ds fo0 vf/koäk dk dguk gS fd
vkosnd vfHk;qä bl vfxze tekur vkosnu dks pkfyr djuk
ugha pkgrk gSA vr% Jheku~ ls fuosnu gS fd okn okil ysus
dh vuqefr nsus dh —ik djsaA ftl dFku dk vfHk;kstu
i{k }kjk fojks/k ugha fd;k x;k gSA
lqukA vkosnd vfHk;qä ds }kjk bl vfxze tekur
vkosnu dks okil fy;s tkus dh vkosnu ds vk/kkj ij bl
vfxze tekur vkosnu dks [kkfjt fd;k tkrk gSA
ys[kkfir
vij l= U;k;k/kh'k] v"Ve~] uoknk ”
6. It is apposite to notice, at this very stage, that

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
5/27
even before the withdrawal of the aforesaid A.B.P. No.773 of
2020, a second anticipatory bail petition had already been filed
on behalf of the opposite party no.2 through e-mail on
24.08.2020, i.e., during the pendency of the first anticipatory
bail petition, which came to be registered as A.B.P. No.937 of
2020 (47 of 2020), and paragraph no.2 whereof was couched in
the following terms:-
"2. That this petition for bail is first bail petition and
your petitioner has neither moved your honour nor
any higher court for bail earlier either regular or
anticipatory ."
7. The records of the proceedings of A.B.P.
No.937 of 2020 further reveals that the said petition was
received in the Court of the learned Sessions Judge, Nawada, on
24.08.2020, and was transferred on 26.08.2020 to the Court of
the learned Additional Sessions Judge-IV, Nawada, and was
eventually allowed by the impugned order dated 15.10.2020,
which reads as under:-
"An anticipatory bail petition dt. 24.08.2020
along with urgency petition filed on behalf of
accused Awadhesh Mahto, in connection with
Nawada (Town) P.S. Case no.149/2020 u/s 279, 337,
338, 323, 302/34 of I.P.C. has been placed before me
for order after hearing, a copy of it has already been
supplied to learned incharge P.P. C.D. called for has
been produced by Ld. A.P.P.

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
6/27
Prosecution case, in brief, is that informant’s
sister Munsari Khatoon was a member of Panchayat
Samiti. During the official work she and accused,
husband of Mukhiya of Ohari village were often at
dispute. Once prior to the incident husband of
Mukhiya of Panchayat Awadhesh Mahto had
threatened her also. Awadhesh Mahto tried to put
pressure on her for getting works done illegally. On
12.02.2020 at about 03:45 P.M. she was returning
with Hriday Kumar on motorcycle. When they
reached near Tukuliya Mod a Scorpio bearing
registration no. BR-01PJ-9101 came being driven
rashly and hit the motorcycle from behind. The
motorcyclist and pillion got injured. After that said
Awadhesh Mahto alighted from Scorpio and hit her
with rod causing more injuries to her and then he
went away with others in the Scorpio. After that
some persons present there, took them to Sadar
Hospital, Nawada where doctors declared her dead.
Ld. Counsel for the petitioner argued that
this case is a glaring example of false implication
due to political rivalry. The F.I.R. itself reveals the
same as the informant without any basis of his
knowledge has named this petitioner and vehicle
number. The motorcyclist Hriday Kumar was not in
a position to speak and was unconscious. His
statement was recorded afterwards vide para 61 of
case diary, even he could not give the full number
and has admitted enmity with this petitioner. Para 4
of the case diary clears that it is the Chaukidar no.
8/1 Kisun Paswan who saw the injured persons first
and informed the O.P. incharge and after his
instruction he took the injured to the hospital.
Statement of this Kisun Paswan is recorded vide
para 53 of case diary who has said that he saw a

