Hostility Of Prosecution Witnesses Not Germane Consideration To Grant Of Bail: Patna High Court

The Court was hearing an application under Section 483(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking cancellation of regular bail granted by the District & Additional Sessions Judge-III, Jhanjharpur, in a sessions trial arising out of a case registered under Sections 147, 148, 149, 323, 324, 307, 302, 504, 506 and 120-B IPC and Section 27 of the Arms Act.

A Bench of Justice Sandeep Kumar observed: “The principal consideration which has decisively weighed with the learned Trial Court, as is manifest from paragraph 6 of the impugned order, is that out of the fourteen witnesses examined, ten witnesses had been declared hostile by the prosecution, and that the examination of the remaining witnesses would consume time. In the considered opinion of this Court, the hostility of the prosecution witnesses is not a consideration germane to the grant of bail, and reliance thereupon has introduced into the impugned order an element which is wholly irrelevant in law. It is well settled that at the stage of considering a prayer for bail, the Court cannot enter into the credibility and reliability of the witnesses examined by the prosecution, which is an exercise reserved exclusively for the trial.”

Advocate Jaishankar Kumar Yadav appeared for the petitioner, APP Binod Kumar & Senior Advocate Umesh Prasad Singh appeared for the respondents.

Background

The prosecution case arose from a fardbayan recorded at Darbhanga Medical College & Hospital. According to the informant, several named and unknown accused persons, forming an unlawful assembly and armed with guns and farsa, entered the informant’s land and began constructing a house. When the informant’s brother, uncle and cousin objected, the accused persons allegedly abused and assaulted them.

The specific allegation against Opposite Party No. 2 was that he fired from his gun at the informant’s brother with the intention to kill, with the bullet striking the abdomen and penetrating inside. The injured person was taken to the Primary Health Centre and thereafter referred to D.M.C.H., where he died during treatment.

The accused had earlier moved for bail applications. His first bail petition was rejected by the Court below. Thereafter, a Coordinate Bench of the High Court rejected his prayer for bail after considering the direct allegation of firing and the nature and gravity of the offence. A subsequent bail petition filed before the Trial Court was not pressed, after which a fresh petition was moved, and bail was granted by the impugned order dated 13.03.2026.

The petitioner contended that the bail order was erroneous because the accused had a specific and direct role in firing the fatal gunshot and that his case was different from the co-accused persons who had been granted bail. It was further submitted that after release, the accused resumed threatening and intimidating the petitioner and family members, and that the Trial Court wrongly treated hostile prosecution witnesses as a factor favouring bail.

Court’s Observation

The Court first identified the central issue as whether the order granting bail was illegal, perverse or founded upon irrelevant considerations to warrant annulment by the High Court. It noted that the application was not merely about ordinary cancellation of bail on account of post-release misconduct, but about the legality and soundness of the order by which bail had been granted.

The Court distinguished between cancellation of bail due to supervening circumstances and setting aside a bail order that is unjustified, illegal or perverse from inception. Referring to Puran v. Rambilas (2001), Neeru Yadav v. State of U.P. (2014), Deepak Yadav v. State of U.P. (2022), Ajwar v. Waseem (2024), Jagjeet Singh v. Ashish Mishra (2022) and State of Karnataka v. Sri Darshan (2025), the Court held that a superior court can annul a bail order where relevant factors were ignored or irrelevant considerations were relied upon.

The Court observed: “Firstly, the cancellation of bail already granted requires cogent and overwhelming supervening circumstances, such as misuse of the liberty, tampering with the evidence, intimidation of the witnesses or evasion of justice, and cannot be founded upon a mere re- appreciation of the material which was before the Court at the time of the grant. Secondly, the annulment, by the superior Court, of an order granting bail which is illegal, perverse, founded upon irrelevant considerations or passed in ignorance of the relevant material, is concerned with the defects existing at the time of the grant itself, and may be exercised irrespective of any subsequent misconduct on the part of the accused. It is upon this twofold touchstone that the present application falls to be examined.”

The Court then compared the Trial Court’s order with the earlier High Court order. It found that the bail order had been passed on substantially the same material that was before the High Court when bail had earlier been rejected on merits. The only intervening developments were the examination of fourteen out of thirty-six charge-sheeted witnesses and the passage of time.

The Court held that neither of these developments, alone or together, amounted to a substantial change in the factual situation having a direct impact on the earlier order. It was observed that a court subordinate in the judicial hierarchy cannot grant, on the same material, a relief which the superior court had expressly declined.

Referring to State of Maharashtra v. Captain Buddhikota Subha Rao (1989), Bimla Devi v. State of Bihar (1994), Padam Chand Jain v. State of Rajasthan (1990), Kalyan Chandra Sarkar v. Rajesh Ranjan (2004), Mohseen v. State of U.P. (2026) and M/s Netsity Systems (P) Ltd. v. State (NCT of Delhi) (2025), the Court reiterated that judicial discipline requires a court considering a successive bail plea to advert to the reasons for earlier rejection and record fresh grounds or substantial change in circumstance.

