1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Criminal Misc. Bail Application No.6483/2009 Kishan Saini v/s State of Rajasthan Date : 24.8.2009 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Sanjay Gangwar, for accused petitioner. Mr. G.S. Fauzdar, Public Prosecutor, for State. This order governs the disposal of bail petition filed under section 439 of Cr.P.C. by Mr. Sanjay Gangwar Advocate on behalf of the applicant Kishan Saini pertaining to FIR No.202/2009 of Police Station Brampuri, District Jaipur in the offence under section 4/25 of the Arms Act. 2. Heard the learned counsel for the petitioner as also the learned Public Prosecutor for the State and perused the relevant material available on record. 3. The petitioner is alleged to have been found in possession of a knife on 06.07.2009. Learned counsel for the petitioner has canvassed that as per the scheme of Section 37 of Arms Act, 1959, the offence under Section 4/25 of Arms Act is bailable. He has further contended that in the bailable offence, the provisions of Section 437 or 439 of Cr.P.C. are not attracted. On the contrary, the petitioner's case was required to be dealt with under Section 436 of Cr.P.C., hence, the petitioner, as a matter of right, deserves to be granted indulgence of bail. 4. Learned Public Prosecutor has fairly conceded that under the provisions of section 37 of the Arms Act, any offence under the Act 2 has been made bailable. 5. Having considered the submissions made at the Bar and perused the relevant material available on record, I feel apt to reproduce section 37 of the Arms Act which is thus : “37. Arrest and searches.- Save as otherwise provided in this Act- (a) All arrests and searches made under this Act or under any rules made thereunder shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973, relating respectively to arrests and searches made under that Code; (b) any person arrested and any arms or ammunition seized under this act by a person not being a magistrate or a police officer shall be delivered without delay to the officer in charge of the nearest police station and that officer shall - (i) either release that person on his executing a bond with or without sureties to appear before a magistrate and keep the thing seized in his custody till the appearance of that person before the magistrate, or (ii) should that person fail to execute the bond and to furnish if so required, sufficient sureties, produce that person and those things without delay before the magistrate.” 6. This section envisages that if any person arrested and any arms or ammunition is seized under this Act, then that person is entitled to have been released on his executing a bond with or without surety for his appearance before the Magistrate. The accused shall be taken to the Magistrate only in the event when the accused fails to furnish the bail bond. The provisions of Section 37 of Arms Act are mandatory and analogous to the provisions of Sec. 436 of Cr.P.C. It appears that these provisions have escaped notice of the learned Sessions Judge, Jaipur City, Jaipur. 3 7. As is evident, the petitioner is alleged to have been involved in the offence under Section 4/25 of Arms Act. Admittedly, this offence is bailable. The grant of bail to a person accused of a bailable offence is governed by the provisions of Section 436 of 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 purposes 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 as such refusal shall be without prejudice to the powers of the court to call upon any person bound by such bond to pay the penalty thereof under Section 446.” 8. 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 4 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 discharge such person on his executing a bond as provided in the section instead of taking bail from him. 9. The position of persons accused of non- bailable offence is entirely different. The right to claim bail granted by Section 436 of the Code 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 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 cannot be taken into custody unless they are unable or willing (sic 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. 10. The reliance is placed on the judgment of Hon'ble Apex Court rendered in the case of Rasik lal v. Kishore reported in (2009)4 SCC 446. 11. In view of above legal position, the Office in-charge of the police or Judicial Magistrate, as the case may be, in a bailable offence are duty bound to release the accused, if he is prepared to furnish the bail bonds. Thus, I, without expressing any opinion on the 5 merits of the case, am left with no option but to grant bail to the petitioner and the bail petition is ordered to be allowed. 12. It is, therefore, ordered that the accused petitioner Kishan Saini S/o Shri Ram in FIR No.202/2009 of Police Station Brampuri, District Jaipur, shall be released on bail on furnishing a personal bond in the sum of Rs.10,000/- together with two surety bonds each in the sum of Rs. 5,000/- to the satisfaction of the learned trial court with the stipulation that he shall appear before that court on all dates of hearing and as and when called upon to do so till the trial is concluded. (MAHESH BHAGWATI)J. Mak/- s-12