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
7/27
Bolero in village Harla and looking at the speed of
Bolero he thought that it must have made an
accident somewhere. He proceeded on his
motorcycle and saw that a man and a lady were
lying injured and none were in the state to speak
after which at the instruction of O.P. incharge he
took both the injured to sadar hospital on a tempo.
Sanjay Kumar who reached after him helped in
getting the injured seated in tempo. Statement of this
Sanjay Kumar is recorded vide para 56 of case diary
who said that he saw a white colour Bolero over
speed going towards Roh and he doubted that the
vehicle must have been involved in an accident. He
proceeded on road and saw that some persons were
gathered and a man and a woman were lying injured
and Chaukidar was trying to get them kept in tempo.
Both the injured were unconscious. In para 41 of
case diary I.O. has collected the information from
the shopkeeper of village Harla who said that a
white Bolero was going over speed. In para 28, 29,
55, 57, 103, 104 statement of the shopkeepers whose
shops are nearby the place of occurrence have been
recorded and all have said that it was Bolero which
going over speedy with huge engine noise which
must be involved in the accident. They are the most
natural and independent and credible witnesses of
the occurrence. Ld. Counsel said that the said
Scorpio was seized by the police and was examined
by MVI whose report is given in para 51 of case
diary and additional report about collusion by this
Scorpio is given in para 98 of case diary. From both
the reports it is clear that there was no accident of
this Scorpio. Police has deliberately not taken CDR
of mobile no. of the petitioner as it would reveal the
place where he was present at the time of

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
8/27
occurrence. In para 75, 87, 116 of case diary the
I.O. has clearly written that he inquired openly and
secretly from villagers of Ohari and Pachoriya who
all said that this was an accident between
motorcycle and Bolero and petitioner Awadhesh
Mahto was not involved in the occurrence and his
name is given due to political rivalry.
Ld. A.P.P. argued that primarily it seems to
be a case of accident. Two persons vide para 26, 27
of case diary are supporting the case, who are
brothers of the deceased, one of whom was in
Kolkata on the date of occurrence and other was
also not present at the place. Though the witnesses
in their statement before the police have not
supported the occurrence as alleged by the
prosecution but it is a case u/s 302 of I.P.C.
Heard, Ld. Counsel for the petitioner and
Ld. A.P.P. and perused the record. On perusal it
transpires that the deceased and another got
injured in an accident in which their motorcycle
was hit from behind. All the witnesses who are
nearby shopkeepers and villagers have said that
this accident was made by a white Bolero. As per
the report of MVI, there was no damage or scratch
on Scorpio. Political rivalry between the deceased’s
family and the petitioner is admitted in F.I.R. It is
not also revealed who gave the number of the
vehicle on the basis of which the informant has
filed the F.I.R. Considering the material facts of
this case, the anticipatory bail petition of the
petitioner Awadhesh Mahto is allowed. He is
directed to be released on furnishing bail bond of
Rs.10,000/- with two sureties of the like amount
each to the satisfaction of learned court below in
the event of his arrest or surrender within four

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
9/27
weeks of receipt of this order in the concerned
court. Applicant will follow the guidelines issued
for prevention of pandemic COVID-19. "
8. At this stage, it would also be relevant to
notice that the anticipatory bail petition A.B.P. No.1504 of 2020
(73 of 2020), preferred by the co-accused, Guddu Kumar, whose
name had surfaced in the course of the investigation of the same
case, came to be rejected by the Court of the learned Additional
District & Sessions Judge-IV, Nawada, vide order dated
23.12.2020, on the ground of seriousness and gravity of the
offence. The operative portion whereof reads as under:-
"Heard and perused the record along with case
diary. On perusal of record it transpires that the petitioner
name came during investigation. Investigation is going on.
Case is u/s 279, 337, 338, 323, 307, 302/34 of I.P.C. which
is serious in nature. Considering the seriousness of the
offence as alleged against the petitioner, I am not inclined
to allow the anticipatory bail petition filed on behalf of
petitioner. Accordingly, this anticipatory bail petition filed
on behalf of applicant Guddu Kumar is hereby rejected."
9. At the outset, the learned counsel for the
petitioner has submitted that the impugned order is vitiated,
having been obtained upon a two fold suppression of material
facts. In the first place, the opposite party no.2 filed A.B.P.
No.937 of 2020 on 24.08.2020, during the pendency of A.B.P.
No.773 of 2020, and averred therein that it was his first bail

