BALCHAND JAIN Vs. STATE OF MADHYA PRADESH
LAWS(SC)-1976-11-39
SUPREME COURT OF INDIA (FROM: MADHYA PRADESH)
Decided on November 05,1976

BALCHAND JAIN Appellant
VERSUS
STATE OF MADHYA PRADESH Respondents





Cited Judgements :-

GURBAKSH SINGH SIBIA VS. STATE OF PUNJAB [LAWS(P&H)-1977-9-7] [REFERRED TO]
VINOD TIWARI VS. STATE OF MADHYA PRADESH [LAWS(MPH)-1995-10-14] [REFERRED TO]
SBEONANDAN MANDAL VS. STATE OF BIHAR [LAWS(PAT)-1979-9-12] [REFERRED TO]
REFERENCE MADE VS. STATE [LAWS(PAT)-1991-9-14] [REFERRED TO]
HARNAM SINGH VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2012-8-186] [REFERRED TO]
ASSISTANT DIRECTOR DIRECTORATE OF REVENUE INTELLIGENCE MADRAS 17 VS. SRINIVASAN [LAWS(MAD)-1984-9-12] [REFERRED TO]
MURUGANANDAM VS. STATE [LAWS(MAD)-1994-9-100] [REFERRED TO]
SHANTILAL VS. STATE OF MADHYA PRADESH [LAWS(MPH)-1988-8-25] [REFERRED TO]
VENKATACHALALAH VS. STATE [LAWS(KAR)-2003-7-23] [REFERRED TO]
PAWAN KUMAR VS. STATE OF HIMACHAL PRADESH [LAWS(HPH)-2022-3-109] [REFERRED TO]
MOHAMMED BALESHARIEF VS. STATE OF A.P. [LAWS(APH)-2014-9-180] [REFERRED TO]
R C GOYEL VS. STATE OF WEST BENGAL [LAWS(CAL)-2001-12-31] [REFERRED TO]
NAVNATH VS. STATE OF MAHARASHTRA [LAWS(BOM)-2019-4-247] [REFERRED TO]
PRANAB RAUTH VS. STATE OF ASSAM [LAWS(GAU)-2008-8-40] [REFERRED TO]
MILIND VIDYASAGAR GHATE VS. STATE OF MAHARASHTRA [LAWS(BOM)-2009-2-15] [REFERRED TO]
RAMA SWAROOP VS. STATE DELHI ADMINISTRATION [LAWS(DLH)-1985-10-10] [REFERRED]
KARTAR SINGH KRIPA SHANKAR RAI VS. STATE OF PUNJAB [LAWS(SC)-1994-1-109] [DISTINGUISHED]
DAIMLER FINANCIAL SERVICES INDIA PRIVATE LTD VS. STATE OF BIHAR [LAWS(PAT)-2020-1-144] [REFERRED TO]
SUSHILA AGGARWAL VS. STATE [LAWS(SC)-2020-1-88] [REFERRED TO]
AJAY AGARWAL VS. STATE OF M P [LAWS(MPH)-1994-5-63] [REFERRED TO]
PADMA LOCHAN DAS AND ORS. VS. STATE OF ORISSA [LAWS(ORI)-2008-9-56] [REFERRED TO]
SATISH KUMAR VS. STATE OF HARYANA [LAWS(P&H)-2021-5-73] [REFERRED TO]
MAHANTH DHANSUKH GIRI VS. STATE OF BIHAR [LAWS(PAT)-1979-8-21] [REFERRED TO]
T MADHUSOODAN VS. SUPERINTENDENT OF POLICE [LAWS(KER)-1992-6-31] [REFERRED TO]
STATE OF MAHARASHTRA VS. VISHWAS SHRIPATI PATIL [LAWS(BOM)-1978-4-31] [REFERRED TO]
BALDEO PRASAD ALIAS BALDEO PRASAD KESHRI VS. STATE OF BIHAR [LAWS(PAT)-1985-9-16] [REFERRED TO]
DURGA PRASAD VS. STATE OF BIHAR [LAWS(PAT)-1987-1-2] [REFERRED TO]
IMRATLAL VISHWAKARMA VS. STATE OF MADHYA PRADESH [LAWS(MPH)-1996-2-19] [REFERRED TO]
USMANBHAI DAWOODBHAI MEMON VS. STATE OF GUJARAT [LAWS(SC)-1988-3-22] [DISTINGUISHED]
MACQUARIE BANK LIMITED VS. SHILPI CABLE TECHNOLOGIES LTD. [LAWS(SC)-2017-12-38] [REFERRED TO]
