BALCHAND JAIN v. STATE OF MADHYA PRADESH
Citation: [1977] 2 S.C.R. 52; 1976 INSC 284
Court: Supreme Court of India
Bench: P.N. BHAGWATI , A.C. GUPTA , S. MURTAZA FAZAL ALI
Judgment date:
Case summary
1976 INSC 284. Supreme Court of India judgment dated 1976-11-05. BALCHAND JAIN v. STATE OF MADHYA PRADESH. Read the judgment and case details on LawSphereX.
Judgment text
54 SUPREME COURT REPORTS [1977] 2. s. c. n.. BALCHAND JAIN STATE OF MADHYA PRADESH November 5, 1976 [P. N. BHAGWATI, A. c. GUPTA AND S. M. FAZAL ALI, JJ. ] Defence and Internal Security of India Rules, 1971-r. 184-If supersedes S. 438. Cr. P. C. 1973. Section 438 of the. Code of Criminal Procedure, 1973 provides that when any person has rea~on to believe that he may be arrested on an accusation of ~ having committed a non-bailable otfence, 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 not- ' "ithstanding anything contained 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 application and the contravention is of any such provision of the Rules or orders made thereunder as the Central Government or the State Government may, by notified order specify in this behalf, the Court is satbfied that there are reasonable grounds for b~lieving that he is not guilty of such contravention. 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 approached the Sessions Judge for an anticipatory bail under s. 438 of the Code of Criminal Procedure, 1973. The Sessions Judge rejected the application. Dismissing his appeal, the High Court held that the express provisions of r. 184 of the Rules superseded s. 438 of the Code in so far as offences set out in r. 184 were concerned. Allowing the appeal and remanding the case to the High Court : HELD: (P. N. Bha~ati 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 doe. ' not stand in the way of a Court of Sessions or a Hil. lh 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 antici"'. ltion of arrest. When the court grant• anticipatory bail it makes an order that 1~ the event "! f arres~ a person. shall be released on bail. This somewhat extraordmary power 1s exercised only m exceptional cases and is entrusted 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 Cod~ and seeks to place a curb on its exercise by prov! di':lg that a person accused oc convicted of contravention o. f. any rule. or or~er, 1f m custodv •. shall not be released on bail unless the, c0nd1tions mentioned m the rule are . satisfied. When the two conditions are satisfied the fetters placed on the exe. rc1se of the oowe:-are removed and the power of i:ranting bail possessed by the court under the ff Code revives and becomes exercisable.
{56H] (b) The non-obstante clause is intended to restrict t~e POWer of grant1'! g bail under the Code and not to confer a new power exerc1sa\lle only on certain, conditions. [57B] BALCHAND v. MADHYA PRADESH (Bhagwati. J. ) 53 ) ( c) Rule 184 does not lay down a self-contained code for grant of bail. It cannot be construed as displacing altogether the provisi9ns of the Code in regard to bail. The provisions of tne Code must be read alongwith r. 184 and full effect must b, given to them except in so far as they are by reason of the non-obstante clause overridden by r. 184. [57B-CJ (d) An application under s. 438 is an application 011 Gil apprehension of r' tJrrest. On such an application, the direction that may be given under s. 438 is that ill 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 exercising the power to grant anticipatory bail to a person apprehending arrest on such accusation though they \ would not b~ 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 SUJ? plemental to s. 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) !. (a) Section 438 of the Code is an extraordinary remedy and should be resorted to only in special cases.
{70C] (b) Section 438 appli~_s only to non-bailable offences. 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 ajccused 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-DJ 2. (a) While interpreting statutes, the Court must infer repeal of a former •tatute 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. f\9531 S. C. R. 1 referred to. 2. (b) If the intention of r. J 84 were to override the provisic. ns of s 438, then the Legislature should have expressly stated that the provisions of s. 438 shall not apply to offences contemplated by r. 184. Therefore, the Legislature 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. Stale of Punjab and Anr. [1967) J 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 interpreted in a manner so as to repeal or override . the provisions 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 •· "438 in offences contemplated by r. 184. Suc1, an interpretation would meet the ends of iustice, avoid all possible anomalies and would ensure and protect the liber'y of the subject which is the real intention of the Legislature in enacting •. "438 as a new provision for the first time in the Code. [66E-F] .! ... f 3. (a) Section 438 does not contain unguided or uncanalised 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 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.
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. [67 A-Bl In ro V. Bhuvaraha Iyengar, A. I. R. (1942] Mad. 221, 223, In re Surailal Harilal Majumdar & others, A. LR. 1943 Born. 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 bail- I able offences, r. 184 is applied not only to non-bailable offences but also to bailable offences and, therefore, the conditions mentioned in r. 184, would have to be impliedly imported into s. 436 which deals with orders for bail regarding bailable offences. [69D] 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 Respondent. 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 Ali 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 compe-tently 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 Commis- $ion, 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 BALCHAND l'. MADHYA PRADESH (Bhagwati, J. ) 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 oitence 1s not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to cuswdy, remain in prison for some days and then apply for ( bail. ", and recommended introduction ot a provision for grant of 'anticipatory bail'.
This recommendation was accepted by the Central Government and clause ( 44 7) 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 : "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 unscrupu-~ lous 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 follow-ini terms: " ( 1) 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; 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 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 even'. of arrest, a person shail 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 appean; that a person might be falsely implicated, or a frivolous case might be launched against him, or "there are reasonable grounds for llulding 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 ie 11. 0 limitation as to the category of nonbailable offence in respect \lf which the power can be exercised by the appropriate court. Having examined the historical background and context of sect. ion_ 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 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 arc 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 reasonable grounds for believing that he is not guilty of such cootravention. 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 rPlf'1'P a oer,on 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 seeb to place a curb on its exercise by providing that a person accused or eo~ victed of contravrntion of anv "RulP or orrl ns apnrehcnding 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 deciding the appellant's application for 'anticipatory bail' on merits. We accordingly allow the appeal, set aside the order made bv the High Court and remand the case to the High Court with a direction BALCHAND v. MADHYA PRADESH (Bhagwati. !. ) 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 1 -0n bail and we direct that until his application for 'anticipatory bail' ' is disposed of by the High Court, he will continue on bail. FAzAL Au, J. This is an appeal by special leave against the order of the Madhva 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 sumμrnry 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 carry-ing 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 possession of his account books and started verifying their correctness. The rnme party made a second visit to the shop of the petitioner on July 25. J 975 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 petitioner, the petitioner being ab-sent 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 thcreun~cr whic! t admittedly was a non-bailable offence, approached the Sessions Judge for passing an order for anticipatory hail under the provisions of s. 438 of the Code of Criminal Procedure, 1973. This application h~ving been rejected by the Sessions Judge, the petitioner moved the High Court and that too unsuccessfully. Hence this appeal by special leave. We are not at all concerned in this appeal regarding the merits or 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 decision of the Madhya Pradesh High Court. Thus the only point which arises for consideration before us is : "Whether the provisions of s.
43 8 of the Code of Criminal Procedure relating to anticipatory bail stand overruled and repealed by vir! ue of r. 184 of the Defence and Internal f Security of India Rules, 19? 1, or on the rule of harmonious interpretation of statutes r. 184 of the Defence and Internal Security of India Rules, 197 l is not in any way inconsistent with s. 438 of the Code of Criminal Procedure, 1973, and both rhe provisions can exist side by side. " I . The Madhya Pradesh High Court has taken the view that the Defence and Internal Security of India Act, 1971-heniinafter referred to as 'the Act' and the Defence and Internal Security of India Rules, 1971-hereinafter referred to a~ '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-hereinafter- -~ referrcd 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 provision11. of r. 184 (a) & (h) 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 ha~ con-tended that the view taken by the Madhya Pradesh H'gh Court is legally erroneous and is· basedi on a wrong jnterpretation of the twr 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 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 appreciatQ 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 0n December 4, 1971 at a time when the proclamation of emergency had already l;e,,. , issued by the President under cl. (1) of Art. 352 of the Constitution.
The preamble to the Act reads thu~: "And whereas it is necessary to provide for special mem-bers to er:sure the public safety and interest, the defence cif India and civil defence and internal secur;ty and for the tr;al of ccrlain offences and for matters connected therewith :" It is, therefore, clear that the Ac~ was meant to be a temp()rary measure in order to ensure public safety and interest and eN1ble the· Government to take immediate steps to protect the internal security· BALCHAND v. MADHYA PRADESH (Fazal Ali, J. ) :and integrity of the country and for trial of ? ffences committ 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. 43 7 (1) are implicitly contained in s. 43 8 of the Code. Otherwise the result would be that a person who is accused of murder can get away under s.
438 by obtaining ari order for anticipatory bail without the nei:es&ity of provi~g that there wer<'. reasona~le grounds for believing that he was not guilty of offence pumshable w1~ death or imprisonment for life. Such a course would render the proV1-sions of s. 43 7 nugatory and will give a free licence to t)le accused persons charged with non-bailable offences to get easy bail by app~oach ing the Court under s. 438 and by passings. 437 of the Code. This, we l.. (1) [1953] S. C. R. I. JIALCHAND "· . MADHYA PRADESH (Fazal Ali. J. } 67 feel, could never have been the intention of the Legislature. Section 438 do~s. not conta! n unguided or ·uncanaHsed 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. 43 7, there is a special case made out for 1?. assing 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 B Court is dealing with offences, 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 provisions of s. 43 7, the condi- / tions laid down by r. 184 of the Rules would have to be comolied with i before an order under s. 438 of the Code eould 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 statutory 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 oppo~e the application for anticipatory bail; and (2) the Court must be satisfied that there are reasonabl~ grounds for believing that the accused is not guilty of the contrav. ention of the Rule!!. While giving finding on this the Court will have to take into consideration that under the provisions of the Rules once contravention is alleged D 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 betweens. 438 of the Code and r. 184 of the Rules and both the provisions can co-exist without coming into confiet 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 eonditions 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 onee. ' The Legisk"::ure never intended that while in sueh serious offences like murder or those punishabll;" with d. eath or impriso? i::ient for lif~ tl~e accused should have the facility of an order of antlc1pa~ory bail, 111 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 deci~ion of the Calcutta High Court in Badri Piosad v. State(') wh~re the Co:irt was considering the provisions of s. 13A of the Essentrn} Supphes (Temporary Powers) Act, 1946 which were couched. alm~t 111 the same language as r. 184(b) of the Rules and the Court pomted ou. t t? at there was no conflict between s. 13A and s. 497 of the Code of Cnmmal Procedure and s. 13A can only be regarded as an extension ? f s.
497 of the Code by incorporating the conditions mentioned therem 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 (l) A. I. R. [1953] Cal. 28. A 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. " B As against this Mr. Ram Panjwani relied on a few decisions of the Madras, Bombay and P_<itna 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 provisions of s.
497 of the old Co<le of Criminal Procedure. Reliance was placed on In re V. Bhuvarha Iyengar(') where the Court was dealing with r. l 30A of the old Defence of India Rules and C observed as follows : "In respect of offences which come within the rules fram-ed under the Defence 6f 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. " D This case is clearly distingu. ishable, because in the first place in the old Code of Criminal Procedure there was no provision for anticipatory bail at all and, therefore, the qi:estion that falls for consideration in the present case never arose in that case at all. Secondly, the Coui"t has not considered the aspect which we liave pointed out in the present case by holding that in view of the obiect of the new Code the provisions of r. 184 clauses (a) ti (b) 'have to be impliedly imported into s.
43 8 of E the Code. In these circumstances, therefore, this decision does not appear t-0 be of any assi~tancc to the counsel ·for the respondent. Reliance was then placed on a decision of the Bombay High Court 2 in In re Surajlal flarilal Majumdar and others( ) and particularly to the following observations : "In my opinion the effect of that rule i~ to repeal the pro- F visions 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 I 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 js given to the prosecution to oppose the application for such release. G There is nothing left to implication.
The Legislature may impliedly repeal penal Acts by a later enactment like any other statute even u the repeal introduces stringency of procedure oc takes away a privilege. " Hece also the Court does not expressly hold that the provisions of s. 496 wecc completely repealed by r. 130A of the old Defence of India H Rules but merely held ·that the said rule will be overruled only to the extent that the Court wou1d have to give an opportunity to the prosecu- (! )A. T. R. 19U M,. d. 221, 223. (2) A. LR. 1943 Bom. 82. BALCHAND v. MADHYA PRADESH (Fazal Ali, J. ) 69 \ tion to oppose the application before granting bail. This decision, therefore, does not take t_he view contrary to the one which we have taken in this case. Lastly reliance was placed on a deci~ion of the Patna High Court in Sal1gram Singh and Ors v. Emperor(') which also took aimost the same view as the Bombay High Court.
At any rate, these decisions have absolu•ely no bearing on the specific question· which we are considering in this particular case, because the provision of s. 43 8 of the Code rs an absolutely new one and did not at all exist when the cases cited by the learned counsel for the respondent were decided. We might like to indicate clearly that in the instant case we are only considermg whether the provisions of r. lff4 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, therefore, 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 o:her 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 compEes 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 effectua'. e the in'. ention 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 m•ght 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 ment;oned 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 offences 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, 19'15 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 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. Shanti/al & Others) and Criminal Revision No. 286/74 (State v. Manoharlal & Ors) mentioned in the order under appeal, was wrong in law, and the. -efore these decisions 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 directed 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.
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