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Lalsing Kishansing Vs. the Police Sub-inspector and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1974)15GLR799
AppellantLalsing Kishansing
RespondentThe Police Sub-inspector and ors.
Cases ReferredUnion of India v. I.C. Lala (supra). It
Excerpt:
- - 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 section 6 of 'the bombay prevention of gambling act, (hereinafter referred to as the act) to the police sub inspector, rajkot city division 'a',respon-dttf no. 'b'.according to the petitioner the offences under sections 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 police officers in whose favour the warrant is issued under section 6 of the act have no power to release the persons arrested on bail because the power or authority that is given.....a.d. desai, j.1. shortly stating the facts as apparent from the record are that on jun 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 section 6 of 'the bombay prevention of gambling act, (hereinafter referred to as the act) to the police sub inspector, rajkot city division 'a', respon-dttf no. 1 herein. the said premises were then raided by the police party in arfy hours.....
Judgment:

A.D. Desai, J.

1. Shortly stating the facts as apparent from the record are that on Jun 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 Section 6 of 'the Bombay Prevention of Gambling Act, (hereinafter referred to as the Act) to the Police Sub Inspector, Rajkot City Division 'A', respon-dttf No. 1 herein. The said premises were then raided by the police party in arfy 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 Sections 4 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 Sections 4 and 5 of the Act are bailable and inspitet 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 Section 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 Sections 4 and 5 of the Act should not be released on bail by the Police Officers because in the form of warrant under Section 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 Sections 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 Section 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 Sections 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 Section 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 Section 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 Sections 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 Section 6 of the Act. The police officers on the strength of such warrant issued under Section 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 Section 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 Section 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 Sections 4 and 5 of the Act on bail without producing them before the Magistrate, they would be violating the provisions of Section 6 and the directions in the warrant issued under Section 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 Sections 4 and 5 of the Act are cognizable and bailable. Under the provisions of Section 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 Ors. 13 G.L.R. 748, wherein the Division Bench of this Court has held that the provisions of Section 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 offences under Sections 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 Sections 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 Sections 4 and 5 of the Act. But the provisions contended Mr. Vidyarthi contained in Section 6 of the Act expressly authorise issuing of a special warrant to certain police officers and in pur-suance 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 Section 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 Section 6 do not empower such a police officer to release a person accused of the offences under Sections 4 and 5 of the Act on bail. The offences under Sections 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 Sections 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 Section 6 of the Act.

3. Now the main basis of the argument of Mr. Vidyarthi is that the offences under Sections 4 and 5 of the Act are non-cognizable. We have, therefore, to consider and determine whether the offences under Sections 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-section (1) of Section 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-section (1) of Section 4 of the Code is as under:

(i) 'cognizable offence means an offence for ...in which a police officer, within or without the presidency towns, may, in accordance with the second schedule or under any law for the time being in force, arrest without warrant.

The provisions at the end of the second schedule deal with the offences against other laws and under this part of the schedule the offences under Sections A and 5 are not such offences in which a police officer can arrest without warrant. The question then is whether there is any provision in the Act which makes the offences under Sections 4 and 5 cognizable. The relevant section on the point is Section 6 of the Act and the material provisions thereof are as under:

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 '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 a 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 enter any house, room or place which he has reason to suspect is used as a common gaming-house,

(b): to search all parts of the house, room or place which he shall have so entered, when he shall have reason 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.

