D.C. Gheewala, J.
1. The petitioner has sought to raise a question before this Court regarding which a very clear answer is to be found in the provisions of the Criminal Procedure Code.
2. The petitioner, who alongwith six other persons was cited as an accused for offences punishable under Sections 147, 148, 323, 324 and 504 r. w. Section 149 of the Indian Penal Code in C.R. No. 122 of 1982 of Kalol Taluka Police Station had submitted an application as per Annexure-D before the learned J.M.F.C., Kalol and prayed that he should be released on bail under Section 436 of Cr. P. Code. The learned Magistrate held that Section 436 of Cr. P. Code would not be applicable inasmuch as the accused was not brought before the court by the police nor has he been arrested by the police. The petitioner contended before me through Mr. N.K. Barot, the learned advocate that the words 'or appears' occurring in Section 436(1) should be construed in a wider sense and it would not be necessary that the accused should be brought before the court by the Police but he may himself voluntarily appear on coming to know that he is accused of a bailable offence and then the court should treat him as in custody and release him on bail. According to Mr. Barot, as soon as the accused so surrenders himself to the learned Magistrate, the learned Magistrate is legally bound to release the petitioner on bail. In short this argument is springing from an apprehension that the petitioner even though accused of a bailable offence would be arrested by the police and detained in custody for any period upto 24 hours before the Police produces him before the learned Magistrate. Mr. Barot, therefore, urged that the learned Magistrate's refusal to release the petitioner on bail, though the petitioner was prepared to offer the bail and had appeared before the Magistrate, tantamounts to a refusal to exercise jurisdiction which was vested in him and this court should, therefore, issue directions in the nature of mandamus that the learned Magistrate, who is made a party in this petition to respondent No. 2 should receive the petitioner in his custody and release him on bail.
3. In order to properly appreciate the contention of Mr. Barot, it would be necessary to reproduce Section 436(1) of Cr. P. Code.
436(1) When any person other than a person accused of a 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, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail.
xxx xxx xxxHere it would also be necessary to reproduce Section 50:
50. (1) Every Police Officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
(2) Where a Police Officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.
Thus, it would be seen that the petitioner's contention is that what the Police Officer is bound to do under Sub-section (2) of Section 50 should be done by the Magistrate under Section 436(1) of the Code, but the petitioner concedes that only one thing would be necessary to entitle the Magistrate to exercise his jurisdiction under Section 436(1) and that would be receipt of the FIR under Section 157 of the Code. According to Mr. Barot, as soon as the copy of the FIR has been received by the learned Magistrate under Section 157, irrespective of the fact as to whether the accused is produced before him by the Police or the accused surrenders voluntarily to the custody of the Magistrate, the Magistrate would be bound to release him on bail. It appears to be the contention of Mr. Barot that words 'at any stage of the proceedings' occurring in sub-section 436(1) would take in its sweep even the pre-investigation and pre-inquiry proceedings. We shall, therefore, have to see whether the receipt of the copy of the FIR under Section 157 by the learned Magistrate can be deemed as a stage of proceeding enabling the Magistrate to act under Section 436(1). It is not in dispute that the petitioner has been cited as an accused in the FIR which discloses only bailable offences. If there would have been any non-bailable offence incorporated in the complaint the question would have been simpler because then the petitioner could have approached the Court of Sessions or the High Court which could have exercised jurisdiction under Section 438 of Criminal Procedure Code and release the petitioner on Anticipatory bail.
4. The reasons recorded by the learned Magistrate for disallowing the petitioner's contention appears to be that the request of the petitioner amounted to releasing him on an Anticipatory bail and the provisions of Anticipatory bail would not be applicable to a case of bailable offence.
5. For reasons to be now recorded, I feel that the learned Magistrate was right in rejecting the prayer of the petitioner because had the Magistrate accepted the contention of the petitioner it would have amounted to holding that a mere receipt of the copy of the FIR was a stage of proceeding and that the Magistrate thereafter was supposed to do what the police are expected to do under Section 50(2) of the Code.
6. Mr. Barot, the learned Advocate for the petitioner drew my attention to a case reported at 1982 Cr. L.J. P. 209. This was a judgment by the learned single Judge of the Andhra Pradesh High Court. The learned single Judge in the said case observed as under:
when the accused persons who were concerned in a cognizable offence which was bailable, by offering to surrender before the Magistrate were willing to be taken into custody, the Magistrate could not refuse to take them into custody and on that account, reject the application for anticipatory bail filed by them. He should have accepted their surrender and passed an order remanding them if he was satisfied that it was not a case to grant them any bail.
