A trial court cannot grant bail that the High Court has refused on the same material without engaging with the High Court’s reasons, the Patna High Court has held, cancelling the bail of a man accused of shooting another dead in a weekly market after finding that the order wrongly recorded that he had no criminal history, and sending the judge’s conduct to the Chief Justice for appropriate action.
Patna: The Patna High Court has allowed an application by the widow of a murder victim and cancelled the regular bail granted to Tunna Yadav @ Tuntun Yadav by the District and Additional Sessions Judge-III, Naugachia, in a 2024 murder case, holding that the bail order was perverse, passed without engaging with an earlier High Court order refusing bail, and based on an erroneous premise that he had no criminal history [Rituraj Devi v. State of Bihar and Another].
Justice Sandeep Kumar, in a judgment delivered on September 17, 2026 after reserving it on August 7, set aside the February 21, 2026 order, directed the accused to surrender within three weeks, and ordered that a copy of the judgment be placed before the Chief Justice for action against the then presiding judge.
Background of the case
According to the written report of the informant, Rituraj Devi, on January 24, 2024 her husband Manoj Mandal, her son and her brother-in-law had gone to the Ismailpur weekly market to buy fish, where she too was present. She alleged that Tunna Yadav and other members of his gang surrounded her husband and abused him, and that when he protested, Tunna Yadav took out a country-made pistol and shot him in the temple, killing him. Co-accused Vimlesh Yadav allegedly fired at her son and brother-in-law, who fled. The FIR, Ismailpur P.S. Case No. 6 of 2024, was registered on January 26, 2024 after the last rites, under Sections 147, 148, 149, 341, 342, 307, 302, 504 and 506 of the Indian Penal Code and Section 27 of the Arms Act.
The post-mortem recorded a firearm entry wound over the left occipital region, with a bullet lodged in the cranial cavity. Tunna Yadav was taken into custody on February 20, 2024, and a Coordinate Bench of the High Court rejected his regular bail plea on August 23, 2024, noting the direct and specific allegation of firing, supported by the medical evidence. At trial, three eyewitnesses, including the informant, her son and the deceased’s brother, were examined and supported the prosecution. The son also deposed on August 19, 2025 that the accused were threatening to kill him if he testified against them. These allegations are yet to be adjudicated.
On February 20, 2026, Tunna Yadav moved a fresh bail petition before the trial court asserting that he had no criminal history as per the case diary. It was allowed the next day. The order noted that no criminal history was shown in the case diary, that the High Court had earlier rejected his bail, that a co-accused had been granted bail by the High Court, and that he had been in judicial custody since February 20, 2024.
What the parties argued
Advocates Ranjan Kumar Jha and Vikas Kumar, for the informant, argued that the trial court had granted what the High Court had refused, without adverting to the High Court’s reasons or recording any substantial change in circumstances apart from custody, which was destructive of judicial discipline. They said the case diary itself, at paragraph 29, recorded eight other criminal cases against him, including one under Sections 147, 148, 149 and 302 of the IPC and Section 27 of the Arms Act and two involving Section 307, so the order was obtained on a suppression of antecedents. They added that no parity was available with co-accused Lalu Yadav, who had been granted bail because no overt act was attributed to him, and that the accused had threatened the witnesses after release. They relied on State of Maharashtra v. Captain Buddhikota Subha Rao, Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, Deepak Yadav v. State of U.P. and Mohseen v. State of U.P., among others.
Rabindra Kumar, the Additional Public Prosecutor, candidly submitted that the accused’s criminal antecedents are recorded in paragraph 29 of the case diary. Advocate Ashok Kumar Yadav, for Tunna Yadav, argued that bail is not to be cancelled mechanically absent misuse of liberty, that he had regularly attended court, that two years in custody, the framing of charge and examination of the eyewitnesses were a substantial change, that the threat allegation was bald, and that he had been falsely implicated out of enmity, the deceased having been an accused in the murder of his brother, Bulbul Yadav. He relied on Dolat Ram v. State of Haryana, Himanshu Sharma v. State of M.P. and Prabhakar Tewari v. State of U.P., among others.