PRIYA INDORIA VS. STATE OF KARNATAKA [LAWS(SC)-2023-11-33] [REFERRED TO]
AKHILESH KUMAR SINGH @ MANOJ KUMAR VS. THE UNION OF INDIA [LAWS(PAT)-2016-9-1] [REFERRED TO]
CHANDRAMA PRASAD SINGH VS. STATE OF BIHAR [LAWS(PAT)-2023-8-72] [REFERRED TO]
VIR SINGH VS. THE STATE OF HARYANA [LAWS(P&H)-1977-11-17] [REFERRED TO]
BANSI LAL VS. STATE OF HARYANA [LAWS(P&H)-1977-8-5] [REFERRED TO]
INDRAJEET ROY VS. STATE OF ORISSA [LAWS(ORI)-1997-9-9] [REFERRED]
KALI DASS VS. S H O POLICE STATION REASI [LAWS(J&K)-1978-3-2] [REFERRED TO]
MAMMUNHI THALANGADI MAHAMOOD VS. STATE OF KERALA [LAWS(KER)-2013-12-58] [REFERRED TO]
R L JALAPPA VS. DELHI POLICE ESTABLISHMENT [LAWS(KAR)-1988-5-11] [DISTINGUISHED]
GURUSWAMY VS. STATE [LAWS(MAD)-1981-9-83] [REFERRED TO]
SUDIP SEN VS. STATE OF WEST BENGAL [LAWS(CAL)-2010-9-99] [REFERRED TO]
N SURYA PRAKASH RAO VS. STATE OF MAHARASHTRA [LAWS(APH)-2001-8-61] [REFERRED TO]
BITEM LEGO VS. RODING PERTIN [LAWS(GAU)-2004-12-20] [REFERRED TO]
A. B. VENKATESWARA RAO VS. STATE OF ANDHRA PRADESH [LAWS(APH)-2020-9-66] [REFERRED TO]
LATIF CHHMTUMIYA SHAIKH VS. STATE OF GUJARAT [LAWS(GJH)-2000-6-56] [REFERRED TO]
SUNITA DEVI VS. STATE OF BIHAR [LAWS(SC)-2004-12-53] [REFERRED TO]
D K GANESH BABU VS. P T MANOKARAN [LAWS(SC)-2007-2-71] [REFERRED TO]
THANGAPANDI NADAR VS. STATE [LAWS(MAD)-1981-9-34] [REFERRED TO]
SANDEEP BATRA VS. STATE [LAWS(RAJ)-2012-1-28] [REFERRED TO]
SANDEEP BATRA VS. STATE [LAWS(RAJ)-2012-1-28] [REFERRED TO]
SHEIKH SALIM SHEIKH BABOO VS. STATE OF M P [LAWS(MPH)-1984-10-16] [REFERRED TO]
RAMSEWAK VS. STATE OF M P [LAWS(MPH)-1979-5-3] [REFERRED TO]
CHONGTHAM GOJENDRO SINGH VS. STATE OF MANIPUR [LAWS(MANIP)-2019-8-18] [REFERRED TO]
URVESHBHAI BALDEVBHAI PATEL VS. STATE OF GUJARAT [LAWS(GJH)-2014-12-3] [REFERRED TO]
BIJU VS. STATE OF KERALA [LAWS(KER)-2021-3-62] [REFERRED TO]
SURESH VASUDEVA VS. STATE [LAWS(DLH)-1977-9-16] [REFERRED TO]
B K SHARMA VS. STATE OF U P [LAWS(ALL)-1987-4-32] [REFERRED TO]
BALAJIT SINGH VS. STATE OF ASSAM [LAWS(GAU)-2003-5-5] [REFERRED TO]
RAJU VS. STATE [LAWS(DLH)-2003-4-102] [REFERRED TO]
K JAGDISH VS. DY SUPERINTENDENT OF POLICE [LAWS(APH)-1984-10-28] [REFERRED TO]
MAYA RANI GUIN VS. STATE OF WEST BENGAL [LAWS(CAL)-2000-1-74] [REFERRED TO]
LT COL BIKRAM SINGH VS. STATE OF PUNJAB AND ANR [LAWS(P&H)-2010-5-385] [REFERRED]
HEMA MISHRA VS. STATE OF U.P. [LAWS(SC)-2014-1-27] [REFERRED TO]
RAFIQ MOHD VS. STATE OF PUNJAB [LAWS(P&H)-1994-5-64] [REFERRED TO]
MEENA DEVI AND OTHERS VS. THE STATE OF BIHAR [LAWS(PAT)-1985-2-40] [REFERRED TO]
