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1976 DIGILAW 43 (PAT)

Krishna Ballabh Sahay v. State of Bihar

1976-02-12

S.ALI AHMAD

body1976
JUDGMENT Ali Ahmad, J.- This is an application for bail. Heard learned Counsel for the petitioners and also learned Counsel appearing for the State. The petitioner had been taken into custody in a case registered under rule 69 read with rule 169 of the Defence of India Rules. The allegation against the petitioners is that they were making preparations to take out a public procession and to arrange a meeting which had been prohibited under sub-rule (1) of Rule 69 of the Defence of India Rules by an order of the District Magistrate. The learned Sessions Judge refused the petitioners to be released on bail, as in his opinion a prima facie case has been made out against them and that sub-rule (b) of rule 184 was a bar to the grant of bail. It will be convenient to quote rule 184. It reads as such : "184. SPECIAL PROVISION REGARDING BAIL :- Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 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 on his own bond unless- (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where 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 he is not guilty of such contravention. " 2. A perusal of sub-rule (b) shows that it comes into operation only with regard to contravention of such rules or orders as are notified by the Central Government or by the State Government in that behalf. Learned Counsel appearing for the State has produced a notification issued by the State Government, which reads thus : "The 18th May, 1974. S. O. 632- In exercise of the powers conferred by rule 184 (b) of the Defence of India Rules, 197 I the Governor of Bihar is pleased to order that the provisions of rule 184 (b) of the Defence of India Rules 1971 shall apply to the contravention of the provisions of rules 37, 43, 118 and 119 of the aforesaid rules and orders made thereunder and also to rule 169 read with any of the aforesaid rules. (W/ASt-01/74) By order of the Governor of Bihar G.C Banerjee Under Secretary to Government." 3. A perusal of the aforesaid notification shows that rule 184 (b) of the Defence of India Rules 1971 has been made applicable to the contravention of the provisions of Rules 37, 43, 118 and 119 of the aforesaid Rules and orders made thereunder and also to rule 169 read with any of the aforesaid Rules. Rule 69 is not mentioned in this notification. Obviously therefore, under this notification contravention of rule 69 does not come. There is however, another notification published in the Bihar Gazette, which is as follows: - "The 19th November, 1974. S. O. 1962- In exercise of the powers conferred by rule 184 (b) of the Defence of India Rules 1971 the Governor of Bihar is pleased to order that the provisions of rule 184 (b) of the Defence of India Rules, 1971 shall apply to all cases of contravention of the provisions of orders made under rule 69 (1) of the aforesaid Rules. (W/Act-05(74) By order of the Governor of Bihar K.K. Tripathi Deputy Secretary to Government" 4. Under this notification contravention of provisions of orders made under rule 69 (1) of the Defence of India Rules have been brought under the purview of rule 184 (b) of the Rules. It is significant that under this notification rule 69 (1) read with rule 169 has not been mentioned. The position, therefore, is that rule 184 (b) will apply only in cases where contravention of rule 69 has been complete and will not apply to cases where the contravention is only contemplated. In this case the allegation is that the petitioners were making preparation to contravene the orders passed under sub rule (1) of rule 69. That means the contravention was not complete. That being the position in my opinion rule 184 (b) of the Defence of India Rules has no application to this case. 5. In these circumstances, the petitioners are directed to be released on bail of Rs. 2000/- each with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, Dhanbad. Application allowed.