J.S. Verma, J.
1. The applicability of Section 438 of Criminal P.C. 1973 for granting anticipatory bail to a person apprehending arrest for a contravention of the Defence of India Rules, 1971 or the orders made thereunder, is the main question for our decision. The learned Single Judge before whom the revision against grant of anticipatory bail to such a persop first came up for hearing has formulated certain questions for decision by a larger bench which are required to be decided by us. These questions are as follows:
(i) Whether Section 438 of Criminal P.C. 1973 can be invoked for prosecutions under the Defence of India Rules by a person only when he is under custody.
(ii) Whether the words 'shall, if in entity' in Rule 184 of the Defence of India Rules 1971 would prevent the Court no apply Section 438 of the Criminal P.C. 1973 to cases of persons apprehending arrest.
(iii) Whether the Notification No. F. 40 (e)-3(l)-73-X-l dated the 14th November, 1973 is in accordance with law.
(iv) Whether the court in an application under Section 438 of Criminal P. C, 1973 can also consider whether there are reasonable grounds; for believing that the person concerned is or is not guilty of the contravention of the aforesaid provisions and whether it can only consider this when the person concerned is under custody.
The aforesaid questions Nos. (i), (ii) and (iv) are interconnected, the answer to which depends on the decision of the aforesaid main question pointed out by us.
2. We shall first deal with the aforesaid main question, the conclusion on which will also answer the aforesaid questions Nos. (i), (ii)_ and (iv). Briefly stated, the argument of Shri P. L. Mehta, Additional Government Advocate is that Section 438 of Criminal P, C. 1973 (hereinafter referred to as the new Code) does not apply to a person accused of a contravention of the Defence of India Rules, 1971 (hereinafter referred to as the Rules) or the orders made thereunder so that anticipatory bail cannot be granted to him. Shri Mehta argues that Rule 184 is a special provision regarding bail applicable to all persons accused or convicted of such contravention with the result that provisions of the Code to this extent are inapplicable. He further argues that by virtue of Section 8(1) of the General Clauses Act, 1897, reference to the Code of Criminal Procedure, 1898 in the non obstante clause of Rule 184 has to be construed as reference to Criminal P. C, 1973. On this basis, Shri Mehta contends that the question of applying Section 438 of the new Code to such cases does not arise. On the other hand, Shri Y. I. Mehta argues that Section 8(1) of the General Clauses Act has no application, since Section 438 of the new Code is a new provision, the like of which was not contained in the old Code, Shri Y. I. Mehta, further argues that Rule 184 does not cover the sphere of anticipatory bail as a result of which, it cannot override Section 438 of the new Code, which is the general provision for this purpose. Shri S. L, Garg and Shri P. K. Saxena volunteered at the hearing to appear as ami-cus curiae. While Shri P. K. Saxena supported the argument of the learned Additional Government Advocate, Shri S. L. Garg reiterated the submissions made by Shri Y. I. Mehta.
3. Having fully considered the arguments advanced before us and the relevant statutory provisions, we have reached the conclusion that Section 438 of Criminal P. C, 1973 enabling grant of anticipatory bail has no application to such cases. Broadly stated our reasons for this conclusion are twofold. In the first place, in accordance with the scheme of the Defence of India Act, 1971 and the Defence of India Rules, 1971 framed thereunder, 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 Criminal P.C. are superseded by Rule 184. Such a view is reinforced by the fact that there are provisions in the Criminal P. C 1973 itself which indicate that the general provisions of the Cod 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. The other reason is that by virtue of Section 8(1) of the General Clauses Act, reference to the old Code has to be construed as a reference to the new Code. We shall now discuss in detail the process of reasoning by which we have reached this conclusion.
4. To begin, with, it would be proper to quote the Rule which reads as under:--
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, 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 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.' In view of the wide amplitude o the non obstante clause on account of the use of the word 'anything' in the same it is not disputed before us that a specific mention in this Rule of the new Code in place of the old by amendment of the Rule, would necessarily lead to the conclusion that Section 438 of the new Code does not apply. The controversy really is on account of the fact that subsequent to the enactment of this provision, the old Code has been replaced by the new Code. It is, therefore, argued that the non obstante clause has become meaningless after repeal of the old Code and the enactment of the new Code in its place. However, we shall first consider the matter without reference to the non obstante clause.
5. Section 37 of the Defence of India Act, 1971 reads as under:
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.
The Defence of India Rules, 1971 have been made under the said Act. A plain construction of S. 37 leads to the conclusion that any provision of these Rules which is inconsistent with any other enactment, other than this Act, will prevail over the corresponding provision in any other enactment. SI. 37 is alone sufficient to indicate the legislative intent that the Defence of India Act 1971 and the Rules framed thereunder being enacted to provide for special measures to attain certain objectives, notwithstanding the general law available at the time, these special provisions have undoubtedly an overriding effect over the general law operating in the same field. The earlier Defence of India Acts which contained a corresponding provision and the Rules framed thereunder were all along understood as not being controlled in their operation by the general provisions of Criminal P.C. Certain provisions of Criminal P. C, 1973 are also relevant for this purpose. Section 5 of the new Code is as under:
Saving 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. Section 4(2) and Section 26(b) also indicate that where provision is made for the purpose in the special law, the general provisions contained in the Code would not apply. There were corresponding provisions in the old Code to the same effect. These provisions in the new Code clearly indicate that the new Code was not intended to operate in a field wider than that in which the old Code applied. Thus it is in this background that the scope of the aforesaid Rule 184 has to be examined.
