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PETITIONER:

BALCHAND JAIN

Vs.

RESPONDENT:

STATE OF MADHYA PRADESH

DATE OF JUDGMENT05/11/1976

BENCH:

BHAGWATI, P.N.

BENCH:

BHAGWATI, P.N.

GUPTA, A.C.

FAZALALI, SYED MURTAZA

CITATION:

1977 AIR 366 1977 SCR (2) 52

1976 SCC (4) 572

CITATOR INFO :

RF 1980 SC1632 (24,25)

R 1982 SC 149 (1223)

RF 1988 SC 922 (21,22)

R 1991 SC 558 (7)

ACT:

Defence and Internal Security of India Rules, 1971--r.

184--If supersedes S. 438. Gr. P.C. 1973.

HEADNOTE:

Section 438 of the Code of Criminal Procedure, 1973

provides that when any person has reason to believe that he

may be arrested on an accusation of having committed a non-

bailable offence, he may apply to the High Court or the

Court of Session for a direction under this Section. Rule

184 of the Rules made under Defence and Internal Security of

India Act, 1971 enacts that notwithstanding anything con-

tained in the Code of Criminal Procedure, 1898, no person

accused or convicted of a contravention of the Rules or

orders made thereunder shall, if in custody, be released on

bail or on 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 applica-

tion 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 there are reasonable

grounds for believing that he is not guilty of such contra-

vention.

A Food Inspector raided the shop of the appellant, who

was a merchant dealing in kiryana goods and kerosene oil

etc., and seized his account books. Apprehending that he

might be arrested on a charge of non-bailable offence for

contravention of the provisions of the Defence and Internal

Security of India Act and the Rules, the appellant ap-

proached the Sessions Judge for an anticipatory bail under

s. 438 of the Code of Criminal Procedure, 1973. The Ses-

sions Judge rejected the application. Dismissing his ap-

peal, the High Court held that the express provisions of r.

184 of the Rules superseded s. 438 of the Code in so far as

offences set out in r. 184 were concerned.

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Allowing the appeal and remanding the case to the High

Court:

HELD: (P. N. Bhagwati and A.C. Gupta,JJ.)

Section 438 and r. 184 operate at different stages, one

prior to arrest.and the other after arrest and there is no

overlapping between these two provisions. Rule 184 does not

stand in the way of a Court of Sessions or a High Court

granting anticipatory bail under s. 438. [57G]

1. The term 'anticipatory bail' is a misnomer. It is

not as if the bail is presently granted by the court in

anticipation of arrest. When the court grants anticipatory

bail it makes an order that in the event of arrest a person

shall be released on bail. Thin somewhat extraordinary

power is exercised only in exceptional cases and is entrust-

ed to the higher echelons of the judicial service namely the

court of Sessions and the High Court. [55H]

2. (a) Rule 184 postulates the existence of power in the

court under the Code and seeks to place a curb on its exer-

cise by providing that a person accused or convicted of

contravention of any rule or order, if in custody, shall not

be released on bail unless the conditions mentioned in the

rule are satisfied. When the two conditions are satisfied

the fetters placed on the exercise of the power are removed

and the power of granting bail possessed by the court under

the Code revives and becomes exercisable. [56H]

(b) The non-obstante clause is intended to restrict the

power of granting bail under the Code and not to confer a

new power exercisable only on certain conditions. [57B]

53

(c) Rule 184 does not lay down a self-contained code for

grant of bail. 1t cannot be construed as displacing alto-

gether the provisions of the Code in regard to bail. The

provisions of the Code must be read alongwith r. 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 r.

184. [57B-C]

(d) An application under s. 438 is an application on an

apprehension of arrest. On such an application, the direc-

tion that may be given under s. 438 is that in the event of

his arrest the applicant shall be released on bail. Rule

184 operates at a subsequent stage when a person is accused

or convicted of contravention of any rule or order made

under the Rules and is in custody. It is only the release

of such a person on bail that is conditionally prohibited by

r. 184.

[57E]

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 exer-

cising the power to grant anticipatory bail to a person

apprehending arrest on such accusation though they would not

be strictly applicable. [58C]

(Fazal Ali, J.)

Section 438 of the Code has not been repealed by r. 184

of the Rules, but both have to be read harmoniously. Rule

184 is only supplemental to 8. 438 and contains guidelines

which have to be followed by the Court in passing orders for

anticipatory bail in relation to cases covered by r. 184.

[70A]

1. (a) Section 438 of the Cede is an extraordinary

remedy and should be resorted to only in special cases.

