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PETITIONER: STATE OF GUJARAT & ORS.

       Vs.

RESPONDENT: LAL SINGH KISHAN SINGH

DATE OF JUDGMENT12/08/1980

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH PATHAK, R.S.

CITATION:  1981 AIR  368            1981 SCR  (1) 391  1981 SCC  (2)  75

ACT:      Bombay Prevention  of Gambling Act-Sections 4, 5 and 6- Scope of-Offences  under sections  4 and  5, if  cognizable- Police Officer,  if under  a legal obligation to release the accused on bail-circular-order directing that accused should be  produced   before  a   magistrate,  if   illegal-"Police Officer"-Whether includes every police officer.

HEADNOTE:      A Sub-Inspector  of Police  arrested the respondent for offences under  sections 4 and 5 of the Bombay Prevention of Gambling Act  on a warrant issued under section 6 of the Act by the  Deputy Superintendent  of Police.  The  respondent’s application for  release on  bail was  rejected by  the Sub- Inspector on  the ground that a circular order issued by the District  Superintendent   of  Police  prohibited  him  from releasing on  bail persons  that were arrested in respect of offences under  sections 4  and S  of the  Act. He, however, produced the respondent before a Magistrate. D      The High  Court in  the  writ  petition  filed  by  the respondent  upheld   his  contention   that  offences  under sections 4  and S  of the Act being cognizable and bailable, the Commissioner  of Police  and officers  to whom a warrant can be  granted for  the purpose  of investigation under the Act,  have   to  release  the  accused  on  bail  under  the provisions of  section 496 of the Code of Criminal Procedure 1898 since  the impugned  order ran counter to the statutory provisions it  was bad in law. The High Court also held that since under section 6 of the Act the Police Commissioner and certain other  officers mentioned therein have the power and authority to  arrest persons  accused  of  having  committed offences under  sections 4 and S of the Act without warrant, the offences are cognizable.      Dismissing the appeal, ^      HELD: (a)  Since the  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  gaming house,  can also arrest personally the offender concerned, the  offences under  sections 4  and S of the Act are cognizable.  Such offences are admittedly bailable. [400

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F-G]      (b) 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 496 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  of executive instructions are contrary to or inconsistent with the provisions of the Code and 392 on a true construction, 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. [400 G-H]      Union of  India v.  I. C.  Lala etc.,  A.I.R. 1973 S.C. 2204=[1973] 3 SCR 818, 824 applied.      2. (a)  Under Section  6(1) of  the Act (subject to the conditions of  the proviso)  a Commissioner  of  Police  may empower by a general order or authorise by special warrant a police officer  not below  the rank of a sub-Inspector to do any of  the acts and things enumerated in sub-clauses (a) to (d) of  that subsection,  including the  act of  arresting a person found  gambling or  present in a common gaming house. It follows  therefrom, by  necessary implication,  that  the Commissioner  of   Police  can  personally  do  any  of  the aforesaid acts and things which he could authorise any other police officer  of the  requisite rank  to do.  The  primary repository of the plenary power to do tho aforesaid acts and things, constituted under sub-clause (i) is the Commissioner of Police.  The sub-clause  only enable  him to  employ  his subordinate police officers not below the authorised rank of Sub-Inspector  to  execute  his  general  order  or  special warrant to arrest for offences under sections 4 and 5 of the Act.  In  short  section  6  confers  the  power  of  arrest thereunder only  on a specified class of police officers and not on any or every police officer. [396D-F & G]      (b) It  is settled  law  that  the  expression  "Police officer" used  in the  definition of  cognizable offence  in section 4(1)(f)  of the  Code of Criminal Procedure does not necessarily mean  "any and every" police officer. An offence will still  be a  cognizable offence  within this definition even if the power to arrest without warrant for that offence is given  by the  statute to police officers of a particular rank or class only. [398 C]      Queen Empress  v. Deodhar  Singh ILR  27 Cal.  144, 150 approved.

