- (1.) THIS is an application by the accused-applicant Manohari under sec. 482, Cr. P. C. 1973 against the order of the learned Sessions Judge, Bharatpur dated September 13, 1976.
(2.) THE facts of the case, in brief, which are relevant for the disposal of this application, are that a case under Rules 33, 43, 46, and 48 of Defence of India Rules 1971 was registered against the accused-applicant. THE learned Munsiff and Judicial Magistrate, Bayana released the petitioner on bail on June 28, 1976 on his furnishing a personal bond for Rs. 5,000/- and a surety in the like amount. THE learned Public Prosecutor after a lapse of about 3 months moved an application under Sec. 439 (2), Cr. P. C. , 1973 before the learned Sessions Judge, Bharatpur praying that the bail granted by the learned Magistrate may be cancelled. THE learned Sessions Judge by his order dated September 13, 1976 cancelled the bail, which was granted to the petitioner by the learned Magistrate. It is against this order of cancellation of the bail that the present application under Sec. 482, Cr. P. C. has been filed. On behalf of the accused-applicant, it has been contended that there are special provisions for enlarging the accused applicant on bail as enumerated in Rule 184 of Defence of India Rules, when the accused is charged with an offence punishable either under Defence of India Act or Defence of India Rules. It was, therefore, contended that the learned Sessions Judge lacked inherent jurisdiction to entertain an application under Sec. 439 (2), Cr. P. C. It was also contended that the learned Sessions Judge acted without jurisdiction in cancelling the order of bail. It was farther contended that grant and refusal of bail to a person charged with an offence under Defence of India Rules and Defence of India Act shall be governed by the special provisions contended in the Defence of India Rules, and shall not be controlled or governed by the Criminal Procedure Code. Reference was made to Sec. 5 of the Criminal Procedure Code and Sec 37 of the Defence of India Act. It was further contended that a bare reading of Sec. 439 (2), Cr. P. C. would show that the powers which have been vested in the Sessions Judge are only with regard to Chapter 33 of the Criminal Procedure Code, 1973, and these powers could not be invoked with regard to bail applications disposed of under Section 184 of the Defence of India Rules, J971. On behalf of the State, it was contended that Rule 184 of the Defence of India Rules only abrogates the powers under the Criminal Procedure Code to the extent of grant of bail. It was further contended that the entire procedure for recording of evidence and trial of the complaint shall be governed by the Criminal Procedure Code, and that no such provisions have been made under the Defence of India Rules. It was also contended that the scheme of the Defence of India Act and the Defence of India Rules negatives the provisions for grant of bail unless the requisite conditions of Rule 184 of the Defence of India Rules are satisfied It was also contended that the cancellation of bail by the learned Sessions Judge, Bharatpur amounted to an interlocutory orders, and that a revision against an interlocutory order was barred under Sec. 397 (2), Cr. P. C. , 1973. It was further contended that what was prohibited by the express provision as contained in Sec. 397 (2) could not be got rectified by invocation of the inherent powers of the High Court under Sec. 482. Cr. P. C. It was also contended that the provisions of Sec. 482, Cr. P. C. could not be availed of against a statutory law embodied in Sec. 397 (2 ). Reliance was placed on the general interpretation of statutes that inherent powers of the Court cannot be used where specific provision of law exists. The respective contentions of the learned counsel for the applicant and the learned Public Prosecutor have been considered and the record of the case perused. Sec. 439 (2), Cr. P. C. reads as under " (2) A High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. " Sec. 184, Defence of India Rules, 1971 reads as under "184. Special provision regarding bail : Notwithstanding anything contained in the Code of Criminal Procedure 1898 (V of 1898), no person accused or convinced of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or 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 these Rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that be is not guilty of such contravention. " Sec. 37 of the Defence of India Act, 1971 reads as under "37. Effect of Act and Rules, etc. inconsistent with other enactments : 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. " Sec. 5, Cr. P. C. , 1973 reads as under "5. 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. " The learned counsel for the accused-applicant strenuously argued that when the bail was not granted under Chapter 33 of the Criminal Procedure Code, 1973; the learned Sessions Judge could not set aside that order in exercise of his power under Sec. 439 (2), Cr. P. C. In support, the learned counsel relied on In re Surajlal Harilal (1), wherein it has been held that the effect of R. I30a is to repeal the provisions of S. 496 of the Code in so far as it divests the Court of its discretion in the matter of refusing bail in cases of bailable offences. It was further held that according to usual practice the High Court will not interfere with the discretion of the lower courts when judicially exercised.
(3.) RELIANCE was also placed on In re vs. Bhuvaraha Iyengar (2), wherein it was held that in respect of offences which come within the rules framed under the Defence of India Act, that Act governs all other statutory provisions and therefore the provisions of the Code of Criminal Procedure with regard to bail do not apply. Reliance was also placed on State of M. P. vs. Shantilal (3), wherein it was held that a person apprehending arrest for contravention of DIR or an order made thereunder cannot invoke sec, 438 Criminal P. C. and seek for bail thereunder. In accordance with the scheme of the Defence of India Act, 1971 and the Defence of India Rules, 1971 framed there under, 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 Code of Criminal Procedure are superseded by Rule 184. Such a view is re enforced by the fact that there are provisions in the Code itself which indicate that the general provisions of the Code 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. This is also clear from Sec, 37 of the Defence of India Act and Secs. 4 and 5 of the Criminal Procedure Code. 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. On behalf of the State; reliance has been placed on Dhola vs. The State (4), wherein it has been held that granting or refusal of bail was an interlocutory order and therefore no revision lies but where bail was cancelled on the ground that order granting bail was illegal and unjustified, it was held that the Sessions Judge was right in cancelling bail under Sec. 439 (2) in the circumstances of the case. ;