Holding

Offences under sections 4 and 5 of the Bombay Prevention of Gambling Act are cognizable and bailable, and the police officer authorized to arrest must release the accused on bail under CrPC section 496; the circular prohibiting such bail is ultra vires.

Summary

The State of Gujarat appealed a High Court order that quashed a circular directing police not to grant bail to persons arrested under sections 4 and 5 of the Bombay Prevention of Gambling Act. The respondents were arrested by a Sub‑Inspector on a warrant issued under section 6 of the Act and were denied bail by the police officer, who relied on the circular, but were later released by a magistrate. The High Court held that the offences are cognizable and bailable, and that the police officer, empowered by the statute, must release the accused on bail under section 496 of the Code of Criminal Procedure, rendering the circular ultra vires. The Supreme Court affirmed this view, interpreting "police officer" in the definition of cognizable offence to include officers of a specified rank and confirming that the statutory power to arrest confers a corresponding duty to grant bail. Consequently, the circular was struck down and the appeal was dismissed.

Issues considered

Whether offences under sections 4 and 5 of the Bombay Prevention of Gambling Act are cognizable.
Whether those offences are bailable.
Whether a police officer authorized under section 6 of the Act has a legal duty to grant bail under CrPC section 496.
Whether the circular prohibiting bail is ultra vires of the statute and the Constitution.

Legislation cited

Bombay Prevention of Gambling Acts. 4, s. 5, s. 6
Code of Criminal Procedure, 1898s. 4(1)(f), s. 496

Subjects

cognizable offencebailable offencebail under CrPCpolice officer powersBombay Prevention of Gambling Actcircular orderultra viressection 496section 6interpretation of "police officer"

Judgment

391

A
STATE OF GUJARAT & ORS.
v. \

LAL SINGH KISHAN SINGH
August 12, 1980
[R. S. SARKARIA AND R. S. PATHAK, JJ.J B
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- c
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. D

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- E
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, F
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
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 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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.
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
D
section 6 confers the power of arrest thereunder only on a specified class of
police officers and not on any or every police officer. [396 D·F & Gj
(b) It is settled law that the expression "Police Officer" used in the defini·
tion of cognizable offence in section 4(1)(f) 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 with·
E out warrant for that offence is given by the statute to police officers of a parti·
cular rank or class only. [398 CJ
Queen Empress v. Deodhar Singh ILR 27 Cal. 144, 150 approved.
I
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 20 of
1975.
F
Appeal by Special Leave from the Judgment and Order dated
15/16-Il-1973 of the Gujarat High Court in Cr!. A. No. 22/73.

J. L. Nain, M. N. Shroff for the Appellants.
H. S. Marwah, Amicus Curiae for the Respondenis.
G
The Judgment of the Court was delivered by

SARKARIA, J.-This appeal by special leave is directed against a
judgment, dated November 15/16, 1973, of the High Court of Gujarat.
The material facts are as under:
H On Jun~ 23, 1973, a Police Sub-Inspector made a report to the
District Superintendent of Police, Rajkot, to the effect that the pre-
mises known as Rajkot Yuvak Sahakar Mandal situated at Mochhi
GUJARAT v. LALSINGH (Sarkaria, J.) 3.93

Bazar Road, near Krishna Cinema, Rajkot was used as a common
gaming house and gambling was going on therein. The Deputy Super-
intendent 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 Gambiing 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
premises in the early hours of June 24, 1973 at 4 a.m. 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 c
4 and 5 of the Act. The instruments of gaming were also seized.

On the following morning at 7 a.m., the petitioner and his com-
panions 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 applica-
tions, 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 applica-
tions and release them on bail because he was prohibited from doing
so by a Circular Order issued by Shri P. H. Jethwa, District Superin-
tendent 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, 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 F
before the Magistrate. The Circular further warned that if any l>oTice
Officer violated these directions, he would expose himself to disci-
plinary action. Thi~ Circular Order (Ex. 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, G
that offences under Sections 4 and 5 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 con-
trary to the statutory provisions, is illegal and ultra vires. Second,
the impugned Circular is violative of Article 14 of the Constitution, H
inasmuch as it discriminates between persons similarly situate<f. The
second ground was not pressed before the High Oo\Ut.
394 SUPREME COURT REPORTS U981J 1 S.C.R.

