IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43577 of 2008 SHYAMCHANDRA JHA, S/O LATE KHAKHNU JHA, R/O DUMRA, P.S. DUMRA, DISTRICT- SITAMARHI. –PETITIONER Versus THE STATE OF BIHAR. –OPP.PARTY 2 15.12.2008 While carrying out investigation of the information supplied to the Police, the Police felt that the offences alleged to have been committed are bailable in nature and, accordingly, on application of the petitioner Police bail was granted. After completion of investigation the Police submitted charge sheet and while doing so reported that the petitioner has committed offences which are bailable in nature. The Chief Judicial Magistrate, while taking cognizance on the charge sheet, took cognizance also under Section 307 of the Indian Penal Code and thereby held out that the petitioner has committed offence which is non- bailable. The question is in such circumstances whether the petitioner is entitled to an anticipatory bail. In as much as the petitioner has been exposed to an allegation of having committed a non-bailable offence, there is apprehension that the petitioner may be arrested at any point of time. The 2 question is in such circumstances, power of the Court under Section 438 of the Code can be used or not. When using such power normally the Court should direct the bail to remain alive until the charge sheet is filed in order to enable the Court dealing with the matter to consider whether to extend such bail or not to do so but even such an order does not debar the Court from exercising once again self same power under Section 438 of the Code. In such view of the matter, because the petitioner was on Police bail before the cognizance was taken, this Court is not bereft of the power to grant anticipatory bail under Section 438 of the Code. The Police, while investigating, was of the view that the injury sustained by the victim was not so serious and, accordingly, booked the petitioner under bailable sections. The investigation pursuant to the information did not alter the initial stand of the Police. It is only at the level of the Chief Judicial Magistrate the injury which was not of grievous in nature became so according to the information of the Chief Judicial Magistratre. Taking these factors into account, the application of the petitioner for grant of anticipatory bail is 3 allowed. Let the petitioner, in the event of his arrest or surrender within six weeks from today, be enlarged on bail on his furnishing bonds of Rs.10,000/- (Rupees ten thousand) with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, Sitamarhi, in Dumra P.S. Case no. 83 of 2005 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure. (Barin Ghosh, J.) AAhmad