The expression “police officer” in Section 4(1)(f) of the Code does not necessarily mean “any and every” police officer, and an offence will still be a “cognizable offence” within this definition even if the power to arrest without warrant, for that offence is given by the statute to police officers of a particular rank or class only. Section 6 confers the power of arrest thereunder only on a specific class of police officers and not on any or every police officer. A Commissioner of Police who is competent to direct, by issuing special warrant of general order, under Section 6(1)(i) of the Bombay Prevention of Gambling Act, another police officer of the requisite rank to arrest persons found gambling or present in a gaming house, can also arrest personally the offender concerned. Therefore, by applying the principle laid in I.C Lala case offences under Sections 4 and 5 of the Act are cognizable. Such offences are admittedly bailable. Hence the Commissioner of Police or the police officer who is authorised by him to search, arrest and investigate such offence, is under a legal obligation 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. Therefore, the circular order issued by the District Superintendent of Police, Rajkot, directing all the Police sub-Inspectors not to release persons arrested in respect of offences under Sections 4 and 5 of the Act on bail is contrary to or inconsistent with the provisions of the Code and 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. Hence the impugned order was ultra vires and bad in law.
(Paras 11, 15 and 24)
Union of India v. I.C Lala, (1973) 2 SCC 72 : 1973 SCC (Cri) 738, applied
Queen Empress v. Deodhar Singh, 1899 ILR 27 Cal 144, 150; Emperor v. Ismail, (1929) 31 Bom LR 1349 : AIR 1930 Bom 49 : 31 Cri LJ 633; Emperor v. Abasbhai Abdulhussein, ILR 50 Bom 344 : AIR 1926 Bom 195 : 27 Cri LJ 503 : 93 IC 967; In re Nagarmal Jankiran, AIR 1943 Nag 338 : 1943 Cri LJ 89 : 196 IC 869 and Delhi Admn. v. Parkash Chand, AIR 1967 Del 151 : 1967 Cri LJ 1630 : 69 Pun LR (D) 207, approved
Raghunath Lahanusa Walvekar v. Emperor, 34 Bom LR 901 : AIR 1932 Bom 610 : 33 Cri LJ 733; G.K Apte v. Union of India, AIR 1970 Ass 43 : 1970 Cri LJ 448; State of U.P v. Lal Bahadur, AIR 1968 All 55, 57 : 1968 Cri LJ 223 : 1968 All WR (HC) 189 and Union of India v. Mahesh Chandra, AIR 1957 MB 43 : 1957 Cri LJ 184, overruled
Appeal dismissedR-M/4979.CR