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 20 of 1975.      Appeal by  Special Leave  from the  Judgment and  order dated 15/16-11-1973 of the Gujarat High Court in Crl. A. No. 22/73.      J. L. Nain, M. N. Shroff for the Appellants.      H. S. Marwah, Amicus Curiae for the Respondents.      The Judgment of the Court was delivered by      SARKARIA, J.-This  appeal by  special leave is directed

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against a  judgment, dated November 15/16, 1973, of the High Court of Gujarat. The material facts are as under:      On June  23, 1973, a Police Sub-Inspector made a report to the  District Superintendent  of Police,  Rajkot, to  the effect that  the premises  known  as  Rajkot  Yuvak  Sahakar Mandal situated at Mochhi 393 Bazar Road, near Krishna Cinema, Rajkot was used as a common gaming house  and gambling  was going on therein. The Deputy Superintendent of  Police,  after  making  an  inquiry,  was satisfied about  the contents  of the report and he issued a warrant under Section 6 of the Bombay Prevention of Gambling Act (hereinafter  referred to as the Act) and sent it to the Police Sub-Inspector,  Rajkot, for  execution in  accordance with law.  The Sub-Inspector  then reached  the aforesaid B: premises in  the early  hours of  June 24, 1973 at 4 a.m. He found 10  persons, including  the respondent  herein, in the premises. They  had all  gathered there  for the  purpose of gambling, and  gambling was  actually going  on by  play  of cards, and  tokens of  various designs,  which were  used to indicate the  different points,  were also  found there. All the ten  persons were  arrested in respect of offences under Sections 4  and S of the Act. The instruments of gaming were also seized.      On the  following morning at 7 a.m., the petitioner and his companions  submitted an  application to the Police Sub- Inspector, who  was the  first respondent  before  the  High Court, requesting  him to  enlarge   them on  bail. The Sub- Inspector did  not consider their bail applications, nor did he pass  any order  thereon. At  about  noon,  however,  the respondents  were   produced  before   the  Magistrate,  who released them  on bail.  The Sub-Inspector  did not consider their bail  applications and release them on bail because he was prohibited  from doing  so by a Circular order issued by Shri  P.  H.  Jethwa,  District  Superintendent  of  Police, Rajkot, directing  all  the  Police  Sub-Inspectors  not  to release  persons  arrested  in  respect  of  offences  under Sections 4  and S of the Act on bail, because in the Form of the warrant  prescribed under  Section 6  of the  Act, it is mentioned that  the  arrested  persons  should  be  produced before the  Magistrate. The  Circular order further directed that the  arrested persons  under the Act should be produced before the  Magistrate. The  Circular further warned that if any Police  officer  violated  these  directions,  he  would expose himself  to disciplinary  action. This Circular order (Ex. B) was impugned by a writ petition under Article 226 of the Constitution before the High Court.      Two main contentions were raised before the High Court. First, that  offences under  Sections 4 and S of the Act are cognizable and  bailable. Consequently, under Section 496 of the Code  of Criminal  Procedure, 1898,  the Police  officer arresting the respondents was duty. bound to enlarge them on bail. The impugned Circular, being contrary to the statutory provisions, is illegal and ultra vires. Second, the impugned Circular is  violative of  Article 14  of the  Constitution, inasmuch  as  it  discriminates  between  persons  similarly situated. The  second ground was not pressed before the High Court 394      The first  contention prevailed with the High Court. In conclusion, it held that the Police officer had the power o} the authority  to enlarge  the arrested persons on bail. Its reason was as under:           "When  the  legislature  empowers  an  officer  to      delegate any authority to do certain acts to another it

