An application for anticipatory bail cannot be entertained when the case was initially for non-bailable offences and the petitioner was taken into custody and then released on bail by the police.

1. Heard learned counsel for the petitioner and learned counsel for the State.

2. It appears from the impugned order of the Sessions Court that petitioners prayer for anticipatory bail U/S 438 of the Cr. P.C. was rejected on the ground that it is not maintainable because according to the FIR a case U/Ss-364, 323, 307/34 of the IPC which are non-bailable offences, was instituted against the accused persons including the petitioner and it further appears that in course of the investigation petitioner was taken into custody by the police and then granted benefit of police bail under the provisions of Section 437(2) of the Cr. P.C.

3. On behalf of the petitioner it has been submitted that after investigation police submitted chargesheet only for bailable offences and the learned Magistrate has differed with the opinion of the police and taken cognizance also for non-bailable offences and hence petitioner has apprehended danger of arrest and custody and therefore anticipatory bail application should be entertained by the Court under the provisions of Section 438 Cr. P.C.

4. On considering the relevant provision in the Code of Criminal Procedures, this Court is of the opinion that had the FIR been only for bailable offences and had the petitioner been granted benefit of bail by the police for bailable offences only under the provisions of Section 436 of the Cr. P.C. the matter could have stood on different footing. On account of offence being treated as non-bailable at the later stage due to subsequent developments, may be an application for anticipatory bail could have been found maintainable. However, in the present case which is falling for consideration this Court is of the view that since the case was initially for non-bailable offences wherein the petitioner was taken into custody and then released on bail by the police, an application for anticipatory bail on the ground that he has an apprehension of arrest in the same case cannot be held to be maintainable.

5. In the facts of the case, petitioner must honour the terms of police bail and appear before the Court without any delay. In case, petitioner appears before the Court below within six weeks then the Court below shall consider his prayer for bail in accordance with law keeping in view the well established principle that a person who is already on bail shall not be denied such privilege unless there is any allegations of misuse etc. With this observation this application for anticipatory bail is disposed of.