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TMI Blog1975 (9) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on bail by the Chief Judicial Magistrate on July 10, 1975. It appears that a case has been registered under the Defence of India Rules, and a report has been submitted by the Station House Officer, Solan to the Chief Judicial Magistrate that it is proposed to arrest the petitioner also. The petitioner applied for anticipatory bail before the Chief Judicial Magistrate but the application was rejected on July 9, 1975 on the ground that the petitioner had not yet been arrested by the police nor had any warrant of arrest been issued against him and the Chief Judicial Magistrate had no power to grant anticipatory bail under Section 438 of the Criminal Procedure Code. The petitioner then applied to this Court for baif 4. It is unnecessary to set out the facts relating to the other cases. It is sufficient to say that broadly they fall into two classes, those where the petitioner has ap- plied for anticipatory bail under Section 438 of the Code and the others where the petitioner has applied for bail under Section 439 of the Code. They are all cases in which the petitioner is alleged to have committed a contravention of the Himachal Pradesh Commodities Price Marking and Display Order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enting any corrupt practice or abuse of authority in respect of any such matter. Rule 114 (3) sets out illustrative instances of the grant of such power. Rule 114 (4) declares that an order under Sub-rules (2) and (3) of Rule 114 for regulating by licences, permits or otherwise the movement or transport of any foodstuffs, including edible oil seeds and edible oils, or for controlling the prices or rates at which any such foodstuffs may be bought or sold, shall not be made by the State Government except with the prior concurrence of the Central Government. Rule 114 (11) (a) provides that if a person contravenes any provision of Rule 114 or any order made under that rule, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both. 7. By a notification dated July 8, 1975 published in the Himachal Pradesh Kajpatra Extraordinary, the Himachal Pradesh Commodities Price Marking and Display Order 1975 (referred to hereafter as 'the Price Marking and Display Order") was promulgated, It provided, inter alia, for the display of a list of prices and opening stocks in respect of specified commodities and for the marking of the price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not taken when the order was made by the State Government. (2) Rule 184 does not come into play because it has not been made applicable in respect of a contravention of the Price Marking and Display Order. (3) When applying Rule 184 the Court must consider whether the element of mens rea was a component of the act alleged to have contravened the relevant rule or order. (4) Rule 184 is ultra vires inasmuch as it does not fall within the scope of Section 3 of the Act, Iii any event, it does not apply to an application for anticipatory bail. To the aforesaid points, ope more point must be added. It arises op the contention of the learned Advocate General, and it is this: (5) The High Court has no jurisdiction to entertain and grant applications for bail after the constitution of the Special Tribunal on July 26, 1975 and the order directing that it would try all offences under any rule made under Section 3 of the Act. Point 1. 13. It is not disputed by the learned Advocate General that before the Price Marking and Display Order was passed the State Government did not obtain the prior concurrence of the Central Government. The question is whether such prior concurrence was nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the manufacturer or producer. Neither the Government nor any statutory authority decides what that price will be. The matter is left entirely to the manufacturer or producer. 14. In my opinion, it was not neces sary for the State Government to secure the prior concurrence of the Central Government when issuing the Price Marking and Display Order. The Himachal Pradesh Commodities Price Marking and Display Order, 1975 or any part thereof, is not ultra vires. Points 2, 3 and 4, 15. The first question is whether Rule 184 of the Defence and Internal Security of India Rules, 1971 comes into play in these petitions. Rule 184 provides the conditions which must be satisfied before a person accused or convicted of a contravention of the Rules or orders made thereunder can be released on bail or on his own bond. The two conditions are: (a) The prosecution must be given an opportunity to oppose the application for release, and (b) Where the prosecution opposes the application and the contravention is of any such provision of the Rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf; the Court Is satisfied that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the entire statutory scheme. 19. It has been observed in Raghubir Singh Criminal Misc. Pern. (M) No. 72 of 1975 (Him. Pra.) (supra) that when Rule 114 was mentioned in the notification dated July 9, 1975 it must be considered to include reference to the orders made under it. With great respect, on the considerations mentioned above, I am unable to agree. A contravention of an order made under Rule 114 cannot be regarded as a contravention of Rule 114. An analysis of Rule 114 indicates that while some of the provisions directly operate to create an obligation, others merely grant the power to make an order creating obliga- tions. Sub-rules (2) and (3) of R. 114 fall in the latter class. They confer power on the Central Government and the State Government to make orders for the achievement of specified objectives, and those objectives are sought to be achieved by obligations created by those orders, When the provision creating such obligation is contravened, it amounts to a contravention of the order. It cannot be construed as a contravention of the rule under which the order is made, because the rule itself only constitutes the grant of power to the Government and does not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction to try such offence. 23. It is necessary to examine the concept of bail in criminal cases. The object of keeping an accused person in detention during the trial is to secure his appearance for being dealt with according to law on the charge made against him. The principle underlying his release on bail is that he is presumed under the law to be innocent till his guilt is proved, and as a presumably innocent person he is entitled to freedom and an opportunity to look after his case, provided his attendance is secured by proper security. On the security being furnished he is released. He is released from the custody of the officers of the law and entrusted to the private custody of persons who become bound as sureties to produce him to answer according to law to the charge at a specified date or place. The release of the accused on bail is tantamount merely to change of custody. He is delivered into the hands of the sureties and is considered to be in their custody. Some courts have taken the view that a person released on bail must be considered to be detained in the constructive custody of the Court through his surety, and table to be produced before a court whenever requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial is pending before a subordinate criminal court or that it has not even commenced at all. Section 438 of the Code of Criminal Procedure, 1973 empowers the High Court to grant anticipatory bail- Section 239 empowers the High Court to grant bail when a person accused of an offence is in custody. It is a power exercised independently of the power of the trial court to grant bail. Although in practice the High Court will require an applicant for bail to apply first to the trial Court in appropriate cases it may even in the first instance entertain a bail application itself. Therefore, even if it be assumed, that the power of the subordinate criminal court to grant bail has now been transferred in law to the Special Tribunal, the jurisdiction of the High Court under Section 439 is not excluded. Nor is there any reason to suppose that the High Court has, because of the powers conferred on the Special Tribunal, lost its statutory power of granting anticipatory bail, It has been urged by the learned Advocate General that the High Court ceases to have jurisdiction because of the fact that a Special Tribunal has been constituted, and reliance is placed on Samaila v. Emperor AIR 1917 Lah 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vested in the Special Tribunal. Our attention has been drawn by the learned Advocate General to the provisions of Section 12 (2) of the Act, which prohibits the ordinary courts from having any jurisdiction of any kind in respect of any proceeding of a Special Tribunal, Giving that provision its widest amplitude, I am still not satisfied that it takes away from the High Court its powers in the matter of bail. As has been observed above, the Brant of bail does not appertain to any pending judicial proceeding and does not interfere with the conduct of the trial, When the High Court grants bail it does not exercise any jurisdiction in respect of any proceeding of a Special Tribunal. The proceeding before the Special Tribunal remains intact and undisturbed. 27. It is pointed out by the learned Advocate General that in the Code of Criminal Procedure 1898, which was in force when the Defence of India Rules, 1971 were enacted, the provisions relating to bail were set out in Chapter 39 which formed part of Part IX dealing with "supplementary" provisions. It is urged that if the scheme of Part IX is examined it will be found to correspond with Part XIX of the Defence of India Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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