Criminal Appeal No 20 of 1975
Appeal by Special Leave from the Judgment and order dated 1516 11 1973 of the Gujarat High Court in Crl
A No 2273
J L Nain M N Shroff for the Appellants
H section Marwah Amicus Curiae for the Respondents
The Judgment of the Court was delivered by SARKARIA J
This appeal by special leave is directed against a judgment dated November 1516 1973 of the High Court of Gujarat
The material facts are as under On June 23 1973 a 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 at Mochhi 393 Bazar Road near Krishna Cinema Rajkot was used as a common gaming house and gambling was going on therein
The Deputy Superintendent of Police after making an inquiry was satisfied about the contents of the report and he issued a warrant under Section 6 of the Bombay Prevention of Gambling Act hereinafter referred to as the Act and sent it to the Police Sub Inspector Rajkot for execution in accordance with law
The Sub Inspector then reached the aforesaid B premises in the early hours of June 24 1973 at 4 am
He found 10 persons including the respondent herein in the premises
They had all gathered there for the purpose of gambling and gambling was actually going on by play of cards and tokens of various designs which were used to indicate the different points were also found there
All the ten persons were arrested in respect of offences under Sections 4 and S of the Act
The instruments of gaming were also seized
On the following morning at 7 am the petitioner and his companions submitted an application to the Police Sub Inspector who was the first respondent before the High Court requesting him to enlarge them on bail
The Sub Inspector did not consider their bail applications nor did he pass any order thereon
At about noon however the respondents were produced before the Magistrate who released them on bail
The Sub Inspector did not consider their bail applications and release them on bail because he was prohibited from doing so by a Circular order issued by Shri P H Jethwa District Superintendent of Police Rajkot directing all the Police Sub Inspectors not to release persons arrested in respect of offences under Sections 4 and S of the Act on bail because in the Form of the warrant prescribed under Section 6 of the Act it is mentioned that the arrested persons should be produced before the Magistrate
The Circular order further directed that the arrested persons under the Act should be produced before the Magistrate
The Circular further warned that if any Police officer violated these directions he would expose himself to disciplinary action
This Circular order exhibit B was impugned by a writ petition under Article 226 of the Constitution before the High Court
Two main contentions were raised before the High Court
First that offences under Sections 4 and S of the Act are cognizable and bailable
Consequently under Section 496 of the Code of Criminal Procedure 1898 the Police officer arresting the respondents was duty
bound to enlarge them on bail
The impugned Circular being contrary to the statutory provisions is illegal and ultra vires
Second the impugned Circular is violative of Article 14 of the Constitution inasmuch as it discriminates between persons similarly situated
The second ground was not pressed before the High Court 394 The first contention prevailed with the High Court
In conclusion it held that the Police officer had the power o the authority to enlarge the arrested persons on bail
Its reason was as under 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
 Referring to Section 41 f of the Code of Criminal Procedure the High Court observed that the words a police officer in that provision which defines a 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 purview of clause f of sub section 1 of Section 4 of the Code
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 committed the offences under Sections 4 and S of the Act with out warrant the said offences are cognizable
Support for this reasoning was sought from a decision of this Court in Union of India vs IC Lala etc
The High Court further held that the provisions of Section 6 merely provide a limited exemption from the provisions of the Code of Criminal Procedure in so far as they limit the class of Police officers who are competent to investigate the offences and to arrest without a warrant
The mere fact that certain restrictions are placed as to the Police officers who are competent to investigate the offence would not make the offence any the less than cognizable
It also referred to several decisions of the Bombay High Court including the one Emperor vs Raghunath decided by a division Bench consisting of Beaumont CJ and Broom field J wherein it was held that an offence under Section 4 of the Act is non cognizable
The High Court did not follow this decision because in its view it had ignored an earlier decision which covered the point which the court had decided and the earlier decision was contrary to it
With this reasoning the High Court came to the conclusion that offences under Sections 4 and 5 being cognizable and 395 bailable the commissioner of Police and the officers to whom a warrant can be granted for the purpose of investigation under the Act have to release accused on bail under the provisions of Section 496 of the Code of Criminal Procedure
They derive their power to grant bail from the statute
The impugned order therefore cannot be sustained because it runs counter to the statutory provisions which authorise the police officers mentioned in Section 6 to grant bail
Nobody has appeared on behalf of the respondent despite notice to oppose this appeal
Shri H section Marwah however has been kind enough to assist the Court as amicus Curiae on behalf of the respondents
Since the case was decided by the High Court on the basis of the first contention in favour of the respondent herein and the High Court did not go into the constitutional validity of the impugned order we will confine the discussion to the first point on the basis of which the High Court has invalidated the impugned order
We will assume for our purpose that Section 6 of the Act does not offend Article 14 of the Constitution
Section 6 runs as under 61
