K UPENDER REDDY Vs. DIRECTOR GENERAL ACB

JUDGEMENT

(1.) This writ petition has been filed by a practising advocate of this Court in public interest. He wants that Section 19 of the Prevention of Corruption Act, 1988 (for short "the Act") be declared as unconstitutional and violative of Articles 14 and 21 of the Constitution of India. He also wants a direction against the 1st respondent and his subordinate officers that they should not release the public servants who are arrested for commission of offences under Sections 7,10,11 and 13(e) of the Act on their executing personal bonds and it is violative of Article 14 of the Constitution of India. Counter has been filed. We have heard the learned counsel for the parties.

(2.) The challenge to Section 19 of the Acthas not been seriously advocated and in fact, no arguments were addressed on this count. Section 19 of the Act lays down that in case of prosecution under the Act against public servant, previous sanction of the competent authority mentioned in the provision would be necessary. We are not at present dealing with the challenge to Section 19 of the Act because of the reasons given hereinabove. However, the learned counsel for the petitioner has vehemently argued that when accused persons are arrested for commission of offences under Sections 7,10,11 and 13 (e) of the Act, the concerned police officers are bailing them out on their execution of personal bonds which is not permissible under law. This has not been denied in the counter affidavit. However, it is submitted that the powers exercised by any police officer in releasing the accused persons arrested have been provided under the provisions of sub-sections (2) and (4) of Section 437 of the Code of Criminal Procedure (for short "Code")- It was contended by the learned counsel for the respondents that the purpose of the Sec. 437 of the Code was to enable the police officer as well as Courts to release any person accused or suspected of commission of any non-bailable offence whenever they were arrested or detained without warrant or appeared or brought before a Court. The whole arguments revolve around the interpretation to be placed on Section 437 of the Code. Section 437 of the Code lays down,

(3.) From bare perusal of the section it isclear that the power under Section 437 (1) of the Code is only available to a Court other than the High Court or Court of Sessions, This power is not available to any police officer. Section 437 (1) of the Code lays down that when any person accused of, or suspected of, the commission of any 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 other than the High Court or Court of Sessions, he may be released on bail. Then some exceptions are created under this provision. The power under Section 437(2) of the Code is available to the Officer or also to the Court, but before this power is exercised, the Court or the Officer, as the case may be, should record that there are no reasonable grounds for believing that the accused has committed a non-bailable offence and there are sufficient grounds for further inquiry into his guilt. Therefore, if a police officer is satisfied that there are reasonable grounds for believing that the accused has committed a non-bailable offence, he has no power under Section 437 of the Code to release the accused on bail. This power is exclusively available to a Court other than the High Court or Court of Sessions. The police officer has the power to release an accused on bail provided he is satisfied that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. This provision will have to be read along with provisions of Sections 57 and 167 of the Code. Section 167 of the Code lays down that an accused person arrested without warrant cannot be detained beyond 24 hours and this Section provides that if the investigation is not completed within 24 hours fixed by Section 57 of the Code, the accused person has to be produced before the Magistrate. Therefore, in our view, Section 437 of the Code does not empower the police officer to release any person accused of, or suspected of, the commission of any non-bailable offence unless he is satisfied that there are no reasonable grounds for believing that the accused has committed a non-bailable offence.