A The first contention prevailed with the High Court. In conclusion,
it held that the Police Officer had the power or the authority to en-
large 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
B 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 them-
c selves do such acts."
Referring to Section 4(1) (f) of the Code of Criminal Procedure the
High Court observed that the words "a police officer" in that provi-
sion which defines a cognizable offence, do not meaill "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
D 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 5 of the Act with-
out warrant the said offences are cognizable.
E
Support for this reasoning was sought from a decision of this
Court in Union of India v. l.C. Larla, etc.(1) The High Court further
held that the provisions of Section 6 merely provide a limited exemp·
tion from the provisions of the Code of Criminal Procedure, in so far
as they limit the class of Police Officers who are competent to investi·
F gate the offences and to arrest without a warrant. The mere fact that
certain restrictions are placed as to the Police Officers who are com-
petent 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 v. Raghunath(?-)
decided by a Division Bench consisting of Beaumont, C.J. 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 con-
clusion that offences under Sections 4 and 5, being cognizable and
H
(!) A.l.R. 1973 S.C. 2204.
(2) 34 Born. L.R. 901
GUJARAT v. LALSINGH (Sarkaria, J.) 395

bailable, the Commissioner of Police and the officers to whom a war- A
rant 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 sus-
tained because it runs counter to the statutory provisions which autho-
rise the police officers .mentioned in Section 6 to grant bail. B
Nobody has appeared on behalf of the respondent, despite notice,
1o oppose this. appeal. Shri H. S. 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 c
first contention in favour of the respondent, herein, and the High Court
did not go into the constitutional validity of the impugned order, we
wil! 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 D
offend Article 14 of the Constitution. Section 6 runs 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 a general order in writing or authorised E
in each case by special warrant issued by the Commissioner
of Police ; and
(ii) elsewhere not below Jhe 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 Govern- F
ment in this behalf or by a District Additional, Assistant or
Deputy Superintendent of Police, and
(iii) ~ithout 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
G
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 nigl).t 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 SUPREME COURT REPORTS [19811 1 S.C.R..

A to .suspect that any instruments of gaming are concealed
therein, ana also the persons whom he shall find therein.
whether such persons are then actually gaming or not ;
(c) to fake into custody and bring before a:
Magistrate all such persons;
B (d) to seize all things which are reasonably suspected!
to have been used or intended to be used for the purpose 1Jf
gaming, and which are found therein :
Provided that no officer shall be authorised by special warra:J.t
unless the Commissioner of Police, the Magistrate, the District
or Additional or Assistant or Deputy Superintendent of Poli1;e
c 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 Secti9n 6(1), it is clear that subject to·
the conditions of !the proviso, a Commissioner of Police may empower
D 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
E and things which he could authorise any other police officer of the
requisite rank to do. The primary repository of the plenary power '.cO
do the 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 officer(s), not below the authorised rank of a
Sub-Inspector to execute his general order or special warrant to arrest
F for offences under Sections 4 and 5 of the AOt..

It will be noted further .tha\t evr.n 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 u11der a general
order in writing can arrest a person found gambling or present in a
G 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 6(1) that we have
tGI determine whether the offences under Sections 4 and 5 of the Act
H are 'cognizable offences'. Section 4(l)(f) 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 volice officer, within
GUJARAT v. LALSINGH (Sarkaria, J.) 397

or without the Presidency toWllls may, in accordance with the Second A
Schedule or under other law for the time being in force, arrest without
warrant".

There was a divergence of judicial oplillon 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(1), took the view that B
these words in Section 4(1)(f) do not necessarily mean "any and every"
police officer. It is sufficient to bring an offence wiithin 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 v. lsmai/(2) and Emperor v. Abasbhai Abdul Hussain(l) by c
the Nagpur Court in Nagarmal Jankiram( 4), and by the Delhi High
Court in Delhi Administration v. Parkash Chand & Ors.(5)
A contrary view was taken by the Assam High Court in G. K. Apu
v. Union of Jndia( 6); by the Allahabad High Court in State of U.P.
v. Lal Bahadur & Ors.(7); by the Madhya Bharat High Court in Union D
of India v. Mahesh Chandral._ 8); and in some other decisions.

