# [1977] 2 S.C.R. 52 - **Citation:** [1977] 2 S.C.R. 52 - **Court:** Supreme Court of India - **Decided:** 1976-11-05 - **Case number:** Criminal Appeal No. 325 of 1975 - **Bench:** P. N. Bhagwati, A. c. GUPTA, S. M. Fazal Ali - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1977-2-s-c-r-52-7066 - **Pages:** 19 ## Headnote 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 anticipatory 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 Dismissing his appeal, the High Court held that the express provisions of r. 184 of the Rules superseded s. 438 of the Code in so far as offences set out in r. 184 were concerned.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 exceptional 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] ~ ·; ' ) r' \ BALCHAND v. MADHYA PRADESH (Bhagwati. J.) 53 ( c) Rule 184 does not lay down a self-contained code for grant of bail. It A 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 b ## Text _Characters 0–39,544 of 60,142. This is a partial read: ask again with offset=39544 for what follows._ A B c D E F G ff 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 anticipatory 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 exceptional 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] ~ ·; ' ) r' \ BALCHAND v. MADHYA PRADESH (Bhagwati. J.) 53 ( c) Rule 184 does not lay down a self-contained code for grant of bail. It A 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 contraB 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] If these are the conditions provided by the rule-making authority for releasing on bail a person arrested on an accusation of having committed contravention of any rule or order made under the Rules it must follow a fortiori that the same conditions must provide the guidelines while exercising the power to grant anticipatory bail to a person apprehending arrest on such accusation though they C would not b~ strictly applicable. [58C) (Fazal Ali, J.) Section 438 of the Code has not been repealed by r. 184 of the Rules, but both have to be read harmoniously. Rule 184 is only SUJ?plemental to s. 438 and contains guidelines which have to be followed by the Court in passing orders for anticipatory bail in relation to cases covered by r. 184. [70A) !. (a) Section 438 of the Code is an extraordinary remedy and should be D resorted to only in special cases. {70C] (b) Section 438 appli~_s only to non-bailable offences. Anticipatory bail being an extraordinary remedy available in special cases, this power has been conferred on the higher echelons of judicial service, namely, the Court of Sessions or the High Court. What the section contemplates is not anticipatory bail but merely an order releasing an ajccused on bail in the event of his arrest. There can be no question of bail unless a person is under detention or custody. The object of s. 438 is that the moment a person is arrested, if he had already E obtained an order from the Sessions Judge or the High Court, he would be released immediately without having to undergo the rigours of jail even for a few days. [63B-DJ 2. (a) While interpreting statutes, the Court must infer repeal of a former •tatute by the latter only if it causes inconvenience or where it is couched in negative terms. The legislature does not intend to keep contradictory enactments on the statute book and, therefore, a construction should be accepted which offers an escape from it. [66A-C) Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr. f\9531 S.C.R. 1 referred to. 2. (b) If the intention of r. J 84 were to override the provisic.ns of s 438, then the Legislature should have expressly stated that the provisions of s. 438 shall not apply to offences contemplated by r. 184. Therefore, the Legislature in its wisdom left it to the Court to bring about a harmonious construction of the two statutes so that the two may work and stand together. [65F~G] Northern India Cateres Pvt. Ltd. & Anr. v. Stale of Punjab and Anr. [1967) J S.C.R. 399 followed. ( c) There is no real inconsistency between s. 438 and r. 184 and, therefore, the non-obstante clause cannot be interpreted in a manner so as to repeal or override .the provisions of s. 438 in respect of cases where r. 184 applies. The conditions required by r. 184 must be impliedly imported in s. 438 so as to form the main guidelines to be followed while the Court exercises its power under •· "438 in offences contemplated by r. 184. Suc1, an interpretation would meet the ends of iustice, avoid all possible anomalies and would ensure and protect the liber'y of the subject which is the real intention of the Legislature in enacting •. "438 as a new provision for the first time in the Code. [66E-F] F G H A B c D E F G H 54 SUPREME COURT REPORTS [1977] 2.s.c.n.. 3. (a) Section 438 does not contain unguided or uncanalised power 'to pass an order for anticipatory bail; but such an order being of an exceptional type can only be passed if, apart from the conditions mentioned in s. 437, there is a special case for passing the order. The words 'for a direction under this section' and 'Court may, if it thinks fit, direct' clearly show that the Court has to be guided by a large number of considerations, including those mentioned in s. 437. When a Court is dealing with offences contemplated by r. 184 it is obvious that though the offences are not punishable with death or imprisonment for life so as to attract the provisions of s. 437, the conditions laid down by r. 184 would have to be complied with before an order under s. 438 could be passed. [67 A-Bl In ro V. Bhuvaraha Iyengar, A.I.R. (1942] Mad. 221, 223, In re Surailal Harilal Majumdar & others, A.LR. 1943 Born. 82, and Saligram Singh & Ors. v. Emperor, AIR 1945 Pat. 69 distinguished. (b) The scope of r. 184 is wider than that of s. 438 inasmuch as while s. 438 can be invoked only in cases of non-bailable offences and not in cases of bailable offences, r. 184 is applied not only to non-bailable offences but also to bailable offences and, therefore, the conditions mentioned in r. 184, would have to be impliedly imported into s. 436 which deals with orders for bail regarding bailable offences. [69D] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 325 of 1975. Appeal by Special Leave from the Judgment and Order dated the 30th September, 1975 of the Madhya Pradesh High Court in Criminal Misc. Case No. 1112 of 1975. V. M. Tarkunde and Pramod Swarup for the Appellant. Ram Panjwani, H. S. Parihar and I. N. Shroff for the Respondent. The Judgment of P. N. Bhagwati and A. C. Gupta J.J. was delivered by Bhagwati, J. Fazal Ali, J. gave a separate concurring opinion. BHAGWATI, J. The facts giving rise to this appeal are set out in the judgment about to be delivered by our learned brother S. Murtaza Fazal Ali and it is, therefore, not necessary to reiterate them. The question which arises for determination on these facts is a short once and it is : whether an order of 'anticipatory bail' can be competently made by a Court of Session or a High Court under section 438 of the Code of Criminal Procedure, 1973 in case of offences falling under Rule 184 of the Defence and Internal Security of India Rules, 1971 made under the Defence and Internal Security of India Act, 1971 (hereinafter referred as the Act). There was at one time conflict of decisions amongst different High Courts in India about the power of a court to grant 'anticipatory bail'. The majority view was that there was no such power in the court under the old Criminal Procedure Code. The Law Commis- $ion, in its Forty First Report pointed out : "The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political .! ... f I .; ( ,. BALCHAND l'. MADHYA PRADESH (Bhagwati, J.) rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an oitence 1s not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to cuswdy, remain in prison for some days and then apply for bail.", 55 and recommended introduction ot a provision for grant of 'anticipatory bail'. This recommendation was accepted by the Central Government and clause ( 44 7) was introduced in the draft Bill of the new Code of Criminal Procedure conferring express power on a Court of Session or a High Court to grant 'anticipatory bail'. Commenting on this provision in the draft Bill, the Law Commission observed in paragraph 31 of its Forty-Eighth Report : "The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendations made by the previous Commission ( 41st Report). We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised. We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupu-~ lous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the Court is satisfied that such a direction is necessary in the interests of justice." Clause ( 447) became section 438 when the Bill was enacted into the new Code of Criminal Procedure. That section is in the followini terms: " ( 1) When any person has reason to believe that he may be arrested on an accusation of having committed a nonbailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. x x x x x x We do not find in this section the words 'anticipatory bail', but that is clearly the subject with which the section deals. In fact 'anticipatory bail' is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. When the Court grants 'anticipatory bail', what it does is to make an order that in the even'. of arrest, a person shail be released on bail. Manifestly there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting 'anticipatory bail' becomes operative. Now, this power of granting 'anticipatory bail' is somewhat extraordinary in character and it is only in exceptional cases where it appean; A B c D E F G H A B c D E F G 11 56 SUPREME COURT REPORTS [ 1977] 2 ~.C.lt. that a person might be falsely implicated, or a frivolous case might be launched against him, or "there are reasonable grounds for llulding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail" that such power is to be exercised. And this power being rather of an unusual nature, it is entrusted only to the higher echelons of judicial service, namely, a Court of Session and the High Court. It is a power exercisable in case of an anticipated accusation of nonbailable offence and there ie 11.0 limitation as to the category of nonbailable offence in respect \lf which the power can be exercised by the appropriate court. Having examined the historical background and context of sect.ion_ 438 of the new Code of Criminal Procedure and the language in which it is couched, let us turn to Rule 184 of the Defence and Internal Security of India Rules, 1971. That is the Rule with which we are concerned in this appeal and it runs as follows : "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), no person accused or convicted 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 arc reasonable grounds for believing that he is not guilty of such contravention." This Rule commences on a non-obstante clause and in its operative part imposes a ban on release on bail of a person accused or convicted of a contravention of the Rules or orders made thereunder, if in custody, unless two conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application for such release and the second condition is that when 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 must be satisfied that there are reasonable grounds for believing that he is not guilty of such cootravention. If either of these two conditions is not satisfied. the ban operates and the person concerned cannot be released on bail. The Rule, on its plain terms, does not confer any power on the Court to rPlf'1'P a oer,on accused or convicted of contravention of any Rule or order made under the Rules, on bail. It postulates the existence of power in the Court under the Code of Criminal Procedure and seeb to place a curb on its exercise by providing that a person accused or eo~ victed of contravrntion of anv "RulP or orrl<'r morlP 11nrlf'r th" 'RnlP~. 