KANUBHAI CHHAGANLAL BRAHMBHATT v. STATE — 1972 DIGILAW 46 (GUJ)

A. A. DAVE, J. M. SHETH, J. ( 1 ) THIS application has been directed against the order passed by the learned City Magistrate 7 Court Ahmedabad remanding the accused to police custody upto 17th February 1972. ( 2 ) THIS petition involves an interesting question of law whether a Magistrate can authorise detention of a person in the police custody in a cognizable offence which was bailable. ( 3 ) THE present petitioner Kanubhai Chhaganlal Brahmbhatt was arrested by the police for an offence of cheating punishable under sec. 420 I. P. C. The prosecution case was that this petitioner along with one Ramesh who was absconding was alleged to have sold gold ingots to the value of Rs. 3000. 00 to the complainant Jayantilal Hemchand. It transpires that the said ingots were not of gold but they were brass pieces. A complaint thereupon was lodged with the police by the said Jayantilal as a result the accused was arrested and after his arrest the police approached the learned Magistrate for obtaining remand of the accused for the purpose of investigation. The learned Magistrate after perusing the case diary was of the opinion that thorough investigation was necessary and there upon remanded the accused to the police custody till 17th February 1972. Against the said order of the learned City Magistrate this application is preferred by the present petitioner (accused ). This matter came up for hearing before our learned brother Rane J. on 3rd April 1972. As the application raised a very important question as to the powers of the Magistrate under sec. 167 of the Criminal Procedure Code to authorise detention of the accused for a bailable offence in such custody and as there was no direct authority on the point he referred the matter to the division bench. Thus this matter has been referred to us for final decision. ( 4 ) MR. H. N. Zala learned advocate for the petitioner and Mr. D. K. Shah learned advocate who was permitted to intervene in view of the importance of the case submitted their arguments at length. Mr. Shah took us through there levant provisions of the Criminal Procedure Code. ( 4 ) MR. H. N. Zala learned advocate for the petitioner and Mr. D. K. Shah learned advocate who was permitted to intervene in view of the importance of the case submitted their arguments at length. Mr. Shah took us through there levant provisions of the Criminal Procedure Code. He urged that whenever a person accused of a bailable offence was arrested or detained without a warrant by an officer in charge of the police station or was brought before the court and was prepared at any time while in custody of such an officer or at any stage of the proceedings before such court to give bail such a person has got to he released on bail and that the police or the court had no authority to detain him any longer. ( 5 ) MR. Shah submitted that there was a distinction between sec. 496 and sec. 497 of the Criminal Procedure Code. Under sec. 497 if a person accused or suspected of the commission of any non-bailable offence was arrested and was brought before the court he may be released on bail by the court according to the circumstances of the case. In a non-bailable case the court has discretion whether to release the accused on bail or not. But under sec. 496 whenever a person is arrested for a cognizable offence which is bailable and if the person arrested was prepared to give bail the court had no option but to enlarge him on bail. Mr. Shah therefore urged that it is not open to the court in a bailable offence to remand the accused to police custody when he was prepared to give bail. Mr. Shah therefore urged that the order of the learned Magistrate authorising detention of the accused in the police custody was clearly wrong and illegal. ( 6 ) MR. Vaidya learned Assistant Government Pleader who appeared on behalf of the State on the other hand urged that sec. 167 of the Criminal Procedure Code pertained to an offence which may be bailable as well as non-bailable and if for the purpose of investigation the presence of the accused was necessary it would be open to the Magistrate to authorise his detention in the police custody irrespective of sec. 496 Criminal Procedure Code. Mr. Vaidya submitted that sec. 496 of the Code did no control sec. 167 which stood by itself. 496 Criminal Procedure Code. Mr. Vaidya submitted that sec. 496 of the Code did no control sec. 167 which stood by itself. ( 7 ) IN order to appreciate the rival contentions it would be worthwhile to refer to the scheme of the Code. Secs. 54 to 58 of the Code contain provisions where a police officer may arrest any person without a warrant and without the order from a Magistrate in connection with cases enumerated therein. For our purpose sec. 54 (1) first clause is material. It says-ANY police officer may without an order from a Magistrate and without a warrant arrestany person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned. Sec. 60 saysa police officer making an arrest without warrant shall without unnecessary delay and subject to the provisions herein contained as to bail take or send the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of a police station. Sec. 61 further saysno police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not in the absence of a special order of a Magistrate under sec. 167 exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrates Court. Sec 167 says (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty four hours fixed by sec. 61 and there are grounds for believing that the accusation or information is well founded. the officer in charge of the police station or the police officer making the investigation if he is not below the rank of sub inspector shall forthwith transmit to the nearest judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time forward the accused to such Magistrate. the officer in charge of the police station or the police officer making the investigation if he is not below the rank of sub inspector shall forthwith transmit to the nearest judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may whether he has or has not jurisdiction