ORDER
R.S. Garg, J.
1. On a report made by Second Addl. Sessions Judge, Raigarh, Criminal Case No. 64/2000 has been registered by the Judicial Magistrate First Class (Shri A.B. Toppo). The proceedings dated 9-2-2000 of the said criminal case record that a complaint was filed in the said Court by the Second Addl. Sessions Judge, Raigarh for offences punishable under Sections 205, 419, 465 and 471 read with Section 109 of the IPC. The allegations were that the present applicant committed some forgery by producing a false surety in the Court. Accused Mohitram and Kaushal Prasad were kept present in the Court and immediately after taking the cognizance the said two persons namely Kaushal Prasad and Mohitram were taken in custody and were sent to jail. Against V.K. Pradhan a non-bailable warrant was directed to be issued. On 10-2-2000 an application for grant of bail was submitted on behalf of present applicant Mohitram Chauhan. The learned Judicial Magistrate First Class Raigarh Shri A.B. Toppo rejected the application observing that all the accused either in connivance or in criminal conspiracy created the false documents and submitted bogus security before the Second Addl. Sessions Judge. The learned
Judge rejected the application without even looking to the provisions of law. The applicant thereafter made an application under Section 439, Cr.P.C. before the Court of Sessions. The said application was heard and decided by the First Additional Sessions Judge, Raigarh, Shri Ajit Singh who by his order dated 17-2-2000 passed in bail case No. 114/2000 rejected the application observing that as the accused had taken active part in commission of the said offence the case before him was not a fit case for grant of bail. As applicant’s application was rejected by the Additional Sessions Judge, he has filed this petition in this Court.
2. Submission of the learned counsel for the applicant is that present appears to be a case of judicial atrocities where on a complaint made by the Second Additional Sessions Judge, learned Magistrate First Class took cognizance of the matter and without affording any opportunity to the applicant, straight way sent him to jail. According to him the application for release of the applicant on bail could not be rejected by the Judicial Magistrate First Class on 10-2-2000 nor the application could be rejected by the Second Addl. Sessions Judge on 17-2-2000. According to him offences with which the applicant is charged are all bailable and when the accused was ready and willing to furnish the bonds/surety bond, the Court had no jurisdiction to take him in judicial custody and send him to jail or reject his application. His further submission is that the learned Second Addl. Sessions Judge did not try to see the provisions of law and simply rejected the application observing that the allegations were of serious nature.
3. Learned counsel for the State on the other hand submits that no offence was registered at police station therefore, he does not have case diary. He has however produced the copies of the proceedings which were obtained by the police from the said Court.
4. The complaint dated 9-2-2000 is available in the documents filed by the learned counsel for the State. The said documents also contain the proceedings of Criminal Case No. 64/2000 recorded between 9-2-2000 to 8-5-2000. It appears from these proceedings that cognizance of the complaint was taken on the date of the submission of the complaint itself i.e., 9-2-2000.
5. A perusal of the complaint submitted by the Second Addl. Sessions Judge, Raigarh Shri A.K. Samant Rai would show that he was of the opinion that offences punishable under Sections 205, 419, 465 and 471 read with Section 109, IPC were made out. The learned Judicial Magistrate First Class took cognizance in the matter in relation to offences punishable under Sections 205, 419, 465 and 471 read with Section 109, IPC. It appears that alongwith the complaint, copy of the proceedings dated 9-2-2000 recorded by Second Additional Sessions Judge were also filed. The learned Judicial Magistrate after taking into consideration the proceedings dated 9-2-2000 recorded by the learned Second Addl. Sessions Judge took cognizance of the offence and immediately thereafter took the accused Mohitram and Kaushal Prasad in judicial custody and sent them to jail on 10-2-2000. I have no
hesitation in observing that the learned Magistrate First Class without even opening the book or without even looking to the provisions of law or without even seeing as to whether the offences with which the applicant before it was charged were bailable or non-bailable, rejected the application observing that offence was of serious nature and involvement of the present applicant was writ large.