This section authorises the Commissioner of Police and certain other Officers to issue special warrant of search, seizure and arrest. When the legislature empowers an officer to delegate any authority to do certain acts to another, it 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. Therefore, the Commissioner of Police and certain other officers can search such premises, seize articles found therein and arrest the persons who are found therein without any warrant. The words 'police officer' used in Clause (f) of Sub-section (1) of Section 4 of the Code which defines 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 provisions of Clause (f) of Sub-section (1) of Section 4 of the Code. Under the provisions of 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 5 of the Act without warrant and, therefore, the said offences are cognizable. Mr. Vidyarthi contended that, in that case, at the most in case where the Police Commissioner and other officers mentioned in Section 6 of the Act, 'do arrest parsons found in the gambling house, the offences would be cognizable but when the police officers in whose favour special warrant is granted under the provisions of Section 6 and they act in pursuance of this warrant, the offences under Sections 4 and 5 of the Act would be non-cognizable because the provisions of Section 6 do not authorise such officer to arrest without warrant. Pre-condition to the exercise the power in cases where such officers act is the issuance of the warrant in their favour and when the offences under Sections 4 and 5 are investigated by such police officers, they would be non-cognizable. The effect of this argument is to split up Section 6 into two parts, namely, (1) that the offences under Sections 4 and 5 are cognizable when investigated by the Police Commissioner and certain other officers, and (2) such offences are non-cognizable when investigated by the persons in whose favour the special warrant is issued under Section 6 of the Act. Such artificial construction of Section 6 cannot be accepted. It is not necessary to give any reasons in detail for this view as the argument of this nature was advanced before the Supreme Court and rejected by the Court. In Union of India v.I.C. Lala etc. A.t.R. 1973 S.C. 2204, two army officers and one businessman were charged with conspiracy of the offences punishable under Section 120-B of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act and Section 420 of the Indian Penal Code. The officer who investigated the offences was a Inspector Delhi Police Establishment. Under Section 5A of the Prevention of Corruption Act before it was amended in 1964, no officer below the rank of Deputy Superintendent of Police could investigate into offences punishable under Sections 161, 165 and 165165 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 which arose in the case was whether sanction under Section 196A of the Code was necessary. The answer to the question depended upon whether the offence under Section 5(2) of the Prevention of Corruption Act was non-cognizable or cognizable. The High Court held that the offence under Section 5(2) of the Prevention of Corruption Act was non-cognizable because under Section 5A of the Prevention of Corruption Act no officer below the rank of the Deputy Superintendent of Police could investigate or arrest without warrant in respect of the offences punishable under Sections 161, 165 and 165A of the Indian Penal Code and Section 5 of the Prevention of Corruption Act. The offence under Section 5(2) of the Prevention of Corruption Act was not an offence for which any police officer can arrest without a warrant and, therefore, the High Court held that the offence under Section 5(2) of the Prevention of Corruption Act was non-cognizable. The same arguments were repeated before the Supreme Court with additional emphasis that the words 'a police officer' used in Section 4(1)(f) of the Code had the meaning of 'any police officer' and as any police officer could not arrest without warrant in view of the provisions of Section 5-A of the Prevention of Corruption Act, the offence under Section 5(2) of the said Act was non-cognisable. While considering this reasoning the Supreme Court 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 without 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.

In the opinion of the Supreme Court such an approach could not be a criteria for deciding whether the offence is cognizable or non-cognizable. Now the requirement that in a cognizable offence a police officer should be able to arrest without warrant is without limitation and Section 6 of the Act cannot be split up to mean that the offence is cognizable in reference to one officer and not in reference to another. Mr. Vidyarthi's basic approach to the construction of Section 6 is, therefore, erroneous and incorrect. The offences under Section 4 and 5 of the Act are cognizable offences and it is in this light that Section 6 has to be interpreted. The true construction of Section 6 is that it does not interfere with right of certain officers like the Police Commissioner to investigate into cognizable offences. The provisions of the section restrict or limit the right of certain police officers to investigate into such offences. Under Section 6 any area where the Commissioner of Police is appointed, the Commissioner of Police is empowered to appoint to do all the acts contemplated by Section 6 of the Act by mere general order while in cases of other areas the police officer even if he has reason to suspect that the house, room or place used as a common gaming house cannot do so without a special warrant from the higher authority empowered by the section and the higher authority can issue special warrant in respect of a particular case and that too only after he himself being satisfied on making inquiry as he deemed necessary that there is good ground to suspect that a particular house or a room or a place for which the warrant is asked for is used as a common gaming house. The provisions of Section 6 merely provide a limited exemption from the provisions of the Criminal Procedure Code in so far as they limit class of police officers who are competent to investigate the offence and to arrest without a warrant. Mere fact that under Section 6 certain restrictions are placed as to the police officers who are competent to investigate the offence, would not make the offence any less cognizable.