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
10/27
petition, and thereafter quietly withdrew the first petition on
11.09.2020, with the result that neither the filing nor the fate of
A.B.P. No.773 of 2020 was ever disclosed to the Court seized of
A.B.P. No.937 of 2020 and consequently, the impugned order
does not contain even a whisper about the earlier petition.
10. In the second place, it is submitted that the
opposite party no.2 is a man of formidable criminal antecedents,
being an accused in as many as 26 criminal cases, of which
eleven have been itemised in paragraph no.17 of the present
application, namely, Nawada (Town) P.S. Case Nos.83 of 1999,
39 of 2007, 87 of 2007, 187 of 2015 and 86 of 2016, Nawada
P.S. Case No.58 of 2006, Nawada Mufassil P.S. Case No.27 of
2006, SC/ST P.S. Case No.17 of 2014, Patrakar Nagar P.S. Case
No.335 of 2015, and Nawada (Kadirganj) P.S. Case Nos.63 of
2015 and 909 of 2018, registered, inter alia , under Sections 307,
364, 452 and 354-B of the Indian Penal Code and the Arms Act.
It is categorically submitted that not one of the said cases was
disclosed in either of the two anticipatory bail petitions, and that
the impugned order, correspondingly, does not advert to the
criminal antecedents of the opposite party no.2 at all.
11. It is further submitted that the concealment
cannot be said to be inadvertent, inasmuch as, the criminal

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
11/27
antecedents of the opposite party no.2 being a matter of public
notoriety, and the petitioner having, well before the impugned
order, submitted representations dated 18.03.2020 to the
Superintendent of Police, Nawada, and on 09.06.2020 to the
Additional Chief Secretary, Department of Home, enumerating
his 26 criminal cases, including cases under Sections 302, 364-
A, 307, 392, 384 and 386 of the Indian Penal Code, spread over
the districts of Nawada, Gaya and Patna. It is submitted that the
Investigating Officer, acting in collusion with the opposite party
no.2, deliberately kept his antecedents out of the case diary and
made no attempt to arrest him.
12. The learned counsel for the petitioner has
next submitted that the impugned order suffers from improper
reasoning and non-application of judicial mind, inasmuch as the
Court below, in a case of the murder of an elected woman
representative of a Panchayat, embarked upon a roving
appreciation of the case diary, discarded the version of the F.I.R.
at the threshold, and recorded findings, virtually amounting to
an acquittal. Further, the Court below recorded the finding that
the occurrence was an accident caused by a different vehicle, an
exercise which is wholly impermissible at the stage of bail. It is
pointed out that the very same Court, while rejecting the

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
12/27
anticipatory bail petition of the co-accused Guddu Kumar,
against whom no overt act was even alleged, held the offence to
be serious, whereas the principal named accused, attributed with
the specific overt act of assaulting the deceased with an iron rod,
was extended the privilege of anticipatory bail. It is further
submitted that the opposite party no.2 is a strongman of the
locality and the witnesses are terrified of deposing against him.
13. In support of the aforesaid submissions, the
learned counsel for the petitioner has placed reliance upon the
decisions of the Hon'ble Supreme Court in Puran v. Rambilas
& Anr., reported as (2001) 6 SCC 338 , Neeru Yadav v. State of
U.P. & Anr., reported as (2014) 16 SCC 508 , Deepak Yadav v.
State of U.P. & Anr., reported as (2022) 8 SCC 559 , Ajwar v.
Waseem & Anr., reported as (2024) 10 SCC 768, Kusha
Duruka v. State of Odisha, reported as (2024) 4 SCC 432,
Kaushal Singh v. State of Rajasthan , reported as 2025 INSC
871 = 2025 SCC OnLine 1473, State of Karnataka v. Sri
Darshan etc., reported as 2025 SCC OnLine SC 1702 and State
of Maharashtra v. Capt. Buddhikota Subba Rao, reported as
1989 Supp (2) SCC 605, for the propositions that an order
granting bail which is unjustified, illegal or perverse, or founded
upon irrelevant considerations while ignoring the relevant