The learned single Judge in the said case had relied upon the observations of the Supreme Court in a case reported at : 1980CriLJ426 (Niranjan Singh v. Prabhakar Rajaram Kharote). In the said case the Supreme Court was concerned with grant of bail under Section 439 of Cr. P. Code. In that connection the Supreme Court observed:
Where the accused had appeared and surrendered before the Sessions Judge, the Judge would have jurisdiction to consider the bail application as the accused would be considered to have been in custody within meaning of Section 439. Custody, in the context of Section 439, is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions.
The above observation clearly connote that the Supreme Court was concerned in the said case with the interpretation of term 'custody'. The observations made in connection with the word 'custody' and the elaboration of the said term in the context of Section 439 will have no application, to a case which falls under Section 436(1) because not only the phraseology of two sections is totally different but Section 436(1) empowers the Magistrate to exercise jurisdiction only 'at any stage of proceeding.
7. Another case upon which Mr. Barot strongly backed is one reported at 1982 Cr. L.J.P. 1334 (B. Narayanappa and Ors. v. State of Karnataka), wherein the learned Single Judge of the Karnataka High Court, analysed Section 436(1) as under:
(1) When any person other than a person accused of non-bailable offence:
(i) is arrested or detained without warrant by an officer in charge of a police station, or
(ii) (a) appears, or (b) is brought before the Court; and (2) Is prepared-
(a) at any time while in custody of such officer, or
(b) at any stage of the proceeding before such Court, to give bail, such person shall be released on bail.
The learned single Judge after analysing the said section as above, observed as under:
Where the accused appears before Court and submits to the jurisdiction of the Court and asks for bail, the surrender and the physical presence of the accused with submission to the jurisdiction and orders of the Court is judicial custody and the Magistrate, therefore, cannot reject the bail application.
The learned Judge also observed in para 6 of the judgment as under:
The word 'appears' used in Section 436 is wide enough to include voluntary appearance. There is nothing in Section 436 either to exclude voluntary appearance or to suggest that the appearance of the accused must be in obedience to a process issued by the Court.
Relying upon the above observations, Mr. Barot urged that the interpretation of Section 436 made by the learned Judge is the only interpretation which can be considered to be correct in view of the decision of the Supreme Court (supra), I have already observed that the question before the Supreme Court was entirely different. Regarding the spilting up of the section as undertaken by the learned Judge, it appears that the learned Magistrate will have jurisdiction to release the accused on bail or even to remand to the Police custody only 'at any stage of the proceeding before the said court'. Pending of the proceedings at any stage before the Court is the sine qua non of the exercise of the jurisdiction by the Magistrate. Mere receipt of the report of the Police Officer under Section 157 cannot by any stretch of imagination be equated with a stage of proceeding. In the said case before the learned single Judge, the Police had registered a case against the petitioner for offences punishable under Sections 353, 142, 153 and 324 of the I.P. Code and had sent the FIR to the court. The petitioner appeared before the Magistrate and made an application for bail as provided under Section 436 of Cr. P. Code. All the offences were bailable in the said case just as it is in the case of the present petitioner. The Magistrate refused to entertain the application of bail and rejected it on the ground that the applicants were neither arrested by the Police nor they had been summoned by the court, nor they appeared in response to any process of the court and as such they could as well be released on bail in the Police Station and any grant of bail would amount to exercising the power not vested in the court. The petitioners approached the High Court questioning the correctness of the order passed by the Magistrate. The learned single Judge observed:
When the mere physical presence before the Court with a request to grant bail amounts to custody, it is more than appearance.
In that view of the matter, he allowed the petition. Mr. N.K. Barot, vehemently urged that the facts of the said case before the learned Single Judge of the Karnataka High Court and the facts of the present case are absolutely identical and hence this court also should take the same view as was taken by the learned single Judge. With very great respect for the learned Judge, I feel that the Magistrate would get jurisdiction to release the accused on bail on his appearing before him only at any stage of the proceeding before the said court and mere receipt of the FIR would not tantamount to any proceedings before the court. Mr. Barot also urged that proceedings need not only mean judicial proceedings and for propounding this proposition he relied upon a case reported at 1953 Cr. L.J.P. 1540, (Satyahari v. The State), wherein the Division Bench of the Calcutta High Court observed in para 4 of the judgment as under:
In Section 436 the words 'proceedings before a Court' are used in wider sense and not in the restricted sense of judicial proceedings alone.