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 a 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 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 any house room or place which he has reason to suspect is used as a common gaming house H b to search all parts of the house room or place which he shall have so entered when he shall have reason 396 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
 From a plain reading of Section 61 it is clear that subject to the conditions of the proviso 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 he aforesaid acts and things constituted under sub clause i is the Commissioner of Police
The sub clause only enables him to employ his subordinate police officers not below the authorised rank of a Sub Inspector to execute his general order or special warrant to arrest for offences under Sections 4 and 5 of the Act
It will be noted further that even under sub clause iii in an area notified by the Government
any police officer not below the rank of a Sub Inspector empowered by the District Magistrate under a general order in writing can arrest a person found gambling or present in a common gaming house without a warrant from a Magistrate
In short Section 6 confers the power of arrest thereunder only on a specified class of police officers and not on any or every police officer
It is in the light of the above analysis of Section 61 that we have to determine whether the offences under Sections 4 and 5 of the Act are recognizable offences 
Section 41f of that Code of Criminal Procedure 1898 defines cognizable offence to mean an offence for and cognizable case  to mean a case in which a police officer within 397 or without the Presidency towns may in accordance with the Second Schedule or under other law for the time being in force arrest without warrant
There was a divergence of judicial opinion in regard to the connotation of the words a police officer used in the above definition
One line of decisions led by Deodhar Singh case took the view that 1 these words in Section 41 do not necessarily mean any and every police officer
It is sufficient to bring an offence within the definition of a cognizable offence  if the power to arrest without a warrant is vested under the law in a police officer of a particular class only
The ratio of Deodhar Singh s case was followed by the Bombay High Court in Emperor vs Ismail and Emperor vs Abasbhai Abdul Hussain by the Nagpur Court in Nagarmal Jankiram and by the Delhi High Court in Delhi Administration vs Parkash Chand  Ors
A contrary view was taken by the Assam High Court in G K Apu vs Union of India by the Allahabad High Court in State of UP vs Lal Bahadur  Ors by the Madhya Bharat High Court in Union of India vs Mahesh Chandra and in some other decisions
This conflict appears to have been set at rest by the decision of this Court in 1
C Lala s case ibid which has expressly overruled the view taken by the Assam and Madhya Bharat High Courts
We will notice Lala s case later
It will suffice to say here that the view which has received the imprimatur of this Court is that the expression police officer in Section 41f 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
In Queen Empress vs Deodhar Singh under the Bengal Public Gaming Act II of 1867 the District Superintendent of Police or the District Magistrate was competent to arrest or by warrant to direct the arrest of persons found in a common gaming house
The Question 398 was whether the offence under Section 41f of the Bengal Act was cognizable
This question turned on an interpretation of the expression police officer in the definition of cognizable offence  and was answered in the affirmative thus Now under the Gambling Act it is not every Police officer who can arrest without a warrant
It is only the District Superintendent of Police who can arrest or by warrant direct the arrest of persons gambling in a house
The district Superintendent being a Police officer who may under a law for the time being in force viz the Gambling Act arrest without warrant
We think that the requirements of clause 1 f of the above Sections are satisfied and that the offence in question is therefore a cognizable offence 
We cannot accept the contention that the words in that clause a Police officer  mean any and every  Police officer
It is sufficient if the Legislature has limited the power of arrest to any particular class of Police officers
 If we may say so with respect this is a correct exposition of the law on the point
The ratio of Deodhar Singh s case was followed by a Division Bench of the Bombay High Court Marten and Madgavkar JJ in Emperor vs Abasbhai Abdul Hussain ibid
The impugned judgment before us is also based on this decision
These very provisions of the Bombay Prevention of Gambling Act came up for interpretation in re
Naganmal Jankiram ibid and the same view was taken by Pollock J
In Abasbhai s case ibid a Sub Inspector got a warrant issued under Section 6 of the Bombay Prevention of Gambling Act which authorised him to search certain premises
In execution of that warrant the Sub Inspector raided a house and arrested three persons who were found therein
The case was tried by the Magistrate concerned as a cognizable one
At the trial at the stage of arguments it was contended on behalf of the accused that offences under Sections 4 and 5 were non cognizable and since the procedure of warrant case had been followed by the Magistrate the trial was illegal
The trial court accepted the argument and acquitted the accused
In appeal before the High Court it was agitated that the offence was a cognizable one
The High Court reasoned and we think rightly that since under Section 6 of the Act the Commissioner of Police has power to issue special warrants of search and also to arrest he is competent to do personally what he may authorise others to do by special warrant
It followed the dictum of Deodhar Singh s case in regard to the interpretation of the words a police officer in the definition of cognizable offence given in the Code of Criminal Procedure
On 399 these premises the High Court held that offence s under Sections 4 and 5 are cognizable
