IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2346 of 2011 ANITA CHAUDHARY WIFE OF SH. SUSHIL KUMAR CHAUDHARY, RESIDENT OF VILLAGE MAGARDAHI, WARD NO. 15, P.S. MUFFASIL (SAMASTIPUR), P.O. SAMASTIPUR, DISTRICT SAMASTIPUR-PETITIONER Versus THE STATE OF BIHAR THROUGH DEPARTMENT OF VIGILANCE- O. P. ----------- 2. 23.02.2011 Heard learned counsels for the petitioner and Vigilance. The petitioner is apprehending her arrest in a case registered under Sections 409, 420, 467, 468, 471, 120B of the Indian Penal Code and Section 13C of the Prevention of Corruption Act. The husband of the petitioner Sushil Kumar Chaudhary being an Accountant in the S.P. Office, Muzaffarpur has got Bank Accounts having huge amount of money which persuaded the prosecution party to register the present case against the petitioner also being one of the Bank Accounts holder, as wife of the said Sushil Kumar Chaudhary. Considering the merits of the case, learned Sessions Judge has given protection to the petitioner till the submission of charge-sheet with liberty to renew her prayer for bail in the following words : “Therefore, considering all the facts and law points discussed above, it is directed 2 that no coercive action should be taken against the petitioner till filing of the chargesheet and the petitioner may be renewed prayer for bail after submission of chargesheet but in the meantime, the petitioner may prefer to move before the Hon’ble Court. Therefore, this anticipatory bail petition stands disposed of with the above observation.” Learned Sr.Counsel for the petitioner submits that the impugned order is bad on two scores, firstly that the petitioner was given interim protection till submission of charge-sheet, which is deprecated by Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra, reported in (2011) 1 SCC 694. Secondly, learned Sessions Judge directed to renew the prayer for bail meaning thereby, the petitioner was permitted to file another anticipatory bail application after submission of the charge-sheet, which is not permissible in view of the principle laid down in the case of Bishundeo Sahu vs. The State of Bihar & others : 2011(1) PLJR 731. The other contention is that since learned Sessions Judge was convinced on merits then the petitioner should have been granted anticipatory bail till the conclusion of trial subject to the conditions under Section 438(2) of the Cr.P.C. 3 Learned counsel for the Vigilance, however, submits that in view of the interim order of learned Sessions Judge the petitioner has no apprehension till submission of charge-sheet. Hence the present anticipatory bail application at present is not maintainable. Considering the rival submissions of the parties it appears that the concluding portion of the impugned order reflects that the petitioner is permitted to renew her prayer for bail after submission of charge-sheet and till then the interim protection was given. This Court in the case of Bishundeo Sahu (supra) has held that the provisional anticipatory bail granted till submission of charge-sheet will preclude the accused from filing another anticipatory bail application after submission of the charge-sheet, since once the accused surrenders and executes bail bond he cannot avail the remedy of anticipatory bail again. Paragraphs 17, 18 & 19 of the said judgment read as follows : “17. On account of certain changes and amendment brought in Section 438 Cr.P.C. in case of grant of anticipatory bail, the petitioners-accused has to surrender before the Court concerned. In case where anticipatory bail has been granted for a limited period, till submission of the charge- sheet, the petitioner again has to make a 4 fresh prayer for bail, since, already on earlier occasion he had to surrender before the concerned Court and had furnished bail bond, so on submission of charge-sheet, the first prerequisite for grant of anticipatory bail i.e. the person concerned must not have been arrested or surrendered before any Court, is not available to him. He has lost the requisite criteria of granting anticipatory bail, in that case except the surrendering before the competent court for grant of regular bail, he is left with no other option. 18. A similar matter was considered in case of bailable offence. A person who is named as accused for bailable offences and granted bail by the police on execution of bail bond. Subsequently on completion of investigation, if the charge-sheet is submitted for non-bailable offence or despite submission of charge-sheet for bailable offence, cognizance is taken by the Magistrate for non-bailable offence, which he can make prayer for anticipatory bail. This issue was considered and decided in the case of Mahendra Pd. Singh vs. State of Bihar [2004(3) PLJR 491]. In this decision it was held that once the bail had been granted and bail bond executed, at a later stage, if the offence is treated as non-bailable, the applicant cannot file his application for grant of anticipatory bail. The only remedy available to him is to surrender before the concerned Court. The Court concerned will grant him bail without taking into custody, considering his conduct while on police bail and also that he has not misused the privilege of bail. 19. In case of non-bailable offences also, similar view can be taken, in case anticipatory bail was granted for a limited period till submission of the charge-sheet. Since the accused has already surrendered 5 before the Court below for grant of anticipatory bail and has executed bail bond, as such at his instance another anticipatory bail application cannot be maintainable. He will have to surrender and pray for regular bail under Section 439 of the Code of Criminal Procedure. The Court concerned, instead of taking him into custody, considering the previous order of anticipatory bail passed in his favour and also that he has not misused the privilege or his conduct is such that despite submission of charge-sheet or order taking cognizance, he is capable of granting bail, will grant him bail. In case where the anticipatory bail granted for limited period has been misused, the concerned Court will have discretion, either to grant or refuse the bail. In case of non-bailable offence, anticipatory bail, if granted for limited period, the Court concerned will pass order in similar manner as laid down in the case of Mahendra Pd. Singh (supra). In no case, second anticipatory bail application at the instance of such accused person is maintainable.” In the present case the principle laid down in the Bishundeo Sahu (supra) is not applicable since the petitioner did not surrender or executed bail bond rather learned Sessions Judge only directed for not taking any coercive steps. Hence the direction of the learned Sessions Judge to renew the prayer after submission of the charge- sheet cannot be held to be contrary to the law laid down in the case of Bishundeo Sahu (supra). Hence, the second 6 anticipatory bail application of the petitioner is maintainable after submission of the charge-sheet. So far as the grant of interim protection is concerned, in the case of Siddharam Satlingappa Mhetre (supra) the Apex Court deprecated the grant of interim anticipatory bail, paragraphs 94, 104 and 105 of the judgment read as follows : “94. The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The Court would certainly be entitled to impose conditions for the grant of bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case. 104. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail; this is contrary to the basic intention and spirit of Section 438 Cr.P.C. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit 7 under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty. 105. It is a settled legal position crystallized by the Constitution Bench of this Court in Sibbia case that the courts should not impose restrictions on the ambit and scope of Section 438 Cr.P.C. which are not envisaged by the legislature. The Court cannot rewrite the provision of the statute in the garb of interpreting it.” Applying the aforesaid principle, this Court is of the view that since the learned Sessions Judge was convinced on merits of the case on the facts available on the record and granted interim protection till submission of charge- sheet, then learned Sessions Judge should have exercised his discretion under Section 438 Cr.P.C. and could have passed the final order. Considering the aforesaid fact, let the petitioner Anita Chaudhary, in the event of her arrest or surrender in the court below, be released on bail on furnishing bail bond of Rs.10,000/- (Rupees ten thousand) with two sureties of the like amount each to the satisfaction of Special Judge, Vigilance, North Bihar, Muzaffarpur, in Muzaffarpur Town P.S.Case No. 401 of 2010, arising out of Special 8 Case No. 27 of 2010, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure. It is made clear that the petitioner will make herself available to the Investigating Agency till the completion of the investigation. It is expected from the Vigilance to inform the petitioner in advance as and when the presence of the petitioner is required. (Dinesh Kumar Singh,J.) Spal/