STATE OF MADHYA PRADESH Vs. SHANTILAL

JUDGEMENT

(1.) THE applicability of Section 438 of Criminal P. C. 1973 for granting anticipatory bail to a person apprehending arrest for a contravention of the Defence of India Rules, 1971 or the orders made thereunder, is the main question for our decision. The learned Single Judge before whom the revision against grant of anticipatory bail to such a persop first came up for hearing has formulated certain questions for decision by a larger bench which are required to be decided by us. These questions are as follows:

(2.) WE shall first deal with the aforesaid main question, the conclusion on which will also answer the aforesaid questions Nos. (i), (ii)_ and (iv ). Briefly stated, the argument of Shri P. L. Mehta, Additional Government Advocate is that Section 438 of Criminal P, C. 1973 (hereinafter referred to as the new Code) does not apply to a person accused of a contravention of the Defence of India Rules, 1971 (hereinafter referred to as the Rules) or the orders made thereunder so that anticipatory bail cannot be granted to him. Shri Mehta argues that Rule 184 is a special provision regarding bail applicable to all persons accused or convicted of such contravention with the result that provisions of the Code to this extent are inapplicable. He further argues that by virtue of Section 8 (1) of the General Clauses Act, 1897, reference to the Code of Criminal Procedure, 1898 in the non obstante clause of Rule 184 has to be construed as reference to Criminal P. C, 1973. On this basis, Shri Mehta contends that the question of applying Section 438 of the new Code to such cases does not arise. On the other hand, Shri Y. I. Mehta argues that Section 8 (1) of the General Clauses Act has no application, since Section 438 of the new Code is a new provision, the like of which was not contained in the old Code, Shri Y. I. Mehta, further argues that Rule 184 does not cover the sphere of anticipatory bail as a result of which, it cannot override Section 438 of the new Code, which is the general provision for this purpose. Shri S. L, Garg and Shri P. K. Saxena volunteered at the hearing to appear as ami-cus curiae. While Shri P. K. Saxena supported the argument of the learned Additional Government Advocate, Shri S. L. Garg reiterated the submissions made by Shri Y. I. Mehta.

(3.) HAVING fully considered the arguments advanced before us and the relevant statutory provisions, we have reached the conclusion that Section 438 of Criminal P. C, 1973 enabling grant of anticipatory bail has no application to such cases. Broadly stated our reasons for this conclusion are twofold. 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 Criminal P. C. are superseded by Rule 184. Such a view is reinforced by the fact that there are provisions in the Criminal P. C 1973 itself which indicate that the general provisions of the Cod 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. We shall now discuss in detail the process of reasoning by which we have reached this conclusion.