Case Background
The case arises out of Amarpur P.S. Case No. 284 of 2021, District Banka. The FIR was lodged on 13.06.2021 by Smt. Shalini Sharma, respondent no. 11, who is the wife of petitioner no. 2, Rajiv Kumar.
She alleged offences punishable under Sections 341, 323 and 504 read with Section 34 of the Indian Penal Code against her husband and his family members. These sections relate to wrongful restraint, causing hurt, insulting a person, and common intention.
On 22.06.2021, the Chief Judicial Magistrate issued a show cause notice to the Investigating Officer. The Magistrate questioned why Section 498A of the Indian Penal Code, which deals with cruelty by husband or his relatives, was not applied despite what the informant had alleged in the FIR.
On the same date, 22.06.2021, petitioner no. 2, Rajiv Kumar, was arrested. Thereafter, on 23.06.2021, Section 498A IPC was formally added to the case on an application moved by the police before the Chief Judicial Magistrate.
After investigation, the police submitted a charge-sheet on 08.08.2021 only against petitioner no. 2 Rajiv Kumar. The investigation was kept pending against the remaining accused, who are his family members.
On 02.11.2021, the Magistrate took cognizance against petitioner no. 2 for offences under Sections 341, 323, 504, 307 and 498A read with Section 34 IPC. Later, a co-ordinate Bench of the Patna High Court granted him regular bail on 18.01.2022, and he was released from custody.
It is stated on behalf of the petitioners that they have also filed Criminal Miscellaneous No. 12667 of 2022 under Section 482 CrPC seeking quashing of the FIR. That proceeding is separate from the present writ petition.
In 2022, the petitioners filed the present Criminal Writ Jurisdiction Case No. 356 of 2022 before the Patna High Court. They sought directions for initiating departmental proceedings against the concerned police officials and the Judicial Magistrate, and also for starting contempt proceedings against the police officials, alleging violation of the Supreme Court’s directions in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
What the Court Examined and Decided
The matter came before Hon’ble Mr. Justice Jitendra Kumar. The core allegation of the petitioners was that the arrest of petitioner no. 2 on 22.06.2021 was illegal.
They argued that, on the date of arrest, the case was only under Sections 341, 323 and 504 IPC. According to them, the maximum punishment for those offences is less than seven years, so the police could not arrest without following Section 41A of the Code of Criminal Procedure. Section 41A requires a notice of appearance instead of immediate arrest in many such cases.
The petitioners relied on the Supreme Court judgment in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. In that judgment, the Supreme Court issued detailed guidelines to ensure that police officers do not arrest accused persons unnecessarily and Magistrates do not authorise detention casually and mechanically, especially in offences punishable with imprisonment up to seven years.
Based on Arnesh Kumar, the petitioners submitted that the police officers had violated the directions by arresting petitioner no. 2 without proper compliance with Section 41A CrPC. They further claimed that the Judicial Magistrate also violated the Supreme Court’s directions by authorising remand without ensuring compliance. On this basis, they sought initiation of contempt proceedings, as well as departmental action against both the police officials and the Magistrate.
On the other hand, the learned APP for the State argued that, even if for the sake of argument the arrest and remand were not in accordance with law, the petitioners had not challenged either the arrest or the remand order at the proper time.
The State pointed out that petitioner no. 2 had filed a regular bail application before the High Court, which was allowed on 18.01.2022. However, neither before filing the bail application nor at any earlier time did the petitioners challenge the legality of the arrest or the remand order passed by the Magistrate.
According to the State, as long as the remand order of the Judicial Magistrate remains unchallenged, it has full legal force. Therefore, the arrest cannot now be said to be illegal. The State submitted that, by seeking and obtaining bail without questioning the arrest or the remand, the petitioner had effectively accepted or acquiesced in the legality of his detention.
The State relied on an earlier judgment of the Patna High Court in Lallan Kumar Yadav v. State of Bihar and Ors., 2026 (2) BLJ 414, decided in Criminal Writ Jurisdiction Case No. 1049 of 2021. In that case, on similar facts, the Court had dismissed a writ petition challenging an arrest on Arnesh Kumar grounds after the petitioner had already secured bail without challenging remand.
After hearing both sides and perusing the materials on record, the Court noted that there was indeed no dispute on a key fact: the arrest and remand of petitioner no. 2 had never been challenged before any higher court. Instead, he had preferred and obtained regular bail. The other petitioners had not been arrested at all.
The Court observed that in Lallan Kumar Yadav, a similar argument was raised regarding non-compliance of Arnesh Kumar. There also, the petitioner had moved for regular bail without challenging the arrest or remand order. The High Court had held in that case that, because the remand order had not been set aside, the arrest became legal and remained absolute. The Court further held that once a person chooses to file a regular bail application and gets bail, this conduct amounts to acquiescence that his detention was legal. After that, it does not lie in his mouth to say that his arrest was illegal.
In the present matter, Justice Jitendra Kumar followed the same reasoning. He stated that the correct timing to challenge the arrest or remand is immediately after the arrest or immediately after remand. If the petitioner had approached the writ court at that stage, the Court could have examined whether the police and the Magistrate had followed the Supreme Court’s directions in Arnesh Kumar.