6. We shall now examine the contents of Rule 184 omitting the non obstante clause from our consideration for the time being. It is clear from the Rule that it applies to all persons accused or convicted of such a contravention. The wording of the rule indicates that such a person while in custody for such a contravention shall not be released unless the conditions specified in clauses (a) and (b) applicable are satisfied. Clause (a) which applies to every case of such contravention requires the prosecution to be given an opportunity to oppose the application before release on bail. In addition, the cases in which Clause (b) also applies the Court is required to be further satisfied that there are reasonable grounds for believing that the person is not guilty of such contravention. This further requirement contained in Clause (b) places a burden on the person detained, which ordinarily does not exist when a person in detention applies for bail. This departure and stringency of the provision is obviously in keeping with its object, it being enacted as an extraordinary measure to meet certain extraordinary eventualities. It cannot be doubted that such a burden which is placed on the person in detention by Clause (b) of the Rule can be discharged only when full particulars of the accusation are made known to him apd not otherwise. Thus, in a case where Clause (b) applies any attempt to discharge this burden without knowing the particulars of the accusation, which disability is bound to exist while applying for anticipatory bail, would be a mere exercise in futility. At least to such cases the question of applying Section 438 of the new Code for grant of anticipatory bail cannot arise, That apart. Rule 184 makes full provision with regard to grant of bail in all cases since Clause (a) must invariably apply to all such cases whether Clause (b) applies or not. For this reason alone Rule 184 must be construed as a special provision applicable to all cases regarding bail wherein contravention of these Rules or orders made thereunder is alleged. 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,
7. The provisions regarding bail are contained in Chapter XXXIII of the new Code wherein Section 438 also finds place. These are general provisions regarding grant of bail. For the reasons already given by us. the provisions contained in Chapter XXXIII of the Code relating to grant of bail which operate in the same sphere as Rule 184 of the Defence of India Rules 1971, do not apply to such cases being superseded to that extent by the special provision in Rule 184 being inconsistent with this special provision. We have already pointed out the relevant provisions in the Code which justify this conclusion. It necessarily follows the Section 438 of the new Code being a provision inconsistent with Rule 184 does not apply to such cases.
8. We shall now consider the non obstante clause which finds place in Rule 184. Section 8(1) of the General Clauses Act reads as under:
8. Construction of reference to repealed enactments.
(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts with or without modification any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so re-enacted.(2) * * *
The Code of Criminal Procedure, 1073, has repealed the entire Criminal P. C, 1898 and the provisions in the repealed enactment have been re-enacted in the new one with certain modifications. The question is whether reference to the old Code in the non obstante clause is to be construed as a reference to the new Code. If the answer be in the affirmative, there is no dispute that Section 438 of the new Code is superseded by Rule 184.
9. In N. S. Thread Co. v. Tames Chadwick and Bros. : 4SCR1028 , it was held that reference in clause 15 of the Letters Patent (Bombay) to Section 108 of the Government of India Act, 1915 after its repeal should be read as a reference to the corresponding provision of the 1935 Act and the Constitution In State of U.P. v. M. P. Singh : 1960CriLJ750 , it was held that reference to the Factories Act, 1934 in the definition of a 'Commercial establishment' in Section 2 (3) of the U, P. Shops and Commercial Establish- ments Act, 1947 must be construed as a reference to the Factories Act, 1948 which repealed the earlier Act and re-enacted it, A similar conclusion was reached in State of Bihar v. S. K. Roy : 1966CriLJ1538 while construing the meaning of the expression 'employer' given in Section 2(e) of the Coal Mines Provident Fund and Bonus Schemes Act, 1948 defined with reference to the Indian Mines Act, 1923 which was repealed and substituted by the Mines Act, 1952, Similarly in N. C. J. Mills Co. v. Asst. Collector, Central Excise : 1978(2)ELT393(SC) , it was held that a reference to Sea Customs Act, 1878 in Section 12 of the Central Excises and Salt Act, 1944 must be construed as a reference to the Customs Act, 1962, All these decisions were given on the basis of Section 8(1) of the General Clauses Act, 1897 which is substantially the same as Section 38 (1) of the English Interpretation Act, 1889,
10. In Halsbury's Laws of England, Third Edition Volume 36 at page 405 in para 613, it is stated as follows:
613. Restriction of scope by reference to replaced statute. Where a statute of limited operation is repealed by one which expressly re-enacts its provisions in an amended form, it may be presumed that the operation of the re-enacted provision was not intended to be extended to classes of persons hitherto not subject to it, See Brown v. MacLachlan (1872) 4 P.C. 543 at p. 550.' In Stevens v. The General Steam Navigation Co. Ltd. (1903) 1 K. B. 890 while interpreting the meaning of the word 'modification' occurring in Section 38 (1) of the Interpretation Act, 1889, Collins M. R, stated as follows:.for in my opinion there is no reason to limit the word 'modification' which is equally applicable whether the effect of the alteration is to narrow or to enlarge the provisions of the former Act.... This decision of the Court of Appeal was followed in a later decision of the Court of Appeal in Regina v. Goswami ((1968) 2 WLR 1163), while considering the effect of repeal of a former enactment and it being re-enacted with certain additions. In this context, it was stated as follows:.The modifications to the Act of 1876 contained in the re-enactment of 1952 no doubt include additions. Modifications by way of addition are, however, within Section 38 of the Interpretation Act- see Stevens v. General Steam Navigation Co. Ltd, (1903) 1 K. B. 890.