K K SANKARANARAYANAN VS. SUB INSPECTOR OF POLICE TANK FACTORY POLICE STATION AVADI [LAWS(MAD)-1981-9-33] [REFERRED TO]
PRAVEEN DUBEY VS. RAVISHANKAR [LAWS(MPH)-2014-4-110] [REFERRED TO]
MANOJ KUMAR BINAYAK PRASAD MOHAPATRA VS. STATE OF ORISSA [LAWS(ORI)-2001-10-16] [REFERRED TO]
DEVISINGH VS. STATE OF MADHYA PRADESH [LAWS(MPH)-1977-11-9] [REFERRED TO]
PYARELAL PANDEY VS. STATE OF MADHYA PRADESH [LAWS(MPH)-1978-8-15] [REFERRED TO]
REETA JHA VS. STATE OF HIMACHAL PRADESH [LAWS(HPH)-2024-2-6] [REFERRED TO]
State of Himachal Pradesh VS. Deen Mohd [LAWS(HPH)-1998-12-7] [REFERRED TO]
SHEIKH ANWAR VS. THE STATE OF JHARKHAND [LAWS(JHAR)-2014-8-65] [REFERRED TO]
H S MANJUNATH VS. STATE OF KARNATAKA [LAWS(KAR)-1994-9-5] [REFERRED TO]
SHANKAR KRISHNASA HABIB VS. STATE OF KARNATAKA [LAWS(KAR)-1991-9-11] [REFERRED TO]
Y CHENDRASEKHARA RAO VS. Y V KAMALA KUMARI [LAWS(APH)-1993-2-15] [REFERRED TO]
MD ABDUL SATTAR VS. STATE OF ASSAM [LAWS(GAU)-1985-8-1] [REFERRED TO]
THE STATE OF MEGHALAYA VS. THE JUDGE, DISTRICT COUNCIL COURT AND SRI DAYO PASSAH AND ORS. [LAWS(GAU)-1993-4-10] [REFERRED TO]
VIJAI KUMAR VERMA VS. STATE OF UTTAR PRADESH [LAWS(ALL)-2002-7-85] [REFERRED TO]
SAILESH JAISWAL VS. STATE OF WEST BENGAL [LAWS(CAL)-1998-7-28] [REFERRED TO]
SHAIK ABDUL AZEEM AND ORS VS. STATE OF A P AND ORS [LAWS(APH)-2017-1-68] [REFERRED TO]
KASTURCHAND RAMLAL BADJATE VS. STATE OF MAHARASHTRA [LAWS(BOM)-1980-4-43] [REFERRED TO]
TERU MAJHI VS. STATE OF WEST BENGAL [LAWS(CAL)-2014-4-39] [REFERRED TO]
YOGENDRA SINGH CHAUHAN VS. STATE OF U P [LAWS(ALL)-2012-2-16] [REFERRED TO]
SHAMIM AHMED VS. STATE [LAWS(CAL)-2003-4-69] [REFERRED]
VIKAS MENDIRATTA VS. STATE OF DELHI [LAWS(DLH)-2009-2-212] [REFERRED TO]
PRASHANT KISHOR MEHETA VS. STATE OF MAHARASHTRA [LAWS(BOM)-2008-4-8] [REFERRED TO]
KARAMCHAND VS. STATE OF MADHYA PRADESH [LAWS(MPH)-1984-3-3] [REFERRED TO]
SURENDRA KUMAR VS. STATE OF MADHYA PRADESH [LAWS(MPH)-1994-8-19] [OBSERVED 1962 (1) CRI LJ 215 : AIR 1962 SC 253 7]
SACHINDRA MAHAWAR VS. STATE OF MADHYA PRADESH [LAWS(MPH)-1999-8-55] [REFERRED TO]
Indraj VS. State of Rajasthan [LAWS(RAJ)-1979-5-2] [REFERRED TO]
JODHA RAM VS. STATE OF RAJASTHAN [LAWS(RAJ)-1994-1-13] [REFERRED TO]
UNION OF INDIA VS. PADAM NARAIN AGGARWAL ETC [LAWS(SC)-2008-10-40] [REFERRED TO]
GANGADHAR PAIKRAY VS. BALARAM BALABANTARAY AND ORS. [LAWS(ORI)-1988-10-11] [REFERRED TO]
JASWANT SINGH VS. STATE (GNCT OF DELHI) [LAWS(DLH)-2015-9-618] [REFERRED]
STATE VS. GH MOHI-UD-DIN [LAWS(J&K)-1993-8-2] [REFERRED TO]