1f in custody, shall not be released on bail unless the aforesaid two conditions are satisfied. It imposed fetters on the exercise of the power of ' ' jlALCHAND v. MADHYA PRADESH (Bhagwati, J.) 57 granting bail in certain kinds of cases and removes such fetters. on fulfilment of the aforesaid two conditions. When these two cond1t1ons are A satisfied, the fetters are removed and the power of granting bail possessed by the Court under the Code of Criminal Procedure revives and becomes exercisable. The non-obstante clause at the commencement of the Rule also emphasises that the provision in the Rule is intended to restrict the power of granting bail under the Code of Criminal Procedure and not to confer a new power exercisable only on certain conditions. It is not possible to read Rule 184 as laying down a self-contained code B for grant of bail in case of a person accused or convicted of contravention of any Rule or order made under the Rules so that the power to grant bail in such case must be found only in Rule 184 and not in the Code of Criminal Procedure. Rule 184 cannot be comtrued as displacing altogether the provisions of the Code of Cr;minal Procedure in regard to bail in case of a person accused or convicted of contravention of any Rule or order made under the Rules. These provisions of C the Code of Cr:minal Procedure must be read along with Rule 184 and full effect must be given to them except in so far as they are, by reason of the non-obstante clause overridden by rule 184. We must, therefore, proceed to consider whether on a true and harmonious construction, section 438 of the Code of Criminal Procedure, which provides for grant of 'anticipatory bail' can stand side by D side with Rule 184 or ;here is any inconsistency' between them so that to the extent of inconsistency, it must be regarded as overridden by that rule. Now section 438 contemplates an application to be made by a person who apprehends that he may be arrested on an accusation of having committed a nonbailable offence. It is an application on an apprehension of arrest that invites the exercise of the powers under section 43 8. And on such an application, the direction that may be giyen E under section 438 is that in the event of his arrest, the applicant shall be released on bail. Rule 184, on the other hand, deals with a different situation and operates at a subsequent stage when a person is accused or convicted of contravention 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 Rule 184. If a person is not in custody but is merely under an apprehension of arrest and he applies for grant of F 'anticipatory bail' under section 438, his case would clearly be outside the mischief of Rule 184, because when the Court makes an order for grant of 'antidpatory bail', it would not be directing release of a person who is in custody. It is an application for release of a person in custody that is contemplated by Rule 184 and not an application for grant of 'anticipatory bail' by a person apprehending arrest. Section 438 and Rule 184 thus operate at different stages, one prior to arrest and the G other, after arrens apnrehcnding arrest on an accusation of having committed contravention of any Rule or order made under the Rules, we must set aside the order of the High Court and send the matter back to the High Court for deciding the appellant's application for 'anticipatory bail' on merits. We accordingly allow the appeal, set aside the order made bv the High Court and remand the case to the High Court with a direction ' 1 ' '• BALCHAND v. MADHYA PRADESH (Bhagwati. !.) 59 that the application of the appellant. for 'anticipatory bail' should be decided on merits after hearing the parties in the light of the observations made in this judgment. The parties are directed to appear before the High Court on 25 November 1976 so as to enable the High Court to take up the application for hearing. The appellant is already -0n bail and we direct that until his application for 'anticipatory bail' is disposed of by the High Court, he will continue on bail. FAzAL Au, J. This is an appeal by special leave against the order of the Madhva Pradesh High Court dated September 30, 1975 dismissing the application of the petitioner in limine. In fact the High Court of Madhya Pradesh, following an earlier decision of that Court given in Criminal Revision No. 285 /74 and No. 286/74 dated April 15, 1975, held that as the matter was fully covered by those two authorities, the petition merited sumμrnry rejection. Thereafter the petitioner field an application for special leave which, having been granted, the appeal has now been placed before us. The circumstances under which the appeal arises may be detailed as follows : The petitioner was a businessman of