1) Heard the learned advocates appearing on behalf of the respective parties at length. The short question which is posed for consideration of this Court is whether in a case where the accused is involved in bailable offences and he applies for bail under Section 436 of the Code of Criminal Procedure and he appears and surrenders before the learned Magistrate, whether Magistrate is legally bound to release the Petitioners on ail or he has to appear and surrender before the concerned police officer and furnish the bail bond? Another incidental question which is posed for the consideration of this Court s whether mere receipt of FIR by the concerned Magistrate as required under Section 54 of the Code of Criminal Procedure would amount to proceeding before the Court so as o attract Section 436 of the Code of Criminal Procedure?
2) Mr. Barot's reliance upon the said case for propoundings 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 Code of Criminal Procedure. Therefore, the contention on behalf of the Petitioner that receipt of the copy of the FIR by the learned Magistrate should also be considered to be the "proceeding pending" before the learned Magistrate, cannot be accepted.
3) In the present case as stated herein above, no proceedings are pending before the learned Magistrate and therefore, Petitioner straightway cannot appear and surrender before the learned Magistrate and furnish the bail and request the Magistrate to release him on bail under Section 436 of the Code of Criminal Procedure. He has to appear and surrender before the police officer in charge of the police station and furnish the bail and as observed by the learned single Judge in the case of Ramesh Amritlal Chhatral (supra) and even otherwise considering Section 436 of the Code of Criminal Procedure, on giving/furnishing the bail by the accused, as required by the concerned police officer, an accused is entitled to be released on bail.
IN THE HIGH COURT OF GUJARAT
Special Criminal Application No. 2388 of 2010
Decided On: 02.12.2010
Dinesh Babulal Thakkar Vs. State of Gujarat
Hon'ble Judges/Coram:
M.R. Shah, J.
Citation: 2010 SCC OnLine Guj 13836,2011 CRLJ 1364, MANU/GJ/1459/2010
1. Shri P.K. Jani, learned Public Prosecutor waives service of notice of Rule on behalf of the Respondent. In the facts and circumstances of the case and with the consent of learned advocates appearing for respective parties, petition is taken up for final healing today.
2. By way of this petition under Article 226 of the Constitution of India, Petitioner-original accused, against whom a complaint/FIR being C.R. No. II-3067/2010 dated 31/10/2010 registered with DCB Police Station, Ahmedabad for the offences punishable under Sections 4 and 5 of the Bombay Prevention of Gambling Act and Section 66 of the Information Technology Act, 2000, has prayed for the following reliefs:
13(B) Be pleased to direct the learned Metropolitan Magistrate, Court No. 11, Ahmedabad or any other concerned Magistrate to accept the application of the Petitioner if the Petitioner approaches the learned Magistrate with an application to remain present before the Court and to release the Petitioner on bail by accepting the application of the Petitioner for bail in connection with the FIR at Annexure-'A' to this petition since the Petitioner is ready and willing to be released on bail in connection with the said FIR at Annexure-'A' to this petition, by way of issuing suitable writ, order or direction under Article 226/227 of the Constitution of India.
(C) Be pleased to grant interim direction directing the Investigating Officer of DCB Police Station, Ahmedabad not to arrest the Petitioner till this petition is finally heard and decided by this Hon'ble Court.
(D) Be pleased to grant interim direction directing the learned Metropolitan Magistrate, Court No. 11, Ahmedabad or any other concerned Magistrate to accept the application of the Petitioner if the Petitioner approaches the learned Magistrate with an application to remain present before the Court and to release the Petitioner on bail by accepting the application of the Petitioner for bail in connection with the FIR at Annexure-'A' to this petition since the Petitioner is ready and willing to be released on bail in connection with the said FIR at Annexure-'A' to this petition, till this petition is finally heard and decided by this Hon'ble Court.
3. Heard Shri N.D. Nanavaty, learned Senior Advocate appearing for the Petitioner and Shri P.K. Jani, learned Public Prosecutor at length.
