TMI Blog1976 (11) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... rt under the old Criminal Procedure Code. The Law Commission, in its Forty First Report pointed out: The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. , and recommended introduction of a provision for grant of 'anticipatory bail'. This recommendation was accepted by the Central Government and clause (447) was introduced in the draft Bill of the new Code of Criminal Procedure conferring express power on a Court of Session or a High Court/to grant 'anticipatory bail'. Commenting on this provision in the draft Bill, the Law Commission observed in paragraph 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his liberty while on bail that such power is to be exercised. And this power being rather of an unusual nature, it is entrusted only to the higher echelons of judicial service, namely, a Court of Session and the High Court. It is a power exercisable in case of an anticipated accusation of nonbailable offence and there is no limitation as to the category of nonbailable offence in respect of which the power can be exercised by the appropriate court. Having examined the historical background and context of section 438 of the new Code of Criminal Procedure and the language in which it is couched, let us turn to Rule 184 of the Defence and Internal Security of India Rules, 1971. That is the Rule with which we are concerned in this appeal and it runs as follows: Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), no person accused convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless-- (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application and the contravention is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under the Rules so that the power to grant bail in such case must be found only in Rule 184 and not in the Code of Criminal Procedure. Rule 184 cannot be construed as displacing altogether the provi- sions of the Code of Criminal Procedure in regard to bail in case of a person accused or convicted of contravention of any Rule or order made under the Rules. These provisions of the Code of Criminal Procedure must be read along with Rule 184 and full effect must be given to them except in so far as they are, by reason of the non-obstante clause overridden by rule 184. We must, therefore, proceed to consider whether on a true and harmonious construction, section 438 of the Code of Criminal Procedure, which provides for grant of 'anticipato- ry bail can stand side by side with Rule 184 or there is any inconsistency between them so that to the extent of incon- sistency, it must be regarded as overridden by that rule. Now section 438 contemplates an application to be made by a person who apprehends that he may be arrested on an accusa- tion of having committed a nonbailable offence. It is an application on an apprehension of arrest that invites the exercise of the powers under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er specified in this behalf in a notified order, there are reasonable grounds for believing that the person concerned is not guilty of such contravention. If these are the conditions provided by the Rule making authority for releasing on bail a person arrested on an accusation of having committed contravention of any Rule or order made under the Rules, it must follow a fortiori that the same conditions must provide the guidelines while exercising the power to grant 'anticipatory bail' to a person apprehending arrest on such accusation, though they would not be strictly applicable. When a person apprehending arrest on an accusation of having committed contravention of any Rule or order made under the Rules applies to the Court for a direction under 438, the Court should not ordinarily grant him 'anticipatory bail' under that section unless a notice has been issued to the prosecution giving it an opportunity to oppose the application and in case the contravention is of a Rule or order specialty notified in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. These would be reasonably effective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n fact the High Court of Madhya Pradesh, following an earlier decision of that Court given in Criminal Revision No. 285/74 and No. 286/74 dated April 15, 1975, held that as the matter was fully covered by those two authorities, the petition merited summary rejection. Thereafter the petitioner field an application for special leave which, having been granted, the appeal has now been placed before us. The circumstances under which the appeal arises may be detailed as follows: The petitioner was a businessman of Nowgong Cantonment carrying of the retail business of Kirana merchandise and other things for a large number of years and had been maintaining proper accounts regarding the sale of kerosene-oil and other articles. On July 23, 1975 a Magistrate along with the Food Inspector and a number of police officers visited the shop of the petitioner and took posses- sion of his account books and started verifying their correctness. The same party made a second visit to the shop of the petitioner on July 25, 1975 and took away Bahi-Khatas and Rokar kept in the shop of the petitioner. After preparing a seizure memo, a copy of the same was given to one Nathuram a relation