to try the case from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or commit it for trial and considers further detention unnecessary he may order the accused to be forwarded to a Magistrate having such jurisdiction. RELYING on secs. 61 and 167 of the Code Mr. Vaidya submitted that the police officer after arresting the accused can detain him for a period of 24 hours before producing him before a Magistrate as provided in sec. 61 of the Code. After completion of 24 hours if the investigation was not completed and if the presence of the accused was necessary for the purpose of the investigation the police officer may produce the accused before a Magistrate and obtain remand for a period not exceeding 15 days at a time as provided in sec. 167 of the Code. Mr. Vaidya submitted that these sections did not specifically relate to only non-bailable offences but they related to both bailable as well as non-bailable offences. Mr. Vaidya urged that if the accused was not handed over to the police on remand for the purpose of the investigation it would be difficult for the police to conduct the investigation and obtain necessary information. Mr. Vaidya urged that if the Magistrate after referring to the case diary and taking into consideration the circumstances of the case remanded the accused for custody for the purpose of the investigation it would not be proper for this court to interfere with the said order. In support of his cat Mr. Mr. Vaidya urged that if the Magistrate after referring to the case diary and taking into consideration the circumstances of the case remanded the accused for custody for the purpose of the investigation it would not be proper for this court to interfere with the said order. In support of his cat Mr. Vaidya referred to the case of Chakkappan and others v. State of Kerala A. I. R. 1960 Kerala 297 wherein it was observed that:-IT is essentially a matter of satisfaction of the police officer himself to see that the two conditions mentioned in sec. 151 do really exist in a given case so as to justify action being taken under the section. The correctness of the knowledge of the police officer as to the design of a person to commit a cognizable offence cannot ordinarily be scrutinised by the court. Similarly the court cannot substitute its own opinion in place of the opinion of the police officer on the question whether the commission of the offence could be prevented by some means other than the arrest of the person designing to commit such offence. THE scope of sec. 167 (2) cannot be limited to a case where the accused has been arrested and a case registered against him for the actual commission of a cognizable offence. The provision can be applied even where the arrest is under sec. 151. IN our opinion this case has no bearing on the facts of the instant can and the observations made therein are not applicable at all. The action contemplated under sec. 151 Cri. P. C. is of preventive nature when different considerations would prevail. It may be remembered that the question of detaining the accused in police custody in a bailable offence would only arise if the accused was not prepared to furnish bail. On cannot read sec. 61 or sec. 167 of the Code in isolation. All the provision of the Code have to be read as a whole and harmonised so that no section becomes redundant or ineffective. Sec. 60 referred to earlier clearly state that a police officer making arrest without a warrant shall without unnecessary delay and subject to the provisions herein contained as to bail take or send the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of a police station. Sec. 60 referred to earlier clearly state that a police officer making arrest without a warrant shall without unnecessary delay and subject to the provisions herein contained as to bail take or send the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of a police station. Thus whenever a person accused of a bailable offence is arrested by the police the detention of the accused could be subject to the provision of the Code contained as to bail. Mr. Vaidya therefore is cot right when he stated that sec. 61 or sec. 167 was independent of her sections of the Code. In fact they were subject to the provisions contained as to bali Chap. 39 of the Code contains relevant provisions of bail. Sec. 496 saywhen any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to give bail such person shall be released on bail:provided that such officer or court if he or it thinks fit may instead of taking bail from such person discharge him on his executing a bond without sureties for his appearance as hereinafter provided:provided further that nothing in this section shall be deemed to affect the provisions of sec. 107 sub-sec. (4) or sec. 117 sub-sec. (3 ). IN the instant case sec. 107 (4) or sec. 117 (3) of the Code do not cot into picture. We therefore need not consider their effect. Sec. 496 therefore clearly states that whenever a person accused of a bailable offence is arrested or detained without a warrant by an officer incharge of the police station or appears or is brought before the court and he is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to give bail such person shall be released on bail. The provisions of this section 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 provisions of this section 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 whole question of producing the accused before a Magistrate would only arise if the accused was not prepared to give bail before the police officer after his arrest. But even when he is produced before the Magistrate and he in prepared to give bail the Magistrate has no option but to release him on bail so far as bailable offence is concerned. But the position is different so far as non-bailable offence is concerned. Sec. 497 states (1)WHEN any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court he may be released on bail but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life:provided that the court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. IT will thus be seen that in a non-bailable offence other than the offence punishable with death or imprisonment