4. The main relief prayed for by the Petitioner-original accused in the present petition under Article 226 of the Constitution of India is that an FIR has been lodged against the Petitioner for the offences punishable under Sections 4 and 5 of the Bombay Prevention of Gambling Act and Section 66 of the Information Technology Act, 2000 which are all bailable offences and therefore, as and when Petitioner approaches the concerned learned Magistrate and surrenders before him, the learned Magistrate may accept the said application and release the Petitioner on bail in connection with the aforesaid FIR, since the Petitioner is ready and willing to be released on bail in connection with the aforesaid FIR.
5. Shri N.D. Nanavaty, learned Senior Advocate appearing on behalf of the Petitioner has vehemently submitted that as in the case of one another co-accused i.e. Suresh Kantilal Shah, when he approached the learned Magistrate by submitting an application to release him on bail in connection with the aforesaid complaint/FIR, learned Magistrate has rejected the said application by observing that as no proceedings are pending before him, he has to appear before the concerned police station/investigating officer and furnish the bail and such an application is not maintainable and therefore, Petitioner apprehends that if the Petitioner submits similar application before the learned Magistrate, his application will be dismissed and therefore, he has straightway approached this Court for the aforesaid relief.
5.1 Shri N.D. Nanavaty, learned Senior Advocate appearing on behalf of the Petitioner has heavily relied upon Section 436 of the Code of Criminal Procedure by submitting that if a person is accused of a bailable offence, he can appear before the officer in charge of the concerned police station and furnish the bail and released on bail or he can appear straightway before the concerned Magistrate by submitting an appropriate application and furnish the bail to get released on bail. It is submitted that Petitioner is entitled to have his application for bail considered in respect of the bailable offences as per the provisions of Section 436 of the Code of Criminal Procedure. It is submitted that the Petitioner who is accused of bailable offence has a right to present himself before the concerned learned Magistrate and get himself released on bail under the provisions of Section 436 of the Code of Criminal Procedure. Shri Nanavaty, learned Senior Advocate appearing on behalf of the Petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Rasiklal v. Kisore S/o Khanchand Wadhwani reported in MANU/SC/0255/2009 : (2009) 4 SCC 446 : 2009 Cri LJ 1887, more particularly para 6 of the said decision in support of his above submission.
5.2 Shri N.D. Nanavaty learned Senior Advocate appearing on behalf of the Petitioner has also relied upon the decision of the Hon'ble Supreme Court in the case of Niranjan Singh v. Prabhakar Rajaram Kharote reported in MANU/SC/0182/1980 : 1980 (2) SCC 559 : 1980 Cri LJ 426 by submitting that even in the non-bailable offences an accused can surrender before the learned Magistrate and submit the application for bail and as held by the Hon'ble Supreme Court, the learned Magistrate may consider the same on merits. Therefore, it is submitted that in non-bailable offences, when an accused can straightway appear/surrender before the learned Magistrate and pray for bail, certainly in bailable offences accused can straightway appear before the learned Magistrate and furnish the bail and pray for releasing him on bail.
5.3 Shri Nanavaty, learned Senior Advocate appearing on behalf of the Petitioner has drawn the attention of the Court to Chapter XII of the Code of Criminal Procedure and Sections 154 to 158 of Code of Criminal Procedure by submitting that as soon as a complaint/FIR is registered before any police station, as per Section 154 of Code of Criminal Procedure, a copy of the same is required to be send to the concerned Magistrate immediately and therefore, as soon as the copy of the complaint is send to the concerned learned Magistrate, it can be said that the proceedings are pending before the learned Magistrate so as to attract provisions of Section 436 of the Code of Criminal Procedure. Therefore, it is submitted that when the proceedings can be said to have been pending before the learned Magistrate on sending the copy of the FIR to the learned Magistrate, the learned Magistrate is bound to accept the application of the accused to appear before him and to release him on bail without surrendering or appearing before the concerned investigating officer.