11. The Supreme Court while construing Section 8(1) of the General Clauses Act, 1897 has referred to Section 38 (1) of the English Interpretation Act 1889 and pointed out that the two provisions of the Act are substantially the same. The above decisions given on the English Act are, therefore, available to us for construing the scope of S. 8(1) of the General Clauses Act 1897. From the above authorities, it is dear that even where an earlier enactment on its repeal is re-enacted with certain additions, such additions, unless a contrary intention appears, are within the ambit of the word modification' which occurs in Section 8(1) of the General Clauses Act. Such a contrary intention, we do not find in the present case. It is also clear that the scope of the pew Criminal P.C. is the same as that of the old one. We have, therefore, no doubt that by virtue of Section 8(1) of the General Clauses Act 1897, a reference to the Criminal P. C, 1898, in the non obstante clause occurring in Rule 184 must be construed as a reference to the Criminal P.C. 1973 On such a conclusion, there is no dispute, that Section 438 of the new Code is superseded by Rule 184,
12. We have already pointed out that the operative part of Rule 184 by itself, without the assistance of the non obstante clause, overrides the inconsistent provisions regarding grant of bail contained in the new Code. This being so, the non obstante clause cannot cut down the construction and restrict the scope of its operation and it must be read only as clarifying the whole position being incorporated only by way or abundant caution. In the Dominion of India v. Shrinbai : 1SCR206 , it was laid down as follows:.Ordinarily there should be a close approximation between the non obstante clause and the operative part of the Section, the non obstante clause need not necessarily and always be co-extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non obstante clause cannot cut down the construction and restrict the scope of its operation. In such a case the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abrindant caution and not by way of limiting the ambit and scope of the operative part of the enactment....
It is in this manner that the non obstante clause in Rule 184 has to be understood in the present case,
13. The result is that it must be held that Section 438 of the Criminal P. C, 1973 does not apply to enable grant of anticipatory bail to a person apprehending arrest for a contravention of the Defence of India Rules, 1971 or the orders made thereunder.
14. The only other question is with regard to the validity of the notification as stated in the aforesaid question no. (ii) referred to us. This notification reads as under:
Notification No. F. 40 (c)-3(l)-73-X-I, dated 14th November, 1973. In exercise of the powers conferred by Clause (b) of Rule 184 of the Defence of India Rules, 1971, the State Government, hereby specifies: the provisions of Sub-rule (2) of Rule 114 and any order made thereunder for the purpose of the said clause.
The only argument of Shri Y. I. Mehta is that Clause (b) of Rule 184 requires specific enumeration of the every order made under Sub-rule (2) of Rule 114 and the mere mention generally of orders made under that provision is not enough for a valid notification. We are unable to accept this argument. The requirement of Clause (b) of Rule 184 is that the contravention alleged should be of an order specified by a notified order. The question is whether the requisite specification is made in the notification. There can be no doubt in the mind of any one reading the notification that it specifies the provisions of Sub-rule (2) of Rule 114 and all orders made thereunder for the purpose of Clause (b) of Rule 184. There is no ambiguity whatsoever. It is celar that where contravention of Sub-rule (2) of Rule 114 or of any order made thereunder is alleged, Clause (b) applies. The requirement to specify in the notification is fully complied with. In our opinion, there is no such defect in the notification to render it invalid.
15. As a result of the above discussion, we answer the questions referred to us as follows:
Questions Nos. (i), (ii) and (iv)
Answer.- Section 438 of Criminal P. C, 1973 does not apply to enable grant of anticipatory bail to a person apprehending arrest for a contravention of the Defence of India Rules 1971 or the orders made thereunder. Rule 184 is the special provision governing grant of bail in all such cases.
Question No. (iii)
Answer.- The notification No. F. 40 (c)-3(l)-73-X-I dated the 14th November 1973 is not shown to be invalid.
16. In view of the fact that only the aforesaid questions have been referred to the larger Bench and not the entire case, we direct that the case be now placed before the appropriate Bench for final decision,