IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.42514 of 2011 Bikram Kumar Mehta @ Bikram Mehta, Son of Sri Kishori Mehta, resident of village-Lalpur, P.S.-Birpur, District-Supaul. Versus The State of Bihar ------------- 2 14.12.2011 Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State. The petitioner seeks bail in connection with a case registered for the offence punishable under Sections 279, 337, 338, 304A and 427 of the Indian Penal Code. It is stated that the offence alleged are all bailable in nature. The petitioner was apprehended by the police on the date of occurrence itself. He was produced before the learned Sub-Divisional Judicial Magistrate, Birpur, who sent him to custody. His prayer for bail was rejected by the learned Sub-Divisional Judicial Magistrate, Birpur. Thereafter, he moved before the Sessions Court and by order dated 21.11.2011 the learned Additional Sessions Judge-II, Supaul rejected his application for bail considering the offence to be serious in nature. It appears from the order impugned that the petitioner had pleaded his innocence and false implication in the case. Further contention on behalf of the petitioner is that on conclusion of investigation the police has submitted charge sheet in the case under the Sections which are all bailable in nature. The learned Magistrate has taken cognizance of the offences which too are all bailable in nature. As is evident, the petitioner is being tried for the alleged commission of offences punishable under Section 279, 337, 338, 2 304A and 427 of the Indian Penal Code. Admittedly, all the offences are bailable. The grant of bail to a person accused of a bailable offence is governed by the provisions of Section 436 of the Code of Criminal Procedure, 1973. The said Section reads as under:- “436. In what cases bail to be taken- (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 the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Explanation-Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purpose of this proviso: Provided further that nothing in this Section shall be deemed to affect the provisions of Sub-Section (3) of Section 116 or Section 446-A. (2) Notwithstanding anything contained in Sub-Section (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call 3 upon any person bound by such bond to pay the penalty thereof under Section 446.” There is no doubt that under Section 436 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the Court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the Court to be reasonable. It would even be open to the officer or the court to release such person on his executing a bond as provided in the Section instead of taking bail from him. The position of persons accused of non-bailable offence is entirely different. The right to claim bail granted by Section 436 of the Code of Criminal Procedure in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of Section 436 of the Code of Criminal Procedure are imperative. The only choice available to the officer or the Court is as between taking a simple recognizance of the accused and demanding security with surety. The persons contemplated by Section 436 of the Code of Criminal Procedure cannot be taken into custody unless they are unable or unwilling to offer bail or to execute personal bonds. There is no manner of doubt that bail in a bailable offence can be claimed by the accused as of right and the officer or the Court, as the case may be, is bound to release the accused on bail if he is willing to abide by reasonable conditions which may be imposed on him. It appears that both the learned Sub-Divisional Judicial Magistrate, Birpur and learned Additional District & Sessions Judge-II, 4 Supaul have rejected the application for bail of the petitioner in a mechanical manner ignoring the statutory provisions of law. Under the facts and circumstances of the case, the petitioner is directed to be released on bail on furnishing bail bonds of Rs. 5,000/- (five thousand) with two sureties of the like amount each to the satisfaction of the learned S.D.J.M. Birpur (Supaul) in connection with Birpur P.S. Case No. 145 of 2011. Let copies of this order be sent to the learned Sub-Divisional Judicial Magistrate, Birpur and learned Additional District & Sessions Judge-II, Supaul for their perusal and information. The Registry is also directed to place a copy of the order before the Hon’ble Inspecting Judge of the concerned Judgeship for looking into the matter and considering the desirability of seeking explanation from the officers concerned in respect of the aforesaid matter. Md.S. (Ashwani Kumar Singh, J.)