5.4 Shri Nanavaty, learned Senior Advocate appearing on behalf of the Petitioner has further submitted that under normal circumstances, the Petitioner would have appeared before the police in bailable offences as the police is also bound to release the accused on bail on execution of bail bond before the police. However, it is apprehended by the Petitioner that if the Petitioner appears before the concerned investigating officer, he will be ill-treated as one S.M. Chaudhary, Police Inspector of Crime Branch, Ahmedabad had visited the office of the Petitioner while investigating the FIR and the offences alleged against the Petitioner and had acted in a very high handed manner under the guise of making search at the office of the Petitioner and he has stated and told to the staff of the Petitioner at his office and staff of the Petitioner conveyed to the Petitioner to present himself in the police station and that even if comes with bail order of the Hon'ble Court, he is going to be beaten severely. It is further submitted that even the Petitioner is also apprehending that in case the Petitioner appears before the concerned investigating officer/police station, in that case, an application would be submitted for taking the Petitioner on remand/police custody, though the same is not permissible as the offences alleged against the Petitioners are all bailable offences and therefore, Petitioner wants to appear/surrender before the learned Magistrate and released on bail. It is submitted that in connection with the very FIR. one another co-accused though was charged for bailable offences and had appeared and surrendered before the investigating officer, he was taken into custody and his remand was sought and the learned Magistrate send the accused on remand/police custody for one day. It is submitted that Petitioner is, therefore, apprehending similar treatment and therefore, in the aforesaid peculiar facts and circumstances, the Petitioner wants to appear and furnish the bail before the concerned Magistrate and released on bail.
By making above submissions and relying upon above decisions, it is requested to allow the present petition and grant the relief's as prayed for.
6. Petition is vehemently opposed by Shri P.K. Jani, learned Public Prosecutor on behalf of the Respondent State. Shri P.K. Jani, learned Public Prosecutor at the outset has submitted that as the Petitioner is avoiding the criminal proceedings and is not co-operating in investigation and is avoiding to appear before the concerned investigating officer, it is requested not to entertain the present petition and exercise the discretionary jurisdiction. It is submitted that the complaint/FIR has been registered against the Petitioner as far as back on 31/10/2010 and since last more than one month the Petitioner is absconding and is not appearing before the concerned investigating officer.
6.1 It is further submitted by Shri P.K. Jani, learned Public Prosecutor that even the present petition is absolutely premature and Petitioner has not even approached and/or appeared before the learned Magistrate and has not submitted any application before the learned Magistrate for releasing him on bail. It is submitted that if such an application would have been submitted, the learned Magistrate is required to consider the same in accordance with law and considering Section 436 of Code of Criminal Procedure and if at all any decision adverse to the petition is passed by the learned Magistrate, Petitioner can very well challenge the same before the higher forum. Therefore also, it is requested not to entertain the present petition.
6.2 Shri Jani, learned Public Prosecutor has submitted that as such the controversy raised in the petition is not res integra and is squarely covered by the decision of the learned single Judge of this Court in the case of Rameshbhai Amritlal Chhatral v. State of Gujarat reported in MANU/GJ/0230/1982 : 1983 (1) GLR 531. It is submitted that in a similar set of facts and circumstances in which the accused was facing charge of bailable offences and he wanted to appear before the learned Magistrate for releasing him on bail invoking Section 436 of Criminal Procedure Code, learned single Judge has specifically held that accused has to appear before the police authority only and police authority can release him on bail. It is submitted that in the aforesaid case, the learned single Judge has specifically held that mere receipt of FIR as required under Section 154 of Code of Criminal Procedure does not amount to proceeding before the Court and therefore, accused cannot appear before the learned Magistrate straightway and request for releasing him on bail in connection with the bailable offences.
6.3 Shri P.K. Jani, learned Public Prosecutor has further submitted that as such the apprehension on the part of the Petitioner for invoking the extraordinary jurisdiction of this Court and a request to appear before the Magistrate and get him released by furnishing the bail bond are not well found and has no substance at all. It is submitted that in connection with the very FIR, other six to seven co-accused have been arrested and they were released on bail in bailable offences, however, none of them have made any complaints of any ill-treatment by the police authority. It is further submitted that even the allegations made in para 7 of the petition are hearsay. It is submitted that as such no complaint has been filed by the Petitioner before any authority with respect to the alleged threat administered by the concerned police inspector against whom the allegations are made. It is further submitted that, if after the Petitioner appears before the concerned police authority and furnishes the bail bond and at that stage if the Petitioner is of the opinion that he has been ill-treated, further remedy is always available to the Petitioner to submit appropriate application before the concerned learned Magistrate. It is submitted that considering the provisions of Section 436 of Criminal Procedure Code, Petitioner has to appear before the concerned police authority and furnish the bail bond who shall release the Petitioner on bail as the offences are bailable offences. It is submitted that however Petitioner cannot appear before the concerned Magistrate straightway and furnish the bail bond and requests the learned Magistrate to release him on bail under Section 436 of the Code of Criminal Procedure as no proceeding are pending before learned Magistrate.
