IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51483 of 2008 1. Krishnadeo Singh, 2. Naresh Singh, 3. Bishun Singh, 4. Anand Deo Singh, 5. Binod Singh, 6. Sushil Singh, 7. Vidya Nand Singh, 8. Amit Singh Versus STATE OF BIHAR ----------- 4/ 31.08.2009 Heard Sri Shakeel Ahmad Khan, learned Senior counsel for the petitioners and Sri Dashrath Mehta, learned APP for the state. Petitioners Krishnadeo Singh and Binod Singh have been arrested as per the submission of the senior counsel. The petition as regards their prayer appears to be infructuous. It is dismissed as such as regards them. The petition remains on behalf of the remaining six petitioners who were earlier granted anticipatory bail by me by order passed in Cr. Misc. No. 37303 of 2007. The order was till submission of the charge sheet whereafter the court below was to take its own decision in the matter. It is contended that on arrest of petitioners Krishnadeo Singh and Binod Singh, their prayer for bail was dismissed by the lower courts as a result of which Cr. Misc. no. 8249 of 2009 was preferred by the two above named accused persons and a bench of - 2 - this court by order passed on 23rd April, 2009 directed the release of the above named two accused persons on bail as per terms indicated in that particular order. It was contended by citing Adri Dharan Das Vs. State of West Bengal (2005) 4 Supreme Court Cases 303 that a blanket order of anticipatory bail is prohibited to be passed, but there was no bar if the same accused who had been admitted to anticipatory bail, could approach the court again in terms of the order as indicated in Annexure 4 for removal of the embargo so as to getting his liberty protected. Learned Additional Public Prosecutor has resisted the prayer made herein by citing 2003(4) 217 PLJR (SC) Bharat Choudhary Vs. State of Bihar in which a proposition has been laid down that grant of anticipatory bail is never foreclosed on account of passing of an order of cognizance or submission of charge sheet. The direction in the operative part of the order passed by me in Cr. Misc. No. 37303 of 2007 was in the light of some of the observations made by the Apex Court in some of the cases like Adri Dharan Das (supra) and Salauddin Vs. State of Bihar reported in 1996 (1) Supreme Court Cases 667. In those cases and some others also, their lordships of the Apex Court were restricting the duration of anticipatory bail till submission of charge sheet whereafter it was directed that the accused persons could be directed to go before the original court of jurisdiction, i.e., before the Magistrate for taking further orders. - 3 - Above observations or directions of the Apex Court have never to be appreciated by any court as to putting a fetter in its discretion of allowing bail to the accused persons , if the facts and circumstances of the case so required, because the very purpose of enacting the provisions of bail is to safeguard the personal liberty of a person who is yet to face the trial and in whose respect the presumption of innocence exists till he is found guilty and convicted accordingly. As such, I am of the opinion that as and when lower courts are faced up with such a situation as could be in the present case, if the petitioners surrender in the court below, then they must read other observations of the court, if there is any, in the order passed by this court or to take into account the facts and circumstances of the case. May be, that the facts of the case may not be available to the courts below, at the time when the accused surrenders himself to the custody of the court, in that case the court must keep in its mind that the accused persons are on bail under section 438 of the Cr.P.C. and that order of bail which might have been granted by the High Court or any superior court, must not be nullified in absence of any compelling material. If the court does it without finally and fully hearing the accused, it may result into injustice being inflicted upon an accused as a result of which he could lose his liberty. In such a situation, what I could be recommending to the court below is that till the court hears the accused finally when he appears after submission of - 4 - charge sheet in a case in which he has been admitted to anticipatory bail, the court below should extend his liberty to a particular date and seek the police records or other records to be produced before it. The court below thereafter will have the whole of the materials before it and also the advantage of hearing the parties and then taking a decision finally as to whether the accused should be granted the privilege of bail or be remanded to custody by it on consideration which could be only in a case of petition under section 437 Cr.P.C. Coming to the present case, I have indicated in my earlier order as to what is the defence of the petitioner and the background which was existing prior to the institution of the FIR in Sakatpur P.S. Case No. 44 of 2004. Besides, I have noticed the statements of a huge number of persons who came forward during the course of investigation to say as to how genuinely the accused could have been falsely and wrongly dragged into a criminal prosecution. These facts are already mentioned in my order passed on 9.10.2007 in Cr. Misc. No. 37303 of 2007. However, the court does not want to snatch the discretionary power of the lower court which vests in him by virtue of a statute enacted by the Parliament. The discretion has to be finally exercised by it and if it wants to taste the observations of this court in the light of trite facts then the court below may extend the bail granted to the petitioners by this court till a particular date and in the mean time, seek the production - 5 - of case diary and other documents, if they are not available to it and proceed to hear the case finally, for, personal liberties of a person is a constitution guarantee and it has to be respected. I must also recommend to the court below that being named in the FIR may not be the final word as regards implication or complicity of the accused. The court has to apply its discretion after appreciating facts and considering it in the light of the defence and other relevant materials without being influenced by the accusations or the sections of the offence. Besides, the courts below must be knowing that if a similarly situated accused has been admitted to bail by this court or by any court superior to it, then it should, generally, not refuse the prayer for bail of other similarly placed accused. Needless to say, filing of the present petition shall not cause any prejudice to the mind of the court below in hearing and disposing of the prayer made before him. With the above observation/direction, this petition is disposed of . Anil/ (Dharnidhar Jha, J.)