A person accused of a non-bailable offense has the right to surrender before a Magistrate and apply for bail, even though no process has been issued against them.

This Revisional application is directed against an order dt. 1-7-1982 in G.R. Case No. 563 of 1982 passed by the learned Sub-Divisional Judicial Magistrate, Alipurduar rejecting the prayer of the petitioners to accept their surrender in Court and release them on bail.

2. The point at issue in this case is whether when any person accused of or suspected of the commission of a non-bailable offence appears before a court other than the H.C. or Court of Session and submits himself to the jurisdiction and order of the Court and applies for bail, his surrender can be accepted and application can be considered or not by the said Court.

3. In this case it appears that a First Information Report was lodged with Police Station Falakata on 18-6-82 against the seven petitioners and some others alleging commission of offences under Secs. 147/148/149/450/424/324/302 of the Indian Penal Code and the Police registered Case No. 10 dated 18-6-1982 being G.R. Case No. 563/82 against the petitioners and others and started investigation. Thereafter the petitioners appeared before the learned Sub-Divisional Judicial Magistrate, Alipurduwar before whom the case was pending on 1-7-1982 and prayed for their release on bail after expressing their intention to surrender before the Court. The learned Magistrate by his impugned order relying on the decision in the case of Bhramar v. State of Orissa, 1981 Cri LJ 1057 (Orissa High Court) has held that as no process has been issued against the petitioners, he is not competent to accept the surrender of the petitioners and consider their application for release on bail.

4. It has been contended by the learned Advocate appearing for the petitioners that as the petitioners have been named in the First Information Report as person who have committed the alleged offences and were wanted by the Police, they are under restraint and they have the right to surrender before the learned Magistrate and pray for bail although no process has been issued against them. On the other hand, it has been submitted by the learned Advocate appearing for the State that the petitioners have no right to surrender before the learned Magistrate and apply for bail as no process has yet been issued by the Court against them.

5. In deciding the point at issue it is necessary to refer to the relevant provisions of Section 437(1) of the Cr. P.C. which reads as follows :-

"When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by the 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 appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life."

6. It is not necessary to refer to the two provisions to that Sub-Section for the purpose of this case.

7. An analysis of the aforesaid provision of Section 437(1) of the Cr. P.C. leads to the following result :

When any person accused of or suspected of the commission of any non-bailable offence applies for bail before a Court other than High Court or a court of Session in one of the four circumstances viz.

(1) when he is arrested; or

(2) when he is detained without warrant by an Officer-in-Charge of a Police Station; or

(3) when he appears; or

(4) when he is brought before a Court of registration the learned Magistrate may release him on bail but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

8. It is therefore plain that when a person accused of or suspected of the commission of a non-bailable offence appears before the learned Magistrate and applies for bail, the learned Magistrate has to consider the application. The learned single Judge of the Orissa High Court in the decision reported in 1981 Cri LJ 1057 has i