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
13/27
material, is always open to be set aside by the Court without any
supervening misconduct being shown and that the suppression
of an earlier bail application and of the many criminal
antecedents from the Court considering bail is a fraud upon the
Court which vitiates the order at its very inception.
14. The learned APP for the State has not been
able to deny that neither of the two anticipatory bail petitions
discloses the criminal antecedents of the opposite party no.2 or
the fate of the earlier petition, and that the impugned order was
passed without the said facts having been brought to the notice
of the Court below.
15. A counter affidavit has been filed by the
opposite party no.2, wherein it is submitted that the earlier
petition, A.B.P. No.773 of 2020, was withdrawn as reflected in
the order dated 11.09.2020 and that the said fact was duly
disclosed before the filing of A.B.P. No.937 of 2020. It has
further been submitted that the very same counsel had filed both
the petitions and, the opposite party no.2 being unversed in the
procedure of filing, the omission of the counsel to disclose the
earlier application cannot be visited upon him. Further, at the
relevant time, it was not mandatory to disclose criminal
antecedents in a bail application, the practice direction in that

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
14/27
behalf having been issued much later and the office had also not
pointed out any defect in this regard. Moreover, the case diary
was, in any event, before the learned Court below.
16 . Lastly , the learned counsel for the opposite
party no.2 has supported the impugned order and has submitted
that the considerations governing the cancellation of bail stand
on a footing entirely different from those governing its grant,
and that bail once granted is not to be cancelled in a routine,
mechanical or punitive manner in the absence of misuse of the
liberty, breach of the conditions of bail, interference with the
trial or an attempt to abscond, none of which is even alleged in
the present case.
17. I have heard learned counsel for the parties
and perused the materials on record. The moot question that
arises for consideration is whether the impugned order dated
15.10.2020, granting anticipatory bail to the opposite party no.2,
was obtained by the suppression of material facts, and whether
the said order is otherwise illegal, perverse or founded upon an
erroneous approach, so as to warrant its annulment by this
Court.
18. Before adverting to the rival contentions, it
would be apposite to notice the settled law governing the subject

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
15/27
matter, which is no longer res integra . The jurisprudence, as
exhaustively surveyed by the Hon'ble Supreme Court in the case
of Sri Darshan (supra), proceeds upon a clear distinction
between two categories of cases which lie in different
compartments altogether. The first is the cancellation of bail,
properly so called, on account of supervening circumstances or
misconduct subsequent to the grant of bail, in respect whereof
the law laid down in Dolat Ram (supra) requires very cogent,
overwhelming and supervening circumstances to be shown. The
second is the annulment of an order granting bail, which is itself
unjustified, illegal or perverse, having been passed in ignorance
of the relevant material, based upon irrelevant considerations, in
complete disregard of the past criminal record of the accused or
with serious discrepancies causing prejudice to justice, as
illustratively enumerated in Deepak Yadav (supra) . In the
second category, the Court does not dwell upon any supervening
circumstance, but delves into the justifiability and soundness of
the order itself, as explained in Puran (supra) and Neeru Yadav
(supra) , reiterated by a three-Judge Bench in Vipan Kumar
Dhir (supra) , and again in Ajwar v. Waseem & Anr., reported as
(2024) 10 SCC 768 , wherein it has been held that an unreasoned
or perverse order of bail is always open to interference, even if

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
16/27
the accused has not misused the liberty granted to him. An order
which overlooks material evidence or proceeds upon an
erroneous premise is perverse in view of the law laid down in
the case of Sri Darshan (supra), and it is trite that the power
under Section 439(2) of the Cr.P.C. extends equally to the
cancellation of bail granted under Section 438 of the Code.
19. To the aforesaid two categories, the Hon'ble
Supreme Court, in Himanshu Sharma vs. State of Madhya
Pradesh, reported as (2024) 4 SCC 222, has also held that bail is
liable to be cancelled where it is found to have been procured by
misrepresentation or fraud, independent of any misuse of the
liberty. A person who obtains an order from a Court of law by
suppressing or misrepresenting material facts commits fraud
upon the Court, and an order so obtained is a nullity and non est
in the eye of law, to be treated as such by every Court and open
to challenge at any time, even in collateral proceedings, as held
by the Hon’ble Supreme Court in the case of A.V. Papayya
Sastry & Ors. v. Government of A.P. & Ors., reported as (2007)
4 SCC 221. Therefore, it follows that the recall of a bail order so
procured is not a review barred by under Section 362 of the
Cr.P.C., but a declaration that the order never had a legal
existence. The principle stands applied to bail proceedings in

