Surjit Singh vs The State of Punjab

D.S. Lamba, J.—Surjit Singh, son of Jallaur Singh, resident of village Gholia Kalan, Police Station Bagha Purana, Tehsil Moga, District Faridkot, has approached this Court with a prayer for grant of anticipatory bail u/s 438, Criminal Procedure Code, 1973 (hereinafter called the New Code)

The Petitioner alleges that he is a Vaidya by profession and has no connection whatsoever with any political party much less with any party or organisation which has been notified to have been banned under Rule 33 of the Defence of India Rules 1971 (hereinafter called the Rules). He further alleges that a false F.I.R. No. 129(sic) was lodged against him and one Jarnail Singh in Police Station Bagha Purana on the statement of one Joginder Singh on 25th July 1975 under Rules 33, 36 and 43 of the Rules, in which the allegations against the Petitioner were that he was a member of the Marxist Party and along with the said Jarnail Singh, he was exhorting the students against the Govern-ment. It is stated that the Police sent up the Petitioner and Jarnail Singh to stand their trial on the basis of the aforesaid allegations but the prosecution witnesses did not support the prosecution case and so he was acquitted by the trial Court on 5th May, 1976. It is now alleged that on the basis of another report registered against him on 6th May 1976 under Rules 33, 35 and 43 of the Rules, the police of Bagha Purana have raided the house of the Petitioner for arresting him, once on 6th May 1976 and then on 7th May 1976, and as he apprehends his arrest, he has approached this Court for grant of anticipatory bail.

Notice was issued to the Advocate General, Punjab, for 21st May 1976 and Mr. H. S. Brar, Senior Deputy Advocate-General has appeared for the Punjab State. Mr. A. N. Mittal, Learned Counsel for the Petitioner, has stated at the Bar that the F. I. R. was lodged on 6th May 1976 by the same Joginder Singh, who was complainant in the previous case also, in which the Petitioner was acquitted, and this fact is not disputed by the learned Senior Deputy Advocate-General, Punjab.

Mr. Brar, has, however, at the very outset raised a preliminary objection about the maintainability of this application for the grant of anticipatory bail and contended that in the case of a person apprehending arrest under the rules, Section 438 of the New Code does not apply and, therefore, bail cannot be granted to him. In support of contention he has placed reliance on a Division Bench judgment of Madhya Pradesh High Court reported as State of Madhya Pradesh Vs. Shantilal and Others, . On the other hand Mr. Mittal, the Learned Counsel for the Petitioner has vehemently urged that the provisions of Section 433 of the New Code are not superseded by the Rules because Rule 184 of the Rules does not cover the field of anticipatory bail for which the general provision is Section 438 of the New Code. He further contends that the provisions for grant of bail contained in Chapter XXXIII of the New Code are enabling provisions and Rule 184 of the Rules puts restrictions only to the extent given in Clauses (a) and (b) of that rule. According to him the words "in custody" used in Rule 184 of the Rules would not prevent the Courts to grant bails, u/s 438 of the New Code, to persons apprehending arrest and are not in custody, and that this rule, which is a special provision, can be invoked only when a person is accused or convicted under the Rules and is in custody. The Learned Counsel for the Petitioner, therefore, seriously challenges the correctness of the law laid down in Shantilal''s case (supra).

To examine the contentions of the Learned Counsel it is proper to quote Rule 184 of the Rules, which reads as under:-

Special Provision regarding bail: -

Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), no person accused or convicted of a contravention of these Rules or orders made thereunder shall, in custody, be released on bail or oh 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 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.

The heading of this Rule makes it amply clear that it is a special provision regarding bail. The learned Judges of the Madhya Pradesh High Court in Shanti Lal''s case (supra) observed in paragraph 3 of the report as under:-

Having fully considered the arguments advanced before us and the relevant statutory provisions, we have reached the conclusion that Section 438 of Criminal Procedure Code, 1973, enabling grant of anticipatory bail has no application to such cases. Broadly stated our reasons for this conclusion are two fold. In the first place, in accordance with the scheme of the Defence of India Act, 1971, and the Defence of India Rules, 1971 framed thereunder, Rule 184 is enacted as a special provision regarding bail in relation to the special offences so created. With the result that the general provisions regarding bail contained in the Code of Criminal Procedure are superseded by Rule 184. Such a view is reinforced by the fact that there are provisions in the Code of Criminal Procedure 1973 itself which indicate that the general provisions of the Code apply only in the absence of special provisions enacted elsewhere and intended to operate in the same sphere. Thus, even without the aid of non-obstante clause in Rule 184, the applicability of Section 438 of the new Code is excluded because of the specific provision regarding bail contained in Rule 184. The other reason is that by virtue of Section 8(1) of the General Clauses Act, reference to the old Code has to be construed as a reference to the new Code.