However, that opportunity had now passed. The Court emphasised that at this later stage, after bail has been granted and remand has remained unquestioned, it is “too late” to examine compliance with Arnesh Kumar by either the police or the Magistrate. Because the remand order was never set aside by any higher court, it continues to stand, and therefore the arrest is deemed legal.
Accordingly, the Court held that the petitioners’ demand for initiation of departmental or contempt proceedings against the police officials and the Judicial Magistrate could not be entertained. The writ petition was found to be without merit.
At the same time, the Court referred extensively to its earlier observations in Lallan Kumar Yadav regarding the conduct of police officers and Magistrates. In that case, the Court had noted that many police officers were still oblivious of the Supreme Court’s directions in Arnesh Kumar, and that even some Judicial Magistrates appeared unaware of their duty to check such compliance at the time of remand.
The Court reproduced the guidelines from Arnesh Kumar, where the Supreme Court directed that:
- Police should not automatically arrest when a case under Section 498A IPC is registered, but must examine the necessity of arrest under Section 41 CrPC.
- Police officers must use a checklist and forward it, along with reasons and materials justifying arrest, to the Magistrate.
- Magistrates, before authorising detention, must peruse this report and record their satisfaction.
- Failure to comply can lead to departmental action and contempt against police officers, and departmental action against Magistrates.
The Court also cited the Supreme Court’s later decision in Mohd. Asfak Alam v. State of Jharkhand, (2023) 8 SCC 632, where the Supreme Court reiterated that all courts must strictly follow the law laid down in Arnesh Kumar. In that case, the Supreme Court directed all High Courts to frame notifications and guidelines for subordinate courts, and all Directors General of Police to issue strict instructions to police authorities.
Justice Jitendra Kumar then referred to the directions already issued in Lallan Kumar Yadav, where the Registrar General of the Patna High Court was directed to circulate that order among Judicial Officers, and the Director General of Police, Bihar, was directed to circulate it among police officials.
In the present case, however, despite acknowledging these broader concerns about compliance, the Court confined itself to the legal question before it. Since the petitioners had not challenged the arrest or remand at the proper time, and since petitioner no. 2 had instead pursued and obtained regular bail, the Court concluded that there was no basis to order departmental or contempt proceedings now.
Therefore, in paragraph 9 of the judgment, the Court held that it found no merit in the writ petition and dismissed it.
Why This Judgment Matters
This judgment is important for anyone facing arrest in cases where the maximum punishment is up to seven years, especially in matrimonial disputes like Section 498A IPC cases.
The Patna High Court clearly indicates that if an accused believes the arrest or remand is illegal or violates the Supreme Court’s guidelines in Arnesh Kumar, they must challenge it immediately. Waiting, seeking regular bail, and later asking for action against police or Magistrates may not succeed.
For police officers and Magistrates, the judgment again reminds them of their duty to follow Arnesh Kumar and Mohd. Asfak Alam. Even though the Court did not start departmental or contempt proceedings in this case, it repeated the Supreme Court’s directions and highlighted that non-compliance can attract serious consequences in appropriate cases.
For ordinary citizens, the practical message is: if you think you have been arrested illegally in such cases, take timely legal advice and challenge the arrest or remand order without delay, rather than only seeking bail.
Legal Issues and Answers
- Issue: Can the High Court, in a writ petition filed after grant of regular bail, initiate departmental and contempt proceedings against police officials and a Judicial Magistrate for an allegedly illegal arrest made without following Arnesh Kumar guidelines?
Answer: No. Since the arrest and remand were never challenged before any higher court and the accused instead obtained regular bail, the remand order remains valid and the arrest is treated as legal. At this late stage, the Court will not examine Arnesh Kumar compliance or order such proceedings. - Issue: Does failure of police or Magistrate to follow Arnesh Kumar automatically entitle an accused to relief in a later writ petition after bail?
Answer: No. Alleged non-compliance must be raised promptly, immediately after arrest or remand. Delayed challenge after acquiescence through a bail application is not entertained.
Cases Cited by the Court
- Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
- Mohd. Asfak Alam v. State of Jharkhand, (2023) 8 SCC 632
- Lallan Kumar Yadav v. State of Bihar and Ors., 2026 (2) BLJ 414
Case Details
Case Number: Criminal Writ Jurisdiction Case No. 356 of 2022 (arising out of Amarpur P.S. Case No. 284 of 2021, District Banka)
Case Title: Dr. Sitaram Sharma @ Dr. Sitaram Mistri & Ors. v. The State of Bihar & Ors.
Citation: 2024(2) PLJR 573
Coram: Hon’ble Mr. Justice Jitendra Kumar
Date of Judgment: 10.03.2026 (Uploading and Transmission Date: 11.03.2026)
Advocates:
- For the petitioners: Mr. Amitabh Sohan, Advocate; Mrs. Pallavi Singh, Advocate
- For the State: Mr. Suman Kumar Jha, AC to AAG-3
- For respondent no. 9: Mr. Jagjit Roshan, Advocate; Mr. Anjani Kumar, Advocate
Nature of the Case: Criminal writ petition seeking mandamus for departmental proceedings and initiation of contempt proceedings against police officials and a Judicial Magistrate in relation to arrest and remand in Amarpur P.S. Case No. 284 of 2021.
Link to the Judgment: Patna High Court Judgment
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