This conflict appears to have been set at rest by the decision of
this Court in/. 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 E
has received the imprimatur of this Courit, is tha~ the expression "police
officer" in Section 4(l)(f) of the Code does not necessarily mean "any
and every" police officer, aad an offence will still be a "cognizable
offence" within this definiition even if the power to anest without
warrant, for that offence is given by the statute to police officers of a
particular rank or class, only. F
In Queen Empress v. 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 din::ct
the arrest of persons found in a common gaming house. The Question
G
(1) I.LR. 27 Cal. 144, iso.
(2) (1929) 31 Born. LR. 1349.
(3) I.L.R. 50 Born. 344=A.I.R. 1926 Born. 195.
(4) A.LR. 1941 Nag. 338.
(5) A.I.R. 1967 Delhi 151.
(6) A.I.R. 1970 Assam 43.
(7) A.I.R. 1968 All. 55, 57.
(8) A.LR. 1957 Madh. B. 43.
5-647 S.C. India /80
398 SUPREME COURT REPORTS ' [1981] 1 S.C.R.

A . was whether the offence under Section 4(1) (f) 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 aot every Police Officer.
B who can arrest without a warrant. It is only the District
Superintendent of Police who can arrest or by warrant dir::ct
the arre.st of persons gambling in a house. The District Superinten-
dt;nt 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 (I) (f) of 1the abcve
C Sections are satisfied, and that the offence in questionis, therefore,
a 'cognizable offence'. We cannot accept the contention that the
words in that dause, '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."

D If we may say so with respect, this is a correct exposition of 1he
law on the point. The ratio of Deodhar Singh's case was followed by
a Divisi_on Bench of the Bombay High Court (Marten and Madgavkar,
JJ.) in Emperor v. Abasbhai Abdul Hussain (ibid). The impugred
judgment before us is also based on this decision. These very
provisions of the Bombay Prevention of Gambling Act came up for
E interpretation in re. Naganmal Jankiram (ibid), and the same view
was 1taken by Pollock J.
In Abasbhai's case (ibid), a Sub-Inspector got a warrant issi: ed 1

under. Section 6 of the Bombay Prevention of Gambling Act, which
authorised him to search certain pre!llises. In execution of that warrnnt
F 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, 1the trial was illegal. The trial
G court accepted the argument and acquitted the accused. In app·oal
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 compel ent
to do personally, what he may authorise others to do by special
H 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
GUJARAT ·v. LALSINGH (Sarkaria, I.) 399

these premises, "the High Court held that offences under Sections 4 A
a:nd 5 are cognizable.
In Emperor v. 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.
B
· In Delhi Administration v. 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 5. 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.
c
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 D
'Superintendent of Police either to arrest himself or direct arrest by
another police officer of requisite rank; whereas in Section 6(1) of
the Bombay Prevention of Gambling Act lthere .are no exp:ress words
giving an option, to the Commissioner of Police to effect arrest,
personally.
We are unable to accept this argument. The difference pointed E
out, is a distinction without a difference. What was explicit in the
Bengal Gambling Act and the Delhi 'G~mbling Act, is implicit in
Section 6(1). of the Bombay Prevention of Gambling Act
It will now be appropriate to notice this Court's decision iii
'Union of India v. I. C. Lala. In that case, two army officers and F
·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 5(2) of the Prevention of Corruption Act. The
Officer who investigated these offences was an Inspeetor of the Delhi
Police Establishment. Under Sedtion SA of the Prevention of
-Corruption Act, before its amendment in 1974, no officer below the G
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 5(2) of the Prevention of Corrupition Act,
without the order of the Presidency Magistrate or a Magistrate of
~he First Class. The question before the Court was, whether sanction
under Seotion 196A of the Code was necessary. The answer to this H
·question turned upon whether an offence under Se,ction 5(2) of the
!Prevention of Corruption Act was non-cognizable or cognizable. The
4-00. SUPREME COURT REPORTS · [1981] 1 S.C.R.

A High Court held that an offence under Section 5(2) of that Act was
non-cognizable because it was not an offence for which any police
officer could arrest wi'thout 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 4(1) (f)
of the Code mean 'any' police officer. This argument. was repelled
B. by this Court amd it w:as held that such an approach could not be a
criterion for deciding whether the offence is cognizable or non-
cognibble. It was 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 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-
D
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
E
certain other circumstances ... We do not consider that this iS a
reasonable interpretation to place."

Once we hold that a C.Ommissioner of Police who is compe'tent
to direct by isumg special warrant or general order, under Section
F 6(l)(i), 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 5
of the Bombay Prevention of Gambling Act are cognizable. Such
G 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
H 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 imp~gned order or
GUJARAT v. LALSINGH (Sarkaria, J.) 401

executive instructions are contrary to or inconsistent with· the provisions A
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 1the 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 Jaw and had been
rightly quashed by the High Court. B

In _the result, the appeal fails and is dismissed.

Appeal dismissed.
P.B.R.

I

.