Gujarat High Court
Pravinkumar Chandrakant Vyas And Anr. vs State Of Gujarat And Ors. on 14 August, 2001
Equivalent citations: (2001)3GLR2755
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
JUDGMENT D.M. Dharmadhikari, C.J.
1. In the S.C.A. and L.P.A., common question of general importance raised by the petitioners is on the constitutional and legal validity of the circulars No. RB/618/476/1999 styled as Standing Order No. 28 dated 20-2-1999 and No. RB/618/1433/2001, dated 25-5-2001 of the Police Commissioner, Rajkot city to all his subordinate police officers.
2. We shall deal with and reproduce the contents of the two impugned circulars hereinafter. The two circulars in substance direct the subordinate police officers to make necessary investigation of the case of arrestees in any bailable offence and for that purpose interrogate them, take their finger prints, identification marks and photographs. He has advised the police officers not to forthwith release the accused on bail in bailable offences without making necessary preliminary investigation and for that purpose, if necessary, they may obtain remand from the Magistrate. One of the circulars also directs that if in a case of bailable offence, the arrestee is released within 16 hours, the concerned police officer shall submit a report with his cogent reasons to the Assistant Police Commissioner with a copy thereof to the Control Room for such release within 16 hours.
3. On behalf of some of the persons arrested by Rajkot Police for bailable offences in these two cases, it is complained that arrestees were not released within 16 hours by the concerned police because of the mandate contained in the two impugned circulars, although the arrestees were prepared to furnish bail.
4. The learned single Judge by his order dated 27-4-2001 rejected Special Criminal Application No. 273 of 2001 only on the ground that the circulars on which the application was filed were not produced before this Court. L.P.A. No. 473 of 2001 was also rejected by us for the same reason on the statement made by the learned Government Pleader that no such circulars requiring arrestee of bailable offence be detained for minimum period of 16 hours existed. After dismissal of the L.P.A., S.C.A. No. 4865 of 2001 has been filed in public interest by law students to check large scale illegal detentions on arrests made by the Rajkot police. In the public interest litigation, the two impugned circulars were produced. Therefore, by a separate order passed in Cr. Misc. Application No. 5494 of 2001, we have restored L.P.A. No. 473 of 2001 by allowing the said application. It is in this manner that public interest litigation, being S.C.A. No. 4865 of 2001 and L.P.A. No. 473 of 2001 are being decided by this common order.
5. Only facts necessary to be stated in S.C.A. and L.P.A. are that the accused persons therein were arrested admittedly for bailable offences. According to the petitioners, the accused were not released on bail before expiry of 16 hours of their arrest, although they were prepared to furnish bail. They were thus illegally detained by the police on the basis of the two impugned circulars of the Police Commissioner, Rajkot city.
6. The two impugned circulars dated 20-2-1999 and 25-5-2001 are in Gujarati. The English translation of the circulars has been provided to this Court which, although is not an authorised translation, it contains all impugned directions of the Police Commissioner. In the first circular titled as Standing Order No. 28 dated 20-2-1999, the view expressed by the Police Commissioner, Rajkot city, is that remand can be asked by police even in case of bailable offence. It states that for the purpose of investigation, the accused can be kept in police custody for 24 hours even in case of bailable offences. The other part of the said circular dated 20-2-1999 requires the subordinate police authorities to submit a report giving cogent reasons to the Assistant Police Commissioner with a copy thereof to the Control Room in all cases where the accused arrested are produced before the Magistrate within 16 hours of their arrest for their release on bail. The circular emphasizes the importance for the investigating agency even in bailable offences to take identification marks on the face of the accused, his finger prints, photographs etc. It is also emphasized that in bailable offences, the investigation officer is required to interrogate the accused to collect information to know background of the offence, motive and mens rea on the part of the accused. In the second circular dated 25-5-2001, same instructions are reiterated in different form. It is clearly stated in para 5 of that circular that in the opinion of the Police Commissioner, Rajkot city. Section 57 of the Code of Criminal Procedure is applicable both to bailable and non-bailable offences. In his opinion, an arrestee even in bailable offence can