IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5445 of 2011 1. Deepak Kumar, Son of Ramji Prasad. 2. Vishu Kumar, Son of Late Rajendra Prasad Mahto. Both residents of Mohalla- Nasriganj, Mithila Colony, Police Station-Danapur, District- Patna………….…………………………………………………………..Petitioners. Versus THE STATE OF BIHAR…………………………………………..Opposite Party. ----------- For the petitioners: M/S. Bindya Keshari Pd. Singh & Akhauri Kamal Kishore, Sr. Advocates. For the complainant: Mr. Rana Pratap Singh, Sr. Advocate with Dhirendra Kumar, Advocate. For the State : Smt. Anita Kumari Singh, A.P.P. ---------- 4. 14.03.2011. Heard learned counsel for the petitioners, complainant and the State. It is submitted by the learned counsel for the petitioners that petitioner no.1 has been arrested in connection with complaint case no. 397 ( C) of 2010. Hence, his anticipatory bail application has become infructuous. Let the learned court below consider the regular bail application of petitioner no.1 keeping in view the civil nature of accusation and the fact that other accused have been granted anticipatory bail and try to dispose off the same. So far as petitioner no.2 is concerned, he is apprehending his arrest 2 in complaint case in which cognizance has been taken under Sections 406, 420 and 120(B) of the I.P.C. Some agreement was executed with regard to transfer of land which gave rise to accusation of the case. Learned Sessions Judge has rejected the anticipatory bail application of petitioner on the ground that the petitioners initially surrendered before the learned court below and prayed for regular bail. The said application was permitted to be withdrawn by learned Magistrate with liberty to move the anticipatory bail application since other have been granted anticipatory bail vide order dated 24.05.2010 as contained in Annexure-4/1 to the petition. Section 437 of Cr. P. C. envisages the grant of bail or refusal on appearance of an accused or being brought by the police after arrest in non bailable offence. The word surrender is not envised in Section 437 of Cr. P. C. but usually the bail applications are being filed labelling as surrender-cum-bail 3 application. In view of this court, Section 437 Cr. P. C. envisages that the Magistrate either has to grant bail under the parameters of Section 437 of the Cr. P.C. or to refuse the same but vide order dated 24.05.2010, the learned court below permitted the petitioner to withdraw the bail application to file anticipatory bail application which was not permissible but once the Magistrate permitted to withdraw the appearance of the accused deemed to have not been made in the court. Once the court below allowed the petitioner to withdraw the application to file anticipatory bail application then the petitioner can not be deemed to have appeared or can be treated to be in custody of the court concerned. A person can be treated to be within custody of the court once, the accused surrenders or executes the bail bond but nothing has been done as such. Hence in the circumstances, the anticipatory bail application of the petitioner is maintainable. 4 Since the accusation is of contractual nature and other have been granted anticipatory bail, let the petitioner no. 2 be released on bail in the event of arrest or surrender before the learned court below within a period of twelve weeks from today in connection with complaint case no. 397( C ) of 2010 on furnishing bail bond of Rs. 10,000/-(Ten Thousand) with two sureties of the like amount each to the satisfaction of the learned S.D.J.M., Danapur, at Patna, subject to the conditions as laid down under Section 438(2) of the Cr. P. C. U. K. ( Dinesh Kumar Singh, J)