Nowgong Cantonment carrying of the retail business of Kirana merchandise and other things for a large number of years and had been maintaining proper accounts regarding the sale of kerosene-oil and other articles. On July 23, 1975 a· Magistrate along with the Food Inspector and a number of police officers visited the shop of the petitioner and took possession of his account books and started verifying their correctness. The rnme party made a second visit to the shop of the petitioner on July 25. J 975 and took away Bahi-Khatas and Rokar kept in the shop of the petitioner. After preparing a seizure memo, a copy of the same was given to one Nathuram a relation of the petitioner, the petitioner being absent on that day. Having regard to these facts, the petitioner who had a genuine apprehension that he might be arrested, for contravention of the provisions of the Defence of India Act and the Rules made thcreun~cr whic!t admittedly was a non-bailable offence, approached the Sessions Judge for passing an order for anticipatory hail under the provisions of s. 438 of the Code of Criminal Procedure, 1973. This application h~ving been rejected by the Sessions Judge, the petitioner moved the High Court and that too unsuccessfully. Hence this appeal by special leave. A B c D E F We are not at all concerned in this appeal regarding the merits or G the case because the High Court has not gone into merits but haS' rejected the application on the ground that it was not maintainable as held by the Division Bench decision of the Madhya Pradesh High Court. Thus the only point which arises for consideration before us is : "Whether the provisions of s. 43 8 of the Code of Criminal Procedure relating to anticipatory bail stand overruled and repealed by vir!ue of r. 184 of the Defence and Internal H A B c D E F 60 SUPREME COURT REPORTS [1977] 2 S.C.R.- Security of India Rules, 19?1, or on the rule of harmonious interpretation of statutes r. 184 of the Defence and Internal Security of India Rules, 197 l is not in any way inconsistent with s. 438 of the Code of Criminal Procedure, 1973, and both rhe provisions can exist side by side." The Madhya Pradesh High Court has taken the view that the Defence and Internal Security of India Act, 1971-heniinafter referred to as 'the Act' and the Defence and Internal Security of India Rules, 1971hereinafter referred to a~ 'the Rules' made thereunder being a 'Sort of emergency legislation are special law which repeals and overrides the provisions of the Code of Criminal Procedure, 1973-hereinafterreferrcd to as 'the Code' -insofar as they are inconsistent with the provisions of the Rules. In other words, the High Court thought that in view of the express provision11. of r. 184 (a) & (h) of the Rules, no question of anticipatory bail arose, and, therefore, s. 438 of the Code stood superseded insofar as offences under r. 184 (a) & (b) were· concerned Mr. V. M. Tarkunde learned counsel for the appellant ha~ contended that the view taken by the Madhya Pradesh H'gh Court is legally erroneous and is· basedi on a wrong jnterpretation of the twr provisions in question. He submitted that s. 438 of the Code and r. 184 of the Rules cannot be read in isolation but in conjunction with the conditions laid down in r. 184 clauses (a) and (b) of the Rules and once this is done there would be no real inconsistency between the two provisions and the question of one repealing the: other would not arise. Mr. Ram Panjwani, learned counsel for the respondent, however, supported the stand taken by the High Court of Madhya Pradesh and argued that having regard to the scheme of the Act and the Rules made thereunder, this was a summary legislation with a completely exhaustive and self-contained Code and there was absolutely no justification for applying the provisions of the Code of Criminal Procedure which was the general law. f I . ' .. ,, -~ ,)' • In order to appreciatQ the contentions raised by counsel for the· parties it may be necessary for us to examine the object and scheme of ~ the Code as also of the Act and the Rules made thereunder particularly with respect to the impugned provisions. So far as the Act is concerned, this Act was passed by Act XLII of 1971 0n December 4, 1971 at a time when the proclamation of emergency had already l;e,,., issued G by the President under cl. (1) of Art. 352 of the Constitution. The preamble to the Act reads thu~: H "And whereas it is necessary to provide for special members to er:sure the public safety and interest, the defence cif India and civil defence and internal secur;ty and for the tr;al of ccrlain offences and for matters connected therewith : " It is, therefore, clear that the Ac~ was meant to be a temp()rary measure in order to ensure public safety and interest and eN1ble the· Government to take immediate steps to protect the internal security· / l \ BALCHAND v. MADHYA PRADESH (Fazal Ali, J.) 61 :and integrity of the country and for trial of ?ffences committ<.:d ~1mler the Act or the Rules made thereunder. Sect10n 34 of the Act 1s the provision which authorises thei Central Government to make Rules under the Act and under s. 35 of the Act the Rules have to be laid ·before both Houses of Parliament with such modification or annulment as the Houses may be pleasedl to make. Section 36 ~f the ~ct_gives -colour of finality to certain orders passed by an authonty winch is not a Court. Section 37 ofl the Act runsi thus : "37. The provisions of this Act or any rule made thereunder or any order made under any such rule shall have e!Iect notwithstimding 