for life the accused may be released on bail. But is a case where there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life the court cannot release him on bail. Thus the contrast between secs. 496 and 497 of the Code is apparent. Under sec. 496 the Magistrate has no discretion and he has got to enlarge the person accused of a bailable offence on bail provided he is prepared to give bail; while under sec. 497 the Magistrate may refuse to enlarge him on bail in view of certain circumstances which may be brought to his notice. Sec. 4 (1) (b) of the Code defines bailable offence. Bailable offence means an offence shown as bailable in the second schedule or which is made bailable by any other law for the time being in force; and non- bailable offence means any other offence. Sec. 4 (1) (b) of the Code defines bailable offence. Bailable offence means an offence shown as bailable in the second schedule or which is made bailable by any other law for the time being in force; and non- bailable offence means any other offence. The present petitioner was arrested for an offence of cheating punishable under sec. 420 of the Indian Penal Code. This offence is shown as bailable in the second schedule attached to the Code of Criminal Procedure. It is not disputed before us that the petitioner was arrested on a charge of cheating which was a bailable offence. When a person is arrested by the police for a bailable offence he has to be produced before the Magistrate having jurisdiction in the case subject to the provisions contained as to bail. Thus before he is produced before a Magistrate if the accused is prepared to give bail the police officer concerned has to release him on bail. If at the stage while the accused is in police custody he is not prepared to give bail he has to be produced before the Magistrate within 24 hours as stated in sec. 61 of the Code. When he is produced before a Magistrate and if the accused is prepared to give bail in a bailable offence he shall be released on bail. The Magistrate has no discretion in the matter and it would not be open to the Magistrate to authorise his detention in the police custody for the purpose of the investigation. We therefore do not agree with the learned Assistant Government Pleader that the police could obtain even a person accused of a bailable offence on remand under sec. 167 (2) of the Code. In our opinion both these secs. 61 and 167 (2) are subject to the provisions with regard to bail as clearly stated in sec. 60 of the Code. ( 8 ) MR. Vaidya urged that such an interpretation would cause great hardship to the police and will hamper the course of administration of justice. He submitted that unless the accused is given on remand to the police it would not be possible for them to obtain necessary information without interrogating the accused. We do not agree. The police could make necessary investigation in a case even without taking the accused on remand. He submitted that unless the accused is given on remand to the police it would not be possible for them to obtain necessary information without interrogating the accused. We do not agree. The police could make necessary investigation in a case even without taking the accused on remand. The police has got power to examine any person including the accused at any time in order to solicit the information. It would be open to the police to call the accused at the police station for the purpose of interrogation even after he is released on bail. The relevant provisions with regard to investigation are contained in part V of Chapter XIV of the Code. Secs. 160 and 161 contain the provisions with regard to the powers of the police to examine any person for the purpose of investigation. We therefore do not agree with Mr. Vaidya that the police would be hampered in their investigation if the accused was released on bail in a bailable offence and that the course of administration of justice will not run smoothly. Unless specifically mentioned in the Code itself all the provisions of the Code should be read as a whole and should be so interpreted and harmonised so as not to make any provision redundant or ineffective. In our opinion the power of the Magistrate to detain a person accused of a bailable offence is subject to sec. 496 of the Code and the Magistrate has no discretion in the matter. ( 9 ) MR. Vaidya invited our attention to the case of Talab Haji Hussain v. Madhukar Purshottam and another A. I. R. 1958 Supreme Court 376 wherein for a bailable offence the High Court in its inherent power had cancelled the bail and ordered arrest of the accused. Relying on the ratio of this case Mr. Vaidya urged that in a given case on similar facts the court must be presumed to possess discretion whether the accused should be released on bail are not and whether his detention in police custody should be authorised for the purpose of investigation. We are unable to agree with him. In the case before the Supreme Court the accused was enlarged on bail under sec. 496 of the Code. Thereafter an application was given by the police before the Chief Presidency Magistrate Bombay for canceling the bail. We are unable to agree with him. In the case before the Supreme Court the accused was enlarged on bail under sec. 496 of the Code. Thereafter an application was given by the police before the Chief Presidency Magistrate Bombay for canceling the bail. The learned Magistrate however dismissed the application on the ground that under sec. 496 he had no jurisdiction to cancel the bail. Against the said order the complainant preferred a revision application before the High Court of Bombay and another application was preferred before the same court invoking its inherent power under sec. 561a of the Code. The matter came up for hearing before the division bench consisting of Chagla C. J. and Datar J. who after considering the material provisions before them came to the conclusion that in the present case it would not be safe to permit the accused to be at large. According to them the High Court had inherent power to cancel the bail granted to a person accused of a bailable offence and that in a proper case such power should and