BISHNUDEO SAHU Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE primal issue involved in these two cases filed under section 438 Cr.P.C. is as to whether once an accused surrenders to the jurisdiction of the court after grant of anticipatory bail for a limited period, or has been taken into police custody, can invoke the jurisdiction of the court of Session or the High Court for grant of anticipatory bail for the second time?

(2.) FOR the purpose of consideration of the main issue involved in these two cases brief facts are required to be noticed. The petitioner in Cr. Misc. No. 1257 of 2010 is an accused in connection with Khagaria Rail P.S. Case no. 5 of 2008 dated 21.1.2008 registered under sections 382, 120B , 379, 411 of the Indian Penal Code. Though the petitioner is not named in the FIR as an accused, but during course of investigation, it transpired that he is involved in sale of stolen railway property. The allegation was denied by the petitioner and it was claimed that he deals in Kabari (scraps) .Taking into consideration the aforesaid facts, the learned Sessions Judge, Khagaria, by his order dated 16.2. 2008 passed in A.B. No. 36 of 2008 vide Annexure-2 to the petition, was pleased to grant him anticipatory bail till conclusion of the investigation of the case. However, on close of investigation police submitted charge sheet against the petitioner and accordingly cognizance has been taken in the case. When the petitioner moved again for grant of anticipatory bail, then by the impugned order dated 14.10.2009 passed in A.B.P. No. 228 of 2009 learned Sessions Judge, Khagaria by placing reliance on the judgment of the Apex Court reported in A.I.R. 1996 SC 1042 : (1996) 1 SCC 667( Salauddin Abdul Samad Shaikh v. State of Maharashtra) and the judgment report in (2004) 7 SCC 558 (Nirmaljeet Kaur v. State of M.P. and another), has rejected the same as not maintainable. Being aggrieved by the aforesaid order the petitioner has moved before this Court for grant of anticipatory bail.

(3.) LEARNED counsel appearing for the petitioners submitted that learned Sessions Judge has erred in law by holding that petition filed by the petitioners for grant of anticipatory bail for the second time was not maintainable, as the previous orders granting them anticipatory bail were for a limited period till submission of the charge sheet. Strong reliance was placed on paragraph- 10 of a judgment of learned single Judge of this Court in the case of Anirudh Pd. @ Sadhu Yadav v. State of Bihar, reported in 2006 (2) PLJR 676 and it was submitted that even if previous anticipatory bail order was for a limited period till submission of the charge sheet, then after submission of charge sheet, the petitioners are entitled to invoke the jurisdiction under section 438 Cr.P.C. for second time and, therefore, it was submitted that petition filed on their behalf was maintainable. In support of their contention reliance was also placed on a judgment of the Apex Court in the case of Bharat Choudhary and another v. State of Bihar and another, reported in (2003) 8 SCC 77 = 2003 (4) PLJR (SC) 217.