6.4 It is further submitted by Shri Jani, learned Public Prosecutor that as such Petitioner is involved in not only multi-State offences but is also involved in international racket and booky and as he is avoiding appearing before the concerned police authority since long and is not co-operating even the concerned police authority, is required to approach the learned Magistrate for the appropriate order under Section 70 of the Code of Criminal Procedure and declare him absconder. Shri P.K. Jani, learned Public Prosecutor while opposing the present petition has further submitted that the case involves national and international ramification and Petitioner being the kingpin in the racket, no relief as prayed for in the present petition maybe granted. Therefore, it is requested to dismiss the present petition.
7. Now, so far as reliance placed upon the decision of learned single Judge in the case of Rameshbhai Amritlal Chhatral (supra) by the learned Public Prosecutor, Shri Nanavaty, learned Senior Advocate appearing on behalf of the Petitioner has submitted that in the case before the learned single Judge it was not argued pointing out Sections 154 to 158 of Code of Criminal Procedure that for warding the copy of the FIR to the concerned Magistrate can be said to be proceeding pending before the learned Magistrate. Therefore, it is requested to reconsider the said decision and to consider and hold that on sending the copy of the FIR to the concerned Magistrate as required under Section 154 of Criminal Procedure Code, it will amount to proceeding pending before the Court/Magistrate and therefore, Section 436 of Code of Criminal Procedure would be attracted and applicable. Making above submissions, it is requested to allow the present petition.
8. Heard the learned advocates appearing on behalf of the respective parties at length. The short question which is posed for consideration of this Court is whether in a case where the accused is involved in bailable offences and he applies for bail under Section 436 of the Code of Criminal Procedure and he appears and surrenders before the learned Magistrate, whether Magistrate is legally bound to release the Petitioners on ail or he has to appear and surrender before the concerned police officer and furnish the bail bond? Another incidental question which is posed for the consideration of this Court s whether mere receipt of FIR by the concerned Magistrate as required under Section 54 of the Code of Criminal Procedure would amount to proceeding before the Court so as o attract Section 436 of the Code of Criminal Procedure?
8.1 It is an admitted position that Petitioner is charged for the bailable offences and therefore, he is required to be released on bail by the officer in-charge of the police station provided the accused is ready to give bail as may be directed by the officer. The grant of bail to a person accused of bailable offence is governed by the provisions of Section 436 of the Code of Criminal Procedure, 1973, which reads as under:
436. In what cases bail to be taken:-(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:
Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:
Provided further that nothing in this section shall be deemed to affect the provisions of Sub-section (3) of Section 116 or Section 446A.
(2) Notwithstanding anything contained in Sub-section (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under Section 446.
8.2 On fair reading of Section 436 of the Code of Criminal Procedure, it appears that any person other than a person accused of a non-bailable offence (i.e. bailable offence) is arrested or detained without warrant by an officer in-charge of the police station or appears or is brought before the 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/accused shall be released on bail. Therefore, such an accused is required to offer the bail before the concerned police officer in-charge of a police station and for that purpose he has to appear before the officer in-charge of a police station. It appears that if an officer in-charge of a police station arrests or detains a person accused of bailable offences and that accused does not offer the bail, in that case, such an accused is required to be produced before the concerned Magistrate who is required to release such accused on bail provided he gives the bail. However, there is an exception to that procedure. If any proceedings are pending before the Magistrate against the concerned accused involving the accused in the bailable offences, in that case, such an accused can straightway appear and surrender before the learned Magistrate before whom the proceedings are pending and give bail, and in that case, learned Magistrate is bound to release such an accused on bail, however, for that purpose some proceedings are required to be pending before the concerned Magistrate.