4. We will now consider the various decided cases which had been cited at the bar. In Miyabhai Pirbhai and Ors. v. The State 4 G.L.R. 253, Raju J. took the view that the offences under Sections 4 and 5 of the Act are non-cognizable. The reason for the said view was that the powers and rights of the authorities to arrest without warrant are subject to certain requirements and other qualifications of Section 6 of the Act one of them being that there must be a general order in wilting or special warrant issued by an officer referred to in Section 6. The reasoning of the learned Judge does not appeal to us. The aforesaid reasoning ignores that the Police Commissioner and certain other officers can investigate the said offences, search the premises is which gambling is going on, seize articles of gambling found therein and arrest the persons who are present in gambling den,' without warrant and the offences under Sections 4 and 5 in such cases would be cognizable offences under the provisions or Section 4(1)(f) of the Code. We have discussed this point earlier and it is not necessary to repeat the reasonings given by us on this point, Raju J. in coming to the conclusion that the offences under Sections 4 and 5 are non-cognizable followed the decision of the Division Bench of the Bombay High Court in Emperor v. Raghunath 34, Bom. L.R. 901. There are three decisions of the Bombay High Court on this point and we shall consider them. In Emperor v. Abasbhai I.L.R. 50, Bom. 344--28 B.L.R. 272, a Sub-Inspector of Police, Poona, got a warrant issued under Section 6 of the Act authorizing him to search certain premises. In pursuance of the said warrant the Police Officer raided the premises and arrested three persons who were found therein. The case was tried in the Court as a cognizable one. At the stage of arguments before the learned Magistrate who tried the case, it was contended on behalf of the accused that the offences under Sections 4 and 5 of the Act were non-cognizable. The learned Judge accepted the said arguments. The case was tried by the learned Magistrate as a cognizable case, that is as a warrant case and the question arose whether the procedure followed at the trial was illegal. The learned Judge held that the procedure followed was erroneous and acquitted the accused. In appeal before the High Court the question again arose whether the offences under Sections 4 and 5 of the Act are cognizable or non-cognizable. The Court pointed out that under Section 6 of the Act the Commissioner of Police and certain other persons have power to issue special warrants of search and also to arrest and that consequently what they may authorise by special warrant they may do personally. It was held that the offences under Sections 4 and 5 of the Act were cognizable. The Court also construed the word a police officer' as used in Section 4(1)(f) of the Code and came to the conclusion that they do not maan every and any police officer. If the provisions of law authorise that superior police officer may arrest without warrant then the offence is cognizable. This is a decision of a Division Bench of the Court. In coming to the aforesaid conclusions the Court followed the decision in Queen-Empress v. Deodhar Sing and Anr. I.L.R. 27, Cal. 144. The question as to whether the offence under Section 4 is a cognizable or non-cognizable again arose in Emperor v. Ismail Hirji 31, Bom. L.R. 1349. The case was from Bombay City itself and the reference was made by the trying Magistrate to the High Court to decide whether the offence punishable under Section 4 of the Act was cognizable or non-cognizable. The Court followed the decision in Emperor v. Abashbhai (supra), and held that the offense under Section 4 was cognizable. This was also the decision of the Division Bench of the Bombay High Court. In Emperor v. Raghunath (supra), the question was again agitated before a Division Bench as to whether the offence under Section 4 of the Prevention of Corruption Act is a cognizable or non-cognizable offence. In this case the' offence was investigated under a warrant issued under Section 6 of the Act and the premises of the accused at Poone were raided. The Division Bench consisting of Beaumont, C.J. and Broo-mfleld, J. came to the conclusion that the offence under Section 4 was non-cognizable because the offejice could not be investigated and arrest could not be made without a warrant under Section 6 of the Act. The decision in Emperor v. Ismail (supra) was cited before the Court and the Court distinguished the same on the ground that the offence in that case was committed in the area for which a Commissioner of Police had been appointed and the Commissioner of Police, Bombay was in the circumstances of that case authorised to arrest the accused without warrant. The Court held that the said case was not an authority for saying that the offences punishable under Sections 4 and 5 of the Act are cognizable offences. It is pertinent to note that the case in Emperor v. Abasbhai was cited before the Court as is apparent from the notes of arguments reported is the case. It must further be noted that the decision in Emperor v. Abashbai was referred to by the Division Bench in Emperor v. Ismail 31, B.L.R. 1349 which the Division Bench distinguished. Inspite of this the Division Bench did not refer to the decision of the Division Bench in Emperor v. Abasbhai in which case the Court was dealing with a person who was accused of having committed the offence under Section 4 of the Act in the area in respect of which the Police Commissioner had not been appointed. The question that arises is: what is the value of a decision given by a Court which ignores a previous decision on the point given by a Division Bench of the Court. Salmond on Jurisprudence, 12th Edition, has these observations to make:

Whenever a relevant prior decision is not cited before the court, or mentioned in the judgments, it must be assumed that the court acts in ignorance or forgetfulness of it. If the new decision is in conflict with the old, it is given per incuriam and is not binding on a later court.

Although the later court is not bound by the decision so given per incuriam, this does not mean that it is bound by the first case. Perhaps in strict logic the first case should be binding since it should never have been departed from, and was only departed from per incuriam. However, this is not the rule. The rule is that where there are previous inconsistent decisions of its own, the court is free to follow either. It can follow the earlier, but equally, if it thinks fit, it can follow the later..It will be seen, therefore, that this exception to the binding force of precedent belongs both to the category of abrogation by subsequent facts and to the category of what is here called inherent vice. The earlier case can be disregarded because of the subsequent inconsistent decision on the same level of authority, and the later case can be disregarded because of its inherent vice of ignoring the earlier case.

While deciding the case in Emperor v. Raghunath, the Court ignored the earlier decision which covered the point which the Court decided and which decision was contrary to one which the Court had come to. Not only this but the very reasoning adopted by the Court in Emperor v. Raghunath for coming to a different conclusion than what was arrived in Emperor v. Abasbhai, cannot stand in view of the decision of the Supreme Court in Union of India v. I.C. Lala (supra). It is for this reason that we did not accede to the argument of Mr. Vidyarthi to refer the matter to a larger bench for decision of the question whether the offences under Sections 4 and 5 of the Act are cognizable or non-cognizable. Our conclusion on the point is that the offences under sacs. 4 and 5 of the Act are cognizable. In the affidavit filed by the respondent, it was admitted that the said offences are bailable. The offences under Sections 4 and 5 being cognizable and bailable, the officer mentioned in Section 6 of the Act e.g. Commissioner of Police and the officers to whom warrant can be granted for the purpose of investigation have to release the accused on bail under the provisions of Section 496 of the Code. The said officers have under the statute power and authority to grant bail to the accused. This is a statutory power or authority, and no executive instruction can run counter to the statutory provisions. The impugned order, therefore, cannot be sustained because it runs counter to the statutory provisions which authorise the police officer mentioned in Section 6 to grant bail. It is, therefore, not necessary to consider the challenge to the constitutionality of Section 6 of the Act.

