IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29547 of 2010 DHANESHWAR PRASAD SINGH . Versus STATE OF BIHAR . ----------- 2 11.8.2010 Heard counsel for the petitioner and the State. This application has been filed for grant of anticipatory bail to the petitioner in connection with Babubarhi P.S. case No. 69 of 2008. Petitioner is named as accused in Babubarhi P.S. case No. 69 of 2008 registered for offences under section 420,467, 468,471 of the Indian Penal Code and section 135 of the Representation of People Act. Petitioner is Principle of C.M.J. College, Donwari Hat Khutauna. The Investigating Officer had granted him police bail, during the investigation of the case. On completion of the investigation, charge-sheet was submitted only for bailable offences and no charge-sheet was submitted against the petitioner, for offence under sections 467, 468 of the Indian Penal Code. However the 2 Chief Judicial Magistrate, Madhubani, took cognizance for offence under section 467 of the Indian Penal Code and section 31 and 32 of the Representation of People Act on 28..3.2010. This application has been filed by the petitioner for granting him anticipatory bail as he apprehends his arrest in connection with Babubarhi P.S. case no. 69 of 2008 on account of the cognizance order dated 28.3.2010 passed by the CJM. Once an accused is granted benefit of bail by the police for bailable offences but subsequently either he is charge-sheeted for non bailable offence or cognizance is taken by the Magistrate for non bailable offence, prayer for anticipatory bail on behalf of such accused cannot be entertained. In such cases the benefit of section 438 of the Code of Criminal Procedure cannot be extended to the accused and the only remedy available to them is by surrendering before the Court below. In case the accused surrenders before the Court below and if there is nothing to show that while remaining on police bail he has misused the privilege of bail, the concerned Court 3 instead of taking the accused in custody has to pass an order granting bail to that person. This issue has already been settled in several decisions and also in the case of Mahendra Prasad Singh Vs. State of Bihar reported in 2004(3) PLJR 491. This application is being disposed off giving liberty to the petitioner for surrendering before the Court below. His case will be considered by the Court below, in the light of settled law as reported in the case of 2004(3) PLJR 491. (Mridula Mishra,J.) A.Kumar