However, there is an exception to that procedure. If any proceedings are pending before the Magistrate against the concerned accused involving the accused in the bailable offenses, in that case, such an accused can straightway appear and surrender before the learned Magistrate before whom the proceedings are pending and give bail, and in that case, the learned Magistrate is bound to release such an accused on bail, however, for that purpose some proceedings are required to be pending before the concerned Magistrate.
It is the contention on behalf of the petitioner that as considering chapter XII of the Code of Criminal Procedure, more particularly, sections 154 to 158 of the Code of Criminal Procedure, an officer in charge of the concerned police station is required to send the copy of the complaint / FIR to the concerned Magistrate immediately, and therefore, as soon as the copy of the complaint/FIR is sent to the concerned Magistrate, according to the learned counsel appearing on behalf of the petitioner, it can be said that the proceedings are pending before the learned Magistrate. The aforesaid seems to be attractive but has no substance. Sending the copy of the complaint / FIR to the concerned Magistrate cannot be said to be “proceeding pending” before the concerned Magistrate.
Considering Section 157 of the Code of Criminal Procedure it appears that if from information received or otherwise, an officer in charge of a police station has a reason to suspect the commission of an offense which he is empowered to by Section 156 of the Code of Criminal Procedure to investigate, is required to forthwith send a report of the same to a Magistrate empowered to take cognizance of such offense upon a police report and thereafter shall proceed in person, or shall depute one of his subordinate officers to investigate the case. Thus, only a report is to be sent by the concerned police officer to a Magistrate or at the time of investigating of case.
Therefore, merely sending a report of information received which is reduced in writing as per Section 154 of the Code of Criminal Procedure to a Magistrate cannot be said to be a proceeding pending before him attracting “proceeding pending” under Section 436 of the Code of Criminal Procedure. An identical question came to be considered by the learned Single Judge in the case of Ramesh Amritlal Chhatral (supra).
Therefore, the contention on behalf of the petitioner that receipt of the copy of the FIR by the learned Magistrate should also be considered to be the “pending proceeding” before the learned Magistrate, cannot be accepted.