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
17/27
Kusha Duruka (supra) , wherein the suppression of material
facts from the Court has been characterised as actually playing
fraud with the Court, attracting the maxim suppressio veri,
expressio falsi . The non-disclosure of criminal antecedents is
itself obtaining the bail by fraud stands settled by the Hon’ble
Supreme Court in the case of Zeba Khan (supra) , wherein the
bail granted by the High Court was cancelled upon the finding
that the accused had deliberately concealed his criminal
antecedents in successive bail applications, and it was declared
that every applicant seeking bail is under a solemn obligation to
make a fair, complete and candid disclosure of all material facts,
including his criminal antecedents, any suppression or selective
disclosure thereof amounts to an abuse of the process of law.
The same obligation had earlier been emphasized by a three-
Judge Bench in Kaushal Singh (supra), wherein regular bail
granted without consideration of the antecedents of the accused
was cancelled under Section 439(2) of the Cr.P.C. upon the
finding that the Court had been misled. This Court has
consistently taken the same view, particularly, in Mohd. Rustam
@ Minu vs. State of Bihar & Ors., reported as 2017 SCC
OnLine Pat 3929, wherein a Co-ordinate Bench, following
Papayya Sastry (supra) , held that the antecedents of the

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
18/27
applicant are a consideration statutorily prescribed under Section
438 of the Cr.P.C., and that a Court fraudulently misled to
exercise that power upon a false projection of clean antecedents
may cancel the bail so granted, such cancellation being no
review but a declaration that the order was obtained by fraud.
Further, this Court in Pramod Kumar v. State of Bihar & Anr.
(Cr. Misc. No.54892 of 2024, decided on 23.07.2026), has held
that the duty of candour flows not from the text of any particular
provision but from the character of bail as a discretionary relief.
20. Two facets of the aforesaid obligation of
candour bear directly upon the present case. The first is the
practice of filing a successive bail application without disclosure
of the earlier one, which was deprecated in the strongest terms
in Buddhikota Subba Rao (supra) , as being subversive of
judicial discipline and an abuse of the process of the Court, an
order obtained in ignorance of the earlier proceeding is one
which cannot be allowed to stand. The second is that the duty of
candour does not derive its existence from any rule, practice
direction or defect-scrutiny by the office. It flows from the very
character of bail as a discretionary relief and, so far as
anticipatory bail is concerned, stands embedded in the text of
Section 438 of the Cr.P.C. itself, as held in Mohd. Rustam

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
19/27
(supra) . The provision subsequently framed merely providing a
mechanism for the enforcement of an obligation which always
existed. The accused cannot disown the pleadings filed on his
behalf by attributing the omission to his counsel, for the bail
petition is his own, verified by him or on his authority, and its
fruits have been reaped by him alone.
21. Tested on the anvil of the aforesaid
principles, the impugned order, in the considered opinion of this
Court, cannot be sustained, for more reasons than one. In the
first place, the suppression of the earlier anticipatory bail
petition is not a matter of inference but is writ large on the
record. The opposite party no.2 filed A.B.P. No.937 of 2020 on
24.08.2020, when A.B.P. No.773 of 2020 was very much alive
and pending before the learned Additional Sessions Judge-VIII,
Nawada, and yet averred, in paragraph no.2 of the later bail
petition, that it was his first bail petition and that he had never
moved any Court for bail earlier. The averment was
demonstrably false to his knowledge on the very day it was
made. The first petition was thereafter quietly withdrawn on
11.09.2020, and the second was pursued to its grant on
15.10.2020. The plea in the counter affidavit, that the
withdrawal of A.B.P. No.773 of 2020 was duly disclosed before

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
20/27
the filing of A.B.P. No.937 of 2020, is belied by the chronology
itself, for the second petition was filed eighteen days before the
withdrawal of the first, and a fact which had not yet come into
existence could not have been disclosed. The plea, far from
explaining the suppression, betrays a continuing want of
candour. The conduct of the opposite party no.2 answers, in
every particular, the practice deprecated by the Hon’ble
Supreme Court in the case of Buddhikota Subba Rao (supra),
and is precisely the concealment which was visited with
cancellation in Kusha Duruka (supra) and Zeba Khan (supra).
22. In the second place, the criminal antecedents
of the opposite party no.2 were equally kept away from the
Court below. Neither A.B.P. No.773 of 2020 nor A.B.P. No.937
of 2020 discloses a single criminal antecedent, both were so
drawn as to project him merely as the husband of the Mukhiya ,
falsely implicated on account of political rivalry. The petitioner
has itemised eleven criminal cases registered against him
between the years 1999 and 2018, including cases under
Sections 307 and 364 of the Indian Penal Code and the Arms
Act, and has asserted, on the strength of his representations
dated 18.03.2020 and 09.06.2020, both of which precede the
impugned order, that the total number of such cases is 26. It is

