LexSTATE OF GUJARAT & ORS. versus LAL SINGH KISHAN SINGH
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STATE OF GUJARAT & ORS. v. LAL SINGH KISHAN SINGH August 12, 1980 [R. S. SARKARIA AND R. S. PATHAK, JJ.J \ Bombay Nevention of Gambling Act-Sections 4, 5 and 6-Swpe of- Ofjences under sections 4 and 5, if congnizab/e-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 illega/-'-"Police Officer''-Whether includes every police office,r. A Sub-Inspector of Police arrested the respondent for offences under sec- tions 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 5 of tlie Act. He, however, produced the respondent before a Magistrate. The High Court in the writ petition filed by the respondent upheld his contention that 'offences under sections 4 and 5 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 provi- sions 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 com- mitted offences under sections 4 and 5 of the Act without warrant, the offences are cognizable. · Dismissing the appeal, HELD : (a) Since the Commissioner of Police, who is .:ompetent to direct by issuing special warrant or general order under section 6(1)(i), another police officer of the re\!uisite 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 5 of the Act are cognizao!e, Such offences are admittedly 391 A B c D E F bailable. [400 F-G] 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 obliga- tion 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 H instructions are contrary to or inconsistent with the provisions of the Code and 392 A ' SUPREME COURT REPORTS [1981] 1 S.C.R. 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 ete., A.l.R. 1973 S.C. 2204=[1973] 3 SCR ]J 818, 824 applied. D 2. (a) Under section 6(1) of the Act (subject to the conditions of the pro· viso) 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 the aforesaid acts and things, constituted under sub·clause (i) is the Commissioner of Police. The sub-clause only enables hirn 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 arr
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