SURJIT SINGH Vs. THE STATE OF PUNJAB

JUDGEMENT

(1.) 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 under Section 438, Criminal Procedure Code, 1973 (hereinafter called the New Code)

(2.) 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.

(3.) 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 M. P.v. Shantilal : 1976 Cri. L. J. 256. 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the Learned Counsel for the Petitioner has vehemently urged that the provisions of Section 433 of the New Code are not superseded by the Rules because Rule 184 of the Rules does not cover the field of anticipatory bail for which the general provision is Section 438 of the New Code.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, under Section 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).