In Emperor vs Ismail ibid a Division Bench of the Bombay High Court reaffirmed the dictum of Abasbhai s case that an offence punishable under Section 4 of the Act is cognizable
In Delhi Administration vs Parkash Chand  Ors H R Khanna J following the dictum of the Calcutta High Court in Deodhar Singh s case and of Bombay High Court in Abasbhai s case held that offences under Sections 3 and 4 of Delhi Gambling Act are cognizable offences  as Section S of the Delhi Act gives the Superintendent of Police power to arrest or authorise any officer of police not below the rank of Sub Inspector to arrest without a warrant
It is argued on behalf of the appellant State that the ratio of the aforesaid decisions in Deodhar Singh s case and Parkash Chand s case is not applicable to offences under the Bombay Prevention of Gambling Act because the Bengal Act and the Delhi Act expressly empower the Superintendent of Police either to arrest himself or direct arrest by another police officer of requisite rank whereas in Section 61 of the Bombay Prevention of Gambling Act there are no express words giving an option to the Commissioner of Police to effect arrest personally
We are unable to accept this argument
The difference pointed out is a distinction without a difference
What was explicit in the Bengal Gambling Act and the Delhi Gambling Act is implicit in Section 61 of the Bombay Prevention of Gambling Act
It will now be appropriate to notice this Court s decision in Union of India vs I C Lala
In that case two army officers and one business man were charged with the conspiracy of the offences punishable under Sections 120B and 420 of the Indian Penal Code read with Section S2 of the Prevention of Corruption Act
The officer who investigated these offences was an Inspector of the Delhi Police Establishment
Under Section SA of the Prevention of Corruption Act before its amendment in 1974 no officer below the rank of Deputy Superintendent of Police could investigate an offence punishable under Sections 161 165 and 165A of the Indian Penal Code and under Section 52 of the Prevention of Corruption Act without the order of the Presidency Magistrate or a Magistrate of the First Class
The question before the Court was
whether sanction under Section 196A of the Code was necessary
The answer to this question turned upon whether an offence under Section 52 of the Prevention of Corruption Act was non cognizable or cognizable
The 400 High Court held that an offence under Section 52 of that Act was non cognizable because it was not an offence for which any police officer could arrest without a warrant
The same argument which was canvassed before the High Court was repeated before this Court
And it was contended that the words a police officer  in Section 41 f of the Code mean any  police officer
This argument was repelled by this Court and it was held that such an approach could not be a criterion for deciding whether the offence is cognizable or non cognizable
It was observed If we pursue the same line of argument and look at the definition of non cognizable offence in Section 41 n which defines non cognizable offence as an offence for which a police officer within or without a Presidency town may not arrest with
out 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
 Once we hold that a Commissioner of Police who is competent to direct by issuing special warrant or general order under Section 61i 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 the principle enunciated by this Court in Lala s case is immediately attracted in full force and there is no escape from the conclusion that offences under Sections 4 and S of the Bombay Prevention of Gambling Act are cognizable
Such offences are admittedly bailable
It follows as a necessary corollary therefrom that the commissioner of Police or the police officer who is authorised by him to search arrest and investigate such offences 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
Since the impugned order or 401 executive instructions are 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 the impugned order was ultra vires and bad in law and had been rightly quashed by the High Court
In the result the appeal fails and is dismissed
Appeal dismissed


Summary:
A Sub Inspector of Police arrested the respondent for offences under sections 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 S of the Act
He however produced the respondent before a Magistrate
D The High Court in the writ petition filed by the respondent upheld his contention that offences under sections 4 and S 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 provisions 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 committed offences under sections 4 and S of the Act without warrant the offences are cognizable
Dismissing the appeal  HELD a Since the Commissioner of Police who is competent to direct by issuing special warrant or general order under section 61i 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 the offences under sections 4 and S of the Act are cognizable
Such offences are admittedly bailable
400 F 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 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
Since the impugned order of executive instructions are contrary to or inconsistent with the provisions of the Code and 392 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 vs I C Lala etc AIR 1973 SC 22041973 3 SCR 818 824 applied
a Under Section 61 of the Act subject to the conditions of the proviso 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 subsection 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 tho aforesaid acts and things constituted under sub clause i is the Commissioner of Police
The sub clause only enable him 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 arrest thereunder only on a specified class of police officers and not on any or every police officer
396D F  G b It is settled law that the expression Police officer used in the definition of cognizable offence in section 41f of the Code of Criminal Procedure does not necessarily mean any and every police officer
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
398 C Queen Empress vs Deodhar Singh ILR  150 approved