K. Lahiri, J.
1. This is a reference under Section 395 of the Criminal P. C, 1973 to obtain a decision in respect of a question of law said to have arisen at the hearing of Criminal Motion No. 1 (4) of 1978 before the learned Sessions Judge, Dhubri. The question asked by the learned Judge may be fashioned thus:
Whether a Magistrate can grant bail under Section 437 of the Cr. P.C. when an accused voluntarily appears before him?
2. Intrinsic Facts: On 17-8-79, the accused persons voluntarily appeared before the Chief Judicial Magistrate, Goalpara. They were arrayed as accused m the Ejahar. They made an application for bail and surrendered to the Court. The learned Magistrate, having considered the facts and circumstances of (he case enlarged them on bail. The State preferred an application under Section 395, Cr. P.C. against the order, During the course of hearing of the Criminal Motion, the learned Sessions Judge considered that the Chief Judicial Magistrate had no jurisdiction vested in him by or under Section 437 of the Cr. P.C. to grant bail. According to the learned Judge, the Section only empowers the Court to release an accused on bail only when he 'appears' after being arrested by the police or by persons other than the police officer competent to arrest or detain the accused; voluntary appearance of an accused, neither arrested nor brought before the Court, does not confer jurisdiction on a Magistrate to grant bail. This is the view expressed by the learned Sessions Judge. According to the learned Judge, appearance of an accused on his own volition is not 'appearance', as contemplated under Section 437 of the Code. The learned Judge is of the view that voluntary appearance of an accused does not empower a Court other than the High Court or Court of Session to grant bail. Assumption of such power to exercise of jurisdiction not vested in it by law for the simple reason that the exercise of such power is exclusively vested in the High Court and the Court of Session and the learned Magistrate usurped a power not vested in him by Law. The exercise of the power, according to the learned Judge, collided with the powers vested in the High Court and the Court of Session under Section 438 of 'the Code.' The learned Judge concluded that grant of bail amounted to grant of anticipatory bail or pre-arrest bail or pre-arrest legal process which was the exclusive preserve of the High Court or the Court of Session. Other Courts cannot exercise the said power by the back door, in the garb of exercising power under Section 437 of 'the Code'. We extract the relevant portion of Section 437(1):
437. When bail may be taken in case of non-bailable offence- (1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court, other than the High Court or Court of Session he may be released on bail but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life:
Provided that the Court may direct that any person under the age of Sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail:
This is an enabling provision which permits a Magistrate to grant bail and it also confers right on the accused to ask for liberty or obtain an order of release on bail from the Court. If we paraphrase Section 437 we notice that only two groups of persons are entitled to bail. First, persons accused of any non-bailable offence, and, secondly, persons suspected of commission of such offence. Therefore, these persons have 'locus standi' to obtain bail.
3. The section assigns the authority competent to grant bail, namely, a Court other than the High Court and the Court of Session. It specifies the nature of the offence i.e. non-bailable offences. The Section also prescribes the circumstances when bail may be granted, namely, (1) when the accused has been arrested or detained without warrant by an officer-in-charge of a police station. In such circumstances production or appearance in Court is non-essential: (2) when the accused appears, or, (3) he is brought before a Court, other than the High Court or Court of Session, he may be enlarged on bail by 'the Court'. Therefore, the conditions precedent to entertain application for bail are whether the person is an accused or suspected of the commission of any offence. If the learned Magistrate finds that he is accused of an offence or is suspected of commission of a non-bailable offence, the second condition comes into play, namely, whether he is under arrest o detention without warrant by an officer-in-charge of the police station. If he is arrested or detained, the detention must be by an officer-in-charge of the police station and without any warrant. Apart from this an accused may be brought before the Court by any police officer or authority competent to arrest an accused or any person legally competent to arrest him. Therefore, in the first case the physical production of the accused before the Court is not at all necessary whereas in the case of bringing the accused before the Court requires production of his 'corpus'. This production of the accused before a Court does not depend on the own volition of the accused. It is an act of the third party. In between, there is another class or type of persons who may be enlarged on bail under Section 437, that is, person who is accused of or suspected of a commission of a non-bailable offence appears voluntarily before the Court, what he should do on 'appearance' is to make an application before the Court asking for bail. The grant of bail or refusal thereof absolutely within the discretion of the Court. His appearance in Court capacitates the Court to grant bail with condition or without condition. No sooner does he appear before the Court, the accused or the suspect surrenders to the custody of the Court. The act of appearance or surrender to the custody enables the accused to ask for bail. Such accused may be enlarged on bail by the order of the Court or the Court may straightway send the accused to jail if it does not grant bail. As such, whenever an accused appears voluntarily before the Court and surrenders to the Court he remains throughout in the custody of the Court until he is enlarged on bail. The question of granting bail to such an accused cannot arise unless he is not in custody of the Court. When an accused 'appears' and asks for bail, he must surrender to the Court and remain in custody of the Court. No such accused or suspect can ask for bail under Section 437, if he appears but does not submit to the custody of the Court. The meaning of the term 'custody' is 'physical control' or at least physical presence of the accused in Court coupled with submission to the jurisdiction and order of the Court, as explained by the Supreme Court in Niranjan Singh v. Prabhakar : 1980CriLJ426 . Their Lordships have clearly stated: 'he can be stated to be in judicial custody when he surrenders before the Court and submits to its direction'. Therefore, the term 'appears' in Section 487 means and includes voluntary appearance before the Court without intervention of any agency and the act of surrender before the Court coupled with submission to its directions. These are implicit in Section 437 of 'the Code'.
