TaxTMI 
TaxTMI 
1976 (11) TMI 206
X X X X Extracts X X X X
X X X X Extracts X X X X
....jority 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 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 d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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 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 court. Having examined the historical background and context of section 438 of the new Code of Criminal Procedure and the lang....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry 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 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 Kir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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 interpretation 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rest 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 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 su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed; 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. 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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." 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 exi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Leg....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....unds 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ointed 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(A.I.R. 1943 Born. 82) 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." H....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tention 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. 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 followe....