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. 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. 1

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