Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.37417 of 2012 ====================================================== 1. Bindeshwari Mishra, Son of Deoki Mishra, Resident of Village - Derwa, P.S. - Desariya, District - East Champaran 2. Krishna Kant Mishra, Son of Sri Bindeshwari Mishra, Resident of Village - Derwa, P.S. - Desariya, District - East Champaran 3. Vinod Mishra, Son of Umakant Mishra, Resident of Village - Derwa, P.S. - Desariya, District - East Champaran 4. Santosh Mishra, Son of Umakant Mishra, Resident of Village - Derwa, P.S. - Desariya, District - East Champaran 5. Suman Mishra, Son of Darshan Mishra, Resident of Village - Derwa, P.S. - Desariya, District - East Champaran 6. Vikash Mishra, Son of Umakant Mishra, Resident of Village - Derwa, P.S. - Desariya, District - East Champaran .... .... Petitioner/s Versus The State Of Bihar .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 2 01-10-2012 Heard learned counsels for the petitioners and the State. The petitioners are apprehending arrest in Kesaria P.S. Case No. 40 of 2012, pending in the Court of learned Chief Judicial Magistrate, East Champaran at Motihari registered for the offences punishable under [STATUTE] . Police after investigation submitted charge-sheet under [STATUTE] when police permitted the petitioners to remain on police bail, but the police subsequently found the case true under [STATUTE] . also. The prayer for anticipatory bail of the petitioners was Patna High Court Cr.Misc. No.37417 of 2012 (2) dt.01-10-2012 2/7 rejected by learned Sessions Judge since they were on police bail, hence the application for anticipatory bail was found to be not maintainable and the learned court below was directed to consider the regular bail in light of ratio laid down under Mahandra Prasad Singh reported in 2004(3)PLJR 491. It is submitted by learned counsel for the petitioners that since [STATUTE] was subsequently added hence in view of the ratio laid down in the paragraph no. 4 of Mahendra Prasad Singh supra, the anticipatory bail of the petitioners is maintainable which reads as follows:- “On considering the relevant provision in the Code of Criminal Procedure, this Court is of the opinion that had the FIR been only for bailable offences and had the petitioner been granted benefit of bail by the police for bailable offences only under the provisions of Section 436 of the Cr.P.C., the matter could have stood on different footing. On account of offence being treated as non bailable at the later stage due to subsequent developments, may be an application for anticipatory bail could have been found maintainable. However, in the present case which is falling for consideration this Court is of the view that since the case was initially for non bailable offences wherein the petitioner was taken into custody and then released on bail by the police, an application for anticipatory bail on the ground that he has an apprehension of arrest in the same case cannot be held to be maintainable.” Patna High Court Cr.Misc. No.37417 of 2012 (2) dt.01-10-2012 3/7 In view of this Court, the contention of learned counsel for the petitioners is misconceived. The aforesaid ratio permits the maintainability of anticipatory bail application subsequent to police bail when the initial FIR is registered only under the bailable provisions whereas in the present case initially the FIR was also registered under [STATUTE] . The power of police to release an accused on bail is enumerated in section 169 of Cr.P.C. which reads as follows: “169. Release of accused when evidence deficient.—If, upon an investigation under this chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.” Thus, it is evident that the police releases a person on executing bond only when he is in custody. It is further made clear that it is well settled law that difference between the anticipatory bail and regular bail is that in the former the person seeking anticipatory bail is not in custody whereas in the regular bail, the precondition of prayer is of person being in custody of Court or the police. A person is released by the police or the Court on execution of bond which is enumerated in Section 441 of the Cr.P.C. which reads as follows:- Patna High Court Cr.Misc. No.37417 of 2012 (2) dt.01-10-2012 4/7 “Bond of accused and sureties- 1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. 2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. 3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge. 4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the su

Applicable IPC Section: 307

Statute Text:
Section 307 of the Indian Penal Code. Attempt to murder. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by Life Convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.