[70C]

(b) Section 438 applies only to non-bailable offences.

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Anticipatory bail being an extraordinary remedy available

in special cases, this power has been conferred on the

higher echelons of judicial service, namely, the Court of

Sessions or the High Court. What the section contemplates

is not anticipatory bail but merely an order releasing an

accused on bail in the event of his arrest. There can be no

question of bail unless a person is under detention or

custody. The object of s. 438 is that the moment a person is

arrested, if he had already obtained an order from the

Sessions Judge or the High Court, he would be released

immediately without having to undergo the rigours of jail

even for a few days. [63B-D]

2. (a) While interpreting statutes, the Court must infer

repeal of a former statute by the latter only if it causes

inconvenience or where it is couched in negative terms. The

legislature does not intend to keep contradictory enactments

on the statute book and, therefore, a construction should be

accepted which offers an escape from it. [66A-C]

Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr.

[1953] S.C.R. 1 referred to.

2. (b) If the intention of r. 184 were to override the

provisions of s 438, then the Legislature should have ex-

pressly stated that the provisions of s. 438 shall not apply

to offences contemplated by r. 184. Therefore, the Legisla-

ture in its wisdom left it to the Court to bring about a

harmonious construction of the two statutes so that the two

may work and stand together. [65F-G]

Northern India Cateres Pvt. Ltd. & Anr. v. State of

Punjab and Anr. [1967] 3 S.C.R. 399 followed.

(c) There is no real inconsistency between s. 438 and r.

184 and, therefore. the non-obstante clause cannot be inter-

preted in a manner so as to reveal or override the provi-

sions of s. 438 in respect of cases where r. 184 applies.

The conditions required by r. 184 must be impliedly imported

in s. 438 so as to form the main guidelines to be followed

while the Court exercises its power under s. 438 in offences

contemplated by r. 184. Such an interpretation would meet

the ends of justice, avoid all possible anomalies and would

ensure and protect the liberty of the subject which is the

real intention of the Legislature in enacting s.438 as a new

provision for the first time in the Code. [66E-F]

54

3. (a) Section 438 does not contain unguided or uncana-

lised power to pass an order for anticipatory bail; but such

an order being of an exceptional type can only be passed if,

apart from the conditions mentioned in s. 437. there is a

special case for passing the order. The words 'for a direc-

tion under this section' and 'Court may, if it thinks fit,

direct' clearly show that the Court has to be guided by a

large number of considerations, including those mentioned in

s. 437. When a Court is dealing with offences contemplated

by r. 184 it is obvious that though the offences are not

punishable with death or imprisonment for life so as to

attract the provisions of s. 437, the conditions laid down

by r. 184 would have to be complied with before an order

under s. 438 could be passed. [67A-B]

In re V. Bhuvaraha Iyengar, A.I.R. [1942] Mad. 221, 223,

In re Surajlal Harilal Majumdar & others, A.I.R. 1943 Bom.

82, and Saligram Singh & Ors. v. Emperor, AIR 1945 Pat. 69

distinguished.

(b) The scope of r. 184. is wider than that of s. 438

inasmuch as while s. 438 can be invoked only in cases of

non-bailable offences and not in cases of bailable offences,

r. 184 is applied not only to non-bailable offences but also

to bailable offences and, therefore, the conditions men-

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tioned in r. 184, would have to be impliedly imported into

s. 436 which deals with orders for bail regarding bailable

offences. [69D]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

325 of 1975.

Appeal by Special Leave from the Judgment and Order

dated the 30th September, 1975 of the Madhya Pradesh High

Court in Criminal Misc. Case No. 1112 of 1975.

V.M. Tarkunde and Pramod Swarup for the Appellant.

Ram Panjwani, H.S. Parihar and I. N. Shroff for the Respond-

ent.

The Judgment of P. N. Bhagwati and A.C. Gupta J.J.

was delivered by Bhagwati, J. Fazal Ali, J. gave a separate

concurring opinion.

BHAGWATI, J. The facts giving rise to this appeal are

set out in the judgment about to be delivered by our learned

brother S. Murtaza Fazal All and it is, therefore, not

necessary to reiterate them. The question which arises for

determination on these facts is a short once and it is:

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 made under the Defence and Internal

Security of India Act, 1971 (hereinafter referred as the

Act).

