Manohari v. State of Rajas than — 1976 DIGILAW 344 (RAJ)

KUDAL, J.—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. 3. 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. 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. 4. 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. 5. 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." 6. Sec. 184, Defence of India Rules, 1971 reads as under— "184. 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." 6. 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." 7. 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." 8. 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." 9. 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." 9. 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. 10. 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. 11. 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. 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. 12. 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. 13. 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. 14. Reliance was also placed on State of Rajasthan vs. Ramnarain Upadhaya (5), wherein it was held that if a revision petition against an interlocutory order is barred by the provisions of Sec. 397 (2), then in such cases the inherent powers envisaged under Sec. 482, Cr.P.C. cannot be invoked to over-ride the express provisions of law. 15. On behalf of the State, reliance was also placed on In re Surajlal Hariial Majumdar (6), wherein it has been held that the effect of R. 130A 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. The learned counsel for the petitioner has also relied on this ruling. 16. In rejoinder, the learned counsel for the petitioner relied on Bhima Naik vs. State (7), wherein it was held that interlocutory order passed without jurisdiction which constitute nullities can be interfered with in revision under Sec. 401 and in appropriate cases under Sec. 482. The learned counsel for the petitioner has also relied on this ruling. 16. In rejoinder, the learned counsel for the petitioner relied on Bhima Naik vs. State (7), wherein it was held that interlocutory order passed without jurisdiction which constitute nullities can be interfered with in revision under Sec. 401 and in appropriate cases under Sec. 482. Interlocutory orders passed within jurisdiction, however, cannot be interfered with either under Sec. 401 or under S. 482. 17. Reliance was placed on Deena Nath v. Daitari Charan (8), wherein it was held that interlocutory order without jurisdiction is a nullity and it can be interfered with in revision. Such an order being no order at all in the eye of law, Section 397 (2) is not a bar and the order is revisable under Section 101. 18. Reliance was placed on Satyabrata v. Jarnal Singh (9), wherein it was held that order passed without jurisdiction is no order at all even though it is in the form and shape of interlocutory order. Revision against such order is competent. 19. The learned counsel on behalf of the State also placed reliance on Sant Lal v. Krishan (10), wherein it has been held that an order under Section 204, Cr.P.G. 1898, must be held to be an interlocutory order. A revision petition against such an order is clearly barred by sub-section (2) of section 397 of the new Code. This bar cannot be circumvented by having recourse to Section 482 of the new Code. It is now well settled that Section 482 dots not apply to cases which are covered by specific provisions of the new Code. Even if the order has been challenged on the ground of want of jurisdiction it will still remain an interlocutory order. 20. The provisions of Rule 184 of the Defence of India Rules, 1971 clearly over ride the provisions of bail as contained in Section 496 Cr.P.C. (old) and Section, 437 Cr.P.C. (new) a bare reading of Sections 4 and 5 of the Code of Criminal Procedure, 1973 and Section 37 of the Defence of India Rules, 1971 clearly indicates that the provisions of grant of bail under Section 437, Cr.P.C. are subject to any other local or special law. Rule 184 provides a special provision for grant of bail. Such similar provision does not exist in the Criminal Procedure Code. Rule 184 provides a special provision for grant of bail. Such similar provision does not exist in the Criminal Procedure Code. Under such circumstances, 1 have no hesitation in holding that the provisions of Rule 184 of the Defence of India Rules, 1971 shall over-ride the general provisions for grant of bail as contained in Section 496, Cr.P.C. (old) and Section 437 Cr.P.C. 1973. The learned Sessions Judge has powers under Section 439(2), Cr.P.C. to cancel bail in cases where the bail has been improperly accepted within the provisions of Chapter 33, Cr.P.C., 1973 The bail accepted under Rule 184 of the Defence of India Rules is, therefore, not one which has been accepted, under the provisions of Chapter 33 of the Code of Criminal Procedure. In view of this clear position of law, the order of the learned Sessions Judge setting aside the order of the learned Magistrate, therefore, lacked inherent jurisdiction. An order which has been passed without jurisdiction is a nullity in the eye of law, and deserves to be set aside. The question whether the order was interlocutory or not pales into insignificance as the order itself was without jurisdiction. The order which is nullity ex facie deserves to be set aside under the inherent powers of the Court under Section 482, Cr.P.C. Under these circumstances, the order passed by the learned Sessions Judge is ex facie illegal for want of jurisdiction, and is hereby set aside. 21. The learned Judicial Magistrate could have granted bail only in accordance with the provisions of Rule 184, Defence of India Rules. The learned Magistrate has observed that: ^bl U;k;ky; esa Mh- vkbZ- vkj- dh iqLrd miyC/k ugh gS uk gh ,- ih- ih- esa isk dh gSA ,l- Mh- ,e- dksVZ esa Hkh ugh feyh gSA ,d iqLrd vfoyEc [kjhn yh tkosA vfHk;qDr dks ts-lh- esa Hkstuk mfpr ugh gSA^ 22. It has to be observed with greatest constraint that an order of bail could have been passed by the learned Magistrate without reference to the provisions of law which regulate the release of the accused applicant on bail. It has to be observed with greatest constraint that an order of bail could have been passed by the learned Magistrate without reference to the provisions of law which regulate the release of the accused applicant on bail. Rule 184 of the Defence of India Rules, 1971 provides that an accused charged with an offence under the Defence of India Rules shall be released on bail only when the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention, and the prosecution has to be given an opportunity to oppose such an application. A perusal of the order of the learned Magistral clearly shows that he did not apply his judicious mind to the provisions of Rule 184 of the Defence of India Rules, The order releasing the accused applicant on bail passed by the learned Magistrate was patently illegal and in contravention of the specific provisions of law. Under such circumstances, the order of the learned Magistrate dated June 28, 1976 cannot be allowed to stand. The order dated June 28, 1976 passed by the learned Magistrate is hereby quashed and set aside in exercise of the powers under Section 482, Cr.P.C. to prevent the abuse of the process of the Court and to secure the ends of justice. It has been contended by the learned counsel for the applicant that the case has now been transferred to the Court of the Chief Judicial Magistrate, Bharatpur. The Chief Judicial Magistrate shall dispose of the application for bail on merits if and when moved by the accused-applicant. 23. In the result, the application under Section 482, Cr.P.C., 1973 is allowed and the orders of the learned sessions Judge, Bharatpur dated September 13, 1976 and that of the learned Magistrate, Bayana dated June 28, 1976 are hereby quashed and set aside.