KELI CHHUALSINGH AND OTHERS VS. STATE OF ODISHA [LAWS(ORI)-2017-7-116] [REFERRED TO]
V S NORTI VS. STATE OF KARNATAKA [LAWS(KAR)-1989-2-2] [REFERRED TO]
AJIT VIDYASAGAR GHATE VS. STATE OF MAHARASHTRA [LAWS(BOM)-2009-2-6] [REFERRED TO]
RAJENDRA RAMDAS CHAUDHARI VS. STATE OF MAHARASHTRA [LAWS(BOM)-2009-2-18] [REFERRED TO]
MANOJ AGRAWAL VS. STATE OF CHHATTISGARH [LAWS(CHH)-2002-8-3] [RELIED ON]
BALJIT SINGH VS. STATE OF ASSAM [LAWS(GAU)-2003-6-21] [REFERRED TO]
BEJOY PAUL VS. STATE [LAWS(CAL)-1996-1-25] [REFERRED TO]
B K SHARMA VS. STATE OF U P [LAWS(ALL)-1987-8-24] [REFERRED TO]
TEESTA ATUL SETALVAD AND ORS. VS. STATE OF GUJARAT [LAWS(GJH)-2015-2-35] [REFERRED TO]
CHANDRAKANT CHANDULAL BHANSALI VS. SHRIKANT SHRIKRISHNA JOSHI [LAWS(BOM)-1992-8-52] [REFERRED TO]
SHRIMANT APPAJI PATIL VS. STATE OF MAHARASHTRA [LAWS(BOM)-1978-6-25] [REFERRED TO]
K NARAYANASWAMY VS. STATE OF ANDHRA PRADESH [LAWS(APH)-1979-11-4] [REFERRED TO]
SMT. P KALPANA VS. THE STATE OF TELANGANA REP BY ITS PUBLIC PROSECUTOR HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF AP HYDERABAD [LAWS(APH)-2018-6-67] [REFERRED TO]
PADMA CHARAN VS. S RAM MOHAN RAO [LAWS(ORI)-1986-9-37] [REFERRED TO]
MADAN MOHAN SAHOO VS. STATE OF ORISSA [LAWS(ORI)-1995-9-10] [REFERRED TO]
V.SRIDHARAN VS. STATE [LAWS(MAD)-2020-2-433] [REFERRED TO]
ARASU VS. STATE [LAWS(MAD)-1981-9-75] [REFERRED TO]
E JOSEPH VS. ASSISTANT COLLECTOR OF CUSTOMS TUTICORIN [LAWS(MAD)-1981-9-76] [REFERRED TO]
B RAVINDRAN VS. STATE [LAWS(MAD)-1985-8-8] [REFERRED TO]
NARCOTICS CONTROL BUREAU VS. KISHAN LAL [LAWS(SC)-1991-1-47] [RELIED ON]
RAHNA JALAL VS. STATE OF KERALA AND ORS. [LAWS(SC)-2020-12-59] [REFERRED TO]
NIRMAL JEET KAUR VS. STATE OF MADHYA PRADESH [LAWS(SC)-2004-9-70] [REFERRED TO]
PARVINDERJIT SINGH VS. STATE U T CHANDIGARH [LAWS(SC)-2008-11-130] [REFERRED TO]
JAI LAL VS. STATE OF HIMACHAL PRADESH [LAWS(HPH)-1979-1-8] [REFERRED TO]
SUNIL KANTI ROY VS. DEPUTY DIRECTOR, ENFORCEMENT DIRECTORATE (FOREIGN EXCHANGE REGULATION ACT) [LAWS(CAL)-1997-9-42] [REFERRED TO]
YOGESH JAGDISH JOSHI (MINOR) VS. STATE OF MAHARASHTRA [LAWS(BOM)-2001-9-125] [REFERRED TO]
MINAKSHI DAS ALIAS MINAKSHI DAS SAUD VS. NUR AZAM ALI ALIAS NUR ALAM [LAWS(GAU)-2009-8-57] [REFERRED TO]
STATE OF MANIPUR VS. TOKCHOM JADUMANI SINGH [LAWS(GAU)-2009-1-25] [REFERRED TO]
BALDEVBHAI NATVERLAL BAROT VS. STATE OF GUJARAT [LAWS(GJH)-1981-8-33] [REFERRED]
WAJINDER SINGH VS. STATE [LAWS(DLH)-1979-5-23] [REFERRED TO]
PARAS BHARARA VS. STATE NCT OF DELHI [LAWS(DLH)-2009-2-237] [REFERRED TO]
RAM CHAND ALIAS RAJU VS. STATE NCT OF DELHI [LAWS(DLH)-2010-1-137] [REFERRED TO]