be detained for maximum period of 24 hours and necessary interrogation, taking of his photograph, identification marks and finger prints etc. can be completed within reasonable period of 24 hours. The concerned Police Commissioner Mr. Sudhir Sinha who has issued the two impugned circulars has filed his affidavit in S.C.A. No. 4865 of 2001 to support his legal stand taken in the circulars. In the affidavit, it has been stated that there has been no mandate issued in the two circulars that every arrestee even in bailable offence must be kept in police custody minimum for a period of 16 hours. It is stated that what has been impressed upon the members of the staff of the police department is that even on arrest of a person in bailable offence, it is necessary to hold preliminary inquiry and he should not be released on bail mechanically. It is stated that such requirement is also to be found in Section 4 of the Identification of Prisoners Act, 1920. It is stated that relevant circulars are merely instructions to officers that in all cases wherein person arrested is released on bail or sent to judicial custody within 16 hours, a report shall be furnished to the Assistant Commissioner of Police with a copy forwarded to the Control Room and it shall be forwarded to the Commissioner of Police for his perusal. The intention behind the circulars, it is stated, is merely to draw attention of the concerned police officers to their powers in all criminal cases where on preliminary inquiry, doubts with regard to statement of the person arrested are raised and a detailed fact finding exercise is required to be undertaken. The circulars merely contemplate monitoring of the preliminary inquiry conducted by the concerned officers.
7. Before we examine validity of the two circulars, it would be necessary to reproduce both the circulars as rendered into English :
CIRCULAR DATED 20-2-1999 :
"It has been seen in many cases in the case of scuffle, the accused is/are produced before the Court either immediately or during the Court hours. The necessity of investigation is also not taken into consideration, the identification marks on the face of accused, finger prints, photographs etc, are also required to be taken. Besides, after close scrutiny, it has to be ascertained whether the replies to interrogation given by the accused are true or not and only on such satisfaction, his statement is to be recorded. In case of any doubt in respect of his truthfulness of his replies to carry on interrogation, his remand is to be obtained.
2. In the offences relating to property, recovery of properties is to be done. The other offences are also to be detected and offenders are to be arrested. In the offence of scuffle, the real motive of offence, the mens rea of accused, to collect evidence about accomplices etc., have to be ascertained and only on satisfaction thereof, the statement of accused is to be recorded and he has then to be surrendered to the judicial custody. In other circumstances, when there is doubt about truthfulness of accused's replies, the remand of accused is to be asked for even in the cases of bailable offences. For the purpose of investigation, if need be, the accused can he kept in police custody for 24 hours in case of bailable offences also. Thereafter, also the right to pray for remand is recognised by law and it is even the duty of police to pray for such remand .
3. In many cases, even in bailable offence also, the Courts gram remand. If any accused is arrested with knife, then to know the real object to keep knife, whether the knife was kept for committing any offence, if yes, which type of offence and whether to commit such offence etc., are genuine cause to ask for remand. In case of offence under Section 324 of the Indian Penal Code, whether the accused has produced original weapon or not, whether weapon is concealed, what was the real motive to commit they offence, whether the intention was to commit simple injury or to commit murder, who was accomplice, whether there was any conspiracy or not, after committing the offence, whether the accused had absconded, if yes, where he had taken shelter, who was the harbourer etc., are the genuine causes to pray for remand.
4. In spite of above position, in many cases, it appears that with pre-planning, the accused are produced before the Court during Court hours and the investigation is left incomplete. The fear of the complainant, the real victim does not diminish and they raise doubts in police machinery.
5. Now onwards, it is directed that in case of production of accused within 16 hours of arrest or his release on bail, the investigating officer shall in every such case submit his report giving cogent reasons to Assistant Police Commissioner and a copy thereof to control room. The control room shall place the said copy with letter to Police Commissioner and Deputy Police Commissioner for their information.
