- (1.) SURINDER Kumar and five others were arrested on 20th August, 1975, for the alleged contravention of the provisions of Rule 43 of the Defence and Internal security of India Rules, 1971 (hereinafter referred to as the Rules) and Section 188 of the I. P. C. Relying on proviso (a) to Sub-section (2) of Section 167 of the Cr. P. C. , 1973, they applied for their release on the ground that they had been under detention for more than 60 days. The relief claimed by them was rejected by the learned Sessions Judge, Patiala. Feeling aggrieved they moved this court under Section 439 of the Code, read with Rule 184 of the Rules. Before Gujral J. (as he then was) their petition was opposed on behalf of the state on the ground that Rule 184 disentitled them. The question referred to the Full Bench by the learned Judge is:- "whether where the provisions of proviso (a) to Section 167 (2) of the Cr. P. C. come into operation the detention can be allowed to continue even after the period of sixty days in view of the provisions of Rule 184 of the Rules. "
(2.) SUB-SECTION (2) of Section 4 of the Code provides that all offences under any law, other than the I. P. C. , shall be investigated, enquired into, tried, and otherwise dealt with according to the provisions of the Cr. P. C. but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It is pertinent to mention here that Section 5 of the Code lays down:-- "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 conferred, or any special form of procedure prescribed, by any other law for the time being in force. " Then Section 37 of the Defence and Internal Security of India Act, 1971, (hereinafter referred to as the Act) is in the following terms:- "the provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act. "
(3.) AS regards alleged breach of the provisions of Section 188 of the I. P. C. , it has not been disputed before us that the proviso aforesaid of Section 167 of the code governs the case. But as to the Contravention of Rule 43 of the Rules, learned Deputy Advocate General hotly contested before us that Rule 184 of the rules operated as a bar. In order to appreciate the rival contentions the relevant part of Section 167 of the Code may first be set down. "167 (1) (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction provided that- (a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days and on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this section shall be deemed to be so released under the provisions of Chap. XXXIII for the purposes of that chapter. " In Baldev Singh v. State of Punjab, 1975-77 Pun lr 534 : (1975 Cri LJ 1662) (FB) a Full Bench of this Court examined the true meaning and scope of the section quoted above. S. S. Sandhawalia J. who delivered the judgment observed that "the arrest and detention of an accused person for the purposes of investigation of the crime forms an integral part of the process therefor. Section 167 provides a step therein, being the judicial sanction for the custody of an accused person either with the police or what is conveniently called 'judicial custody'. This section is general and Sub-section (2) with the proviso thereto directly relates to the arrest, custody or release of an accused person and therefore, it is clearly a procedural provision embedded firmly in the scheme of investigative process. ";