Whether mere receipt of FIR by the concerned Magistrate as required under Section 154 of the Code of Criminal Procedure would amount to proceeding before the court?

Whether mere receipt of FIR by the concerned Magistrate as required under Section 154 of the Code of Criminal Procedure would amount to proceeding before the court?

DINESH BABULAU THAKKAR ALIAS DINESH KALGI

Vs.

STATE OF GUJARAT

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.

Para 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 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.

Para 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 the such court to give bail, such person / accused shall be released on bail. Therefore, such an accused is required to offer bail before the concerned officer in charge of the police station and for that purpose he has to appear before the officer in charge of the police station. It appears that if an officer in charge of the police station arrests or detains a person accused of bailable offences and accused does not offer the bail, in that case, such an accused is required to be produced before the concerned Magistrate who is require to release such accused on bail provided he gives the bail.

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