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    necessarily implies  that ,  the original authority can      do   such   acts   itself.   Consequently,   when   the      Commissioner  of  Police  and  certain  other  officers      mentioned in  Section 6 are authorised to issue special      warrant for  search of  the premises  where gambling is      going on,  for the  seizure of  the articles therein or      take into  custody and  bring  before  the  court  such      persons who  may be  found therein,  such officers  can      themselves do such acts." Referring to  Section 4(1)  (f)  of  the  Code  of  Criminal Procedure the  High Court  observed that the words "a police officer"  in  that  provision  which  defines  a  cognizable offence, do  not mean "each and every" police officer. It is sufficient if the power to arrest without warrant is limited by the  provisions of  law to a class of police officers and the offences in such cases fall within the purview of clause (f) of sub-section (1) of Section 4 of the Code. Since under Section 6  of the  Act, the  Police Commissioner and certain other  officers,  mentioned  therein,  have  the  power  and authority to  arrest persons accused of having committed the offences under  Sections 4 and S of the Act with out warrant the said offences are cognizable.      Support for  this reasoning  was sought from a decision of this  Court in Union of India v. I.C. Lala, etc. The High Court further  held that  the provisions of Section 6 merely provide a  limited exemption from the provisions of the Code of Criminal  Procedure, in so far as they limit the class of Police  officers   who  are  competent  to  investigate  the offences and to arrest without a warrant. The mere fact that certain restrictions  are placed  as to  the Police officers who are  competent to investigate the offence would not make the offence any the less than cognizable. It, also, referred to several decisions of the Bombay High Court, including the one  Emperor  v.  Raghunath  decided  by  a  division  Bench consisting of Beaumont, C.J. and Broom-field, J., wherein it was held  that an offence under Section 4 of the Act is non- cognizable. The  High Court  did not  follow  this  decision because, in  its view,  it had  ignored an  earlier decision which covered the point which the court had decided, and the earlier decision  was contrary  to it.  With this reasoning, the High  Court came  to the  conclusion that offences under Sections 4 and 5, being cognizable and 395 bailable, the  commissioner of  Police and  the officers  to whom  a   warrant  can   be  granted   for  the  purpose  of investigation under the Act, have to release accused on bail under the  provisions of Section 496 of the Code of Criminal Procedure. .  They derive their power to grant bail from the statute. The  impugned order  therefore, cannot be sustained because it  runs counter  to the  statutory provisions which authorise the  police officers  mentioned in  Section  6  to grant bail.      Nobody  has  appeared  on  behalf  of  the  respondent, despite notice,  to oppose  this appeal.  Shri H. S. Marwah, however, has  been kind enough to assist the Court as amicus Curiae on behalf of the respondents.      Since the  case was  decided by  the High  Court on the basis of  the first  contention in favour of the respondent, herein,  and   the  High   Court  did   not  go   into   the constitutional validity  of  the  impugned  order,  we  will confine the  discussion to  the first point, on the basis of which, the High Court has invalidated the impugned order.      We will  assume for  our purpose  that Section 6 of the Act does  not offend Article 14 of the Constitution. Section 6 runs as under:

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         "6(1). It shall be lawful for a Police officer-                (i)   in any area for which a Commissioner of           Police has  been appointed not below the rank of a           Sub-Inspector and  either empowered  by a  general           order in  writing or  authorised in  each case  by           special warrant  issued  by  the  Commissioner  of           Police, and                (ii) elsewhere  not below  the rank  of  Sub-           Inspector of  Police authorised by special warrant           issued in  each case  by a  District Magistrate or           Sub-Divisional   Magistrate   or   by   a   Taluka           Magistrate  specially   empowered  by   the  State           Government  in   this  behalf  or  by  a  District           Additional, Assistant  or Deputy Superintendent of           Police, and                (iii) without  prejudice to  the provision in           clause (ii) above, in such other area as the State           Government may,  by notification  in the  official           Gazette specify in this behalf, not below the rank           of a  Sub-Inspector and empowered by general order           in writing issued by the district Magistrate.                     (a) to  enter, with  the  assistance  of           such persons  as may  be found necessary, by night           or by  day, and by force, if necessary, any house,           room or  place which  he has  reason to suspect is           used as a common gaming house: H                     (b) to  search all  parts of  the house,           room or place which he shall have so entered, when           he shall have reason 396           to suspect  that any  instruments  of  gaming  are           concealed   therein, and  also the persons whom he           shall find  therein whether  such persons are then           actually gaming or not,                     (c) to.  take  into  custody  and  bring           before a Magistrate all such persons;                     (d)  to   seize  all  things  which  are           reasonably suspected to have been used or intended           to be  used for  the purpose  of gaming, and which           are found therein:           Provided that  no officer  shall be  authorised by      special warrant  unless the Commissioner of Police, the      Magistrate, the  District or Additional or Assistant or      Deputy Superintendent of Police concerned is satisfied,      upon making  such inquiry  as he  may think  necessary,      that there  are good grounds to suspect the said house,      room or place to be used as a common gaming house."      From a  plain reading of Section 6(1), it is clear that subject to the conditions of ’the proviso, a Commissioner of Police may  empower by  a  general  order  or  authorise  by special warrant  a police  officer not  below the  rank of a sub-Inspector, to  do any  of the acts and things enumerated in sub-clauses (a) to (d) of that sub section, including the act of  arresting a  person found  gambling or  present in a common gaming  house. It  follows  therefrom,  by  necessary implication, that  the Commissioner of Police can personally do any  of the  aforesaid acts  and things  which  he  could authorise any  other police officer of the requisite rank to do. The  primary repository  of the  plenary power to do he aforesaid acts and things, constituted under sub-clause (i), is the  Commissioner of  Police. The sub-clause only enables him to  employ his  subordinate police officer(s), not below the authorised  rank  of  a  Sub-Inspector  to  execute  his general order  or special  warrant to  arrest  for  offences under Sections 4 and 5 of the Act.

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    It will  be noted  further that  even under  sub-clause (iii), in  an area  notified by  the Government.  any police officer not  below the  rank of a Sub-Inspector empowered by the District Magistrate under a general order in writing can arrest a person found gambling or present in a common gaming house, without  a  warrant  from  a  Magistrate.  In  short, Section 6  confers the  power of arrest thereunder only on a specified class  of police  officers and not on any or every police officer.      It is  in the  light of  the above  analysis of Section 6(1) that  we have  to determine  whether the offences under Sections 4  and 5  of the  Act are  recognizable  offences’. Section 4(1)(f)  of that  Code of  Criminal Procedure, 1898, defines "cognizable  offence" to  mean an  offence for,  and ’cognizable case’ to mean a case "in which a police officer, within 397 or without  the Presidency towns may, in accordance with the Second Schedule  or under  other law  for the  time being in force, arrest without warrant".      There was a divergence of judicial opinion in regard to the connotation  of the words "a police officer" used in the above definition.  One line  of decisions,  led  by  Deodhar Singh case, took the view that 1 these words in Section 4(1) do not  necessarily mean  "any and every" police officer. It is sufficient to bring an offence within the definition of a ’cognizable offence’  if  the  power  to  arrest  without  a warrant is  vested under  the law  in a  police officer of a particular class only. The ratio of Deodhar Singh’s case was followed by  the Bombay  High Court in Emperor v. Ismail and Emperor v.  Abasbhai Abdul  Hussain by  the Nagpur  Court in Nagarmal Jankiram,  and by  the Delhi  High Court  in  Delhi Administration v. Parkash Chand & Ors.      A contrary view was taken by the Assam High Court in G. K. Apu  v. Union  of India;  by the  Allahabad High Court in State of  U.P. v.  Lal Bahadur  & Ors.; by the Madhya Bharat High Court in Union  of India v. Mahesh Chandra; and in some other decisions.      This conflict  appears to  have been set at rest by the decision of this Court in 1. C. Lala’s case (ibid) which has expressly overruled  the view  taken by the Assam and Madhya Bharat High  Courts. We  will notice  Lala’s case, later. It will suffice  to say  here that  the view which has received the imprimatur of this Court, is that the expression "police officer" in Section 4(1)(f) of the Code does not necessarily mean "any  and every"  police officer,  and an  offence will still be  a "cognizable offence" within this definition even if the  power to arrest without warrant, for that offence is given by the statute to police officers of a particular rank or class. Only.      In Queen  Empress v.  Deodhar Singh,  under the  Bengal Public Gaming Act II of 1867, the District Superintendent of Police (or  the District Magistrate) was competent to arrest or by  warrant to  direct the  arrest of  persons found in a common gaming house. The Question 398 was whether  the offence under Section 4(1)(f) of the Bengal Act   was   cognizable.   This   question   turned   on   an interpretation of  the expression  "police officer"  in  the definition of  ’cognizable offence’, and was answered in the affirmative, thus.:           "Now, under  the Gambling  Act, it  is  not  every      Police officer  who can arrest without a warrant. It is      only the  District Superintendent  of  Police  who  can      arrest or  by warrant  direct  the  arrest  of  persons