6. To avoid above described position, the Assistant Police Commissioner, during his visit of police station, shall verify arrest register and shall see that these instructions are observed scrupulously. The Assistant Police Commissioners are hereby instructed to take care of above matter and inspect the same seriously. The Police inspector concerned shall be responsible for not repeating such events in future.
7. In the cases of ordinary accidents and attempt to commit suicide, the above-referred instructions shall not apply, which may please be noted. The above instructions shall, however, apply in the offences under Section 151."
CIRCULAR DATED 25-5-2001 :
1. The arrestee not to be kept in police custody for more than 24 hours (Old Section 61).
Any person arrested without warrant shall not be kept in the police custody, except in case reasonably required considering all the circumstances of the case. And in absence of special order of Magistrate under Section 167, deducting the journey period from the place of arrest to the residence of Magistrate, shall not be kept in police custody for more than 24 hours.
2. Considering above provisions, it is clear that in case of genuine requirement, the police officer can keep the accused in custody for 24 hours even in case of bailable offences. Thereafter, also if required for investigation, the accused can be kept in police custody by obtaining remand from Judicial Magistrate.
3. For the purpose of investigation, taking of finger prints, to prepare record of face identification mark, according to the circular of Sessions Court to take photograph of accused, to make interrogation of accused, interrogation in scientific and psychological way and to record the statement of the accused.
4. The recording of statement of accused does not mean that whatever described by the accused in the first instance be recorded verbatim. The statement of accused may be recorded when the investigation officer makes interrogation in scientific and psychological way and on his satisfaction that the accused is telling truth, only then statement may be recorded. After intensive interrogation also, if it would look that the accused is not telling truth, and the period of 24 hours is likely to expire, only then the statement of accused be recorded. Even then also, if it appears that the accused is not telling truth, and is changing his version, then remand of accused can be asked for.
5. On perusal of Section 57 of the Criminal Procedure Code, it appears that this applies in case of both the bailable and non-bailable offences.
6. All are hereby directed to follow the above provisions of law scrupulously."
(Underlining to indicate impugned portions of the circulars).
8. Validity of the two impugned circulars has to be judged in the provisions of the Constitution of India, Code of Criminal Procedure, 1973 as also Identification of Prisoners Act, 1920 to which reference has been made by the Commissioner of Police, Rajkot city.
9. Article 22 of the Constitution guarantees every citizen fundamental right of protection against arrest and detention. It reads as under :
"22. Protection against arrest and detention in certain cases :-
(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 excluding the time necessary for the journey from the place of arrest to Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate."
10. Article 22 is now part of Human Right recognised by International Covenants and also under the Protection of Human Rights Act. This right is guaranteed to a citizen so that he is not deprived of his liberty by executive authority and receives necessary legal protection from a judicial authority, The Constitution also mandates the authorities that before arresting a citizen, he be informed of grounds of his arrest and to be provided with right to consult and to be defended by a legal practitioner of his choice. Clause (2) of Article 22 requires the authority arresting a citizen to produce him within a period of 24 hours of his arrest excluding the time for necessary for journey, before the nearest Magistrate and it contains a prohibition that in no case, he shall be detained in non-judicial custody beyond the period of 24 hours. What is to be noted from Clause (2) of Article 22 is that requirement of production of arrested citizen before the nearest Magistrate within 24 hours is not maximum period. Clause (2) of Article 22 is in two parts. In the first part, the mandate to the arresting authority is not to take more than 24 hours, after his arrest, for his production before the Magistrate. The second part of Clause (2) provides maximum limit of non-judicial custody as 24 hours. So far as arrest of person accused of bailable offence is concerned, the following provisions of the Code of Criminal Procedure, 1973 are required to be taken note of. 'Bailable offence' is defined in Section 2(a) of the Code to mean an offence which is shown as bailable in the First Schedule of the Code. 'Cognizable offence' is defined in Section 2(c) of the Code to mean an offence for which a police officer may, in accordance with the First Schedule or under any other law for the time-being in force, arrest without warrant. A police officer is empowered under Section 41(1)(a) of the Code to arrest, without warrant, a 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'. Section 50 of the Code requires a person arrested to be informed of the grounds of arrest and of right to bail. This provision is in consonance with Article 22 of the Constitution. Section 50(1) and (2) are very relevant and are reproduced below :
"50. Person arrested to be Informed of grounds of arrest and of right to bail:-
(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf."