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
21/27
significant that the counter affidavit does not deny the existence
of even one of the said cases, does not assert that they were duly
and properly disclosed before the Court below and rather
confines itself to the plea that their disclosure was not, at the
relevant time, mandatory. The existence of the antecedents, and
their suppression, thus stand admitted by necessary implication.
The impugned order, in its turn, does not advert to the
antecedents at all, which demonstrates that the past criminal
record of the accused was completely ignored, a circumstance
which is, by itself, a ground for setting aside an order of bail as
has been held by the Hon’ble Supreme Court in the case of
Deepak Yadav (supra) and which assumes an added dimension
in the context of anticipatory bail, the antecedents of the
applicant being a consideration statutorily enumerated in
Section 438 of the Code, as emphasized by a Coordinate Bench
of this Court in the case of Mohd. Rustam (supra) . Therefore,
the Court below was misled while the bail was sought, and its
discretion was exercised upon a foundation of falsehood.
23. The pleas raised in the counter affidavit in
answer to the aforesaid suppression, is not appealing to this
Court. The plea that the disclosure of antecedents was not
mandatory in the year 2020 proceeds upon the fallacy that the

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
22/27
duty of candour is the creature of a rule. The antecedents of the
applicant have been a statutory consideration under Section 438
of the Code ever since it was placed on the statute book. The
plea that the omission was that of the counsel fares no better, for
the counter affidavit itself admits that the very same counsel
drew and filed both the petitions, and was, therefore, fully
aware, when paragraph no.2 of the second petition was drafted
and the same was filed, that the first was pending and the
petition was, in any event, filed on the affidavit of the opposite
party no.2, who alone reaped the benefit of the order and cannot
now be heard to disown its averments. The plea that the case
diary was before the Court below is equally of no avail, for it is
the specific case of the petitioner, not denied in the counter
affidavit, that the Investigating Officer did not bring the
antecedents on the record of the case diary at all. The failure of
the office to flag the omission is not an answer to a suppression
played by the applicant himself.
24. The question, at this stage, is not whether the
antecedents of the opposite party no.2, or the fate of his earlier
petition, would necessarily have dis-entitled him to anticipatory
bail, but that the Court below, and that Court alone, was entitled
to weigh them along with the gravity of the accusation, and it is

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
23/27
precisely this exercise of weighment of which it was deprived
by the suppression. Had the Court below been apprised that the
applicant before it, seeking pre-arrest bail in a case of the
murder of an elected woman member of the Panchayat Samiti,
was an accused in a large number of criminal cases, including
cases of attempt to murder and abduction, and that his earlier
anticipatory bail petition had been filed and withdrawn, it cannot
be predicated that the discretion would still have been exercised
in his favour. The impugned order thus proceeds upon an
erroneous premise induced by the accused himself.
25. In the third place, the impugned order, even
on its own terms, suffers from an approach impermissible in
law. In a case of the murder of an elected woman member of the
Panchayat Samiti, in which the opposite party no.2 was
specifically named in the fardbeyan , along with the registration
number of the vehicle, as the person who assaulted her on the
head with an iron rod, the Court below entered upon an
elaborate and roving appreciation of the statements of the
witnesses and the reports of the Motor Vehicle Inspector
collected in the case diary, weighed them against the version of
the fardbeyan , discarded the latter at the threshold, and recorded
conclusions, virtually final in nature, that the occurrence was an

