IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.40630 of 2011 1. Upendra Jaiswal @ Upendra Pd. Jaiswal, son of Late Yogendra Prasad Jaiswal 2. Indu Jaiswal, W/o - Upendra Jaiswal 3. Vinay Jaiswal, son of Upendra Jaiswal All are resident of Mohalla – Diamond harbour Road Sri Ram Timber Industries, P.S. – Behala; District – Kolkata – 700 034. ---------Petitioners. Versus 1. The State of Bihar 2. Amrita Kumari @ Amrita Jaiswal, W/o – Vijay Jaiswal, D/o - Late Jawahar Lal Jaiswal, resident of Mohalla – Diamond harbour Road Sri Ram Timber Industries, P.S. – Behala; District – Kolkata – 700 034, at present C/o – Kamlesh Jaiswal, Bagwati Kirana Bajar Road, Village – Ghorasahan, P.S. – Ghorasahan, District – East Champaran. -------Opposite Parties. ******* 02. 09.12.2011 Heard learned counsel for the petitioners, learned counsel for the complainant and learned Additional Public Prosecutor for the State. The three petitioners, apprehending their arrest in connection with Tr. No. 2388/2011 arising out of Complaint Case No. 1030/2010 for offences under Section 498(A) and 3/4 of the D.P. Act, pending in the court of Sub-Divisional Judicial Magistrate, Sikarahama at Motihari, are named accused in this case being in-laws of the complainant with allegation of demand of dowry, torture etc. Submission is that on non-bailable warrant issued from the court concerned, the police apprehended them at Kolkata and produced before the local court seeking transit remand, where on the prayer they were released on bail with a liberty to surrender before the appropriate court at Motihari by the dates fixed. But, the time so granted was twice extended and lastly by way of last chance they have been directed to surrender by 12.12.2011, but instead of doing so, they sought privilege under Section 438 of the Code of Criminal Procedure along with another co-named accused Minni Jaiswal, daughter of petitioner no. 1 & 2 and sister of petitioner no. 3. But, learned Sessions Judge, by impugned order, dated 21.09.2011 passed in ABP No. 965/2011 granted privilege to Minni Jaiswal, but refused to grant such privilege to the petitioners on the ground that since they were earlier apprehended and released on bail their prayer for anticipatory bail is not maintainable and they are directed to surrender before the court. Further submission is that in spite of such apprehension and conditional release on bail, petitioners are entitled for the privilege under Section 438 of the Code of Criminal Procedure in support reliance is placed on one Single Bench order of this court dated 15.06.2011 passed in Cr. Misc. No. 18605/2011, produced as annexure – 2. But, in fact the above decision is not at all applicable in the instant case, the same was a different matter and point relating to earlier grant of bail to the required accused by police finding the case for minor offence, but subsequently cognizance being taken for graver offences and accordingly the effect of earlier privilege granted to the relevant persons. Once any accused surrenders before the court and released on bail even provisional or on any condition he is to abide by the conditions and seek his remedy of regular only on surrender but not in any way apprehending his arrest. Since, there is no scope left for application of Section 438 of the Code of Criminal Procedure in the instant case, this application stands disposed of. However, petitioners are at liberty to surrender before the court below within stipulated period i.e. 12.12.2011 or latest by 15th December 2011 and seek regular bail where their prayer may be considered on its own merit including the fact that one of the co-accused Minni Jaiswal has been granted privilege of anticipatory bail by learned Sessions Judge. Let a copy of this order be communicated to the court below through Fax at the cost of the petitioners. Rajeev/- ( Akhilesh Chandra, J.)