What is to be noted from Sub-section (2) is that where a person is arrested for a bailable offence, the police officer shall inform the person arrested that he is entitled to be released on bail and that he may furnish sureties on his behalf. Section 56 which is also in consonance with Article 22(2) of the Constitution. It requires the person arrested to be taken before the Magistrate or officer in charge of the police station 'without unnecessary delay'. Section 56 and Section 57 which require production of arrested person before expiry of 24 hours before the Magistrate, are both very relevant for deciding validity of the two circulars and the same are reproduced as under :
"56. Person arrested to be taken before Magistrate or officer-in-charge of police station :- A 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."
"57. Person arrested not to be detained more than twenty-four hours. No 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 Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court."
(Underlining for emphasis) What is noted from the provision of Section 56 quoted above is that a person arrested by the police has to be produced before Magistrate without unnecessary delay and subject to the provision as to bail. The aforesaid provision contained in Section 56 is very clear pointer and mandate to the police officer making arrest that 24 hours is not outer limit prescribed for production of accused. 24 hours prescribed under Section 57 is the maximum permissible period for police custody. 'Within 24 hours' and 'without unnecessary delay', arrested person has to be produced before the Magistrate. In case of bailable offence, production of accused without unnecessary delay is the legal requirement to be followed by police authority effecting arrest and this is, of course, subject to the provision of bail. In case of bailable offence, instead of production, if the accused person is willing to furnish bail, he has to be admitted to bail and released forthwith. Powers of police officer to investigation are to be found in Chapter XII of the Code. Sub-section (2) of Section 155 prohibits police officer to investigate non-cognizable case without order of the Magistrate who has power to try such case or commit the accused for trial. Section 155(2) reads as under :
"155. Information as to non-cognizable cases and investigation of such cases -
(1) xxx xxx xxx (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial."
Section 167 of the Code contains provision for obtaining remand from the Magistrate where investigation cannot reasonably be completed within 24 hours. Maximum period of remand is 15 days, and on sufficient and adequate grounds can extend to 90 days only concerning the offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, and 60 days in any other offence.
11. According to the Police Commissioner, as stated by him in the two circulars, provision of remand contained in Section 167 shall be applicable also to bailable offences. This statement of law does not appear to be correct in view of provisions of bail contained in See. 436 read with Sections 56 and 50 of the Code. Section 436 does not envisage or permit obtaining of remand by the police in bailable offences. Section 436 in respect of bail in bailable offences reads as under :
"436. In what cases bail to be taken :- (1) When 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 proceeding 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 Sub-section (3) of Section 116 or Section 446-A. (2) Notwithstanding anything contained in Sub-section (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under Section 446."
(Underlining for emphasis) Sections 116 and 446A mentioned in second proviso of Section 436 are concerning inquiry for giving bond or security for keeping peace and hence excluded from the purview of Sub-section (1) of Section 436.
12. Section 436 of the Code has to be read harmoniously with other provisions of the Code particularly Sections 50, 56 and 57. Section 436 read with Sections 50, 56 and 57 of the Code clearly gives effect to the constitutional mandate in Article 22 of the Constitution which confers fundamental right on a person arrested to be informed of the nature of offence and the grounds of his arrest. He shall not be kept in detention for unreasonably long period of time and 24 hours is only permissible justifiable maximum limit. Arrested person for bailable offence thus has a right under Section 436 to seek release by offering bail to the police officer or to the Court if and when he is produced before the Court. Section 56 of the Code very clearly imposes a legal duty on the police officer effecting arrest to release the accused person on bail in case of bailable offence or send the person arrested before the Magistrate without unnecessary delay. Right of arrested person of bailable offence to seek release from the police by offering bail or from the Magistrate when produced before him, is absolute and cannot be curtailed or abridged by any executive instructions or circulars as have been issued by the Police Commissioner, Rajkot city.