6. The learned Second Additional Sessions Judge, Shri Ajit Singh with due respect to him and his understanding failed in his duty and did not try to go through the provisions of law nor tried to see whether the offences were bailable or not. If not from a Magistrate First Class, this Court can atleast expect from an Additional Sessions Judge that before passing any order he would first of all look into the provisions of law and would not rely upon his impressions which may create bad impression on the Higher Court. It is unfortunate that dereliction of the duty in discharge of the judicial powers in accordance with law have compelled the present applicant to remain in jail since 9-2-2000 till date. The first Schedule which refers to classification of the offences shows the number of Section, nature of the offence, the extent of punishment, whether the offence is cognizable or non-cognizable, whether the offence is bailable or non-bailable and by what Court such offence is triable. The first Schedule would always show to the Court/Judge as to whether offence is cognizable or not and whether it is bailable or non-bailable. It can always show to the Court whether the offence is triable by Magistrate First Class or by the Court of Sessions exclusively.
7. Section 2(a) of the Code of Criminal Procedure provides that ‘bailable offence” means an offence which is shown as bailable in the Firsl Schedule, or which is made bailable by any other law for the time being in force, and “non-bailable offence” means any other offence.
8. Section 205, IPC according to the first Schedule provides for a maximum punishment of three years or fine or both. It is non-cognizable in nature. It is bailable and is triable by Magistrate First Class.
9. Section 419, IPC, according to the first Schedule provides for a maximum three years imprisonment or the Court in its discretion may impose fine or may award both the sentences. The offence is cognizable, triable by any Magistrate and is bailable.
10. Section 465, IPC according to the Schedule and its language is punishable with two years imprisonment or fine may be imposed or both the sentences may be awarded against the wrong doer. The offence is non-cognizable and may be tried by Magistrate of the First Class and is bailable.
11. Section 471, IPC which is an offence for using as genuine a forged document which is known to be forged or when the forged document is a promissory note of the Central Government, the person can be convicted as he himself has forged the document. The offence is cognizable, bailable and can be tried by the Magistrate of the First Class.
12. At this stage it is necessary to harp upon the distinction Between 467 and 468 on one side and Section 471 on the other side. Section 467 refers
to case of forgery of a valuable security, will, or authority to make or transfer any valuable security, or to receive any money.
13. Section 468, IPC refers to a case where the forgery is committed for the purpose of cheating.
14. Section 467 is non-bailable but Section 468, IPC is a bailable offence.
15. Valuable Security has been defined in Section 30 of the IPC. According to Section 30 the words “Valuable Security” denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.
16. Section 467 refers to forgery of valuable security. In the present case the facts as shown in the complaint would not make out a case for holding that the Court was referring to Section 471 in relation to valuable security as required under Section 467, IPC but in fact the Court was referring to Section 471 in relation to Section 470, IPC because from the texture and tenor of the complaint it would appear that the Second Additional Sessions Judge was of the opinion that surety bond was forged with the intention that the same shall be used for the purpose of cheating.
17. Section 29 of Indian Penal Code defines “document” as under :–
The word “document” denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.
Explanation 1 : It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.
Explanation 2 : Whatever is expressed by means of letters, figures, or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed.
18. Section 470 of IPC says :– A false document made wholly or in part by forgery is designated “a forged document”.
19. Section 109, IPC refers to abetment of the offence. The punishment would be the same as is required to be awarded for the offence alleged. It would become cognizable or non-cognizable and, bailable or non-bailable and it can be tried by the Court of Magistrate or by the Court of Sessions accordingly as offence abetted is to be taken to be cognizable or non-cognizable, bailable or non-bailable and whether it is triable by Magistrate First Class exclusively or by Court of Sessions.
20. Section 436 which finds place in Chapter 33 of the Cr.P.C. reads as under :–
436. (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 go give bail, such person shall be released on bail :
Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him or his executing a bond without sureties for his appearances hereinafter provided :
Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of Section 116 (or Section 446A).
(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail bonds 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 upon any person bound by such bond to pay the penalty thereof under Section 446.
21. A fair reading of the said section would show that when any person
other than a person accused of a non-bailable offence is arrested or detained
by the police officer or appears or is brought before a Court and if prepared
at any time while in the custody of such officer or at any stage of the proceed
ings before such Court to give bail, such person shall be released on hail. The
Court or the officer in its discretion instead of taking bail from such person
discharge him on his executing a bond without sureties for his appearance.
Sub-section (2) of Section 436 provides that where a person fails to comply
with the conditions of the bail bond as regards the time and place of atten
dance, the Court may refuse to release him on bail if on an subsequent occasion
man is brought before the Court.
22. A bare perusal of Section 436 would make it crystal clear that in an offence which is bailable when a person is arrested by a police officer or if he appears before the Court or is brought before a Court the officer and/or Court arc bound to release him on bail if he is ready and willing to furnish the surety bonds as required by the Court. The language used in Section 436 is not to be ignored. When the law mandates something then every person is bound to observe the said mandate, be he an accused, a lawyer, a police officer or a judge. It would not be out of place to mention that an extra duty is cast upon a judge to see that a person who is entitled to be released on bail, in a bailable offence, is not detained in jail just for nothing. When the law says that a man must be
released then no Court has any jurisdiction to say or order that such person shall not be released.
23. It is only in a case where the accused after his release jumps bail or fails to comply with the terms and conditions of the bond is again brought before the Court then the said Court may refuse to release him on bail.
Section 437 provides that in non-bailable offence bail can be taken by the Magistrate First Class. Section 437 gives a discretion to the said Court to grant or refuse bail. In such a case the accused can make a request to the Court and if the Court is convinced that the case on hands requires the accused to be released on bail or the accused need not be released then the said Court would certainly be entitled to exercise its discretion on either side.
24. In an application filed under Section 437, Cr.P.C. the accused has only a right to persuade the Court to grant him bail but the jurisdiction vests in the said Court to grant or not to grant bail to the accused or restore his liberty.
25. Section 439, Cr.P.C. deals with power of the Court of Sessions and of a High Court regarding grant of bail. A person accused of an offence and if is in custody may be released on bail either by the Court of Sessions or by the High Court. The discretion under Section 439, Cr.P.C. is to be exercised judiciously. It is not necessary either for the High Court or Court of Sessions to issue notice of the application to the State Government except in cases where the person who is an accused of the offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life. If such is a situation then the Court dealing with an application under Section 439, Cr.P.C. has to issue a notice to the public prosecutor, even otherwise the Court of Sessions or the High Court may direct release of an accused of such an offence without issuing a notice to the public prosecutor after recording the reasons in writing that it would not be practicable to give such notice.
26. Sections 436, 437 and 439 of the Code of Criminal Procedure have different fields to cover. Section 436 gives a right to the accused to ask the Court or the police officer that he be immediately released as he is ready and willing to furnish the bond as required by the said officer and/or by the Court. In a case covered under Section 436 the police officer and/or the Court cannot refuse to release the man on bail. The jurisdiction of the police officer or the Court is only to require the man to furnish bail and execute a bond in accordance with the orders of the said officer or the Court incorporating such conditions as are imposed by the said officer or the Court for his appearance before the said officer or the Court on the dates and at place where the accused is required to appear.
27. Section 436 does not give any power, even for the sake of repetition I will say, to any Court to reject the application simply because an offence has been committed against a Court or the complaint has been lodged by a Court.
Before a Court of law, a Court as a complainant does not stand on a higher pedestal in comparison to ordinary complainant. A Court when itself becomes a complainant has to surrender and submit its cause to the Court which is competent to take cognizance of the offence. The Court which takes cognizance should not be influenced by the fact that as a bailable offence was committed against a Court or in the Court proceedings the accused who is otherwise entitled to be released on bail should not be released.