Mr. Mittal, however, concedes that by virtue of Section 8(1) of the General Clauses Act, 1897, reference to Code of Criminal Procedure (1898) in non obstante clause must be constructed as a reference to the New Code. Moreover, the contentions raised by Mr. Mittal are clearly answered in the Madhya Pradesh authority cited above, and since I am in respectful agreement with the reasoning adopted in the said authority, it will be unnecessary for me to dilate on this subject any further as the following observations made and the conclusions arrived at by the learned Judges in that ease can be read with advantage (paras 5 and 6 of the report):-

Section 37 of the Defence of India Act, 1971 read as under:- "Effect of Act and rules, etc. inconsistent with mother(sic) enactments.-The provisions of this Act on 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.

The Defence of India Rules, 1971 have been made under the said Act. A plain construction of Section 37 leads to the conclusion that any provision of these Rules which is inconsistent with any other enactment, other than this Act, will prevail over the corresponding provision in any other enactment. Section 37 is alone sufficient to indicate the legislative intent that the Defence of India Act 1971 and the Rules framed thereunder being enacted to provide for special measures to attain certain objectives, notwithstanding the general law available at the time, these special provisions have undoubtedly an overring effect over the general law opperating in the same field. The earlier Defence of India Acts which contained a corresponding provision and the

Rules framed thereunder were all along understood as not being controlled in their operation by the general provisions of Criminal P.C. Certain provisions of Criminal P.C. 1973 are also relevant for this purpose. Section 5 of the new Code is as under:-

Saving. -Nothing contained in this Code shall, in the absence of a specific provision to the contrary, effect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force. Section 4(2) and Section 26(b) also indicate that where provision is made for the purpose in the special law, the general provisions contained in the code would not apply. There were corresponding provisions in the Old Code to the same effect. These provisions in the new Code clearly indicate that the new Code was not intended to operate in a field wider than that in which the old Code applied. Thus, it is in this back-ground that the scope of the aforesaid Rule 184 has to be examined.

We shall now examine the contents of Rule 184 omitting the non obstante clause from our consideration for the time being. It is clear from the Rule that it applies to all persons accused or convicted of such a contravention. The wording of rule indicates that such a person while in custody for such a contravention shall not be released unless the conditions specified in Clauses (a) and (b) applicable are satisfied. Clause (a) which applies to every ease of such contravention requires the prosecution to be given an opportunity to oppose the application before release on bail. In addition the cases in which Clause (b) also applies the Court is required to be further satisfied that there are reasonable grounds for believing that the person is not guilty of such contravention. This further requirement contained in Clause (b) places a burden on the person detained, which ordinarily does not exist when a person in detention applies for bail. This departure and stringency of the provision is obviously in keeping with its object, it being enacted as an extraordinary measure to meet certain extraordinary eventualities. It cannot be doubted that such a burden which is placed on the person in detention by Clause (b) of the Rule can be discharged only when full particulars of the accusation are made known to him and not otherwise. Thus, in a case where Clause (b) applies any attempt to discharge this burden without knowing the particulars of the accusation, which disability is bound to exist while applying for anticipatory bail, would be a mere exercise in futility. At least to such cases the question of applying Section 438 of the new Code for grant of anticipatory bail cannot arise. That apart, Rule 184 makes full provision with regard to grant of bail in all cases since Clause (a) must invariably apply to all such cases whether Clause (b) applies or not. For this reason alone Rule 184 must be constructed as a special provision applicable to all cases regarding bail wherein contravention of these Rules or orders made thereunder is alleged. The entire scheme of Rule 184 indicates that question of granting bail, in such cases can arise only after a person is detained and not prior to that stage. The grant of anticipatory bail in such cases is excluded by necessary implication. In view of the above discussion, I have no hesitation to hold that Rule 184 of the Rules overrides the provisions of Section 438 of the New Code, the latter being inconsistent with the former, and even without the aid of non-obstante clause in this Rule, the applicability of Section 438 of the New Code is ousted. The non-obstante clause has been inserted by way of abundant caution and it in no way usurps the field of Rule 184.