8. Mr. Barot's reliance upon the said case for propounding a proposition that receipt of the copy of the FIR should also be considered to be the stage of proceeding because the word 'proceeding' used in Section 436, is wide enough to include the proceedings other than the judicial proceedings is misplaced for the simple reason that even if the word proceedings before a court' were to be construed in a wider sense and not in the restricted sense of judicial proceeding alone then also it would be necessary to have some proceedings before the court and mere receipt of the copy of the FIR by no stretch of imagination can be equated with a stage of proceeding judicial or otherwise. It is only for the sake of giving information to the Magistrate that the Police is investigating such a case that the copy of the FIR is sent under Section 157 of the Cr. P. Code. The way in which Mr. Barot wants Section 436 to be construed cannot be indulged in unless one is prepared to perpetrate a little violence on the language used in the section. Adopting the same analysing Section 436 as done by the learned single Judge of the Karnataka High Court would also show that the main emphasis of the language is on the fact that when any person other than a person accused of a non-bailable offence, is arrested and is prepared at any stage of the proceeding before the said court to give bail such person shall be released on bail. The section enjoins a duty on the Police Officer to release such a person on bail, if he is arrested or detained without warrant by an officer in charge of a Police Station, and on the learned Magistrate if he offers a bail at any stage of proceeding before the said court. The Scheme of Section 436, therefore, appears to be that at any stage prior to the proceeding before the court, it would be the power of the officer in charge of the Police Station to release such a person on bail and if such person is not prepared to offer bail at that stage, then at a subsequent stage, he can still offer the bail before the learned Magistrate at any stage of the proceeding. The duty enjoined upon the Police also finds support from Section 50(2). Any other construction of Section 436(1) would necessarily lead to an absurd situation where two separate authorities will be exercising the same power which could not have been the legislative intent. The situations where two separate authorities can exercise the same power are not foreign to the Code, inasmuch as there are provisions which give concurrent jurisdiction to two authorities, but in case of Section 436(1) there does not appear to be the intention of the legislature to give concurrent power to the Police Officer and the Magistrate.
9. The offences with which the accused-petitioner was sought to be charged were bailable offences and when there is a statutory provision, enjoining upon the police a duty to forthwith release a person accused of a bailable offence immediately if he is prepared to offer the bail, Section 436(1) cannot be interpreted as Mr. Barot desires, it to be interpreted, for the simple reason that apprehended malignancy on the part of the Police Officer which is the basis of the present petition cannot be made a touch-stone for determining the scope of statutory provisions.
10. When the police is bound to release a person accused of a bailable offence, immediately on his signifying his desire to offer a bail, there is no question of petitioner apprehending that he will be detained for a period of 24 hours before he is produced before the Magistrate. That would tantamount to misuse of powers by the police and the petitioner can have an individual remedy against such an action.
11. Next Mr. Barot relied upon a case reported at 13 GLR P. 748, wherein the Division Bench of this Court observed as under:
The provisions of Section 436 of the Criminal Procedure Code are mandatory and the Police Officer or the court has no discretion in the matter at all. The accused has got to be released on bail the moment he is prepared to give bail. The whole question of producing the accused before a Magistrate would only arise if the accused was not prepared to give bail before the Police Officer after his arrest. But even when he is produced before the Magistrate and he is prepared to give bail, the Magistrate has no option but to release him on bail so far as bailable offence is concerned. The Police could not obtain even a person accused of a bailable offence on remand under Section 167(2) of the Criminal Procedure Code. Both these Sections 61 and 167(2) are subject to the provisions with regard to bail as clearly stated in Section 60 of the Code.
12. I fail to appreciate as to how these observations can help Mr. Barot in any way. On the contrary the above observations clearly lay down that the Police Officer has got to release a person accused of a bailable offence, the moment he is prepared to give the bail. If under the Code, a provision has been made which has been fortified by a catena of judicial decisions then it would be needless.
Mr. M.B. Shah, the learned Public Prosecutor contended that section 436(1) would give power to the Magistrate to release such an accused on bail only at some stage of the proceeding and he would get jurisdiction only after the investigation is complete, or while it is in progress and when the accused is produced before the Magistrate as he had failed to offer bail before the police.
In view of what is stated above, I feel that there is no substance in the present petition, which Requires to be rejected and is consequently rejected and the rule is discharged.