There was at one time conflict of decisions amongst

different High Courts in India about the power of a court to

grant 'anticipatory bail'. The majority view was that

there was no such power in the court 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

55

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 of its

Forty-Eighth Report:

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"The Bill introduces a provision for the

grant of anticipatory bail. This is

substantially in accordance with the

recommendations made by the previous

Commission (41st Report). We agree that this

would be a useful addition, though we must add

that it is in very exceptional cases that such

a power should be exercised.

We are further of the view that in order

to ensure that the provision is not put to

abuse at the instance of unscrupulous

petitioners, the final order should be made

only after notice to the public prosecutor.

The initial order should only be an interim

one. Further the relevant section should make

it clear that the direction can be issued only

for reasons to be recorded, and if the Court

is satisfied that such a direction is

necessary in the interests of justice."

Clause (447) became section 438 when the Bill

was enacted into the new Code of Criminal

Procedure. That section is in the following

terms:

"(1) When any person has reason to

believe that he may be arrested on an

accusation of having committed a nonbailable

offence, he may apply to the High Court or the

Court of Session for a direction under this

section; and that Court .may, if it thinks

fit, direct that in the event of such arrest,

he shall be released on bail.

X X X X

X

We do not find in this section the words

'anticipatory bail', but that is clearly the

subject with which the section deals. In fact

'anticipatory bail' is a misnomer. It is not

as if bail is presently granted by the Court

in anticipation of arrest. When the Court

grants 'anticipatory bail' what it does is to

make an order that in the event of arrest, a

person shall be released on bail.. Manifestly

there is no question of release on bail unless

a person is arrested and, therefore,, it is

only on arrest that the order granting

'anticipatory bail' becomes operative. Now,

this power of granting 'anticipatory bail' is

somewhat extraordinary in character and it is

only in exceptional cases where it appears

56

that a person might be falsely implicated, or

a frivolous case might be launched against

him, or "there are reasonable grounds for

ho1ding that a person accused of an offence is

not likely to abscond, or otherwise misuse 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

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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 any

such provision of these 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

there are reasonable grounds for believing

that he is not guilty of such contravention."

This Rule commences on a non-obstante clause and in its

operative part imposes a ban on release on bail of a person

accused or convicted of a contravention of the Rules or

orders made thereunder, if in custody, unless two conditions

are satisfied. The first condition is that the prosecution

must be given an opportunity to oppose the application for

such release and the second condition is that when 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 must be satisfied that there are reasona-

ble grounds for believing that be is not guilty of such

contravention. If either of these two conditions is not

satisfied. the ban operates and the person concerned cannot

be released on bail. The Rule, on its plain terms, does not

confer any power on the Court to release a person accused or

convicted of contravention of any Rule or order made under

the Rules, on bail. It postulates the existence of power in

the Court under the Code of Criminal Procedure and seeks to

place a curb on its exercise by providing that a person

accused or convicted of contravention of any Rule or order

made under the rules, if in custody. shall not be released

on bail unless the aforesaid two conditions are satisfied.

It imposed fetters on the exercise of the power of

57

granting bail in certain kinds of cases and removes such

fetters on fulfilment of the aforesaid two conditions. When

these two conditions are satisfied, the fetters are removed

and the power of granting bad possessed by the Court under

the Code of Criminal Procedure revives and becomes exercisa-

ble. The non-obstante clause at the commencement of the

Rule also emphasises that the provision in the Rule is

intended to restrict the power of granting bail under the

Code of Criminal Procedure and not to confer a new power

exercisable only on certain conditions. It is not possible

to read Rule 184 as laying down a self-contained code for

grant of bail in case of a person accused or convicted of

contravention of any Rule or order made under the Rules so

that the power to grant bail in such case must be found only

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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 section 438. And on such an

application, the direction that may be given. under section

43 8 is that in the event of his arrest, the applicant shall

be released on bail. Rule 184, on the other hand, deals

with a different situation and operates at a subsequent

stage when a person is accused or convicted of contravention

of any Rule or order made under the Rules and is in custody.

It is only the release of such a person on bail that is

conditionally prohibited by Rule 184. If a person is not in

custody but is merely under an apprehension of arrest and he

applies for grant of 'anticipatory bail' under section 438,

his case Would clearly be outside the mischief of Rule 184,

because when the Court makes an order for grant of 'antici-

patory bail', it would not be directing release of a person

who is in custody. It is an application for release of a

person in custody that is contemplated by Rule 184 and not

an application for grant of 'anticipatory bail' by a person

apprehending arrest. Section 438 and Rule 184 thus operate

at different stages, one prior to arrest and the other,

after arrest and there is no overlapping between these two

provisions so as to give rise to a conflict between them.

