JUDGMENT :

1. Heard learned counsel the petitioners, the State and the informant.

2. The present application has been filed under section 439 of the Code of the Criminal Procedure (herein after referred to as 'the Code') directly before this Court with two fold prayers. Firstly, they may be permitted to surrender in connection with Araria Mahila PS Case No. 118 of 2016/GR No. 4200/2016 and secondly, their case may be considered for grant of bail by the High Court.

3. Stamp reporter has raised objection regarding maintainability of this application as the petitioners have not approached the Court of Sessions at the first instance.

4. Brief facts giving rise to the instant case is that on the written statement of one Chabidas, Araria Mahila PS Case No. 118 of 2016/GR No. 4200/2016 was registered to the effect that on 19.12.2026 at about 2 pm while she was at the Polytechnic Chauk, Purnea waiting to catch a bus for Farbisganj, suddenly, petitioners and one other unknown person came there on Safari vehicle and offered her lift. She further alleged that as the petitioners were known to her, she boarded their vehicle, whereupon they took her to a lonely place and committed gang rape on her. Police after investigation finding the case to be false, submitted final form. However, the learned Sub Divisional Judicial Magistrate, Araria, after perusal of the materials available on the record, differed with the same, and took cognizance of the offence punishable under section 376D of the Indian Penal Code vide order dated 22.11.2017 (Annexure 4) and issued summons to the accused persons. It appears that these petitioners did not respond to the summons issued by the Magistrate concerned leading to the issuance of non bailable warrant against them and when even these steps proved ineffective these petitioners were declared proclaimed offender under section 82 of the Code only thereafter these petitioners filed anticipatory bail application vide Cr.Misc. No. 41559 of 2018 which was disposed of by a co-ordinate bench of this Court vide order dated 8.8.2018.

5. Learned counsel for the petitioners submits that the petitioners have directly approached this Court in the light of judgment of the Hon'ble Supreme Court rendered in case of Sundeep Kumar Bafna Vs. State of Maharashtra and another, reported in (2014) 16 SCC 623. He submits that there is an option and right to the accused to select either the Sessions Court or the High Court for making an application for pleading bail, as such their application is maintainable and it cannot be dismissed on the ground that the petitions have not moved before the Sessions Court at the first instance. On merits, he submits that the petitioners have falsely been implicated in this case on the ground that brother of the informant was an accused in the murder of brother of the petitioner no.1 in which he has been convicted.

6. Learned counsel for the informant as well as the State oppose the prayer of the petitioners. They submit that it is a case of gang rape in which these petitioners and their associate are alleged to have committed rape on the informant. Offence has been committed on 19.12.2016 and anticipatory bail of petitioners was disposed of by a co-ordinate bench of this Court vide order dated 8.8.2018, passed in Cr.Misc.No. 41559 of 2018 with direction to them to surrender and seek regular bail. As the petitioners were evading appearance, non bailable warrant was issued by the court of the Sub Divisional Judicial Magistrate, Araria vide order dated 22.9.2018. Processes of sections 82 and 83 of the Code were also issued by the Court below vide orders dated 28.3.2019 and 14.8.2019 for compelling the attendance of the petitioners. Learned counsel further contended that after lapse of two years of rejection of the anticipatory bail application, petitioners have approached this Court for bail and there is no explanation for the delay in this regard. Moreover, in the entire application no reason has been assign