IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42200 of 2010 MAHENDRA KUMAR CHAUDHARY @ SH.MAHENDRA KUMAR CHAUDHARY S/O Late Ram Lakhan Chaudhary, R/O Village Nagdah, P.S. Arera, District Madhubani, presently working as Senior Manager, Union Bank of India, Muzaffarpur. ……….Petitioner Versus THE UNION OF INDIA (Through C.B.I.) & Ors. ……….Opposite Parties ----------- 05/- 09-02-2011 Heard learned counsel for the petitioner and Special Public Prosecutor representing the C.B.I. Earlier vide order dated 25.05.2010 passed in Cr. Misc. No. 15154 of 2010 in connection with C.B.I./ACB/Patna – RC-29 (S) – 2009, the petitioner was granted the privilege under Section 438 of the Code of Criminal Procedure till submission of charge-sheet. Undisputedly, the petitioner has availed the privilege and on execution of the bail-bond in terms of the order was released immediately after surrender before the court. On completion of investigation, charge- sheet has already been submitted giving rise to the instant application by way of second prayer made under Section 438 of the Code of Criminal Procedure. Learned counsel for the petitioner on basis of a decision of Apex Court, in a case of “Siddharam Satlingappa Mhetre versus State of Maharashtra and Others reported in (2011) 1 SCC 694, submitted that:- “Once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the 2 interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused.” On careful consideration of the decision aforementioned, I find that in spite of commanding due respect it is not applicable in the instant application. Since the privilege granted by this Court earlier has already been availed by the petitioner on surrender. Had any prayer for modification been made before availing such opportunity, position could have been different or it be a fresh application under Section 438 of the Code of Criminal Procedure. It is also brought into notice that almost similar situation like present one was under consideration before a Division Bench of this Court, in a case of “Bishundeo Sahu and Others Versus The State of Bihar and Others reported in 2011 (1) PLJR 731, where in paragraph – 19 it has been said that:- “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 before the Court below for grant of anticipatory bail and has 3 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 4 application at the instance of such accused person is maintainable.” The petitioner may avail the opportunity before the court below on stooding up on the tests provided in the manner aforesaid. Thus, in view of the above instant application by way of second application cannot be said maintainable rather for anticipatory bail. With the above observation, this application stands disposed of. Praveen/- A.F.R.. ( Akhilesh Chandra, J.)