And consequently. it must follow as a necessary corollary

that Rule 184 does not stand in the way of a Court of Ses-

sion or a High Court granting 'anticipatory bail' under

section 438 to a person apprehending arrest on an accusation

of having committed contravention of any Rule or order made

under the Rules.

But even if Rule 184 does not apply in such a case, the

policy behind this Rule would have to be borne in mind by

the Court while exercising

58

its power to grant 'anticipatory bail' under section 438.

The rule making authority obviously thought offences arising

out of contravention of Rules and orders made thereunder

were serious offences as they might imperil the defence of

India or civil defence or internal security or public safety

or maintenance of public order or hamper maintenance of

supplies and. services to the life of the community and

hence it provided in Rule 184 that no person accused or

convicted of contravention of any Rule or order made under

the Rules, shall be released on bail unless the prosecution

is given an opportunity to oppose the application for such

release and in case the contravention is of a Rule or order

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 condi-

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tions 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 'antici-

patory 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 applica-

tion 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 safeguards against improper exercise of power of

granting 'anticipatory bail' which might in conceivable

cases turn out detrimental against public interest. When we

say this, we must, of course, make it clear that we do not

intend to lay down that in no case should an exparte order

of 'anticipatory bail' be made by the Court. There may be

facts and circumstances in a given case which may justify

the making of an exparte interim order of 'anticipatory

bail' but in such an event, a short dated notice should be

issued and the final order should be passed after giving an

opportunity to the prosecution to be heard in opposition.

Here in the present case, the High Court took the view,

following its earlier decisions in Criminal Revision No. 285

of 1973 (State v. Shantilal & Ors.) and Criminal Revision

No. 286 of 1973 (State v. Manoharlal & Ors.), that the Court

of Session had no jurisdiction to grant 'anticipatory, bail'

by reason of Rule 184 and on this view, did not consider the

application of the appellant for 'anticipatory bail' on

merits. Since we are taking the view that the power con-

ferred on a Court of Session or a High Court under section

438 to grant 'anticipatory bail' is not taken away by Rule

184 in case of persons apprehending arrest on an accusation

of having committed contravention of any Rule or order made

under the Rules, we must set aside the order of the High

Court and send the matter back to the High Court for decid-

ing the appellant's application for 'anticipatory bail' on

merits.

We accordingly allow the appeal, set aside the order

made by the High Court and remand the case to the High Court

with a direction

59

that the application of the appellant for 'anticipatory

bail' should be decided on merits after hearing the parties

in the light of the observations made in this judgment. The

parties are directed to appear before the High Court on 25

November 1976 so as to enable the High Court to take up the

application for hearing. The appellant is already on bail

and we direct that until his application for 'anticipatory

bail' is disposed of by the High Court, he will continue on

bail.

FAZAL ALI, J. This is an appeal by special leave against

the order of the Madhya Pradesh High Court dated September

30, 1975 dismissing the application of the petitioner in

limine. In 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 peti-

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tioner 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 kero-

sene-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 cor-

rectness. 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 prepar-

ing a seizure memo, a copy of the same was given to one

Nathuram a relation of the petitioner, the petitioner being

absent on that day. Having regard to these facts, the

petitioner who had a genuine apprehension that he might be

arrested, for contravention of the provisions of the Defence

of India Act and the Rules made thereunder which admitted-

ly was a non-bailble offence, approached the Sessions Judge

for passing an order for anticipatory bail under the provi-

sions of s. 438 of the Code of Criminal Procedure, 1973.

This application having been rejected by the Sessions Judge,

the petitioner moved the High Court and that too unsuccess-

fully. Hence this appeal by special leave.

We are not at all concerned in this appeal regarding the

merits of the case because the High Court has not gone into

merits but has rejected the application on the ground that

it was not maintainable as held by the Division Bench deci-

sion of the Madhya Pradesh High Court. Thus the only

point which arises for consideration before us is:

"Whether the provisions of s. 438 of the

Code of Criminal Procedure relating to

anticipatory bail stand overruled and repealed

by virtue of r. 184 of the Defence and

Internal

60

Security of India Rules, 1971, or on the rule

of harmonious interpretation of statutes r.

184 of the Defence and Internal Security of

India, Rules, 1971 is not in any way incon-

sistent with s. 438 of the Code of Criminal

Procedure, 1973, and both the provisions can

exist side by side."

