Anticipatory bail under criminal procedure remains available despite rule-based restrictions, with notice and protective conditions guiding its exercise.

Section 438 of the Code of Criminal Procedure, 1973 is not excluded by rule 184 of the Defence and Internal Security of India Rules, 1971 in contravention cases, because the two provisions operate at different stages and are not inconsistent. Rule 184 regulates bail where the accused is already in custody and requires notice to the prosecution and, in specified cases, reasonable grounds to believe the accused is not guilty; it does not create a separate bail power or impliedly repeal section 438. Anticipatory bail therefore remains available, but the Court should ordinarily apply the protective conditions reflected in rule 184 when exercising that power.

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Issues: Whether section 438 of the Code of Criminal Procedure, 1973 is excluded or overridden by rule 184 of the Defence and Internal Security of India Rules, 1971 in cases relating to contravention of those Rules, and whether anticipatory bail can be granted subject to the conditions reflected in rule 184.

Analysis: Section 438 confers power on the Court of Session or the High Court to direct release on bail in anticipation of arrest for a non-bailable offence. Rule 184, by contrast, does not create an independent bail power; it imposes restrictions on release on bail where a person accused or convicted of a contravention is already in custody, requiring an opportunity to oppose the application and, in specified cases, reasonable grounds to believe that the accused is not guilty. The two provisions operate at different stages and are not truly inconsistent. The non obstante clause in rule 184 therefore does not effect an implied repeal of section 438. At the same time, the policy underlying rule 184 must guide the exercise of power under section 438, so that the Court ordinarily gives notice to the prosecution and applies the protective conditions in rule 184 while considering anticipatory bail in such cases.

Conclusion: Section 438 of the Code of Criminal Procedure, 1973 is not repealed or overridden by rule 184 of the Defence and Internal Security of India Rules, 1971, and anticipatory bail remains available subject to the guiding conditions embodied in rule 184.

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