A.D.DESAI - (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:
" (f) 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 secs. 4 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 secs. 4 and 5 cognizable. The relevant section on the point is sec. 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 sec. 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 a police officer used in clause (f) of sub-sec. (1) of sec. 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-sec. (1) of sec. 4 of the Code. Under the provisions of sec. 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 secs. 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 sec. 6 of the Act do arrest persons found in the gambling house the offences would be congnizable but when the police officers in whose favour special warrant is granted under the provisions of sec. 6 and they act in pursuance of this warrant the offences under secs. 4 and 5 of the Act would be non-cognizable because the provisions of sec. 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 secs. 4 and 5 are investigated by such police officers they would be non-cognizable. The effect of this argument is to split up sec. 6 into two parts namely (1) that the offences under secs. 4 and 5 are cognizable when investigated by the Police Commissioner and certain other officers and (2) such offences are non-congnizable when investigated by the persons in whose favour the special warrant is issued under sec. 6 of the Act. Such artificial construction of sec. 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.I.R. 1973 S.C. 2204 two army officers and one businessman were charged with conspiracy of the offences punishable under sec. 120-B of the Indian Penal Code read with sec. 5 of the Prevention of Corruption Act and sec. 420 of the Indian Penal Code. The officer who investigated the offences was a Inspector Delhi Police Establishment. Under sec. SA 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 secs. 161 165 and 165A of the Indian Penal Code and under sec. 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 sec. 196A of the Code was necessary. The answer to the question depended upon whether the offence under sec. 5(2) of the Prevention of Corruption Act was non-cognizable or cognizable. The High Court held that the offence under sec. 5(2) of the Prevention of Corruption Act was non-cognizable because under sec. 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 secs. 161 165 and 165A of the Indian Penal Code and sec. 5 of the Prevention of Corruption Act. The offence under sec. 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 sec. 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 sec. 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 sec. 5-A of the Prevention of Corruption Act the offence under sec. 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 sec. 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 noncongizable ? 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 sec. 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. Vidyarthis basic approach to the construction of sec 6 is therefore erroneous and incorrect. The offences under sec. 4 and 5 of the Act are cognizable offences and it is in this light that sec. 6 has to be interpreted The true construction of sec. 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 sec. 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 sec. 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 sec. 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 sec. 6 certain restrictions are placed as to the police officers who are competent to investigate the offence would not make the offence any less congnizable.
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