8.3 It is the contention on behalf of the Petitioner that as considering chapter XII of the Code of Criminal Procedure, more particularly, Sections 154 to 158, an officer in-charge of the concerned police station is required to send the copy of the complaint/FIR to the concerned Magistrate immediately, and therefore, as soon as the copy of the complaint/FIR is send to the concerned Magistrate, according to the learned Counsel appearing on behalf of the Petitioner, it can be said that the proceedings are pending before the learned Magistrate. The aforesaid seems to be attractive but has no substance. Sending of the copy of the complaint/FIR to the concerned Magistrate cannot be said to be "proceeding pending" before the concerned Magistrate. Considering Section 157 of the Code of Criminal Procedure it appears that if, from information received or otherwise, an officer in-charge of a police station has reason to suspect the commission of an offence which he is empowered to by Section 156 the Code of Criminal Procedure to investigate, is required to forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and thereafter shall proceed in person, or shall depute one of his subordinate officers to investigate the case. Thus, only a report is to be send by the concerned police officer to a Magistrate before or at the time of investigating the case. Therefore, merely sending a report of information received which is reduced in writing as per Section 154 of the Code of Criminal Procedure to a Magistrate cannot be said to be a proceeding pending before him attracting "proceeding pending" under Section 436 of the Code of Criminal Procedure. Identical question came to be considered by the learned single Judge in the case of Ramesh Amritlal Chhatral (supra) and in para 8, the learned single Judge has observed and held as under:
8. Mr. Barot's reliance upon the said case for propoundings 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 Code of Criminal Procedure. 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.
Therefore, the contention on behalf of the Petitioner that receipt of the copy of the FIR by the learned Magistrate should also be considered to be the "proceeding pending" before the learned Magistrate, cannot be accepted.
8.4 Now, so far as the main issue whether in a case where the accused is charged for bailable offences and he straightway appears and surrenders before the Magistrate though no proceedings are pending before the learned Magistrate and he gives the bail, whether the Magistrate is legally bound to release such an accused on bail is concerned, the same is also directly covered by the decision of the learned single Judge in the case of Ramesh Amritlal Chhatral (supra). In the facts before the learned Single Judge also, the accused who was charged for the bailable offence wanted to appear before the learned Magistrate straightway and furnish the bail and request the learned Magistrate to release him on bail and the learned single Judge considering the provisions of the Code of Criminal Procedure did not accept the same and dismissed the said petition. Learned Counsel appearing on behalf of the Petitioner has fairly conceded that as such controversy raised in the petition is squarely covered by the decision of this Court in the case of Ramesh Amritlal Chhatral (supra), however, he has tried to submit that as chapter XII and the procedure from Sections 154 to 158 was not canvassed before the learned single Judge and therefore, he has tried to reargue the same. However, even considering para 8 of the said decision, it appears that the aforesaid is also dealt with by the learned single Judge in the aforesaid decision. It is also required to be noted that even in the said decision, the learned single Judge also considered the decision of the Hon'ble Supreme Court in the case of Niranjan Singh v. Prabhakar Rajaram Kharote reported in MANU/SC/0182/1980 : 1980 (2) SCC 559 : 1980 Cri LJ 426.