RAKESH JAIN A K JAIN VS. STATE OF NCT OF DELHI [LAWS(DLH)-2008-2-285] [REFERRED TO]
PANKAJ GROVER VS. DIRECTORATE OF ENFORCEMENT, GOVT. OF INDIA, LUCKNOW [LAWS(ALL)-2021-8-119] [REFERRED TO]
SAUBHAGYA BHAGAT VS. STATE OF UTTARAKHAND [LAWS(UTN)-2023-8-1] [REFERRED TO]
NARESH KUMAR YADAV VS. RAVINDRA KUMAR [LAWS(SC)-2007-10-96] [REFERRED TO]
SANDEEP BATRA VS. STATE [LAWS(RAJ)-2012-5-282] [REFERRED TO]
THANIEL VICTOR VS. STATE [LAWS(MAD)-1990-3-11] [REFERRED TO]
JAGADISH NANGINENI VS. DIRECTORATE OF ENFORCEMENT [LAWS(P&H)-2021-6-1] [REFERRED TO]
SANTOSH KUMAR PADHAN AND 2 ORS. VS. LALBIHARI BEHERA ALIAS FITIA AND ANR. [LAWS(ORI)-1985-12-21] [REFERRED TO]
MADHUR GARG VS. SUPERINTENDENT OF CUSTOMS [LAWS(MPH)-2024-9-14] [REFERRED TO]
VINOD GAUTAM VS. STATE OF MP [LAWS(MPH)-2019-4-189] [REFERRED TO]
SHAJI P A VS. STATE OF KERALA, REP BY PUBLIC PROSECUTOR [LAWS(KER)-2018-6-114] [REFERRED TO]
ANTHRU AND ORS. VS. SUB-INSPECTOR OF POLICE, PANAMARAM POLICE STATION AND ORS. [LAWS(KER)-2015-7-155] [REFERRED TO]
FREED VS. STATE OF H.P. [LAWS(HPH)-2020-7-8] [REFERRED TO]
JAYANTA KUMAR GHOSH VS. NATIONAL INVESTIGATION AGENCY [LAWS(GAU)-2012-9-107] [REFERRED TO]
SADHWI PRADNYA SINGH THAKUR VS. STATE OF MAHARASHTRA [LAWS(BOM)-2009-11-248] [REFERRED TO]
BAPURAO TRIMBAKRAO SONAWANE VS. STATE OF MAHARASHTRA [LAWS(BOM)-2009-2-21] [REFERRED TO]
SUNIL GULABCHAND JAIN VS. STATE OF MAHARASHTRA [LAWS(BOM)-2009-2-23] [REFERRED TO]
K VENKATARAMUDU VS. STATE OF A P [LAWS(APH)-2002-12-51] [REFERRED TO]
SAMBHU DAS VS. STATE OF TRIPURA [LAWS(GAU)-1986-3-3] [REFERRED TO]
RAMCHANDRA ZINGUJI GADEKAR VS. STATE OF MAHARASHTRA [LAWS(BOM)-1991-10-54] [REFERRED TO]


JUDGEMENT

Bhagwati, J. - (1.)The facts giving rise to this appeal are set out in the judgment about to be delivered by our learned brother S. Murtaza Fazl Ali and it is, therefore, not necessary to reiterate them. The question which for determination on these facts is a short one 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).
(2.)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 Commission, 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 rivalry, this tendency is showing sings of steady increase. Apart from false cases, where there are reasonable grounds for holding that a persons accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody remain in prison for some days and then apply for bail.", and recommended introduction of a provision for grant of anticipatory bail. This recommendation was accepted by the Central Government and clause (447) was introduced in the draft Bill of the new Code of Criminal Procedure conferring express power on a Court of Session of a High Court to grant anticipatory bail. Commenting on this provisions 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 unscrupulous 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 Sec. 438 when the Bill was enacted into the new Code of Criminal Procedure. That section is in the following terms:

"(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offences, 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.

(2) ********** "
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 event of arrest, a person shall 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 appears that a person might be falsely implicated, or a frivolous case might be launched against him, or "there are reasonable grounds for holding 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 non-bailable offences and there is no limitation as to the category of non-bailable offences in respect of which the power can be exercised by the appropriate court.
(3.)Having examined the historical background and connect of Section 438 of the new Code of Criminal Procedure and the language in which it is couched, let is 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 are 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 contention 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 Govt, may be 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 contravention. 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 release a person accused or convicted of contravention of any Rule of order made under the Rules, on bail. It postulates the existence of power in the Court under the Code of Criminal Procedure and seeks to place a curb on its exercise by providing that a person accused or convicted of contravention of any Rule or order made under the. Rules, if 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 granting bail in certain kinds of cases and removes such fetters on fulfilment of the aforesaid two conditions. When these two conditions are 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 Rules 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 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 construed as displacing altogether the provisions of the Code of Criminal 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 the Code of Criminal 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.



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