28. It is most unfortunate that for commission of the bailable offences accused is in jail for more than three months.
29. In arrest for a bailable offence, bail is a matter of right and not discretion, no Court obliges a person by releasing an accused on bail in a bailable offence. Section 436 is imperative and mandatory, breach or non-observance of which may make the defaulter answerable before the court of law. If the offence is bailable, bail has to be granted without more-ado. Section 436 makes an invariable rule for bail in case of bailable offence subject to specified exception under sub-section (2). It is also imperative and obligatory upon the officer to inform the person/accused arrested or detained by the officer of police arresting or detaining him, and, also imperative and obligatory upon the Court/Judge where the accused appears or is brought to inform him that he has a right to be released on bail.
30. Personal liberty deprived when bail is refused is too precious a value so that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. Reasonableness postulates intelligent care and predicates the deprivation of freedom by refusal of bail is not for punitive purpose but for bi-focal interests of justice to the individual involved and society affected.
31. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court.
32. As regards the persons accused of bailable offence, when they are prepared to give bail, then if the other conditions are satisfied, the Magistrate shall grant bail under Section 436. As regards the person accused of or suspected of the commission of any non-bailable offence, the matter of course is transformed into a matter of discretion and under Section 437, if there is no prohibition otherwise and if the guidelines for enlarging on bails are satisfied then the Magistrate in his discretion may release such person on bail. It gives the jurisdiction that contains a discretion which must be utilised judicially.
33. In the matter of State of Gujrat and another Vs. Lalsingh Kishan-singh (AIR 1981 SC 368) the question for consideration before the Supreme Court was whether a person authorised by the Commissioner of Police to arrest a person, would such person has an authority to release the accused arrested
by him if the offence is bailable. Before the Supreme Court, it was contended that as there were executive instructions such authorised person cannot release the accused on bail because he would have no authority. The Supreme Court observed as under :–
“Once we hold that a Commissioner of Police who is competent to direct by issuing special warrant or general order, under Section 6(1)(i), another police officer of the requisite rank to arrest persons found gambling or present in a gambling house, can also arrest personally the offender concerned, the principle enunciated by this Court in Lala’s case is immediately attracted in full force and there is no escape from the conclusion that offences under Sections 4 and 5 of the Bombay Prevention of Gambling Act are cognizable. Such offences arc admittedly bailable. It follows as a necessary corollary therefrom, that the Commissioner of Police or the police officer who is authorised by him to search, arrest and investigate such offences, is under a legal obligation to release the accused on bail under the provisions of Section 436 of the Code. The authority to grant bail to the person arrested in execution of such a warrant is derived by the officer arresting, from the statute and consequently, no executive instructions or administrative rules can abridge, or run counter to the statutory provisions of the Code. Since the impugned order or executive instructions are contrary to or inconsistent with the provisions of the Code and on a true construc’ion, there is nothing in Section 6 or any other provision of the Act, which takes away the right and power conferred by the Code on the police officer to grant bail to the person arrested by him for offences under Sections 4 and 5 of the Act, the impugned order was ultra vires and bad in law and had been rightly quashed by the High Court.”
34. Taking into consideration the totality of the circumstances and provisions of Section 436 of the Cr.P.C., I consider present to be a fit case for directing release of the applicant on bail.
35. On applicant’s furnishing a personal bond in the sum of Rs. 5,000/-with one surety in the like amount to the satisfaction of Trial Court, Raigarh, he be immediately release on bail, for his appearance before the said Court/ Trial Court, and/or as and where so directed.
36. Let a notice be issued to the Judicial Magistrate First Class, Raigarh Shri A.B. Toppo and to the First Additional Sessions Judge Shri Ajit Singh as to why proper action be not taken against them and why the matter be not referred to Mylord the Chief Justice with a recommendation that a departmental inquiry be held against them.
C.C. of the order must be supplied today itself.
37. Misc. Criminal Case allowed.