5. It was next contended by Mr. Vidyarthi that the provisions of Section 6(c) of the Act only empower the police officers mentioned in the section to take into custody and bring the person, arrested before the Magistrate. The provisions of Section 6 thus exclude the power or authority of the police officer to grant bail under Section 496 of the Code. It was further contended by Mr. Vidyarthi that the words used in Section 6(c) are 'to take into custody' and not to arrest and there is a difference between the word 'custody' and the word 'arrest'. Arrest is something more than taking in custody, argued Mr. Vidyarthi. It is difficult to accept this argument. The word 'custody' and the word 'arrest' mean the same thing and the meaning is to apprehend. Section 6A of the Act provides that if any person found in any common gaming house, entered by any Magistrate or officer of Police under the provisions of this Act, upon being arrested by any such officer or upon being brought before any Magistrate, and on being required by such officer or Magistrate to give his name and address refuses or neglects to give the same or gives any false name or address, he shall, on conviction be punished. The relevant phrase used in the section is under the provisions of this Act upon being arrested' and the word arrested used therein throws light on the meaning of the word 'to take into custody'. The phrase 'to take into custody', therefore, means nothing else than arrest. The arguments of Mr. Vidyarthi that the words 'arrest' and 'custody' have different meanings cannot be accepted. Now before Interpreting the words 'to take into custody and bring before a Magistrate', we have to bear in mind that the offences under Sections 4 and 5 of the Act are cognizable. As the said offences are cognizable and bailable, the police officer has the power and authority to release the accused on bail under Section 496 of the Code. Is there anything in Section 6 of the Act and specially in the words 'to take into custody and produce before a Magistrate' which excludes the statutory power or authority vested in the police officer to whom the warrant is issued under Section 5 of the Act to release on bail a person arrested for having committed the offences under Sections 4 and 5 of the Act? The answer to the question is in the negative. The phrase 'to take into custody and bring before a Magistrate' would only mean that if a person is arrested of having committed the offences under Sections 4 and 5 of the Act, the same being cognizable and bailable, bail should be granted if the person arrested is prepared to give bail. If the bail is granted and conditions thereof not fulfilled by the accused or if no bail is asked, the police officer arresting a person who is suspected of having committed the offences under Section 4 and 5 have to produce him before the Magistrate. There is nothing in Section 6 which excludes the right conferred by the Code on the police officer to grant bail to the person accused of the offences under Sections 4 and 5 of the Act.

6. It seems to us that as a last resort Mr. Vidyarthi contended that the offences under Sections 4 and 5 of the Act are not bailable even though in the affidavit which has been filed by the respondents, there is clear admission that the offences are bailable. Mr. Vidyarthi contended that the admission on a point of law cannot bind a party and, therefore, it is open to him to contend that the offences under Sections 4 and 5 are non-bailable. The question is whether there is any force in this argument. In Section 4(1)(b) of the Code 'bailable offence' is defined as an offence shown as bailable in the second schedule or which is made bailable by any other law for the time being in force. The words 'non-bailable offence is also defined in the said section meaning any other offence. In order to find out whether an offence is bailable or not one has to refer to the second schedule to the Code. Now in this case we are concerned with the offences under Sections 4 and 5 of the Act which would be governed by the last part of the schedule which deals with the offences under any other law. The offences under Sections 4 and 5 are punishable with sentence of less than one year. The last entry in the schedule provides that if an offence is punishable with imprisonment of less than one year the offence is bailable. The offences under Sections 4 and 5 of the Act are punishable with imprisonment of less than one year and, therefore, they are bailable. Th3 consequence is that there is no force in the arguments of Mr. Vidyarthi that the offences under Sections 4 and 5 are not bailable.

6.1. At one stage Mr. Vidyarthi contended that the petitioner had no right to file the present special criminal application because the statement of the petitioner that he had presented an application before respondent No.l to release him on bail was disputed by respondent No. 1. The petitioner has produced before this Court a photo copy of the application made by him to the police officer to release him on bail. The said copy also shows that the sams is signed by respondent No. 1. We are not told by Mr. Vidyarthi that he does not want to press this point any further because some criminal proceedings are pending against respondent No. 1 and our finding on the point may be prejudicial to respondent No. 1 in that proceedings. He requested us to decide the case on the basis that an application was made to obtain bail. It is for this reason that we do not enter into the question of fact and we decide this sp;chl criminal application on the basis that the application was made before respondent No. 1 to release the petitioner on bail.

7. The result is that the impugned order No. RV 618/Jugar/1973 dated May 29, 1973 issued by respondent No. 2 is ultra vires, illegal and bad and the same is quashed and it is further directed that no action should be taken in pursuance of the said order. Rule issued on the petition is made absolute. Respondent No. 3 to pay the costs of the petitioner.


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