The Bench observed: “The impugned order does not advert to, much less discuss, the reasons which impelled the Coordinate Bench of this Court to decline bail to the opposite party no.2, namely, the specific and direct allegation of firing the fatal shot and the nature and gravity of the offence. The impugned order falls totally silent on whether any substantial change in circumstance had intervened between the rejection of the prayer for bail by this Court on 07.05.2025 and the passing of the impugned order on 13.03.2026. The import of the impugned order, therefore, becomes that the learned Trial Court has, in effect, reviewed the order of the Coordinate Bench of this Court dated 07.05.2025, a course wholly impermissible in law.”

The Court found that the principal consideration which weighed with the Trial Court was that ten out of fourteen witnesses had been declared hostile by the prosecution and that examination of the remaining witnesses would take time. The High Court held that the hostility of prosecution witnesses was not germane to the grant of bail and that at the bail stage, the Court cannot assess the credibility and reliability of witnesses examined during trial.

The Court further held that the wholesale turning hostile of witnesses in a trial involving a broad daylight occurrence, where the accused was attributed a direct and specific allegation of firing the fatal shot, should have made the Trial Court cautious rather than reassured. It relied on Kalyan Chandra Sarkar v. Rajesh Ranjan (2004), where the Supreme Court had held that the effect of evidence already adduced and the merit of evidence still to be adduced are matters for trial.

The Bench rejected the submission that, because witnesses had turned hostile while the accused was in custody, their hostility could be used as a ground for bail. It held that the real question was not whether hostility was attributable to the accused, but whether such hostility could legally constitute a cogent ground for enlargement on bail.

The Court also found that the informant and remaining witnesses were yet to be fully examined, and that the apprehension that release of the accused, who was alleged to be the main assailant, would imperil the rest of the trial could not be said to be fanciful.

The Court further rejected the Trial Court’s reliance on the likely delay in the examination of thirty-six charge-sheeted witnesses. Referring to Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) and State of Karnataka v. Sri Darshan (2025), it held that the mere prospect of a prolonged trial or lengthy list of witnesses cannot by itself outweigh the gravity of the offence and the material collected during investigation.

The Court noted that the earlier High Court direction was to expedite the trial and conclude it expeditiously. It held that the Trial Court had inverted that direction by treating the pendency of the very trial it was directed to expedite as a ground to release the accused on bail.

The Court also relied on X v. State of Rajasthan (2024), where the Supreme Court had observed that in serious offences such as murder, once the trial has commenced and prosecution witnesses are being examined, courts should be slow in entertaining bail applications and should allow the trial to reach its final conclusion. The High Court noted that the trial in the present case had progressed substantially, fourteen witnesses had been examined, and the cross-examination of the informant had been deferred at the instance of the accused side.

The Bench also rejected the plea of parity with co-accused persons who had been granted bail. It held that the allegation against Opposite Party No. 2 was direct and distinct, since he was specifically alleged to have fired the gunshot that struck the deceased in the abdomen and caused his death. Relying on Neeru Yadav v. State of U.P. (2014), the Court held that parity cannot be claimed where the role attributed to the accused is different and graver.

The Court concluded that the Trial Court’s order was perverse, founded upon irrelevant considerations, and passed in disregard of the reasons recorded by the Coordinate Bench while rejecting bail earlier. It also held that the Trial Court had failed to record any substantial change in circumstance.

Before parting, the Court commented on the manner in which the District & Additional Sessions Judge-III, Jhanjharpur, had dealt with the bail plea. It was observed that despite rejection of bail by the High Court on a categorical consideration of the direct allegation of firing and the gravity of the offence, the Trial Court granted bail on substantially the same material and on considerations irrelevant in law.

The Bench observed: “Prima facie, the impugned order appears to have been passed on the same material on which earlier the bail of the opposite party no.2 had been rejected by a Coordinate Bench of this Court and without adverting either to the reasons recorded in the said order or to any substantial change in circumstance. In the opinion of this Court, such a course reflects a disregard of judicial discipline and propriety and the District & Additional Sessons Judge, III, Jhanjharpur has acted recklessly, which this Court cannot countenance.”

Conclusion

The Patna High Court allowed the application and set aside the order passed by the District & Additional Sessions Judge-III, Jhanjharpur.

The Court cancelled the bail granted and cancelled the bail bonds furnished by him. It directed him to surrender before the Trial Court within two weeks, failing which the Superintendent of Police, Madhubani, was directed to take necessary steps to secure his arrest.

The Court directed its office to send a copy of the order, along with relevant records, to the District & Additional Sessions Judge-III, Jhanjharpur, who was directed to submit a show cause within four weeks explaining why appropriate proceedings, including recommendation for special judicial training at the Bihar Judicial Academy in light of M/s Netsity Systems (P) Ltd. v. State (NCT of Delhi) (2025), should not be initiated against him.

The Court clarified that its observations were confined to the cancellation application and would not be construed as an expression on the merits of the case, which the Trial Court must decide uninfluenced by the observations.

Cause Title: Birendra Yadav v. The State of Bihar & Anr.

Appearances

Petitioner: Advocate Jaishankar Kumar Yadav

Respondents: APP Binod Kumar, Senior Advocate Umesh Prasad Singh, with Advocate Jitendra Kumar Bharti

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