The Madhya Pradesh High Court has taken the view that the

Defence and Internal Security 0f India Act, 1971--hereinaf-

ter referred to as 'the Act' and the Defence and Internal

Security of India Rules.1971-hereinafter referred to as 'the

Rules' made thereunder being a sort of emergency legislation

are special law which repeals and overrides the provisions

of the Code of Criminal Procedure, 1973---herein after

referred to as 'the Code'--insofar as they are inconsistent

with the provisions of the Rules. In other words, the High

Court thought that in view of the express provisions of r.

184 (a) & (b) of the Rules, no question of anticipatory bail

arose, and, therefore, s. 438 of the Code stood superseded

insofar as offences under r. 184(a) & (b) were concerned

Mr. V.M. Tarkunde learned counsel for the appellant has

contended that the view taken by the Madhya Pradesh High

Court legally erroneous and is based on a wrong interpreta-

tion of the two provisions in question. 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

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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 thereun-

der, 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 coun-

sel 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 Art. 352 of the

Constitution. The preamble to the Act reads thus:

"And whereas it is necessary to provide for special

members to ensure the public safety and interest, the de-

fence of India and civil defence and internal security and

for the trial of certain offences and for' matters connected

therewith :"

It is, therefore. clear that the Act was meant to be a

temporary measure in order to ensure public safety and

interest and enable the Government to take immediate steps

to protect the internal security

61

and integrity of the country and for trial' of offences

committed under the Act or the Rules made thereunder. Sec-

tion 34 of the Act is the provision which authorises the

Central Government to make Rules under the Act and under s.

35 of the Act the Rules have to be laid before both Houses

of Parliament with such modification or annulment as the

Houses may be pleased to make. Section 36 of the Act gives

colour of finality to certain orders passed by an authority

which is not a Court. Section 37 of the Act runs thus:

"37. The provisions of this Act or any

rule made thereunder or any order made under

any such rule shall have effect

notwithstanding anything inconsistent

therewith contained in any enactment other

than this Act or in any instrument having

effect by virtue of any enactment other than

this Act."

This section thus expressly overrules or

repeals any provision which is inconsistent

with the Act or the Rules. Another important

provision which must be noticed is s. 38 of

the Act which runs thus:

"38. Any authority or person acting in

pursuance of this Act shall interfere with the

ordinary avocations of life and the enjoyment

of property as little as may be consonant with

the purpose of ensuring the public safety and

interest and the defence of India and civil

defence and the internal security."

The effect of s. 38 which contains a mandate to the authori-

ty acting under the provisions of the Act from interfering

with the ordinary avocations of life and enjoyment of

property as little as possible clearly shows that the ri-

gours of the Act have been softened to a great extent by

limiting the actions of the authorities within the four

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corners of the express provisions of the Act. Legislature

never intended that any drastic action should be taken by

the authorities which may interfere with the liberty of the

subject unless it was absolutely 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 is whether

or not r. 184 of the Rules overrides the provisions of ss.

435 and 438 of the Code. In other words, we have to decide

whether r. 184 of the

62

Rules is in any way inconsistent with the provisions of ss.

436 and 438 of the Code. It may be mentioned here that even

the offences created under the Act or the Rules made there-

under are to be tried under the general law, namely, the

Code with certain modifications, and even in respect of

these offences the general law has not been repealed.

The Defence of India Act was amended by Ordinance 5 of

1975 dated June 30, 1975 which was later replaced by Act

XLII of 1971 dated August 1, 1975 and the Act was now known

as the Defence and Internal Security of India Act, 1971,

Rule 184 of the Rules runs thus:

"184. Notwithstanding anything

contained in the Code of Criminal Procedure,

1898 (V of 1898), no person accused or

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 any

such provision of these 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 there are reasonable grounds

for believing that he is not guilty of such

contravention."

An analysis of this rule would reveal a

few important features, namely:

(1) This provision does not in terms

confer any power on any Court to pass orders

for bail;

(2) it merely lays down certain conditions

which have to be followed before an order for

bail could be passed in favour of an accused;

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and

(3) that unlike s. 438 of the Code this

rule applies not only to non-bailable offences

but also to bailable offences.

The High Court was of the opinion that in view of this

particular distinction between bailable and non-bailable

offences which have been expressly made in s. 438 of the

Code, and having regard to the conditions incorporated in r.

184(a)&(b), s. 438 of the Code is repealed by this rule

as being inconsistent with it. We are, however unable to

agree with the conclusion reached by the High Court for the

reasons which we shall give hereafter.

