IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.18268 OF 2009 RAMASHRAY SINGH @ RAMASHRAI SINGH, S/O LATE NOUJADIK SINGH, R/O VILLAGE POTHAHI, P.S. PUNPUN DISTRICT PATNA. ……………………INFORMANT/PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.MRITUNJAY KUMAR @ GUDDU KUMAR S/O SRI RABINDRA SINGH, R/O VILLAE KAMALPURA, P.S PUNPUN, DISTRICT PATNA PRESENTLY RESIDING AT VILLAGE POTHAHI, P.S PUNPUN, DISTRICT PATNA. …………………OPPOSITE PARTIES. ---------- 03/ 27.07.2011 Having heard Mr. D.K. Sinha, learned counsel for the petitioner and learned counsel for the State and opposite party no. 2 in the matter of cancellation of the anticipatory bail granted to the opposite party no. 2 this court is of the considered opinion that the prayer for anticipatory bail of the opposite party no. 2 was allowed by the District and Sessions Judge, Patna in his order dated 11.03.2008 in Bail Petition NO. 1403 of 2006, on a misconceived notion created on account of suppression of fact made by the opposite party no. 2. It is not in doubt that the petitioner was made accused in Punpun P.s Case NO. 13 of 2008 for the offences punishable under sections 341, 323, 307/34 2 of the Indian Penal Code and also under section 27 of the Arms Act and he being injured was forwarded for his treatment under police custody to the Patna Medical College Hospital. This forwarding of the opposite party no. 2 under police custody was duly and immediately informed by the Inivestigating Officer by filing an application in the Court below as is also recorded in the ordersheet dated 25.02.2008. The petitioner, therefore, being in police custody and undergoing treatment in the Patna Medical College Hospital could not have claimed in his application for anticipatory bail that he had not been arrested in any case. Therefore, his anticipatory bail treating the opposite party no. 2 to be not in police custody could not have been either entertained much less allowed by the District and Session Judge, Patna. Learned counsel for the opposite party no. 2, however, has laid stress that the date of forwarding of opposite party no. 2 to the Court would be 15.03.2008(Annexure-4), inasmuch as, it was 3 only on that day the petitioner was produced by the police in the Court. Counsel for the opposite party no. 2 submits that since by that period the opposite party no. 2 had already been granted anticipatory bail by order dated 11.03.2008 in Anticipatory Bail Petition no. 1403 of 2008 by the Court of District & Sessions Judge, Patna, the grant of anticipatory bail could not be questioned by the petitioner by filing an application for cancellation. He has also relied on certain observations made in the impugned order dated 21.02.2009 rejecting the prayer for cancellation of anticipatory bail by the District & Sessions Judge, Patna. In the considered opinion of this Court, opposite party no. 2 cannot be allowed to blow hot and cold in the same breath. The opposite party no. 2 was made accused in a cognizable offence including the offence under section 307 of the Indian Penal Code and under section 27 of the Arms Act. The non production of the opposite party no. 2 on the first date along with the First Information Report was duly 4 explained by the prosecution by filing an application that since opposite party no. 2 required immediate treatment on account of his bleeding injury in Patna Medical College Hospital, he had been sent for such treatment under police custody. The moment the opposite party no. 2 was sent under police custody for treatment to P.M.C.H. he would be deemed to have been arrested by the police. As a matter of fact, the very production of the Opposite Party no. 2 in the Court on 15.03.2008 under police custody would be again reflective of the fact that opposite party no. 2 continued in police custody from 26.02.2008 to 15.03.2008 and therefore, if the opposite party no. 2 had made a false statement in his anticipatory bail application suppressing his fact of being in police custody and obtained anticipatory bail the same ought to have been cancelled by the District & Sessions Judge, Patna. This Court fail to understand the approach of the District & Sessions Judge, Patna referring to the order dated 15.03.2008. It had to be kept in mind by 5 the District Judge that there was an application filed by the investigating officer on 25.02.2008 informing as with regard to opposite party no. 2 being sent for treatment to P.M.C.H. in police custody. In that view of the matter reliance could not have been placed in isolation of the order of the Court below dated 15.03.2008 without referring to the application of prosecution for medical treatment of opposite party no. 2 dated 26.2.2008 in police custody which itself established the factum of arrest of opposite party no. 2 by the police on 26.2.2008. The opposite party no. 2 infact was not entitled to be granted anticipatory bail and consequently his release on bail by the Court below in terms of the order of the District & Sessions Judge dated 11.03.2008 in Anticipatory Bail Petition NO. 1403 of 2008 was also illegal. Consequently, this application is allowed and the anticipatory bail granted to the opposite party no. 2 by the District and Session Judge, Patna is hereby cancelled. The opposite pay no. 2 is 6 directed to surrender before the court below within a period of four weeks from today. The Court below, however, will immediately consider the prayer for grant of regular bail of the opposite party no. 2 and would dispose of on the same day. If the court below is satisfied that the opposite party no. 2 had sustained fire arm injury in the same transaction as alleged in counter case filed by him, he may also be released on bail. With the aforesaid observation and direction this application is disposed of. Ranjan (Mihir Kumar Jha, J.)