8.5 Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Rasiklal v. Kisore s/o Khanchand Wadhwani reported in MANU/SC/0255/2009 : (2009) 4 SCC 446: 2009 Cri LJ 1887 by the learned Counsel appearing on behalf of the Petitioner is concerned, on considering the facts of the case before the Hon'ble Supreme Court, the same will not be applicable to the facts of the present case and it will not be of any assistance to the Petitioner. In the case before the Hon'ble Supreme Court, the controversy and the issue at large before the Hon'ble Supreme Court was whether in a 'proceeding pending' before the learned Magistrate involving bailable offences an accused appears and surrenders before the Magistrate and furnishes the bail and the learned Magistrate releases the accused on bail, whether the complainant is required to be heard or not. To that the Hon'ble Supreme Court has observed and held that in a bailable offence as soon as the accused furnishes the bail, he is required to be released on bail and at that stage the complainant is not required to be heard. Even otherwise, it is to be noted that in the case before the Hon'ble Supreme Court, the complaint was filed before the learned Magistrate for the offence of defamation and he was charge-sheeted and in the said pending proceeding, the accused who was charge-sheeted for, the offence of defamation which is bailable offence furnished the bail and he was released on bail by the learned Magistrate. In the present case as stated herein above, no proceedings are pending before the learned Magistrate and therefore, Petitioner straightway cannot appear and surrender before the learned Magistrate and furnish the bail and request the Magistrate to release him on bail under Section 436 of the Code of Criminal Procedure. He has to appear and surrender before the police officer in charge of the police station and furnish the bail and as observed by the learned single Judge in the case of Ramesh Amritlal Chhatral (supra) and even otherwise considering Section 436 of the Code of Criminal Procedure, on giving/furnishing the bail by the accused, as required by the concerned police officer, an accused is entitled to be released on bail. Therefore, Petitioner has to first appear before the police officer in charge of the police station, furnish the bail and as soon as it appears that the accused person is prepared to give bail, such police officer is bound to release him on such terms as to bail as may appear to be reasonable.
8.6 The learned Counsel appearing on behalf of the Petitioner has also relied upon the decision of the Hon'ble Supreme Court in the case of Niranjan Singh v. Prabhakar Rajaram Kharote reported in MANU/SC/0182/1980 : 1980 (2) SCC 559 : 1980 Cri LJ 426. However, considering the aforesaid decision, the same would also not be applicable to the facts of the present case. The controversy before the Hon'ble Supreme Court in the said decision was with respect to non-bailable offences and the question was, when accused appears before the Court for non-bailable offences and he surrenders before the Court, whether it amounts to accused being in custody so as to consider the application of the accused for releasing him on bail under Section 436 of the Code of Criminal Procedure or not. The Hon'ble Supreme Court held in affirmative and observed that in such a case when accused appears before the Court and surrenders, it amounts to accused being in custody of the Court and thereafter Court can consider the application of the said accused for bail under Section 436 of the Code of Criminal Procedure. Under the circumstances, the aforesaid decision would not be of any assistance to the Petitioner.
9. Shri Nanavaty, learned Senior Advocate appearing on behalf of the Petitioner has submitted reasons for the accused straightway to appear before the learned Magistrate and not appearing before the police in charge of the concerned police station and furnish the bail by submitting that Petitioner has a reasonable apprehension that Petitioner shall not be released on bail despite he is ready and willing to offer the bail and that he will be taken in police custody and the concerned police officer may apply for remand and/or may arrest the Petitioner. On the aforesaid apprehension the procedure which is required to be followed under Section 436 of the Code of Criminal Procedure cannot be given go bye. As such the apprehension on the part of the Petitioner is not well founded. It is to be noted that with respect to the very offences other 5 to 6 co-accused came to be arrested and as soon as they furnished the bail, they were released on bail by the concerned police officer and there are no allegations of ill-treatment by any of the co-accused. As observed herein above, as soon as the accused appears/surrenders before the police officer in charge of the concerned police station and he is prepared to offer the bail in case of bailable offences, the police is bound to release the person on bail and therefore, there is no question of Petitioner apprehending that he will be detained for a period of 24 hours before he is produced before the learned Magistrate and/or that he will not be released. In case the aforesaid happens, in that case, it is always open for the Petitioner and/or accused to have an individual remedy against such an action. However, on the aforesaid apprehension, the procedure which is required to be followed under the provisions of the Code of Criminal Procedure cannot be given a go bye and/or is not required to be deviated. Even in case the accused is ill-treated, in that case also, he has an individual remedy against such an action. Under the circumstances, on the aforesaid ground of apprehension, no direction can be issued to the learned Magistrate before whom no proceedings are pending to release the Petitioner on bail in case of bailable offences without first appearing before the concerned police officer in charge of the police station and on offering the bail and without giving an opportunity to the concerned police officer to release the Petitioner on bail as per the satisfaction of the concerned police station which is reasonable.
9.1 In view of the above and for the reasons stated above, petition fails and the same deserves to be dismissed and is, accordingly, dismissed. Rule discharged.
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