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
24/27
accident caused by a different vehicle and that the opposite party
no.2 was not involved, notwithstanding the submission of the
learned APP that the case was one under Section 302 of the
Indian Penal Code. Such a threshold adjudication of the defence
plea was an exercise appropriate to the trial and wholly foreign
to the consideration of a prayer for bail, at which stage only a
prima facie view is to be taken. The perversity of the order is
further betrayed by the rejection, by the very same Court on
23.12.2020, of the anticipatory bail petition of the co-accused
Guddu Kumar, whose name had merely surfaced in the
investigation and to whom no overt act was attributed, solely
upon the seriousness of the offence. The two orders cannot be
reconciled, the principal named accused having been extended
the privilege upon a threshold acceptance of his defence while
the co-accused with a lesser role was refused it on the ground of
the seriousness of the very same offence. An order which
proceeds upon such an erroneous approach is perverse in view
of the decision of the Hon’ble Supreme Court in the case of Sri
Darshan (supra) and Deepak Yadav (supra) .
26. This Court is conscious that the impugned
order is of the year 2020, and that the opposite party no.2 has
enjoyed the privilege of anticipatory bail for nearly six years.

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
25/27
However, the efflux of time can neither cure nor legitimise an
order procured by the suppression of material facts, for an order
obtained by fraud is, as held by the Hon’ble Supreme Court in
the case of Papayya Sastry (supra), a nullity from its very
inception, and the circumstance that its fruits have been enjoyed
for long confers no equity upon its beneficiary. Equally, the
submission that no misuse of the liberty, breach of any condition
or attempt to abscond is alleged against the opposite party no.2
is of no avail, for the present application does not rest upon any
supervening circumstance, and, as held by the Hon’ble Supreme
Court in the case of Puran (supra), Neeru Yadav (supra), Sri
Darshan (supra) and Himanshu Sharma (supra) , the power to
annul an order which is illegal, perverse or procured by fraud
does not require any such circumstance to be shown.
27. For the foregoing reasons, this Court is of the
considered opinion that the impugned order dated 15.10.2020
was obtained by the opposite party no.2 upon a deliberate
suppression of his criminal antecedents as also of the filing and
the fate of his earlier anticipatory bail petition, being A.B.P.
No.773 of 2020 and the said suppression was material and
operative, having deprived the Court below of the very
considerations upon which its discretion under Section 438 of

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
26/27
the Cr.P.C. was to be exercised, and that the impugned order,
apart therefrom, is perverse, having been passed upon a
threshold adjudication of the defence plea impermissible at the
stage of bail, while the past criminal record of the accused was
completely ignored. The impugned order, therefore, cannot be
sustained and the anticipatory bail granted thereunder is liable to
be cancelled.
28. Accordingly, the present application is
allowed. The impugned order dated 15.10.2020 passed by the
learned In-charge Additional District & Sessions Judge-IV,
Nawada, in Anticipatory Bail Petition No.937 of 2020 (47 of
2020), in connection with Nawada P.S. Case No.149 of 2020, is
set aside and, consequently, the anticipatory bail granted to the
opposite party no.2, Awadhesh Mahto, is hereby cancelled. The
bail bonds furnished by him also stand cancelled. The opposite
party no.2 shall surrender before the learned Court below within
a period of three weeks from today, failing which the
Superintendent of Police, Nawada, shall take all necessary steps,
in accordance with law, for securing his custody.
29. It is, however, made clear that in the event
the opposite party no.2 surrenders and thereafter applies for
regular bail, such application shall be considered by the Court

Patna High Court CR. MISC. No.2183 of 2022 dt.01-09-2026
27/27
concerned on its own merits and in accordance with law, upon a
full, fair and candid disclosure of his criminal antecedents and of
all his earlier bail proceedings, uninfluenced by any observation
made herein.
30. The learned Court below is directed to
proceed with the trial arising out of Nawada P.S. Case No.149 of
2020 and conclude the same as expeditiously as possible,
without being influenced by any observation made herein.
31 . It is made abundantly clear that the
observations made hereinabove are confined to the consideration
of the present application and shall not be construed as an
expression of any opinion on the merits of the case, which shall
be decided by the learned Trial Court uninfluenced by the same.
32. Let a copy of this judgment be
communicated to the learned Principal District & Sessions
Judge, Nawada, and the Superintendent of Police, Nawada,
forthwith through FAX or e-mail for its compliance.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R.
CAV DATE 07.08.2026
Uploading Date 03.09.2026
Transmission Date 03.09.2026