must be exercised in the interest of justice. In the revision application filed before the Supreme Court the view taken by the High Court was confirmed. At page 379 it was observed :in other words the effect of the order passed under sec. 561a just like the effect of an order passed under sec. 497 (5) and sec. 498 (2) would be not only that the bail is cancelled but that the accused is ordered to be arrested and committed to custody. The order committing the accused to custody is a judicial order passed by a criminal court of competent jurisdiction. His commitment to custody thereafter is not by reason of the fact that he is alleged to have committed a bailable offence at all; his commitment to custody is the result of a judicial order passed on the ground that he has forfeited his bail and that his subsequent conduct showed that pending the trial he cannot be allowed to be at large. Now where a person is committed to custody under such an order it would not be open to him to fall back upon his rights under sec. 496 for see. 496 would in such circumstances be inapplicable to his case. Now where a person is committed to custody under such an order it would not be open to him to fall back upon his rights under sec. 496 for see. 496 would in such circumstances be inapplicable to his case. It may be that there is 40 specific provision for the cancellation of the bond and the re arrest of a person accused of a bailable offence: but that does not mean that sec. 496 entitles such an accused person to be released on bail even though it may be shown that he is guilty of conduct entirely subversive of a fair trial in the court. We do not read sec. 496 as conferring on a person accused of a bailable offence such an unqualified absolute and an indefeasible right to be released on bail. RELYING in these words Mr. Vaidya urged that the accused had no unqualified absolute and an indefeasible right to be released on bail and the learned Magistrate was right to authorise his detention for the purpose of the investigation in view of the facts of the case. Mr. Vaidya seems to forget that the power was exercised by the High Court of Bombay in its inherent jurisdiction given to it under sec. 561a of the Code. Such a power could only be exercised by the High Court and no other court. Sec. 561a statesnothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. THUS as specifically provided in this section inspite of the provisions contained in sec. 496 of the Code under which the person accused of s bailable offence must be released on bail the moment he was prepared to give bail the High Court has got inherent power to make such orders as may be necessary to secure the ends of justice. Such inherent powers are vested in the High Court only under the Code and a Magistrate has no such power. Thus it would be his discretion even in a bailable offence. Even with regard to the inherent powers of the High Court under sec. Such inherent powers are vested in the High Court only under the Code and a Magistrate has no such power. Thus it would be his discretion even in a bailable offence. Even with regard to the inherent powers of the High Court under sec. 561a of the Code the Supreme Court has observed as under :the inherent power conferred on High Courts under sec. 561-A has to be exercised sparingly carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. After all procedure whether criminal or civil must serve the higher purpose of justice; and it is only when the ends of justice are put in jeopardy by the conduct of the accused that the inherent power can and should be exercised in cases like the present. IT will thus be seen that except the High Court no other Court has discretion in the matter with regard to the granting of bail in a bailable offence. As provided in sec. 496 of the Code the accused person shall be released on bail the moment he was prepared to give bail. If a person arrested on a charge of a cognizable offence which was bailable is not enlarged on bail even when he was prepared to give bail his further detention would be illegal. Sec. 167 of the Code would come into play whenever any person is arrested and detained in police custody lawfully. Article 21 of the Constitution of India says:- no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22 states:- (1) No person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty four hours of such arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. THESE provisions are akin to the provisions contained in secs. 61 and 167 of the Criminal Procedure Code. THESE provisions are akin to the provisions contained in secs. 61 and 167 of the Criminal Procedure Code. In our opinion therefore it is clear that when any person accused of a bailable offence is arrested or detained without a warrant by an officer in charge of the police station or appears or is brought before the court and is prepared at any time while in custody of such officer or at any stage in the proceeding before such court to give bail such person shall be released on bail. In our opinion the Magistrate has no discretion in the matter and it is not open to the Magistrate to authorise his detention in the police custody if the accused was prepared to give bail. Even when a person arrested on a charge of a cognizable offence which is bailable does not give bail it is doubtful if it would be open to the Magistrate to authorise his detention in police custody. Apparently in such a case the accused should be sent in judicial custody. However as this question does not specifically arise before us we do not think it necessary to answer it. In the instant case we are of the opinion that the order passed by the learned Magistrate authorising detention of the accused is clearly wrong and illegal. ( 10 ) IN the result the application succeeds. The application is allowed. The order of the learned Magistrate remanding the accused to police custody is hereby set aside. Rule is made absolute. The oral request made by Mr. Vaidya learned Assistant Government Pleader for grant of a certificate under article 134 (1) (c) of the Constitution of India for special leave to file an appeal in the Supreme Court is rejected. .