IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51266 of 2008 BRAJESH KUMAR … … Petitioner Versus THE STATE OF BIHAR … … Opp. Party For the petitioner: Shri Rajendra Pd.Singh, Sr.Adv. For the State:Shri Dashrath Mehta, APP ----------- 2. 16.12.2008 Heard. The petitioner has approached this Court after having obtained an order under Section 438 of the Cr. P.C. in Cr. Misc. No. 49241 of 2007( Annexure-1). The reason for coming up to this Court again is the last line of that order which directed the order to be effective only up to the submission of the chargesheet whereafter the court below could consider the matter afresh. That direction was in the light of the decision in Adri Dharan Das Vs. State of West Bengal: 2005(4) S.C.C. 303 and many other decisions of the Apex Court which have recently started issuing direction of the above import. The difficulty with this Court is that it could not upset the decision of the Apex Court and it has to abide by the law laid down by their Lordships. One could also not deviate from 2 the decision in the aforesaid Adri Dharan Das case. Whenever a person has been on bail and whenever such a situation arises, as could be arising in the present case, the court below shall have to consider many other factors including the whole material which could be presented to it through the chargesheet. One such circumstance could be that the court below must also consider that during the period in which the petitioner was enjoying the privilege of bail was there any attempt by him to flee from the jurisdiction of trial or to tamper with the evidence or to intimidate the witnesses or to do anything including commission of a more serious an offence then the present one or any serious nature which could be prejudicial to the interest of the society. If these and other such circumstances do not appear to a court, then there may not be any need, in the light of the aforesaid decision in Adri Dharan Das case, to direct an accused to be committed to custody. While considering the further materials which could have been collected during the course of investigation, the Court 3 of a Magistrate may also consider whether the degree of offence which was initially alleged against an accused through a report has compounded or has diminished as regards its propensity by virtue of the active participation of an accused which may be discerned from the full facts present4d to this Court. The contention was that there was some change in the factual position of the case by virtue of a report of a High Level Committee constituted to go into the matter and report and that did not find that there was any irregularity in the completion of the scheme. The court may also bear in its mind that the initial allegation did not also quantify, much less specify, as to what was the loss or what was the misappropriation in which the petitioner was found indulged by swindling the Government money. These are the circumstances, the petitioner could place before the court below and this court believes that the court below could consider the same without being prejudiced by any order or observation of this Court as 4 indicated above. The petition stands disposed of because it is not maintainable as the petitioner is already on bail. Kanth ( Dharnidhar Jha,J.)