B NARAYANAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This revision is directed against the order dated 13th January, 1982, passed by the Judicial Magistrate I Class, Chintamani, whereby he has rejected the application for bail made by the petitioners. Sidlaghatta Police having registered a case in Crime No. 195/81 against the petitioners for offences under S. 353, 142, 153 and 324 of IPC, sent FIR to the Court. The petitioners appeared before the Magistrate and made the application for bail as provided under S.436 Cr.PC. All the offences ,were bailable. But 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 power not vested in the Court. The petitioners have therefore approached this Court questioning the correctness of the order passed by the Magistrate.

(2.) The contention of Mr. W. K. Joshi, learned Counsel appearing for the petitioner, is that when the accused appeared and surrendered before the Court, they placed themselves in the custody of the Court and the word 'appears' used in S. 436 Cr.PC is wide enough to include voluntary appearance and therefore the learned Magistrate was in error in rejecting the application made by the petitioner. Mr. K. H. N. Kuranga, learned High Court Government Pleader, appearing for the State, on the other hand submitted that the accused petitioners had merely appeared before the Court but they had not surrendered and, therefore, mere physical presence of the accused in the Court was not sufficient to grant bail unless they had surrendered themselves, and the Magistrate was right in rejecting the application. The learned Magistrate has referred to certain decisions in reaching the particular conclusion and observed :

(3.) There is no doubt, there has been divergent opinion regarding the expression 'appears' as used in S. 436 Cr.PC (S. 496 of Cr.PC 1898.) One view is that the word 'appears' in the context of this section, means appearance in obedience to summons or bailable warrant or in pursuance of an undertaking to appear contained in a bond executed by a person when he is arrested and released by the police ; the word does not refer to voluatary appeara nce of the accused to whom no summons or warrant has been issued or who has not undertaken so to appear. The other view Is that the word 'appearb' is wide enough to include voluntary appearance of the person accused of an offence even where no summons or warrant has been issued against him.