LexBALCHAND JAIN versus STATE OF MADHYA PRADESH
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52
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 anticipa-
tory 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the express provisions of r. 184 of the Rules superseded s. 438 of the Code in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 excep-
tional 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
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]
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BALCHAND v. MADHYA PRADESH (Bhagwati. J.)
53
( c) Rule 184 does not lay down a self-contained code for grant of bail.
It
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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
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 contra-
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vention 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]
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