63

To begin with s. 438 of the Code applies only to 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 arrested. The object which is

sought to be achieved by s. 438 of the Code is that the

moment a person is arrested, if he has already obtained an

order from the Sessions Judge or the High Court, he would

be released immediately without having to undergo the ri-

gours of jail even for a few days which would necessarily be

taken up if he has to apply for bail after arrest.

Before, however, we dwell on the real concept of s. 438

of the Code, we would like to indicate the circumstances

in which this section was added to the new Code of Criminal

Procedure, 1973. Prior to the new Code there was no provi-

sion for an order of anticipator), bail in the Code, and

there appeared to be a serious divergence of judicial opin-

ion on the question whether or not a Court had the power to

pass an order for anticipatory bail. Some of the High

Courts held that the Courts did possess the power, while

the other High Courts held that the Court did not. It is

not necessary for us now to decide as to which view is

correct. The controversy that existed before has now been

set at rest by enacting s. 438 in the new Code of Criminal

Procedure. While the Bill in the Lok Sabha, Shri Ram Niwas

Mirdha the concerned Minister detailed the various objects

of the amendments and one of the observations made by him

was that by virtue of the new amendment there was liberali-

sation of bail provisions. The relevant part in

paragraph-2 of the Statement of Objects and Reasons pub-

lished in the Gazette of India Extraordinary Part II-Section

2 dated December 10, 1970 at p. 1309 runs thus:

"2. The first Law Commission presented

its Report (the Fourteenth Report) on the

Reform of Judicial Administration, both civil

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and criminal, in 1958; it was not concerned

with detailed scrutiny of the provisions of

the Code of Criminal Procedure, but it did

make some recommendation in regard to the law

of criminal procedure, some of which required

amendments to the Code."

64

Apart from this, the clause-wise objects and reasons

with respect to s. 438 of the Code (which was clause 447 in

the Bill) run thus:

"As recommended by the Commission, a new

provision is being made enabling the superior

courts to grant anticipatory bail, i.e., a

direction to release a person on bail issued

even before the person is arrested.. With a

view to avoid the possibility of the person

hampering the investigatition, special

provision 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 submit to custody, remain

in prison for some days and then apply for

bail."

In its Forty-eighth Report the Law Commission while

commenting on the bail provision observed in paragraph 31 as

follows:

"31. The Bill introduces a provision for

the grant of anticipatory bail. This is

substantially in accordance with the

recommendations made by the previous

Commission (41st Report). We agree that this

would be a useful addition, though we must add

that it is in very exceptional cases that such

a power should be exercised.

We are further of the view that in order

to ensure that the provision is not put to

abuse at the instance of unscrupulous

petitioners, the final order should be made

only after notice to the public prosecutor.

The initial order should only be an interim

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one. Further the relevant section should

make it clear that the direction can be issued

only for reasons to be recorded, and if the

Court is satisfied that such a direction is

necessary in the interests of justice."

It would thus appear that while the Law Commission

recommended that provision for an order of anticipatory bail

to be effective when

65

a person is arrested should be made at the same time it

stressed that this being an extra-ordinary power should be

exercised sparingly and only in special cases. It also

recommended that this power should not be exercised without

giving notice to. the other side. We think, this is why the

Legislature has entrusted this power to high authorities

like the Sessions Judge and the High Court and we also feel

that in the interests of justice it would be desirable if a

final order is made only after hearing the prosecution.

Although this condition is not mentioned in s. 438 of the

Code, but having regard to the setting in which the section

is placed and the statement of the objects and reasons which

is actually based on the recommendations of the Law Commis-

sion, we think that rule of prudence requires that notice

should be given to the other side before passing a final

order for anticipatory bail so that wrong order of anticipa-

tory bail is not obtained by a party by placing incorrect or

misleading facts or suppressing material facts. We hope that

in future the Courts will exercise this power keeping our

observations in view. We may of course point out that in

emergent cases the Courts may make an interim order of

anticipatory bail before issuing notice 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

construction of the two statutes so that the two may world.

and stand together. This is also fully in consonance with

the principles laid down by this Court in construing the

non obstante clauses in the statutes. In Northern India

Caters Pvt. Ltd & Anr. v. State of Punjab and Anr.,(1) this

Court observed thus:

"A latter Act which confers a new right

would repeal an earlier right if the fact of

the two rights co-existing together produces

inconvenience, for, in such a case it is

legitimate to infer that the legislature did

not intend such a consequence. If the two Acts

are general enactments and the latter of the

two is couched in negative terms, the

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inference would be that the earlier one was

impliedly repealed. Even if the latter

statute is in affirmative terms, it is often

found to involve that negative which makes it

fatal to the earlier enactment."

