Harbans Lal, J. - (1.) This is a petition under section 438 of the Code Criminal Procedure hereinafter to be called the Code for the grant of anticipatory bail to the petitioner. According to the averments in the petition, the petitioner is a Government servant and is, at present, working as a Head Drafts man in the office of the Executive Engineer, Ferozepur Construction Division, P. W D., B & R. Ferozepur On Aug. 23, 1975, he was arrested under Rules 33(1), 36 and ' 43 of the defence of India Rules (hereinafter to be called the Rules) on the basis of First Information Report No. 153 of 1975, lodged in Police Station City, Moga. After trial he was convicted by the Judicial Magistrate, First Class, Moga, vide his order dated March 29, 1976, and was sentenced to six months' rigorous imprisonment under rules 33 and 43 of the Rules, respectively. Both the sentences were ordered to run concurrently. As the petitioner had been in detention during the trial from Aug. 23, 1975 to March 28, 1976, the sentence awarded to him was set off against the period of detention during the trial under sec. 42 of the Code and was released from Central Jail, Ferozepur, on March 30, 1976. The petitioner was cut of station for some period and came to know on his return to Moga in the first week of May, 1976, from the members of his family that his house had been searched by the Station House Officer, Police Station City, Moga, and that on April 22/23, 1976, the Police officials had visited the house of the petitioner and made enquiries about him It has been further averred that on April 20, 1976, the mother of the petitioner was called to the Police Station City, Moga, and was made to sit there till 7 or 8 p.m. As the petitioner apprehended that in case he appeared before the local Police he would be harrased and falsely involved in some case and submitted the present application for the grant of anticipatory bail. In this petition, notice was issued to the Advocate-General, Punjab and the petitioner was ordered to be released on Interim bail if arrested vide my order dated May 7, 1976. In pursuance of that order, the petitioner was released on interim bail by the Station House Officer, Police Station City, Moga.
(2.) In reply to the notice, it has been stated at the bar by the learned counsel for the State that the petitioner is wanted in a criminal case registered against him in the Police Station City Moga on April 3, 1976, under rules 36 and 43 of the Rules, that search of the house of the petitioner was made not on April 2, 1976, but on April 3, 1976, in connection with the said case, that the warrants of arrest were issued against the petitioner on April 14, 1976 and that as the petitioner was absconding, he was declared a proclaimed offender on May 5, 1976 and proceedings under section 82 of the Code were also started It is further stated that it is after the proceedings were started against the petitioner under section 82 of the Code, the present application was submitted on May 6, 1976. 11 has also been stated that the challan against the petitioner under the said first information report has already been put up the Court and charge has been framed against him on June 15, 1976.
(3.) A preliminary objection has been taken by the learned State counsel that as the case registered against the petitioner is under rules 33, 36, 43 and rule 184 of the Rules is also applicable, the petition under section 438 of the code regarding the grant of anticipatory bail is not -applicable ai d as such, the present petition is not maintainable Rule 184 of the Rules is reproduced below : "Notwithstanding anything contained in the Criminal Procedure Code, 1898 (5 of 1898) no Person accused of or convicted of a contravention of these rules or orders made thereunder shall, if in custody, be released on bail on his own bond unless, - (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where any such provision of these rules or orders made thereunder as the Central Government or the State Government may be notified order specify in this behalf the Court is satisfied that he is not guilty of such contravention. Its perusal shows that in cases of contravention of the Rues by any person, bail can be granted or refused in pursuit of the procedure as )a;d down in sub-rules (a) and (b) of rule 184 of the Rules and secondly that the accused must be in custody before the question of bail is gone into. This provision is also preceded by non obstinate clause." not with standing anything contained in the Cede of Criminal Procedure, of 1898)." It is not disputed that the reference to the old Code Criminal Procedure will include the new Criminal Procedure Code, referred to above, in accordance with the provisions of the General Clause Act. This being the case, rule 184 of the Rules is a special provision in matters of bail in offences under the Rules and the provisions of section 438 of the Code or any other provision therein regarding grant of bail would not apply. This is also clear from section 5 of the Code which is reproduced below : "Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power or conferred or any special form of procedure prescribed by any other law for the time being in force". This matter also came up for consideration before a Full Bench of this Court in Surinder Kumar and others Vs. The State of Punjab (Criminal Miscellaneous Petition No. 4453-M of 1975 decided on May 13, 1976) , wherein it was observed : "Combined reading of sections 4 and 5 of the Cede 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." The learned counsel for the State has also relied upon State of Madhaya Pradesh Vs. Shantilal and others 1976 Criminal Law Journal 256 wherein a 'Division Bench of the Madhya Pradesh High Court held, - "A person apprehending airiest for contravention of D.I.R. or an order made thereunder cannot invoke section 438 Code Criminal Procedure and seek for bail thereunder In accordance with the scheme of the Defence of India Act, 1971 and the Defence is enacted as a special provision regarding bail in relate on to the special offence so created, with the result that the general provisions regarding bail contained in the Code Criminal Procedure are superseded by Rule 184. Such a view is re-informed by the fact that there are provisions in the Code itself which indicate that the general provisions of the Code apply in the absence of special provisions enacted elsewhere and intended to operate in the same sphene. Thus, even without the aid of non obstinate clause in Rule 184, the applicability of section 438 of the new Code is excluded because oh the specific provision regarding bail contained in Rule 184. This is also clear from section 37 of the Defence of India Act and 4. 5 of the Code Criminal Procedure (1973). 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." A similar matter was also considered by Lamba, J. in Criminal Miscellaneous Petition No. 2637-M of 1976 (Surjit Singh Vs. The State of Punjab decided on June 4, 1976 , and it was held as follows:- "Section 438 of the new Code does not apply to enable to 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 dismiss this application." I am in entire agreement with the ratio of the said decision.;