BALCHAND JAIN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The facts giving rise to this appeal are set out in the judgment about to be delivered by our learned brother S. Murtaza Fazl Ali and it is, therefore, not necessary to reiterate them. The question which for determination on these facts is a short one 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).

(2.) 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:

(3.) Having examined the historical background and connect of Section 438 of the new Code of Criminal Procedure and the language in which it is couched, let is 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: