9911796707
|
Home
Issues Involved:
1. Whether an order of 'anticipatory bail' can be competently made by a Court of Session or a High Court under section 438 of the Code of Criminal Procedure, 1973, in case of offences falling under Rule 184 of the Defence and Internal Security of India Rules, 1971. Detailed Analysis: Issue 1: Competency of Granting 'Anticipatory Bail' Under Section 438 of the Code of Criminal Procedure, 1973, for Offences Under Rule 184 of the Defence and Internal Security of India Rules, 1971: The core issue in this case was whether the power to grant 'anticipatory bail' under Section 438 of the Code of Criminal Procedure, 1973, is overridden by Rule 184 of the Defence and Internal Security of India Rules, 1971. Historical Context and Legislative Intent: The judgment begins by discussing the historical context and legislative intent behind Section 438. The Law Commission, in its Forty-First Report, highlighted the necessity of anticipatory bail due to the misuse of the legal system by influential persons. This recommendation was accepted by the Central Government, leading to the inclusion of Section 438 in the new Code of Criminal Procedure. The Law Commission stressed that this power should be exercised only in exceptional cases to prevent misuse. Textual Analysis of Section 438: Section 438 allows a person who anticipates arrest for a non-bailable offence to apply for bail. The section does not explicitly mention 'anticipatory bail,' but it is implied that the court may direct that the person be released on bail if arrested. This power is extraordinary and is meant to be exercised only in exceptional cases where there is a likelihood of false implication or misuse of liberty. Textual Analysis of Rule 184: Rule 184 imposes a ban on releasing a person accused or convicted of contravening the Rules unless two conditions are met: the prosecution must be given an opportunity to oppose the application, and the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such contravention. This Rule does not confer new powers but restricts existing powers under the Code of Criminal Procedure. Harmonious Construction: The judgment emphasizes the need for a harmonious construction of Section 438 and Rule 184. Section 438 applies at the stage of apprehension of arrest, while Rule 184 applies once the person is in custody. Therefore, there is no direct conflict between the two provisions. The court held that Rule 184 does not stand in the way of granting 'anticipatory bail' under Section 438. Guidelines for Exercising Power Under Section 438: Even though Rule 184 does not apply directly to anticipatory bail, the policy behind it should guide the court. The court should not grant anticipatory bail unless the prosecution is given an opportunity to oppose the application, and there are reasonable grounds for believing that the person is not guilty of the contravention. Case-Specific Application: In the present case, the High Court had dismissed the application for anticipatory bail based on its earlier decisions, which held that Rule 184 barred the granting of such bail. The Supreme Court set aside this order and remanded the case back to the High Court to decide the application on merits, emphasizing the need to give the prosecution an opportunity to be heard. Conclusion: The Supreme Court allowed the appeal, set aside the High Court's order, and directed the High Court to decide the application for anticipatory bail on merits. The appellant was allowed to remain on bail until the High Court's decision. Separate Judgment: Fazal Ali, J., concurred with the judgment of Bhagwati, J., and provided additional reasoning. He emphasized that the Defence and Internal Security of India Act and Rules were special laws meant for emergency situations but did not explicitly repeal Section 438 of the Code. He argued for a harmonious construction, stating that Rule 184 supplements Section 438 by providing guidelines for granting anticipatory bail. He also highlighted the importance of protecting the liberty of the citizen and ensuring that the provisions of both statutes coexist without conflict. Final Orders: 1. Section 438 of the Code has not been repealed or overridden by Rule 184 of the Rules. 2. There is no real inconsistency between Section 438 of the Code and Rule 184 of the Rules. 3. Section 438 is an extraordinary remedy and should be exercised sparingly. 4. In cases covered by Rule 184, the court must comply with the conditions mentioned in Rule 184 before granting anticipatory bail. The High Court was directed to re-admit the petition and decide it on merits, with the appellant continuing on bail until the High Court's decision.
|
