Patna High Court - Orders
Rambhu Manjhi @ Rambhu Majhi & Ors vs The State Of Bihar on 5 March, 2018
Author: Prabhat Kumar Jha
Bench: Prabhat Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.12516 of 2018
Arising Out of PS.Case No. -52 Year- 2014 Thana -SATHI District-
WESTCHAMPARAN(BETTIAH)
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1. Rambhu Manjhi @ Rambhu Majhi,
2. Shambhu Manjhi @ Shambhu Majhi.
3. Rampravesh Manjhi @ Rampravesh Majhi,
4. Prabhu Manjhi @ Prabhu Majhi, All four are S/o Dhodha Manjhi,
5. Lal Babu Manjhi @ Lal Babu Majhi, S/o Bhola Manjhi. All resident of
Dhobni Brita Tola, P.S.- Sathi, District- West Champaran.
.... .... Petitioner/s
Versus
1. The State of Bihar. .... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Bimlesh Kumar Pandey
For the Opposite Party/s : Mr. Sri Mukeshwar Dayal & Sanjeev Kumar
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CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR
JHA
ORAL ORDER
2 05-03-2018Heard both sides.
The petitioner apprehends his arrest in Sathi P.S. case No. 52 of 2014 for the offences punishable under Section 147, 148, 149, 341, 323, 324, 325, 308, 448, 379, 504,506 of the Indian Penal Code. Later on Section 302 of the IPC was added.
The learned counsel for the petitioners submits that petitioners were earlier granted anticipatory bail by the learned Sessions Judge vide order passed in A.B.P. No. 468 of 2014 on 05.08.2014 but the petitioners did not surrender in the court in pursuance of order dated 05.08.2014 nor furnished bail bonds as final form was submitted finding the case false against the petitioners on 16.09.2014 as there remains no apprehension of being arrested. The learned counsel for the petitioner further submits that cognizance of the offence was taken against the petitioners vide order dated 01.12.2015 thereafter summons were issued but without receiving the service report of summons the Patna High Court Cr.M isc. No.12516 of 2018 (2) dt.05-03-2018 2/3 learned court below issued non bailable warrant of arrest. It is further submitted that in the case of Bishundeo Sahu v. State of Bihar reported in 2011 (1) PLJR 731 a division bench of this court has held in paragraph 39 of the judgement that "one aspect of the matter is often confronted by us in Court is that in spite of having been granted anticipatory bail, sometimes the accused may be remanded to custody as he had not furnished the bail bond. It is expected that the courts below shall consider proceeding under Section 438(3) Cr. P. C. and act in that light in all such cases".
The learned counsel for the petitioners placing reliance on the aforesaid judgement of division bench in the case of Bishundeo Sahu v. State of Bihar (supra) submitted that according to provision as contained in Section 438(3) of Cr. P. C. the Magistrate at the first instance should have issued bailable warrant in stead of non bailable warrant but the learned Magistrate straightway issued non bailable warrant of arrest. The learned counsel for the petitioners submitted that on such facts and circumstances second anticipatory bail is maintainable.
On the basis of submission of learned counsel for the petitioners the question arises as to whether even after grant of anticipatory bail the petitioners have got right to file another anticipatory bail petition although they did not surrender or furnish bail bonds in pursuance of grant of pre arrest bail?
Sub section (3) of Section 438 of Cr. P. C. says "if such person is thereafter arrested without warrant by an officer- in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a Patna High Court Cr.M isc. No.12516 of 2018 (2) dt.05-03-2018 3/3 warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)".
On a bare perusal of sub-section (3) of Section 438 of Cr. P. C. and the finding recorded by the division bench of this court in the case of Bishundeo Sahu v. State of Bihar (supra) in the last line of paragraph 39 of judgement it is evident that in the situation if the petitioners in pursuance of grant of anticipatory bail did not surrender or furnish bail bonds but they were arrested by the police and the accused is ready to furnish bail bonds the police officer or the court shall enlarge them on bail and if the Magistrate finds sufficient material to take cognizance and to proceed against such accused the Magistrate is to issue, at the first instance, bailable warrant to procure the attendance of the accused but it does not say that even if the petitioners failed to surrender or furnish bail bonds in pursuance of the order granting anticipatory bail they shall be at liberty to move this court or before the Sessions Judge second time for grant of anticipatory bail. The petitioners knowingly and intentionally did not surrender in the court below in pursuance of the order granting them pre arrest bail or even after taking of cognizance. Therefore, I find that second anticipatory bail petition is not maintainable.
This petition is, accordingly, dismissed.
(Prabhat Kumar Jha, J) BKS/-
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