4. As such, we hold that when an accused appears and remains in the physical control of the Court or he is physically present and submits to the jurisdiction and orders of the Court, the Magistrate is empowered to grant bail to such an accused or suspect, if he is so entitled to. In the instant case, the accused appeared and surrendered to the jurisdiction of the Court,. prayed for enlargement on bail, The Magistrate was competent to grant bail. However, the learned Judge is of the view that exercise of such power collides with the exclusive power of the High Court or the Court of Session conferred on them under Section 438 of 'the Code.' The ambit and scope of Section 438 are quite distinct and separate. A direction for grant of bail to a person apprehending arrest can be made in favour of a person who apprehends arrest. No application under Section 438 can be made by a person detained or arrested by the police. The applicant need not appear in Court nor should be brought in Court. He cannot be granted bail by the Court forthwith. He can only get a direction from the Court that in the event of his arrest he may be enlarged on bail by the police. Therefore, the distinctive features are that in Section 438 - (i) the applicant need not be an accused person, (ii) he need not be brought before a court nor his personal appearance in Court is a condition precedent; he may apply without personally appearing before the Court; (iii) the1 applicant need not surrender to the physical control of the Court nor need he submit to the custody of the Court; (iv) the application must be for anticipatory bail in the event of his arrest. Therefore, on arrest no application under Section 438 is maintainable; (v) the court cannot direct that he should be released on bail forthwith. It can only make a direction that in the event of his arrest he should be released on bail. The authority to grant bail is the officer-in-charge of police station, if the applicant is wanted to be arrested without warrant, on such accusation. This extraordinary power to make direction for grant of bail cannot be exercised by the Magistrate directly or indirectly. It can only be exercised by the High Court or the Court of Session.
5. In the instant case, the accused did not ask for grant of bail apprehending arrest. The accused persons surrendered before the Court and prayed for bail Therefore, Section 438 had no application in the present case. Under these circumstances, we hold that the learned Chief Judicial Magistrate did not exercise the powers and functions under Section 438 of 'the Code.' The exercise of the powers and functions were limited within the scope of Section 437 of the 'the Code'.
6. Accordingly, we answer the question that the learned Chief Judicial Magistrate acted under Section 437 of the Code and did not exercise any power and function under Section 438. The order is revisable by the learned Sessions Judge.
7. The learned Public Prosecutor submits that our observations might be taken amiss by the Courts below. They might think that mere appearance authorises the Magistrate to grant bail in non-bailable offence. We have very clearly stated that the learned Magistrate can assume jurisdiction to entertain the application. But, while disposing such application he must act within the limitations imposed by the provisions of Section 437 of 'the Code'. It empowers the Magistrate to grant bail, but there are several restrictions imposed in it. if reasonable grounds exist for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, a Magistrate cannot grant bail unless the accused is under the age of 16 years or a woman or a sick or infirm person. However, the plea of the prosecution that the accused is wanted for the purpose of identification only cannot be a ground for refusal of bail when an accused is entitled to bail Under Section 437(1) of 'the Code'. However, we do not propose to express any opinion regarding Sub-sections (2) to (7) of Section 437 of 'the Code'.
8. Send down the records forthwith for disposal of the case in accordance with the law.