IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39736 of 2009 PHULPATI DEVI w/o Dr. Harishchandra Prasad, resident of Mohalla- Ram Sahay Lane Mahendru, P. S. Pirbahore, District- Patna…. Petitioner. Versus 1. STATE OF BIHAR 2. Anil Kumar Singh son of Shivgati Singh, resident of Mohalla- P.I.T. Colony Near Jogipur, P. S. Patrakar Nagar, District Patna at present as Managing Director of M/s Vatika Engicon Pvt. Ltd having its office at Flat No. 12 Manna Surti Complex Doctors Colony Kankar Bagh, Patna.-800020 bearing registration No. U45200 BR 2007 PTCO 13295.& ANR ----------- 2. 18.11.2009. Heard counsel for the petitioner and counsel for the State. The prayer made in this bail application is for cancellation of bail of opposite party no. 2 who is said to have been granted anticipatory bail by learned Sessions Judge, Patna in Anticipatory Bail Application No. 87 of 2009 by order dated 18.9.2009. Counsel for the petitioner would submit that such anticipatory bail was granted by learned Sessions Judge, Patna not only without giving an opportunity of hearing to the complainant but also on certain misrepresentation of facts which would amount to playing fraud on the Court. In the opinion of this Court, when the petitioner had such apprehension that the order in question was passed on certain misrepresentation of facts, he in the first 2 instance ought to have moved that very court where fraud is said to have been committed by opposite party no.2. The submission of learned counsel for the petitioner that complainant, petitioner ought to have been heard in a bail application arising out of a complaint case is a matter of procedure and discretion and that by itself cannot be a ground for cancellation of bail unless the accused had played any fraud on the court. This Court however would not express any opinion on the merits of the claim of the petitioner inasmuch as the petitioner’s application before this court without moving the concerned court for cancellation of bail as noted above is both premature and misconceived. That being so, this application is dismissed with a liberty to the petitioner to move the concerned court with a prayer for cancellation of bail which is expected to decide the matter on merits without being prejudiced by this order. kanchan (Mihir Kumar Jha, J.)