JUDGMENT Nure Alam Chowdhury, J.: This application for bail u/s. 439 of the Code of Criminal Procedure on behalf of the petitioner Bishwayjet Tewari @ Biswajit Tewari is directed for his release on bail in connection with section (Beniapukur) P.S. case No. 196 dated 14.6.98 u/ss. 420/406/120B of the I.P.C. 2. The aforesaid case was registered by order dated 8.6.98 of the Ld. A.C.J.M. Sealdah in a petition of complaint registered as C-297/98 by one Zafar Ali before the Ld. A.C.J.M. praying for sending the petition of complaint alleging the commission of offenees u/ss. 420/406/120B I.P.C. by the accused persons (1) Zanita Zafar @ Tapashi (2) Smt. Sandhya Das (3) Smt. Tararani Das (4) Premchand Chowdhury and Bishajit Tewari (petitioner herein) named therein for investigation u/s. 156(3) of the Cr.P.C. and the Ld. A.C.J.M. by the said order directed of O/C. Beniapukur P.S. for investigation u/s. 156(3) Cr.P.C. after treating the complaint as F.I.R. 3. By order dated 5.8.98 in Cr. Mise. Case No. 2406 of 1998, of the Ld. Sessions Judge, Alipore, South 24 Paraganas on an application for anticipatory bail filed by the petitioner along with two other accused persons Sandhya Das and Tararani Das in connection with the said case, disposed of the said application by directing the petitioners to take steps by 20.8.98 and further directing that in the event of arrest the petitioners may find bail of Rs. 10001- with two sureties of Rs. 500/- each subject to the conditions enumerated in clauses (i), (ii). (iii) of section 438(2) Cr.P.C. It was recorded in that order that C.D. was not produced. 4. It appeal's that thereafter on 7.8.98 the petitioner along with the aforesaid two other accused persons went to surrender before the Court of the A.C.J.M. called for the C.D. and fixed 10.8.98 for disposing of the application for bail. 5. On 10.8.98, C.D. was produced and the I.O. prayed for P.C. for 14 days and for permission for retaining the seized articles in P.S. Malkhana till disposal of the case. The Ld. AC.J.M. in this order observed that more than twenty lakhs of rupees is involved in his case for the intervention, transaction of leather goods and there are sufficient materials in the C.D. for the custodial detention of the accused persons for whom the prayer for bail has been made before him. The Ld. The Ld. AC.J.M. in this order observed that more than twenty lakhs of rupees is involved in his case for the intervention, transaction of leather goods and there are sufficient materials in the C.D. for the custodial detention of the accused persons for whom the prayer for bail has been made before him. The Ld. A.C.J.M. further observed that he was of candid opinion on perusal of the C.D. which was not produced before the Ld. Sessions Judge that for the purpose of proper and fair investigation police custody of the accused persons particularly their custodial interrogation was highly necessary to unearth the truth and in view of that position and circumstances he liked to take custody of the accused persons but in compliance with the direction of the decision of K.L. Verma’s case the decision was subject to the confirmation by the Higher Court and fixed 17.8.98 for further order, awaiting the receipt of order from higher court. 6. Thereafter the petitioner along with the said other accused persons filed an application for bail before the Ld. Sessions Judge at Alipore and the Ld. Sessions Judge by order dated 31.8.98 in Cr. Mise. Case No. 26531 98 rejected the prayer for bail of the petitioner holding that when the prayer u/s. 438 Cr.P.C. was considered by him, C.D. was not produced and on that day on perusal of the C.D. he found that there are sufficient material against the petitioner No. I (petitioner herein) which indicate that he is responsible for the offence and for that circumstances the prayer for bail of the petitioner in this instant application was rejected but the prayer for bail of the other two accused persons was allowed and they were granted bail by the Ld. Sessions, Judge. 7. Although the prayer for bail of the petitioner was rejected by the Ld. Sessions Judge, the petitioner, without surrendering before the Ld. A.C.J.M. or being arrested or being in custody has filed this application for bail u/s. 439 Cr.P.C. in this Hon'ble Court and prays for bail. 8. Mr. Sudipta Maitra, Ld. Additional Public Prosecutor appearing on behalf of the State raised preliminary objection regarding maintainability of this application in this court without surrendering or being arrested or in custody as the anticipatory bail was granted to the petitioner by the Ld. 8. Mr. Sudipta Maitra, Ld. Additional Public Prosecutor appearing on behalf of the State raised preliminary objection regarding maintainability of this application in this court without surrendering or being arrested or in custody as the anticipatory bail was granted to the petitioner by the Ld. Sessions Judge and the prayer for bail of the petitioner being rejected by the Ld. Sessions Judge (higher court), the petitioner's application for bail is not maintainable in this court unless the petitioner is in custody in view of the decision in K.L. Verma's case reported in 1997 C. Cr. L.R. (SC) 88. 9. Mr. Sekhar Basu, Ld. Advocate appearing on behalf of the petitioner submitted that the custody of the petitioner cannot be a precondition for the maintainability of the application for bail of the petitioner in this Hon'ble court and he cited a number of decisions in support of his submission reported in 1998 (1) CWN 88 (Manish Bhowmik vs. State of West Bengal) (2) AIR 1976 SC 2433 (Union of India & Anr. vs. K.S. Subramonian,) Head note “A”, (3) 1995 AIR SCW 3014 (Buta Singh vs. Union of India) (4) AIR 1980 SC 1632 (Gurbaksh Singh vs. State of Punjb (5) 1997 C. Cr.L.R. (SC) 88 (K.L. Verma vs. State) (6) 1997 C. CR.L.R. (SC) 92 (Central Bureau of Investigation vs. Subodh Kumar Dutta & Anr.) and (7) 1987 C. Cr.L.R. (Cal) 346. 10. After considering the submissions on behalf of the petitioner and the State and the ratios of the decisions referred to above this court is of the view that after rejection of the prayer for bail of the petitioner by the ld. Sessions Judge (higher court) granting anticipatory bail to the petitioner, the instant application for bail of the petitioner is not maintainable in this court unless the petitioner is in custody. 11. The Apex court in Gurbaksh Singh's case (supra) (para 7) has laid down the distinction between an ordinary bail stating that the distinction between an ordinary order of bail and. an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and therefore effective at the very moment of arrest. 12. an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and therefore effective at the very moment of arrest. 12. In the light of the aforesaid observation of the Apex court in the facts and circumstances of the case this court has no hesitation in holding that the instant application is not maintainable in law as the petitioner is not in custody and as such is liable to be dismissed. 13. The application therefore stands disposed of. 14. The case-diary be returned to the Ld. Additional Public Prosecutor, High Court, Calcutta. Appeal dismissed