KOTEIAWARA RAO Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The petitioners are concerned in Crime No. 168/81 relating to P.S.Addanki. It appears that the case was registered sgeinst the petitioners for an offence under Section 430 I.P.C. on the report given to the police against the petitioners that the petitioners interfered with the flow of water in an irrigation channel and committed mischief some time on or about 1-9-1981. The said offence is a cognizable offence. But it is also a bailable offence. The petitioners appeared before the Munsif Mrgistrate, Addanki, and requested the Magistrate to take them into custody. They have simultaanaously applied by a separate petition for grant of bail. The Magist ate after heating the Assistant Public Prosecutor rejected Crl. M.P. 654/81 by stating that the petitioners are not under any restraint and so refused to accept their surrender or grant bail. He observed however that if the petitioners so feel they can obtain anticipatory bail, from the Sessions Judge. The petitioners could not have moved the Sessions Judge as Section 430 is a bailable offence and not a non-bailable offence.

(2.) The short question, which arises for consideration, is whether in a case where the accused is concerned in a cognizable offence in which is bailable, he has no right to surrender before the Court and apply lor bail. The observations made by the Supreme Court in Niranjan Singh vs. Prabhakar Rajaram Kharote and others assume importance. Section 436 of the Code of Criminal Procedure provides for the riyht of a person to move for bail in all cases when a person concerned iu a bailable offence is arrested or detained without warrant by an officer in-charge of the policestation or appears 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 Comt to give bail. The circumstance that the petitioners have surrendered before !he Court and moved an application for bail indicates that they were prepared to take the risk of the Magistrate remanding them to prison and dispose of the bail application either simulianeously with the order of remand. The petitioners clesriy come under the category of persons who were prepared to place themselves under a restraint, the moment the Magistrate accepted their surrender. In the case referred to above, the Supreme Court considered the question as to when a person can be said to be in custody. They answered it by observing:

(3.) The learned Magistrate has followed the observations made by the Orissa High Court in Bhramar vs. State of Orissa. In that case, the Orissa High Court disting uished the obsenyatiens made in the Supreme Court decision refeired to above by stating that apps arance should be only pursuant to a summons issued by the court. A person can as well avoid an arrest by Police and prefer to be dealt with by the Court. I am not therefore inclined to agree with the views expressed by the Orissa High Court as they run against the observatiens made in the Supreme Court decision referred to above.