(1) [1967] 3 S.C.R. 399.

6 --1458SCI/76

66

Thus one of the main tests pointed out by the Court was that

the Court while interpreting the statutes concerned must

infer repeal by the latter statute only if it causes incon-

venience or where it is couched in affirmative or negative

terms. Maxwell on Interpretation of Statutes, 11th Edn., p.

162 observes:

"A sufficient Act ought not to be held

to be repealed by implication without some

strong reason."

We think it is reasonable to presume that the Legislature

does not intend to keep contradictory enactments on the

statute book and, therefore, a construction should be ac-

cepted which offers an escape from it. Similarly in an

earlier case in Aswini Kumar Ghosh and Anr v.Arabinda Bose

and Anr(1) this Court laid down the proper approach in

interpreting a non obstante clause and observed thus:

"It should first be ascertained what the

enacting part of the section provides on a

fair construction of the words used according

to their natural and ordinary meaning, and the

non obstante clause is to be understood as

operating to set aside as no longer valid

anything contained in relevant existing laws

which is inconsistent with the new enactment."

Having regard to the principles enunciated above, we

feel that there does not appear to be any direct conflict

between the provisions of r. 184 of the Rules and s. 438 of

the Code. However, we hold that the conditions required by

r. 184 of the Rules must be impliedly imported in s. 438 of

the Code so as to form the 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 non-

bailable 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 order

for anticipatory bail without the necessity of proving that

there were reasonable grounds for believing that he was not

guilty of offence punishable with death or imprisonment for

life. Such a course would render the provisions of s. 437

nugatory and will give a free licence to the accused persons

charged with non-bailable offences to get easy bail by

approaching the Court under s. 438 and by passing s. 437 of

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the Code. This, we

(1) [1953] S.C.R. 1.

67

feel, could never have been the intention of the Legisla-

ture. Section 438 does not contain unguided or uncanalised

powers to pass an order for anticipatory bail, but such an

order being of an exceptional type can only be passed if,

apart from the conditions mentioned in s. 437, there is a

special case made out for passing the order. The words "for

a direction under this section" and "Court may, if it thinks

fit, direct" clearly show that the Court has to be guided by

a large number of considerations including those mentioned

in s. 437 of the Code. When a Court is dealing with of-

fences contemplated by r. 184 of the Rules, then it is

obvious that though the offences are not punishable with

death or imprisonment for life so as to attract the provi-

sions of s. 437, the conditions laid down by r. 184 of the

Rules would have to be complied with before an order Under

s. 438 of the Code could be passed. In other words, the

words "for a direction under this section" and "Court may,

if it thinks fit, direct" would impliedly contain a statuto-

ry mandate to the Court in the shape of conditions mentioned

in clauses (a) and (b) of r. 184 of the Rules, viz., (1 )

that an opportunity would be given to the prosecution to

oppose the application for anticipatory bail; and (2) the

Court must be satisfied that there are reasonable grounds

for believing that the accused is not guilty of the contra-

vention of the Rules. While giving finding on this the Court

will have to take into consideration that under the provi-

sions of the Rules once contravention is alleged the onus

lies on the accused to prove that there has been no such

contravention. If we construe the two provisions in this

manner, then there would be really no inconsistency between

s. 438 of the Code and r. 184 of the Rules and both the

provisions can co-exist without coming into conflict with

each other. Further more, r. 184 would apply the moment the

accused person is taken in custody 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 conditions

mentioned therein in s. 497 of the Code. In this connection

the Court observed as follows:

"Under s. 497, Criminal P.C.,

therefore, the Court has also to consider

reasonable grounds for belief ...... But in

a

(1) A.I.R. [1953] Cal. 28,

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68

case, however, under s. 13A, Essential

Supplies Act, it is the converse and more

difficult case of reasonable ground for

believing that the applicant for bail is not

guilty .... Its effect is that s. 13A,

Essential Supplies Act, represents a new

species of non-bailable offence with its own

rules for bail and that section, therefore, is

an extension of s. 497, Criminal P.C."

As against this Mr. Ram Panjwani relied on a few deci-

sions of the Madras, Bombay and Patna High Courts in support

of the view that the previous section in the Defence of

India Rules which was couched almost in the same language as

r. 184 of the Rules was held to have overruled the provi-

sions of s. 497 of the old Code of Criminal Procedure.