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." This section thus expressly overrules or repeals any provision which is inconsistent with the Act or the Rules. Another important provision ·which must be noticed is s. 38 of the Act which runs thus : "38. Any authority or person acting 1n pursuance of this A B c Act shall interfere with the ordinary avocations of life and the D enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence and the internal security." The effect of s. 38 which contains a mandate to the authority acting under the provisions o~ the Act from interfering with the ordinary avocations of life and enjoyment of property as little as possible clearly shows that the rigours of the Act have been softened to a great extent by limiting the actions of the authorities within the four corners of the express :provisions of the Act. Legislature never intended that any drastic action should be taken by the authorities which may interfere with the liberty of thd subject unless it was absolutely essentbl. We have referred to this provision particularly because the question with which we are concerned involves tihe interpretation and applicability of s. 43 8 which relates to the liberty of the citizen vis a vis the provisions of the Act and the Rules. Against the background of this impnrtant provision of the Act, we have to follow the role of harmonious construction so as to avoid an interpretation which makes this provision (which is for protection ofl the liberty of the citizen J come into conflict with the Act or the Rules made thereunder, unless such intention i~ clearly expressed or implied by the Legislature. The Act further contains provisions for constitution of Special Courts to try particular tyne of offences, but the procedure is the same as provided for in the Code. As, however, no such Courts have been constituted in the State of Madhya Pradesh, it is not necessary for us to dilate on this point. sumce it to say, that apart from the non obstante clause ill r. 184 of the. Rules, we are not concerned with any other provision of the Code winch m:iy have been repealed either directly or indirectly by r. 184. The question. therefore, that arises in this case i~ whether or not r. 184 of the Rules overrides the provisions of ss. 435 and 43 S of the Cocle. In other words, we have to decide whether r. 1 84 of the E F G H .. SUPREME COURT REPORTS [1977] 2 s.c.R. Rules is in any way inconsistent with the provisions of ss. 436 and A 438 of the ·code. It may be mentioned here that even the offences created under the Act or the Rules made thereunder are to be tried under the general law, namely, the Code with certain modifications, and even in respect of these offences the general law has not been repealed. · The Defence of India Act was amended by Ordinance 5 of 1975 B dated June 30, 1975 which was later replaced by Act XLII of 1971 dated August 1, 1975 and the Act was now known as the Defence and Internal Security of India Act, 1971, Rule 184 of the Rules runs thus: "184. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), no person accused or C convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless :- D E F G H (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the appljcation and the con:ravention is of any such provision of these Rules or ordens 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 he is not guilty of such contravention." An analysi~ of this rule would reveal a few important features, namely : (1) This provision does not in terms confer any power on any Court to pass orders for bail; (2) (3) It merely lays down certain conditions which have to be followed before an order for bail could be passed in favour of an accused; and that unlike s. 43 8 of the Code this rule applies not only to non-bailable offences but also to bailable offences. The High Court was of the opinion t?at in view of this .particular distinction between bailable and non-bailable offences wluch have been expressly made in s. 438 of the Code, and having regard to the conditions incorporated in ~· 1?4(a)~(b), s: 4?8 of the Code is repealed by this rule as bemg mcons1stent with 1t. We are1 however unable to agree with the conclusion reached by the High Court for the reasons which we shall give hereafter. I ( . BALCHAND v. MADHYA PRADESH (Fazal Ali, J.) 63 To begin with s. 438 of the Code applies only to non-bailable offences. Secondly, the only authorities which are empowered under A this section to grant bail are the Court of Session or the High Court. In view of the fact that an order for anticipatory bail is an extraordinary remedy available in special cases, this power has been conferred on the higher echelons of judicial service, namely, the Court of Session or the High Court. Another important consideration which flows from the interpretation of s. 438 of the Code is that this section does not contain any guidelines for passing an order of anticipatory B bail. We might, however, mention here that the term 'anticipatory bai;' is really a misnomer, because what the section contemplates is not anticipatory bail, but merely an order releasing an accused on bail in the event of his arrest. It is manifest that there can be no question of bail, unless a person is under detention or custody. In these circumstances, therefore, there can be no questio:n of a person being released on bail if he has not been arrested or placed in police C custody. Section 438 of the Code expressly prescribes that any order passed under that section would be effective only after the accused bas been arreste