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    gambling in  a house. The district Superintendent being      a Police  officer who  may, under  a law  for the  time      being in  force, viz., the Gambling Act, arrest without      warrant. We  think that  the requirements of clause (1)      (f) of  the above  Sections are satisfied, and that the      offence  in   question  is,  therefore,  a  ’cognizable      offence’. We  cannot accept  the  contention  that  the      words in  that clause, ’a Police officer’ mean ’any and      every’  Police   officer.  It   is  sufficient  if  the      Legislature has  limited the  power of  arrest  to  any      particular class of Police officers."      If we  may say  so with  respect,  this  is  a  correct exposition of  the law  on the  point. The  ratio of Deodhar Singh’s case  was followed by a Division Bench of the Bombay High  Court  (Marten  and  Madgavkar,  JJ.)  in  Emperor  v. Abasbhai Abdul  Hussain (ibid). The impugned judgment before us is also based on this decision.. These very provisions of the  Bombay   Prevention  of   Gambling  Act   came  up  for interpretation in re. Naganmal Jankiram (ibid), and the same view was taken by Pollock J.      In  Abasbhai’s  case  (ibid),  a  Sub-Inspector  got  a warrant issued  under Section  6 of the Bombay Prevention of Gambling  Act,   which  authorised  him  to  search  certain premises. In  execution of  that warrant  the  Sub-Inspector raided a  house and  arrested three  persons who  were found therein. The case was tried by the Magistrate concerned as a cognizable one.  At the  trial at the stage of arguments, it was contended  on behalf  of the accused that offences under Sections  4   and  5  were  non-cognizable,  and  since  the procedure  of   warrant  case   had  been  followed  by  the Magistrate, the  trial was illegal. The trial court accepted the argument and acquitted the accused. In appeal before the High  Court,   it  was  agitated  that  the  offence  was  a cognizable  one.  The  High  Court  reasoned  and  we  think rightly-that  since   under  Section   6  of   the  Act  the Commissioner of  Police has  power to issue special warrants of search  and  also  to  arrest,  he  is  competent  to  do personally, what  he may  authorise others  to do by special warrant. It  followed the  dictum of Deodhar Singh’s case in regard to the interpretation of the words "a police officer" in the  definition of "cognizable offence" given in the Code of Criminal Procedure. On 399 these premises,  the High  Court held  that offence-s  under Sections 4  and 5 are cognizable.      In Emperor  v. Ismail  (ibid), a  Division Bench of the Bombay High Court, reaffirmed the dictum of Abasbhai’s case, that an  offence punishable  under Section  4 of the Act, is cognizable.      In Delhi  Administration v. Parkash Chand & Ors., H. R. Khanna, J.,  following the dictum of the Calcutta High Court in Deodhar  Singh’s  case,  and  of  Bombay  High  Court  in Abasbhai’s case,  held that  offences under Sections 3 and 4 of Delhi Gambling Act are ’cognizable offences’ as Section S of the Delhi Act gives the Superintendent of Police power to arrest or  authorise any  officer of  police, not  below the rank of Sub-Inspector, to arrest without a warrant.      It is  argued on behalf of the appellant-State that the ratio of the aforesaid decisions in Deodhar Singh’s case and Parkash Chand’s case is not applicable to offences under the Bombay Prevention  of Gambling  Act, because  the Bengal Act and the  Delhi Act  expressly empower  the Superintendent of Police either  to arrest himself or direct arrest by another police officer of requisite rank, whereas in Section 6(1) of the Bombay  Prevention of  Gambling Act there are no express