Two kinds of interference with bail
Relying on State of Karnataka v. Sri Darshan and Neeru Yadav v. State of U.P., the Court drew a distinction between cancelling bail for post-grant misconduct, which requires cogent and overwhelming supervening circumstances under Dolat Ram, and annulling a bail order that is illegal or perverse, which looks to defects at the time of grant and needs no later misconduct. It noted that Deepak Yadav lists as grounds of the second kind a past criminal record being completely ignored, bail granted on untenable grounds and bail granted despite the gravity of the charge. It summed up the law on a subordinate court’s duty:
“Thirdly, a Court subordinate in the judicial hierarchy may not, on the same material, grant a relief which the superior Court has categorically declined, and an order which does so, without adverting to the reasons that impelled the superior Court and without recording a substantial change in the fact-situation, is, for that reason alone, unsustainable.”
Four defects in the bail order
First, the trial court noted the High Court’s rejection of bail but did not discuss its reasons, namely the direct and specific allegation of firing and the supporting medical evidence, nor record any substantial change in circumstances. Its sole consideration was the period in custody, so it had in effect sat in review over the High Court. The Court added that in serious offences such as murder, once trial has begun and witnesses are being examined, courts should be loath to entertain bail, as held in X v. State of Rajasthan.
Second, the order proceeded on the premise that there was no criminal history, which the Additional Public Prosecutor conceded was contrary to the record. The Court also noted that the order itself recorded that several criminal cases were pending against both sides and that two Sessions Trials were pending against him. Relying on Rajni v. State of Punjab, it held that an order ignoring antecedents and resting solely on custody is vitiated, and observed:
“Every applicant who seeks bail is under a solemn obligation to make a full and candid disclosure of his criminal antecedents, and the suppression or false projection of such material facts is an abuse of the process.”
Third, custody alone could not justify bail in a broad-daylight firearm murder in a crowded market, upon a specific allegation of firing corroborated by medical evidence and three eyewitnesses. Fourth, the plea of parity with Lalu Yadav was misplaced, as his bail rested on the finding that no overt act was attributed to him and that the firing was attributed to Tunna Yadav, and that order pre-dated, and was weighed in, the High Court’s refusal of bail in August 2024.
The Court held that the decisions cited for the accused, such as Dolat Ram and Himanshu Sharma, concern cancellation for supervening misconduct, where absence of misuse of liberty matters, whereas annulling a perverse order requires no supervening circumstance. It added that the pleas of false implication and delay in the FIR are matters of defence, and had already been urged unsuccessfully before the earlier Bench.
Matter referred to the Chief Justice
Before parting with the case, the Court noted the petitioner’s submission that several bail orders passed by Sunil Kumar-II, then District and Additional Sessions Judge-III, Naugachia, now posted as District and Additional Sessions Judge, Siwan, are under challenge before the High Court, where bail was granted after the High Court had rejected it, without adverting to its reasons, contrary to Netsity Systems (P) Ltd. v. State (NCT of Delhi). One such case, Criminal Miscellaneous No. 45674 of 2026 (Md. Mahtab Alam v. State of Bihar), involving kidnapping and murder, was noticed on July 15, 2026. The Court said it was perturbed that, in this case, the judge, sitting as the in-charge court, had recorded an observation contrary to the case diary on antecedents while, in the same breath, noting that several criminal cases were pending, which was contradictory. It directed that a copy of the judgment and the records be placed before the Chief Justice for initiating appropriate action, as deemed necessary, against the judge.
Directions
The Court set aside the February 21, 2026 order and cancelled the bail and bail bonds of Tunna Yadav @ Tuntun Yadav, directing him to surrender before the trial court within three weeks, failing which the Senior Superintendent of Police, Bhagalpur, must secure his arrest in accordance with law. It directed the trial court to conclude the trial as expeditiously as possible uninfluenced by its observations, which it said are confined to this application and express no opinion on the merits. A copy was directed to be sent to the Principal District and Sessions Judge, Bhagalpur and the Senior Superintendent of Police, Bhagalpur for compliance.
Case Title: Rituraj Devi v. State of Bihar and Another
Case Number: Criminal Miscellaneous No. 22917 of 2026, arising out of Ismailpur P.S. Case No. 6 of 2024 (Sessions Trial No. 611 of 2024)
Bench: Justice Sandeep Kumar, Patna High Court
Date of Judgment: September 17, 2026
Appearance: Advocates Ranjan Kumar Jha and Vikas Kumar for the petitioner; Rabindra Kumar, APP for the State; Advocate Ashok Kumar Yadav for Opposite Party No. 2