Reliance was placed on In re V. Bhuvarha Iyengar(1) where

the Court was dealing with r. 130A of the old Defence of

India Rules and observed as follows:

"In respect of offences which come

within the rules framed under the Defence of

India Act that Act governs all other statutory

provisions and therefore the provisions of the

Code of Criminal Procedure with regard to bail

do not here apply if R. 130A is intra vires,

which we hold it to be."

This case is clearly distinguishable, because in the first

place in the old Code of Criminal Procedure there was no

provision for anticipatory bail at all and, therefore, the

question that falls for consideration in the present case

never arose in that case at all. Secondly, the Court has

not considered the aspect which we have pointed out in the

present case by holding that in view of the object of the

new Code the provisions of r. 184 clauses (a) & (b) have to

be impliedly imported into s. 438 of the Code. In these

circumstances, therefore, this decision does not appear to

be of any assistance to the counsel for the respondent.

Reliance was then placed on a decision of the Bombay High

Court in In re Surajlal Harilal Malumdar and others(2) and

particularly to the following observations:

"In my opinion the effect of that rule

is to repeal the provisions of S. 496,

Criminal P.C., in so far as it divests the

Court of its discretion 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 provi-

sions 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 prosecu-

I,R. 1942 Mad. 221, 223. (2) A.I.R. 1943 Born. 82.

69

tion to oppose the application before granting.bail. This

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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 decisions have absolutely no bearing on the

specific question which we are considering in this partic-

ular case, because the provision of s. 438 of the Code is an

absolutely new one and did not at all exist when the cases

cited by the learned counsel for the respondent were decid-

ed. We might like to indicate clearly that in the instant

case we are only considering whether the provisions of r.

184 clauses (a) & (b) of the Rules are inconsistent with

s. 438 of the Code and the question whether provisions of r.

184 are inconsistent with any other provision of the Code

does not fall for determination in this case.

Lastly we might point out that the scope of r. 184 of

the Rules is wider than that of s. 438 of the Code inasmuch

as while s. 438 can be invoked only in cases of non-bailable

offences and not in cases of bailable offences, r. 184 of

the Rules would apply not only to non-bailable offences but

also to bailable offences and in these circumstances, there-

fore, the conditions mentioned in r. 184 would have to be

impliedly imported into s. 436 of the Code which deals with

orders for bail regarding bailable offences. In other

words, the position is that where a person who is an accused

for offences contemplated by r. 184 of the Rules and which

are bailable, yet he cannot get bail as a matter of right

under s. 436 of the Code unless the Court complies with the

conditions laid down in r. 184 clauses (a) and (b). We have

already made it clear that so far as the question of

anticipatory bail is concerned that does not apply to

bailable offences at all. We have, therefore, interpreted

the provisions of ss. 436 and 438 of the Code and r. 184 of

the Rules in a harmonious manner so as to advance the object

of both the statutes and to effectuate the intention of

the Legislature.

Mr. Panjwani submitted that as the offences under the

Rules are socio-economic offences which deserve to be curbed

and dealt with severely, that is why, such a provision like

r. 184 has been enshrined in the Rules. That might be so,

but then on the interpretation placed by us it does not

in any way soften the rigours imposed by the Act or the

Rules made thereunder for such offences, because in any

case the Court would have to comply with the conditions

mentioned in clauses (a) & (b) of r. 184. The argument of

the respondent may assume some importance if r. 184 of the

Rules had contained 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.

70

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;

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(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 conditions mentioned in clauses (a) & (b)

of r. 184 and only after the Court has

complied with those conditions that an

order under any of these sections of the

Code in respect of such offences could be

passed.

For these reasons, therefore, we think that the High

Court of Madhya Pradesh in the instant case, as also in its

Division Bench decisions in Criminal Revision No. 285/74

(State v. Shantilal & Others) and Criminal Revision No.

286/74 (State v. Manoharlal & Ors) mentioned in the order

under appeal, was wrong in law, and therefore these deci-

sions are hereby overruled.

I, therefore, concur with the judgment proposed by my

brother Bhagwati, J., and accordingly allow this appeal, set

aside the order of the High Court dismissing the application

of the petitioner in limine and direct the High Court to

re-admit the petition and decide the same on merits in the

light of the observations made by us. The parties are di-

rected to appear before the High Court which shall hear the

petition and dispose it of. Until the decision of the High

Court on merits, the appellant will continue on bail.

P.B.R. Appeal

allowed.

71