of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submitted that s. 438 of the Code. and r. 184 of the Rules cannot be read in isolation but in conjunction with the conditions laid down in r. 184 clauses (a) and (b) of the Rules and once this is done there would be no real inconsistency between the two provisions and the question of one repealing the other would not arise. Mr. Ram Panjwani, learned counsel for the respondent, however, supported the stand taken by the High Court of Madhya Pradesh and argued that having regard to the scheme of the Act and the Rules made thereunder, this was a summary legislation with a completely exhaustive and self-contained Code and there was absolutely no justification for applying the provisions of the Code of Criminal Procedure which was the general law. In order to appreciate the contentions raised by counsel for the parties it may be necessary for us to examine the object and scheme of the Code as also of the Act and the Rules made thereunder particularly with respect to the impugned provisions. So far as the Act is concerned, this Act was passed by Act XLII of 1971 on December 4, 1971 at a time when the proclamation of emergency had already been issued by the President under el. (1) of Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olutely essential. We have re- ferred to this provision particularly because the question with which we are concerned involves the interpretation and applicability of s. 438 which relates to the liberty of the citizen visa vis the provisions of the Act and the Rules. Against the background of this important provision of the Act, we have to follow the rule of harmonious construction so as to avoid an interpretation which makes this provision (which is for protection of the liberty. of the citizen) come into conflict with the Act or the Rules made thereun- der, unless such intention is clearly expressed or implied by the Legislature. The Act further contains provisions for constitution of Special Courts to try particular type of offences, but the procedure is the same as provided for in the Code. As, however, no such Courts have been constituted in the State of Madhya Pradesh, it is not necessary for us to dilate on this point. Suffice it to say, that apart from the non obstante clause in r. 184 of the Rules, we are not concerned with any other provision of the Code which may have been repealed either directly or indirectly by r. 184. The question, therefore, that arises in this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o non- bailable offences. Secondly, the only authorities which are empowered under this section to grant bail are the Court of Session or the High Court. In view of the fact that an order for anticipatory bail is an extraordinary remedy available in special cases, this power has been conferred on the higher echelons of judicial service, namely, the Court of Session or the High Court. Another important considera- tion which flows from the interpretation of s. 438 of the Code is that this section does not contain any guidelines for passing an order of anticipatory bail. We might, however, mention here that the term 'anticipatory bail is really a misnomer, because what the section contemplates is not anticipatory bail, but merely an order releasing an accused on bail in the event of his arrest. It is manifest that there can be no question of bail, unless a person is under detention or custody. In these circumstances, there- fore, there can be no question of a person being released on bail if he has not been arrested or placed in police custo- dy. Section 438 of the Code expressly prescribes that any order passed under that section would be effective only after the accused has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is being made that the court granting anticipatory bail may impose such conditions as it thinks fit. These conditions may be that a person shall make himself available to the Investigating Officer as and when required and shall not do anything to hamper investigation. This clause clearly refers to the recommendations made by the Law Commission in its Forty-first Report which read as follows. 39.9. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory ball, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because some-times influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false .cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice to the other side. From what has been said it is clear that the intention of the legislature in enshrining the salutary provision in s. 438 of the Code which applies only to non-bailable offences was to see that the liberty of the subject is not put in jeopardy on frivolous grounds at the instance of unscrupu- lous or irresponsible persons or officers who may some times be in charge of prosecution. Now if the intention of the Legislature were that the provisions of s. 438 should not be applicable in cases falling within r. 184, it is diffi- cult to see why the Legislature should not have expressly saved r. 184 which was already there when the new Code of 1973 was enacted and excepted r. 184 out of the ambit of s. 438. In other words, if the intention of provision of r. 184 of the Rules were to override the provisions of s. 438 of the Code, then the Legislature should have expressly stated in so many words that the provisions of s. 438 of the Code shall not apply to offences contemplated by r. 184 of the Rules. There is, however, no such provision in the Code. In these circumstances, therefore, the Legislature in its wisdom left it t9 the Court to bring about a harmonious const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main guidelines which have to be followed while the Court exercises its power under s. 438 of the Code in offences contemplated by r. 184 of the Rules. Such an interpretation would meet the ends of justice, avoid all possible anomalies and would at the same time ensure and protect the liberty of the subject which appears to be the real intention of the Legislature in enshrining s. 438 as a new provision for the first time in the Code. We think that there is no real inconsistency between s. 438 of the Code and r. 184 of the Rules and, therefore, the non obstante clause cannot be interpreted in a manner so as to repeal or override the provisions of s. 438 of the Code in respect of cases where r. 184 of the Rules applies. We have already stated that s. 438 of the Code does not contain the conditions on which the order for anticipatory bail could be passed. As section 438 immediately follows s. 437 which is the main provision for bail in respect of nonbailable offences it is manifest that the conditions imposed by s. 437(1) are implicitly contained in s. 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under s. 438 by obtaining an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as an order passed under s. 438 of the Code cannot be effective until the person is taken in custody. It is therefore obvious that the conditions mentioned in r. 184 clauses (a) (b) start applying the moment the accused is taken in custody, and if an order under s. 438 of the Code has been passed in his favour he would be released at once. The Legislature never intended that while in Such seri- ous offences like murder or those punishable with death or imprisonment for life the accused should have the facility of an order of anticipatory bail, in offences of a less severe kind he should be denied benefit of s. 438 of the Code is by invoking r. 184 of the Rules. The learned counsel for the appellant strongly relied on a decision of the Calcutta High Court in Badri Prasad v. State(1) where the Court was considering the provisions of s. 13A of the Essential Supplies (Temporary Powers) Act, 1946 which were couched almost in the same language as r. 184(b) of the Rules and the Court pointed out that there was no conflict between s. 13A and s. 497 of the Code of Crimi- nal Procedure and s. 13A can only be regarded as an exten- sion of s. 497 of the Code by incorporating the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscretion in the matter of refusing bail in cases of bailable offences. All that R. 130A says in effect is that notwithstanding the provisions of S. 496 no person accused or convicted of a contravention of the rules under the Defence of India Act shall be released unless an opportunity is given to the prosecution to oppose the application for such release. There is nothing left to implication. The Legislature may impliedly repeal penal Acts by a later enactment like any other statute even if the repeal introduces stringency of procedure or takes away a privilege. Here also the Court does not expressly hold that the provisions of s. 496 were completely repealed by r. 130A of the old Defence of India Rules, but merely held that the said rule will be overruled only to the extent that the Court would have to give an opportunity to the prosecution to oppose the application before granting.bail. This decision, therefore, does not take the view contrary to me one which we have taken in this case. Lastly reliance was placed on a decision of the Patna High Court in Saltgram Singh and Ors v. Emperor(1) which also took almost the same view as the Bombay High Court. At any rate, these d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a provision by which no bail under any circumstances could be granted to persons accused of of- fences contemplated by this provision. This, however, is not the case here. For the reasons given above, we hold as under: (1) that s. 438 of the Code has not been repealed or overruled by r. 184 of the Rules but the two have (1) A.I.R. 1945 Pat. 69. to be read harmoniously without interfering with the sphere contemplated by each of those provisions. In fact r. 184 of the Rules is only supplemental to s. 438 of the Code and contains the guidelines which have to be followed by the Court in passing orders for anticipatory bail in relation to cases covered by r. 184 of the Rules; (2) that there is no real inconsistency between s. 438 of the Code and r. 184 of the Rules; (3) that s. 438 of the Code is an extra-ordinary remedy and should be resorted to only in special cases. It would be desirable if the Court before passing an order under s. 438 of the Code issues notice to the prosecution to get a clear picture of the entire situation; and (4) that in cases covered by r. 184 of the Rules the Court exercising power under s. 436 or s. 438 of the Code has got to comply with the conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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