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words giving  an option,  to the  Commissioner of  Police to effect arrest, personally.      We are  unable to  accept this argument. The difference pointed out, is a distinction without a difference. What was explicit in  the Bengal  Gambling Act and the Delhi Gambling Act, is implicit in Section 6(1) of the Bombay Prevention of Gambling Act.      It will  now be  appropriate  to  notice  this  Court’s decision in  Union of India v. I. C. Lala. In that case, two army officers  and one  business-man were  charged with  the conspiracy of  the offences  punishable under  Sections 120B and 420  of the Indian Penal Code, read with Section S(2) of the  Prevention   of  Corruption   Act.  The   officer   who investigated these  offences was  an Inspector  of the Delhi Police Establishment.  Under Section SA of the Prevention of Corruption Act,  before its  amendment in  1974, no  officer below the  rank of  Deputy Superintendent  of  Police  could investigate an  offence punishable  under Sections  161, 165 and 165A  of the Indian Penal Code and under Section 5(2) of the Prevention  of Corruption  Act, without the order of the Presidency Magistrate  or a  Magistrate of  the First Class. The question  before the  Court was.  whether sanction under Section 196A  of the  Code was necessary. The answer to this question turned  upon whether  an offence under Section 5(2) of the  Prevention of  Corruption Act  was non-cognizable or cognizable. The 400 High Court  held that  an offence under Section 5(2) of that Act was  non-cognizable because  it was  not an  offence for which any police officer could arrest without a warrant. The same argument  which was canvassed before the High Court was repeated before  this Court.  And it  was contended that the words ’a  police officer’  in Section  4(1) (f)  of the Code mean ’any’  police officer.  This argument  was repelled  by this Court  and it  was held that such an approach could not be  a   criterion  for   deciding  whether  the  offence  is cognizable or non cognizable. It was observed:           "If we  pursue the  same line of argument and look      at the  definition of non-cognizable offence in Section      4(1) (n)  which defines  non-cognizable offence  as  an      offence for which a police officer, within or without a      Presidency town,  may not  arrest with. out warrant, it      might mean  that as  these are  cases  where  a  police      officer of the rank of Dy. Superintendent and above can      arrest without  warrant these  are  not  non-cognizable      offences either  How can  there  be  a  case  which  is      neither cognizable nor non cognizable? It was sought to      be argued  that  these  offences  would  be  cognizable      offences when  they  are  investigated  by  the  Deputy      Superintendents of Police and superior officers and non      cognizable when they are investigated by officers below      the rank  of Deputy Superintendents. We fail to see how      an offence would be cognizable in certain circumstances      and non-cognizable in certain other circumstances... We      do   not   consider   that   this   is   a   reasonable      interpretation to place."      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  gaming 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  S   of  the  Bombay  Prevention  of  Gambling  Act  are

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cognizable.  Such   offences  are  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 496 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 401 executive instructions  are contrary to or inconsistent with the provisions of the Code and on a true construction, 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.      In the result, the appeal fails and is dismissed.                                         Appeal dismissed. P.B.R. 402