2001 Supreme(Guj) 595

Gujarat High Court
Judgename :D.M.Dharmadhikari, K.R.VYAS
PRAVINKUMAR CHANDRAKANT VYAS - Appellant
Versus
STATE - Respondent
S.C.A. 4865 of 2001
Decided On : 08/14/2001

Headnote:(a) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Secs. 41(1) (o), 50, 56, 57 & 436 - Identification of Prisoners Act, 1920 (Central Act 33 of 1920) - Secs. 4 & 5 - Person arrested having committed bailable offence - Police is not required to mechanically release such person on bail forthwith but limitation is of reasonable period. 2 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 Courts 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 Secs. 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 Art. 22 of the Constitution

       (b) Constitution of India, 1950 - Arts. 21 & 22 - Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Secs. 41, 50, 56, 57 & 436 - Person involved in bailable offence - Police has either to release him on bail or sent him to Magistrate without unnecessary delay - Circular by Police Commissioner to his subordinate Police Officers to report with reasons where such persons released or sent to Magistrate within 16 hours of arrest - Effect of such circular contrary to the provisions of law quashed.

       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.

       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.

       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.

       (c) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Secs. 56, 57, 167 & 436 - Arrest for bailable offence - Police custody - Held, such person cannot be remanded to police custody.

       In case of bailable offence under Sec. 436 read with Sec. 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 Sec. 167 of obtaining remand for investigation by the police cannot be made applicable.

       In Courts view, provisions of remand for police custody under Secs. 166 and 167 of the Code are not available to the police for investigation into bailable offences.