13. It is necessary to consider the demands of investigating agency in cases of bailable offences. What has been stated on affidavit by the Police Commissioner is that mechanical and forthwith release of arrested persons in bailable offences indirectly harms the public interest. Where arrested persons are released forthwith on bail without interrogation and without recording their identification marks, finger prints, photographs etc., and such persons later on jump the bail or abscond, it is not possible to find out the link which led to the crime and other offenders connected with the said offence. It is stated that this was so in the two cases brought before us, one concerning gambling involved by racket during cricket match and the second concerning two accused as husband and wife entering telephone exchange and assaulting the staff therein. Supreme Court in the case of D.K. Basu v. State of West Bengal, 1997 (2) GLR 1631 (SC) : 1997 (1) SCC 416, in order to guard the fundamental right of a citizen against illegal and unlawful arrest leading sometimes to custodial deaths issued mandatory directions to all police in the whole of India. The directions contain precautions to be observed by the police authority in making arrest and keeping the arrested person in non-judicial custody. The Supreme Court was careful to strike a balance between fundamental rights and human rights of arrested persons and the requirement of general public interest to be protected by investigating agency dealing with crimes. Supreme Court observed thus :-
"However, it is true that in case of too much of emphasis on protection of fundamental rights and human rights of hardened criminals, such criminals may go scotfree without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis, the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in the efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself."
14. There is great substance in the statement made by the Police Commissioner on affidavit that even in cases of bailable offences, some kind of preliminary inquiry and interrogation of the accused is necessary. Many times, recording of identification marks, taking of finger prints and photographs are found desirable to make further investigation into the crime and connected crimes. It may also happen that accused released on bail in bailable offence absconds.
In that eventuality, not only that the said accused escapes unpunished, but other offenders connected with the same crime go beyond the clutches of police. In the circulars, it is rightly stated that in bailable offences, police is not expected to just mechanically and without making preliminary inquiry, release the arrested person forthwith on bail. Some reasonable period is justifiably required for interrogation and for completing necessary formalities of recording identification marks, finger prints, photographs etc. Identification of Prisoners' Act, 1920 to which reference has been made by the Police Commissioner in his affidavit, contains provisions in Sections 4 and 5 as under :
"4. Taking of measurements, etc., of non-convicted persons :- Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards, shall if so required by a police officer, allow his measurements to be taken in the prescribed manner."
"5. Power of Magistrate to order a person to be measured or photographed :-If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photographs to be taken, as the case may be, by a police officer :
Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class;
Provided further that no order shall be made under this Section unless the person has at some time been arrested in connection with such investigation or proceeding."
Provisions of Sections 4 and 5 quoted above require that arrested person may be measured or photographed only with the permission and order of a Magistrate. 'Measurement' is defined in Section 2(a) of the said Act of 1920 to include finger and footprint impressions.
15. The view expressed by the Police Commissioner in the two circulars that remand under Section 167 of the Code can be obtained even in case of bailable offence is not a correct statement of law. In case of bailable offence under Section 436 read with Section 56 of the Code, the accused person has right to obtain bail from the police officer or the Court. To the case of bailable offence, provisions of Section 167 of obtaining remand for investigation by the police cannot be made applicable. A contrary interpretation as placed by the Police Commissioner in his impugned circulars on the provisions of Section 167 to hold them as applicable also to cases of bailable offences is destructive of the right of accused arrested for bailable offence to obtain bail in accordance with Section 436 read with Sections 50(2) and 56 of the Code. In our view, provisions of remand for police custody under Sections 166 and 167 of the Code are not available to the police for investigation into bailable offences. We get support for our view from the Division Bench decision of this Court in the case of Kanubhai Chhaganlal v. State, 1972 GLR 748. The Division Bench in Kanubhai case (supra) held as under :
"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 Section 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 Section 167(2) of the Code. In our opinion, both these Sections 61 and 167(2) are subject to the provisions with regard to bail as clearly stated in Section 60 of the Code."
See also similar views of the other High Courts in Govind Prasad v. State of West Bengal, 1975 Cri. LJ. 1249 (Cal.), Dharmu Naik v. Rabindranath Acharya, 1978 Cri, LJ 864 (Ori.), the District Magistrate of Visakhapatnam - Referring Officer, AIR (36) 1949 Mad. 77, Kota Applakonda and Ors., AIR (29) 1942 Mad. 74 and in B. Narayanappa and Ors. v. State of Karnataka, 1982 Cri. LJ 1334.
Reference may also be made to the decision of the Supreme Court in the case of State of Gujarat v. Lalsingh, AIR 1981 SC 368. In that case (arising from the decision of this Court reported in 1974 GLR 799), the circular in question issued by the District Superintendent of Police, Rajkot stated that since the form of warrant prescribed under Sections 4 and 5 of the Bombay Prevention of Gambling Act required arrested person to be produced before a Magistrate, no arrested person accused of offence under the Act be released on bail by the police before producing him before the Magistrate. This Court struck down the circular which was confirmed by the Supreme Court by observing thus :
"24. Once we hold that a Commissioner of Police, who is competent to direct by issuing special warrant or general order, under Section 6(1)(i), another police officer of the requisite rank to arrest persons found gambling or present in a gambling 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 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 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."
16. On behalf of the State, after critically reading the contents of the two impugned circulars of the Police Commissioner, learned Counsel for the State submitted that nowhere the Police Commissioner directs subordinate officers to keep every accused even arrested for bailable offences for a minimum period of 16 hours in police custody. The submission has some force. But, on reading paragraph 5 of the circular, as explained from its original Gujarati version and its English translation, we find that the directions contained therein are somewhat misleading and open to wicked abuse by the Police Officers. When the Police Commissioner insists the police staff under him to give report in every case where accused is released before 16 hours, he indirectly calls upon the concerned member of the staff of Police to keep in police custody every accused including one arrested for bailable offence in custody for a period of sixteen hours to avoid submission of a detailed report with his reasons for release before sixteen hours to the Assistant Police Commissioner and to the Control Room and through them to the Police Commissioner and Deputy Police Commissioner. There appears to be great substance in the grievance raised on behalf of the petitioners that in view of the requirements of submission of a report by subordinate police officer to Police Commissioner on release of every accused before sixteen hours of detention in police custody, invariably the accused are not released forthwith on bail in bailable offences also, although the accused are willing to offer bail to the police. The Circular, thus, indirectly perpetrates an illegality at the hands of subordinate police staff.
17. In view of the above legal position and the decisions of Division Bench -of this Court and the Supreme Court (supra), it is not possible for us to sustain the two impugned circulars. They are, therefore, liable to be quashed.
18. As has been noted by us above, even in bailable offence, requirement of the investigating agency for bringing to book the alleged offender and others connected with it, cannot be disregarded. Effective investigation is necessary in general interest of society. In our view, therefore, it is open to the investigating agency to utilise minimum possible time to interrogate the accused and to take his identification marks, finger prints, photographs, etc., which would help the police not only to bring the arrested person to book, but also furnish clue or linkage of the offence with other offenders and offences. If such a need is found necessary by the investigating officer even in bailable offence, the officer can resort to the provisions contained in Sections 4 and 5 of the Identification of Prisoners' Act, 1920 and for the limited purpose mentioned therein, he has to approach the Magistrate. In all other cases, it is the bounden duty of the officer arresting a citizen for bailable offence to admit him to bail as and when he is prepared to offer bail to the police officer or in event of his production before the Magistrate, to the Magistrate. Any other interpretation of the provisions of the Code would violate the aforesaid discussed provisions of the Code and the fundamental right of the citizen under Article 22 of the Constitution.
19. For the detailed discussion aforesaid, we allow the Spl.C.A. and L.P.A. The order of learned single Judge is set aside. The two impugned circulars dated 20-2-1999 and 25-5-2001 are hereby quashed. In the circumstances we, however, make no order as to costs.
20. Petition allowed.