D. C. GHEEWALA, J. ( 1 ) THE petitioner has sought to raise a question before this Court regarding which a very clear answer is to be found in the provisions of the Criminal Procedure Code. ( 2 ) THE petitioner who alongwith six other persons was cited as an accused for offences punishable under secs. 147 148 323 324 and 504 r. w. sec. 149 of the Indian Penal Code in C. R. No. 122 of 1982 of Kalol Taluka Police Station had submitted an application as per Annexure D before the learned JMFC Kalol and prayed that he should be released on bail under sec. 436 of Cr. P. Code. The learned Magi strate held that sec. 436 of Cr. P. Code would not be applicable inasmuch as the accused was not brought before the court by the police nor has he been arrested by the police. The petitioner contended before me through Mr. N. K. Barot the learned advocate that the words or appears occuring in sec. 436 (1) should be construed in a wider sense and it would not be necessary that the accused should be brought before the court by the Police but he may himself voluntarily appear on coming to know that he is accused of a bailable offence and then the court should treat him as in custody and release him on bail. According to Mr. Barot as soon as the accused so surrenders himself to the learned Magistrate the learned Magistrate is legally bound to release the petitioner on bail. In short this argument is springing from an apprehension that the petitioner even though accused of a bailable offence would be arrested by the police and detained in custody for any period upto 24 hours before the Police produces him before the learned Magistrate. Mr. Barot therefore urged that the learned Magistrates refusal to release the petitioner on bail though the petitioner was prepared to offer the bail and had appeared before the Magistrate tantamounts to a refusal to exercise jurisdiction which was vested in him and this court should therefore issue directions in the nature of mandamus that the learned Magistrate who is made a party in this petition to respondent no. 2 should receive the petitioner in his custody and release him on bail. ( 3 ) IN order to properly appreciate the contention of Mr. 2 should receive the petitioner in his custody and release him on bail. ( 3 ) IN order to properly appreciate the contention of Mr. Barot it would be necessary to reproduce sec. 436 (1) of Cr. P. Code. "436 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. " x x x x x x xhere it would also be necessary to reproduce sec. 50; "50 (1) Every Police Officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a Police Officer arrests without warrant any person other than a person accused of a non bailable offence he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. "thus it would be seen that the petitioners contention is that what the Police Officer is bound to do under sub-sec. (2) of sec. 50 should be done by the Magistrate under sec. 436 (1) of the Code but the petitioner concedes that only one thing would be necessary to entitle the Magistrate to exercise his jurisdiction under sec. 436 (1) and that would be receipt of the FIR under sec. 157 of the Code. According to Mr. Barot as soon as the copy of the FIR has been received by the learned Magistrate under sec. 157 irrespective of the fact as to whether the accused is produced before him by the Police or the accused surrenders voluntarily to the custody of the Magistrate the Magistrate would be bound to release him on bail. It appears to be the contention of Mr. Barot that words at any stage of the proceedings occurring in sub-section 436 (1) would take in its sweep even the preinvestigation and preinquiry proceedings. We shall therefore have to see whether the receipt of the copy of the FIR under sec. It appears to be the contention of Mr. Barot that words at any stage of the proceedings occurring in sub-section 436 (1) would take in its sweep even the preinvestigation and preinquiry proceedings. We shall therefore have to see whether the receipt of the copy of the FIR under sec. 157 by the learned Magistrate can be deemed as a stage of proceeding enabling the Magistrate to act under sec. 436 (1 ). It is not in dispute that the petitioner has been cited as an accused in the FIR which discloses only bailable offences. If there would have been any non-bailable offence incorporated in the complaint the question would have been simpler because then the petitioner could have approached the court of Sessions or the High Court which could have exercised jurisdiction under sec 438 of Criminal Procedure Code and release the petitioner on Anticipatory bail. ( 4 ) THE reasons recorded by the learned Magistrate for disallowing the petitioners contention appears to be that the request of the petitioner amounted to releasing him on an anticipatory bail and the provisions of Anticipatory bail would not be applicable to a case of bailable offence. ( 5 ) FOR reasons to be now recorded I feel that the learned Magistrate was right in rejecting the prayer of the petitioner because had the Magistrate accepted the contention of the petitioner it would have amounted to holding that a mere receipt of the copy of the FIR was a stage of proceeding and that the Magistrate thereafter was supposed to do what the police are expected to do under sec. 50 (2) of the Code. ( 6 ) MR. Barot the learned Advocate for the petitioner drew my attention to a case reported at 1982 Cr. L. J. P. 209. This was a judgment by the learned Single Judge of the Andhra Pradesh High Court. The learned Single Judge in the said case observed as under:" When the accused persons who were concerned in a cognizable offence which was bailable by offering to surrender before the Magistrate were willing to be taken into custody the Magistrate could not refuse to take them into custody and on that account reject the application for anticipatory bail filed by them. He should have accepted their surrender and passed an order remanding them if he was satisfied that it was not a case to grant them any bail. "the learned Single Judge in the said case had relied upon the observations of the Supreme Court in a case reported at AIR 1980 SC P. 785 (NIRANJAN SINGH V. PRABHAKAR RAJARAM KHAROTE ). In the said case the Supreme Court was concerned with grant of bail under sec. 439 of Cr. P. Code. In that connection the Supreme Court observed: "where the accused had appeared and surrendered before the Sessions Judge the Judge would have jurisdiction to consider the bail application as the accused would be considered to have been in custody within meaning of sec. 439. Custody in the context of sec. 439 is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. He can be in custody not merely when the police arrests him produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. "the above observation clearly connote that the Supreme Court was concerned in the said case with the interpretation of term custody. The observations made in connection with the word custody and the elaboration of the said term in the context of sec. 439 will have no application to a case which falls under sec. 436 (1) because not only the phraseology of two sections is totally different but sec. 436 (1) empowers the Magistrate to exercise jurisdiction only at any stage of proceeding. " .