1. This is a petition against the order of the Sessions Judge, Broach & Panch Mahals, refusing bail to the petitioners who were charged with the offences punishable under Section 332 of the Indian Penal Code and Rule 120 of the Rules under the Defence of India Act, 1939.
2. Now ordinarily both these offences would be bailable offences under the Second Schedule to the Criminal Procedure Code dealing with 'Offences against other Laws '; for, according to the fifth column thereunder all offences if punishable with imprisonment for one year and upwards, but less than three years, are treated as bailable. Under the imperative provisions of Section 496 of the Criminal Procedure Code the accused would be entitled to be released on bail for the offences in question which fall under that description. But the learned Sessions Judge thought that the provisions of Section 496 are abrogated by Rule 130A of the Defence of India Rules, and that under the provisions of that rule a discretion is vested in the Court in the matter of refusing bail even in bailable offences. Accordingly on a very full and careful consideration of the circumstances he has refused bail to the petitioners.
3. It is urged on behalf of the petitioners that that view of the law is erroneous inasmuch as Section 496 of the Criminal Procedure Code is not expressly repealed by the provisions of Rule 130A, that an enactment beneficial to the accused cannot be repealed by implication, and that if the rule has that effect, it must be strictly construed in favour of the subject. Rule 130A says as follows :-
Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no person accused or convicted of a contravention of these Rules shall, if in custody, be released on bail or on his own bond, unless-(a) The prosecution has been given an oppotunity to oppose the application for such release.
4. In my opinion the effect of that rule is to repeal the provisions of Section 496 of the Criminal Procedure Code in so far as it divests the Court of its discretion in the matter of refusing bail in cases of bailable offences. All that Rule 130A says in effect is that notwithstanding the provisions of Section 496 no person accused or convicted of a contravention of the rules under the Defence of India Act shall be released unless an opportunity is given to the prosecution to oppose the application for such release. There is nothing left to implication. The legislature may impliedly repeal penal Acts by a later enactment like any other statute even if the repeal introduces stringency of procedure or takes away a privilege. No authority to the contrary has been cited before us. In our opinion, the learned Sessions Judge was right in holding that Rule 130A gave the Court a discretion in the matter.
5. On the merits, it is futile to say that the grounds for refusing bail are without any cogency. The learned Judge has given very good reasons for holding that in the peculiar circumstances bail should not be given. According to usual practice this Court will not interfere with the discretion of the lower Courts in such matters when judicially exercised. Therefore this petition is rejected.