JUDGMENT :

JITENDRA KUMAR, J.

1. The present Criminal Miscellaneous Petition has been preferred by the the Petitioner for anticipatory bail in connection with Kargahar P.S. Case No. 95 of 2022, dated 15.03.2022, registered for the offences punishable under Section 147, 149, 341, 323, 324, 504 and 506 of the Indian Penal Code and the Petitioner and other co-accused were released on regular bail by the Court below. However, after investigation, charge-sheet has been submitted and cognizance has been taken against the Petitioner and other co-accused under Section 307 and other minor offences of the Indian Penal Code.

2. Hence, apprehending his arrest, the Petitioner moved anticipatory bail petition before learned Sessions Court vide A.B.P. No. 1174 of 2023. However, the petition filed by the Petitioner was rejected by learned Sessions Court vide order dated 17.08.2023 on account of serious nature of the alleged offence and direct allegation against the Petitioner. Hence, the Petitioner is before this Court seeking anticipatory bail.

3. The prosecution case as emerging from the written report is that on 11.03.2022, a Yagya was being performed in village of the Informant. At the place of Yagya, the Petitioner and other co-accused, came with lathi, danda and country made pistol in drunken condition and they assaulted Ram Bilas Paswan and his father Shyam Ji Paswan. The specific allegation against the Petitioner is that he assaulted Shyam Ji Paswan with iron rod and Ravi Paswan assaulted him by lathi.

4. As per injury report, as transpires from the order dated 17.08.2023, passed by learned Sessions Court in A.B.P. No.1174 of 2023, the victim, Shyam Ji Paswan has received two injuries viz. One lacerated wound of size about 3’’ x ¼’’ x Scalp deep over left side of the forehead and one lacerated wound of size about ½ ’’ x ¼’’ x skin deep over right side of the face and as per the supplementary injury report, one of the injuries of Shyam Ji Paswan was found to be grievous.

Submission of the Parties

5. I heard learned counsel for the petitioner and learned APP for the State.

6. Learned counsel for the Petitioner submits that petitioner is innocent and has falsely been implicated on account of enmity arising from Panchayat election of 2021.

7. He further submits that the petitioner always lives out of the State for his livelihood and he is no way involved in the alleged offence.

8. He also submits that as per the alleged facts and circumstances, offence under Section 307 IPC is not made out.

9. He further submits that after lodging of the FIR, he has already got regular bail. However, after investigation, charge-sheet has been submitted with addition of higher offence punishable under Section 307 IPC and, hence, apprehending that his bail-bond may be cancelled and he may be taken into custody by the Court, he preferred anticipatory bail petition before the Sessions Court, but the same has been rejected by the Court below and, hence, he is before this Court.

10. However, learned APP for the State vehemently opposes the prayer of the Petitioner for anticipatory bail, submitting that the present anticipatory bail petition is not maintainable in view of the Petitioner being already in constructive custody of the Court, because he had already surrendered before the Court in this case and got regular bail. Anticipatory bail petition is maintainable only when the accused is apprehending arrest and not when he is already in custody of the police or Court. The petitioner is on regular bail, hence, he is in constructive custody of the Court. Hence, the anticipatory bail petition is not maintainable.

11. I considered the submissions advanced by both the parties and perused the material on record.

Statutory Provisions and relevant Case Laws

12. Section 438 Cr.PC/Section 482 BNSS deals with the grant of anticipatory bail providing where any person has reason to belief that he may be arrested on accusation of having committed on non-bailable offence, he may apply to t