Accused Already Released On Bail Cannot Seek Anticipatory Bail Again, Must Surrender And Seek Regular Bail: Patna High Court
The Patna HC has held that an accused who has already surrendered before the Court pursuant to an order granting anticipatory bail and has been released on bail is in constructive custody of the Court, and therefore cannot subsequently seek anticipatory bail. The appropriate remedy is to surrender and seek regular bail.
A Single Judge Bench of Justice Jitendra Kumar was hearing an anticipatory bail petition filed in connection with Gaura P.S. Case No. 54 of 2024, registered under Section 384 of the Indian Penal Code.
The petitioner had earlier been granted anticipatory bail by the High Court vide order dated 02.04.2025. One of the conditions was that if he had concealed any criminal antecedent despite knowledge of the same, the Court below could cancel his bail bond.
The petitioner had three criminal antecedents, but had inadvertently failed to disclose Complaint Case No. 2274 of 2021 in his bail petition. Consequently, his bail bond was cancelled by the Court below and a non-bailable warrant was issued against him. The petitioner challenged the cancellation before the Sessions Court, but withdrew the criminal revision on 06.01.2026. He thereafter approached the High Court seeking anticipatory bail.
Counsel for the petitioner submitted that the failure to disclose the third antecedent was neither wilful nor negligent, but occurred due to inadvertence. It was also submitted that the petitioner was a Government servant and his custody could cause difficulties in his service.
The State and the informant opposed the petition on the ground that the petitioner had already surrendered before the Court below pursuant to the earlier anticipatory bail order, furnished his bail bond and had been released on bail. Therefore, he was already in constructive custody and could not seek anticipatory bail. The Court agreed with this submission. It observed:
“I agree with the submissions of learned counsel for the Informant and learned APP for the State that once the Petitioner surrenders before the Court and submits his bail bond and gets released, he is in constructive custody of the Court through his sureties, and thereafter, anticipatory bail petition of the Petitioner can not be maintainable. Here, it would be profitable to refer to binding judicial precedents.”
The Court relied upon the Supreme Court's judgment in Manish Jain v. Haryana State Pollution Control Board, (2020) 20 SCC 123, which held that a person released on bail is already in the constructive custody of law and cannot claim an apprehension of arrest so as to seek anticipatory bail.
The High Court accordingly held that the present anticipatory bail petition was not maintainable and dismissed it.
However, the Court granted the petitioner liberty to surrender before the Court below within two weeks and seek regular bail. It further requested the Court below to consider the regular bail application on the same day on which it is filed.
Appearance:
For the Petitioner: Mr. Md. Shamimul Hoda, Advocate; Mr. Anuj Kumar, Advocate
For the State: Mr. Dilip Kumar No. 1, APP
For the Informant: Mr. Narendra Kumar, Advocate; Mr. Akash Ambuj, Advocate