Mr. Mittal during the course of his arguments tried to draw support from a Full Bench decision of our own High Court in Surrinder Kumar and Ors. v. The State of Punjab (1976)3 Cr. LT 406. In that case the learned judges of the Full Bench were answering the question "whether where the provisions of proviso (a) to Section 167(2) of the Code of Criminal Procedure comes into operation the detention can be allowed to continue even after the period of sixty days in view of the provisions of Rule 184 of the Rules." While examining the scheme of Chapter XII and Section 167 of the New Code, it was observed by the learned Judges that "combined reading of Sections 4 and 5 of the Code and Section 37 of the Act with Rule 184 shows that Rule 184 will override the provisions of Chapter XXXIII to the extent they are found inconsistent with those of Rule 184." Although these observations were made in the light of the facts of that case yet they do not at all go to help the Petitioner, rather they lend support to the case of the State. My attention was also drawn by the Learned Counsel for the Petitioner to three other cases of our own High Court, viz Nand Kishore Kaura v. The State of Punjab, Cr. M. No. 389-M of 1976, Criminal Miscellaneous No. 389-M of 1976 ; Naresh Kumar v. State of Punjab, Cr. M. No. 442-M of 1976. Criminal misc'' No. 442-M of 1976; both decided by Sidhu. J., on February 18, 1976 ; and Bahadur Singh v. State of Punjab, 1976 Ch. LR 10. in which Pattar, J., granted anticipatory bail to the Petitioner in that case who was charged for offences under the Opium Act, Arms Act, Official Secrets Act and Rules 33 and 46 of the Rules. In addition to the above cases, the Learned Counsel also referred me to a Full Bench Decision of the Himachal Pradesh High Court reported as Ishwar Chand v. State of H.P. (1976) 3 Cr. LT 52.,

The facts in Nand Kishore Kaura''s case are easily distinguishable from the facts of the case in hand. In that case the learned Judge made the following observations:-

The first point that has been argued before me by the Learned Counsel for the accused-Petitioner is that the provisions of rule 184 of the Rules are not applicable in case of an accused applying for anticipatory bail u/s 438 of the Code of Criminal Procedure because the application of Rule 184 presupposes that an accused should be in custody. He has further argued that the Petitioner has not been arrested by the police so far, hence, the provisions of Rule 184 are not attracted in his case. I doubt if I can accept the said argument of the Learned Counsel for the Petitioner. The Petitioner surrendered himself in this Court and thus, placed himself under restraint. Accordingly, he is not in custody of this Court at least which, for ail intents and purposes, can be treated to be a custody within the meaning of Rule 184. I, therefore, hold that the provisions of Rule 184 are fully attracted even in case of an accused applying for anticipatory bail.

After making the above observations, the learned Judge then proceeded to consider the application on merits and held that there were reasonable grounds for believing that the Petitioner had been guilty of the offence with which he had been charged and declined to grant anticipatory bail. In the instant case the Petitioner never surrendered himself and, therefore, the question of his being in the custody of the Court does not arise. Besides that, the case in hand has not proceeded on the lines as were adopted in Nand Kishore Kaura''s case. In State of Orissa v. Sudhansu Sekar Misra, AIR 1968 SC 547 it has been observed by their Lordships of the Supreme Court that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it. In the light of the aforesaid observations it is clear that every judgment must be read as applicable to the facts in issue. Under these circumstances the ratio of the case, decided by Sidbu. J., does not help the Petitioner. The remaining cases cited before me are also clearly distinguishable from the present one, because in those cases the point, whether in a case under the Defence of India Rules anticipatory bail u/s 438 of the New Code can be granted, was never raised.

Now, let me examine this case from another angle to find if the Petitioner can be given the benefit of Section 433 of the New Code. This section reads as under:-

Direction for grant of bail to person apprehending arrest:-

(1) When any person has reason to believe that, he may be arrested on an accusation of having commited 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.

(2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required ;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police Officer ;"

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is pre-pared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail ; and if a Magistrate taking cognizance of such offence besides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1).

It is clear that the words occurring in this section are "that in the event of such arrest, he shall be released on bail," and this Section nowhere provides for stay of arrest. So while ordering anticipatory bail a direction has to be issued in terms of Section 438 that the peiron concerned in the event of his arrest shall be released on bail. The moment he is actually arrested, the element of custody comes in and that stage Rule 184 of the rules will immediately come into play and the requirements of Clauses (a) and (b) of that rule will then havs to be satisfied. In this situation Section 438 of the New Code is rendered nugatory and unworkable, and the grant of anticipatory bail in such cases is excluded by necessary implication.

In the light of the above discussion, I hold that Section 438 of the New Code does not apply to enable grant of anticipatory bail to a person apprehending arrest for contravention of the provisions of the Defence of India Act, 1971, or any rule made thereunder or any order made under any such rule. Rule 184 of the Rules is, therefore, a special provision governing the grant of bail in all such cases. Hence I dismiss this application.