LALSING KISHANSING Vs. POLICE SUB INSPECTOR RAJKOT

JUDGEMENT

(1.) Shortly stating the facts as apparent from the record are that on June 23 1973 -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 on Mochhi Bazar Road near Krishna Cinema Rajkot was used as a common gaming house and gambling was going on therein. On due inquiry being made by the Deputy Superintendent of Police he was satisfied about the contents of the report with the result that a warrant was issued under the provisions of sec. 6 of the Bombay Prevention of Gambling Act (hereinafter referred to as the Act) to the Police Sub Inspector Rajkot City Division A respondent No. 1 herein. The said premises were then raided by the police party in early hours of June 24 1973 at 4-00 a.m. At the time of the raid it is alleged that 10 persons including the petitioner were found in the premises. They had gathered there for the purpose of gambling. It is further alleged that actual gambling was going on by play of cards and various tokens indicating different points per different design of the tokens were found at the time of the raid. Instruments of gambling were seized and 10 persons found therein were arrested for having committed the offences under secs4 and 5 of the Act. The case of the petitioner is that he along with 10 other persons submitted an application on June 24 1973 at 7-00 a.m. to the first respondent to release them on bail. The copy of the said application is produced at Annexure A. According to the petitioner the offences under secs. 4 and 5 of the Act are bailable and inspite of this the first respondent did not consider the said bail application. He also did not pass any order on the same and did not release the petitioner and other persons on bail even though they were so entitled as of right under the provisions of sec. 496 of the Criminal Procedure Code. The first respondent did not consider the said application for bail given by the petitioner and others because of the order passed by Shri P. H. Jethwa District Superintendent of Police Rajkot respondent No. 2 herein directing all the Police Sub Inspectors that the persons who have been arrested for having committed the offences under secs. 4 and 5 of the Act should not be released on bail by the Police Officers because in the form of warrant under sec. 6 of the Act it has been mentioned that the arrested persons should be produced before the Magistrate and therefore it was not proper for the Police Officers to release them on bail by ignoring these provisions of law. Respondent No. 2 further directed by the said order that persons who have been arrested under such warrant should be produced before the Magistrate and the police officer should not take bail and inspite of this if any police officer violated provisions of law such officer would be penalised for encouraging such activities and strict action would be taken against him. This is the impugned order which is produced at Ex. B to the petition. The petitioner alleges that the second respondent has got no power or authority to issue the impugned order bearing No. RV 618/Jugar/1973 dated May 29 1973 Ex. B. According to the petitioner the offences under secs. 4 and 5 of the Act are cognizable and bailable and the impugned order passed by the second respondent is contrary to the statutory provisions and hence the same is illegal ultra vires and apparently bad. The petitioner also challenges sec. 6 of the Act as ultra vires Article 14 of the Constitution on the ground that the District Superintendent of Police or Deputy Superintendent of Police can arrest a person who is suspected of having committed the offences under secs. 4 and 5 of the Act without any warrant and release them on bail while the officers not below the rank of Police Sub Inspector to whom special warrant under sec. 6 of the Act can be issued are not entitled to release the persons suspected of having committed such offences on bail. The provisions of sec. 6 are thus discriminative and discriminate between persons similarly situated. The petitioner therefore prayed that a writ of mandamus or any appropriate writ direction or order be issued quashing the impugned order. Respondent No. 2 to the petition who has issued the impugned order has filed an affidavit in this case and it is contended by him that the offences under secs. 4 and 5 of the Act are non-congnizable even though they are bailable. Ordinarily therefore the police officers cannot investigate into such offences. The officers get such powers under the provisions of sec. 6 of the Act. The police officers on the strength of such warrant issued under sec. 6 of the Act can enter in the premises of a gambling den search the premises and take into custody persons found therein and bring them before a Magistrate. The power or authority that is given under sec. 6 of the Act is to arrest persons found in the gambling den and to bring them before the Magistrate. The police officers in whose favour the warrant is issued under sec. 6 of the Act have no power to release the persons arrested on bail because the power or authority that is given under the section as well as under the warrant is only to arrest them and produce before the Magistrate. Therefore if the police officers release persons accused of having committed the offences under secs. 4 and 5 of the Act on bail without producing them before the Magistrate they would be violating the provisions of sec 6 and the directions in the warrant issued under sec. 6 of the Act. It is on these grounds that the second respondent supports the impugned order as legal and valid.

(2.) Mr. D. D. Vyas appearing for the petitioner contended that the offences under secs. 4 and 5 of the Act are cognizable and bailable. Under the provisions of sec. 496 of the Criminal Procedure Code the Police Officer has the power and authority to release on bail when the same is demanded by the person accused of such offences. The person accused of such offences has a right to be released on bail and the police officer from whom the bail is demanded has no discretion in the matter but has to release the person on bail. For this proposition Mr. Vyas relied on the decision of this Court in Kanubhai Chhaganlal Brahmbhatt v. State of Gujarat and others 13 G. L. R. 748 wherein the Division Bench of this Court has held that the provisions of sec. 496 of the Criminal Procedure Code are mandatory and the police officer or the Court has no discretion in the matter at all. The accused has got to be released on bail the moment he is prepared to give bail. The impugned order which directs the police officers mentioned therein not to release a person accused of the offices under secs. 4 and 5 of the Act is contrary to law and the said executive instruction is ultra vires illegal and bad in law contended Mr. Vyas. Mr. Vidyarthi on the other hand contended that the offences under secs 4 and 5 of the Act are non-cognizable and therefore the police officer ordinarily can not arrest without warrant persons accused of the offences under secs 4 and 5 of the Act. But the provisions contended Mr. Vidyarthi contained in sec. 6 of the Act expressly authorise issuing of a special warrant to certain police officers and in pursuance of this special warrant the police officer to whom the warrant is granted can take a person into custody and bring him before a Magistrate. The provisions of sec. 6 only authorise the police officer in whose favour the warrant is granted to take into custody any person found in a gambling den and to produce the person before the Magistrate. The provisions of sec. 6 do not empower such a police officer to release a person accused of the offences under secs. 4 and 5 of the Act on bail. The offences under secs. 4 and 5 may be bailable but the bail can be granted only by the Court and not by the police officer as he has no authority in law to grant the bail. In the alternative it was contended by Mr. Vidyarthi that even of the offences under secs 4 and 5 of the Act are cognizable the power of the police to release such accused persons on bail is excluded by the specific provisions of sec. 6 of the Act.

(3.) Now the main basis of the argument of Mr. Vidyarthi is that the offences under secs. 4 and 5 of the Act are non-cognizable. We have therefore to consider and determine whether the offences under secs. 4 and 5 of the Act are cognizable or non-cognizable. The decisions of the Courts on this point are not uniform and we will refer to them hereinafter but it would be better if we first refer to the relevant provisions of law and decide the question without the aid of the authorities. Clause (f) of sub-sec. (1) of sec. 4 of the Criminal Procedure Code (hereinafter referred to as the Code defines congnizable offence and clause (n) defines non-cognizable offence. Clause (f) of sub-sec. (1) of sec. 4 of the Code is as under: