Q. Whether an accused can straightway appear or surrender before Magistrate and furnish bail in case of bailable offences registered with police?
Ans: According to Sec.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 custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail:
On bare reading of the provision itself, it is obvious that a person accused of a bailable offence shall be released on bail by an officer in charge of a police station when he/she appears before him and is prepared to furnish bail at any time while in custody. Such person shall be released on bail by the court when he/she is brought before the court or at any stage of the proceeding before such court. Therefore, it becomes clear that such person shall be released on bail by a court only when (1) he/she is brought before the court or (2) at any stage of the proceeding before such court. If, such person surrenders before court immediately after filing of FIR, it cannot be said that he/she is brought before the court or there is any proceeding before the court and so, in such circumstances, the court is not obliged to entertain his bail application.
In case of DINESH BABULAL THAKKAR V. STATE OF GUJARAT- reported in 2011 (3) GLR 2291, the question before Court was………….
“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 bail 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 to attract Section 436 of the Code of Criminal Procedure?”
In respect of the aforesaid question, Hon’ble Court answered……
“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.”
“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.”