IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7453 of 2010 1.JAGNARAYAN YADAV @ BABAJEE YADAV son of Soti Lal yadav 2.Satya narayan Yadav son of Soti Lal yadav, 3.Shiva Narayan Yadav son of Soti Lal Yadav 4.Shivan Yadav son of late Saheb Yadav 5.Jadu nandan yadav son of late Saheb yadav 6.Ram Sewak yadav son of late Ramji Yadav, all are resident of Village karibandh, P.S. marauna, Dist. Supaul 7.Brahmdeo Mehta son of Bal Gobind Mehta, r/o village Koriyapatti, P.S. marauna Dist. Supaul ……..Petitioners. Versus THE STATE OF BIHAR ----------- 2 18.3.2010 Heard learned counsel for the petitioners. No body appears for the State. It is submitted by the learned counsel for the petitioners that initially the first information report vide annexure- 1 was lodged by the informant for commission of offences under sections 144, 307, 323, 324, 384 and 379 of the Indian Penal Code and in that case all the petitioners were arrayed in the category of accused. By referring to annexure-2, learned counsel for the petitioners submits that on close of investigation police submitted charge sheet No. 64 of 2004 dated 4.11.2004 for offences under section 147, 148, 149, 323, 324 and 504 of the Indian Penal Code and therefore, all the offences were bailable at the relevant time. It is relevant to mention here that section 324 of the Indian Penal Code was subsequently made non-bailable by Code of Criminal Procedure (Amendment) Act 2005, which came into force with - 2 - effect from 23.6.2006. As all the offences, referred to above, were bailable in the year 2004, therefore, petitioners appeared before the police and they were enlarged on bail by the police itself in terms of section 436(1) Cr.P.C. It is stated that subsequently learned Chief Judicial Magistrate, Supaul disagreed with the police report vide annexure-2 and has taken cognizance under sections 144, 307, 323, , 324 and 504 of the Indian Penal Code against all the petitioners besides others. Hence petitioners apprehending their arrest approached learned Session court for grant of anticipatory bail, but on refusal, filed the present petition under section 438 Cr.P.C. seeking anticipatory bail. It is well settled that once a person, accused of committing a crime, has surrendered to the jurisdiction either of the court or the police, then anticipatory bail petition under section 438 Cr.P.C. is not maintainable on behalf of such person. Admittedly in the present case petitioners had surrendered to the jurisdiction of police with respect to commission of crime in question and in view of submission of charge sheet vide annexure- 2 for the bailable offences, they were enlarged on police bail. Therefore, the petition filed on behalf of the petitioners under section 438 Cr.P.C. for grant of anticipatory bail is not - 3 - maintainable. It is accordingly dismissed. Now question arises as to whether in the facts of the present case the petitioners can be granted any relief by this Court? Learned counsel for the petitioners submits that there is absolutely no allegation against the petitioners of misusing the privilege of police bail. Therefore, it is prayed that direction may be issued to the court below to allow them to remain on previous bail itself. It is pertinent to mention here that whole object for granting bail to an accused is to secure his attendance for the purpose of trial. Prayer for bail of an accused cannot be withheld merely to inflict upon him pre trial punishment. An accused in a criminal trial is supposed to be innocent unless he is found guilty. In this regard this court is reminded of a famous judgement of a Division Bench of Calcutta High Court in the case of Nagendra Nath Chakrabarthi V King Emperor, reported in A.I.R. 1924 Calcutta 476. This court is tempted to quote the relevant observation of the Division Bench of the Calcutta High Court which are as follows: “It is indisputable that bail is not to be withheld merely as a punishment. The requirements as to bail are to secure the attendance of the accused at the trial.” - 4 - Learned counsel for the petitioners states that his clients are prepared to abide by all reasonable conditions put forward by this court and he further undertakes that petitioners shall fully cooperate for early conclusion of the trial. He finally submits that in the light of observation in the case of Mahendra Pd. Singh V State of Bihar reported in 2004 (3) PLJR 491 as also in the case of Sheo Chandra Singh V State of Bihar reported in 2007 (4) BBCJ V- 66., the learned court below may be directed to consider the prayer made on behalf of the petitioners for bail. I am in respectful agreement with the aforesaid two judgments of our own High Court and is also of the considered view that petitioners are entitled to get similar treatment by the court below. Admittedly petitioners were on police bail and they are not alleged to have misused the privilege of bail. Therefore, if the petitioners appear in the court below within a period of four weeks from today and make a prayer for bail ,then the same should be disposed of on its merit, by giving similarity of treatments in the light of the observations made by a Bench of this Court in the cases Mahendra Pd. Singh (Supra) and Sheochandra Singh (Supra). The application stands dismissed as not maintainable, but with the observations and directions made - 5 - above. Let the order be communicated through fax at the costs of the petitioners to the court of learned S.D.J.M, Supaul in connection with Marauna P.S. case no. 04/2004, G.R. No. 31/2004.. (Birendra Prasad Verma, J) (AFR) M.Rahman