IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42072 of 2010 1. VISHWANATH SINGH swon of late Ram lakhan Singh 2. Lala Kumar son of Vishwanath Singh. Both are resident of village-Sorawork, P.S. –Kasma, District- Aurangabad (Bihar) .....petitioners. Versus THE STATE OF BIHAR O.P. ----------- 2 26.11.2010 Heard the parties. The petitioners apprehend their arrest in a criminal prosecution originally registered under sections 147, 341, 323, 504 of the Indian Penal Code as also under section 3(1) of the SC & ST (POA) Act. Learned counsel for the petitioners submits that during the course of investigation the prosecution allegations were not supported by the independent witnesses and on close of investigation police submitted charge sheet only under section 504 of Indian Penal Code. However learned Magistrate disagreed with the police report and has taken cognizance for various offences, for which originally F.I.R. (Annexure 1) was lodged. It is further submitted that since the police found the case true for a bailable offence under section 504 of the Indian Penal Code, therefore, the petitioners were granted bail by the police in terms of section 436 (1) Cr. P.C. and there is no allegation that petitioners misused the privilege of bail granted by the police. It is well settled that once the accused person either surrenders in the Court below or is taken into police custody, then his/her prayer for anticipatory bail under section 438 Cr.P.C. is not maintainable. In similar circumstances this court had occasion to 2 consider similar prayer in the case of Mahendra Prasad Singh Vs. The State of Bihar, reported in 2004 (3) PLJR 491 as also in the case of Jagnarayan Yadav @ Babajee Yadav & others V. State of Bihar, reported in 2010(2) PLJR, 684,wherein it has been held that prayer for anticipatory bail in the circumstances set forth above is not maintainable. However, it has been observed in those cases that once accused persons surrender in the Court below and make a prayer for regular bail, then the same has to be considered sympathetically, if such accused has not misused the privilege of bail granted to him. In the aforesaid facts and circumstances, the petitioners are directed to surrender in the court below in connection with Kasma P.S. Case No. 33/06 pending in the court of C.J.M, Aurangabad within a period of four weeks from today and seek regular bail. If, such a prayer is made, then the same should be considered and disposed of preferably on the same day in the light of the observations and directions in those two cases referred to above. Let the order be communicated through FAX at the cost of the petitioners. M.Rahman ( Birendra Prasad Verma, J )