1. Heard the parties.

2. Petitioners apprehend their arrest in a case under Ss. 448, 341, 323, 307, 504/34 of the Indian Penal Code on the allegation that they assaulted the informant and others with Farsa, Lathi etc. on account of some land dispute.

3. It is submitted on behalf of the petitioners that the informant and his son got simple injuries and the police during investigation found the case to the true only under bailable sections of the Penal Code and as such granted bail to the petitioners and submitted chargesheet under Ss. 341, 323, 504 of the Indian Penal Code, however, learned Magistrate took cognizance of the offence also u/s. 307 of the Indian Penal Code which is non bailable and issued summons to the accused petitioners for appearance. Learned counsel for the petitioners submitted that there is a counter version of the occurrence also reported to the police by petitioner namely, Shivchandra Singh on 26.12.2000 is Sadar Hospital, Hajipur which led to registration of Hazipur P.S. Case No. 273 of 2000 under Ss. 325, 307 and 379 of the Indian Penal Code. In the counter case it is alleged that the prosecution side came armed with Farsa and country made pistol and assaulted petitioner no. 1 by Farsa on his head. They also assaulted his wife. In the counter case filed by the petitioner chargesheet was submitted and cognizance was also taken.

4. It appears that the petitioners twice moved the learned Sessions Judge for anticipatory bail which were rejected, (sic) vain. He submits that this case is covered by a decisions of this court held in the case of Mahendra Prasad Singh V/s. The State of Bihar, 2004 3 PLJR 491. Learned counsel further submits that the impugned order would show that no sum-mons was served upon them and there is nothing on record of the case to show that the same was served upon them.

5. Learned counsel for the informant submitted that the observations made by this court in the case of Mahendra Prasad Singh would be applicable in this case. He submitted that summons were issued way back on 21.6.2002 for appearance of the petitioners. He furthers submits that the petitioners had full knowledge of the proceedings of the case as they had moved twice for anticipatory bail which had been rejected with observation to surrender within fifteen days from the date of that order. He further submits that processes u/s. 82 of the Code of Criminal Procedure had also been issued on 16.4.2004 which had not been complied with by the accused petitioners, subsequent to which on 22.6.2006 order of attachment was passed Learned counsel submits that as per provision of Sec. 346(1) of the Code of Criminal Procedure, any person accused of bailable offence, may be granted bail by police or by court and he has to comply with direction to answer charge and sub-sec. 2 provides that notwithstanding anything contained in sub-sec. (1) where a person has failed to comply with the conditions of bail bond as regards the time and place of attendance, the court may refuse to release him on bail. Learned counsel also submits that if the petitioners would have appeared soon after issuance of summons in the year, 2002 they would have been given the privilege of observations made in the case of Mahendra Prasad Singh.

6. It is well settled that in anticipatory bail application is not maintainable on behalf of the persons who have also been allowed police bail or bail by a Magistrate. The above view has been reiterated in the case of Mahendra Prasad Singh that a person who has been apprehended and allowed bail cannot have any further apprehension of arrest in same cases. However, this Court observed that a person who has be allowed such bail by police would not been denied such privilege on appearance after taking of cognizance unless there is allegation of misuse etc.

7. Learned counsel for the petitioners submitted that the misuse would arise only if there is breach in terms and conditions of bail by the person or an accused. He s