Yogeshwar Dayal, J.
(1) This application for bail now survives only on behalf of Sudhir Goyal and Tejinder Singh under section 439 Cr. PC.
(2) It is alleged in the application that Sudhir Goyal is a student of Com. (Hons.) final year and is a convener of Samajwadi Yuvjan Sabha (Delhi University) which is a youth wing of Bharatiya Lok Dal which is an all India political party and is not a banned organisation. Tejinder Singh is also alleged to be a post-graduate student in Siri Ram College and an active member of Samajwadi Yuvajan Sabha which is a youth wing of Socialist Party which is not a banned organisation.
(3) It is further stated in the application that the allegation that the petitioners are members of C.P.I. (M&L;), which is a banned organisation, is completely baseless and unfounded and has been fabricated by the police to implicate the petitioners. It is also alleged that there is no mention in the F.I.R. about their connection with any banned organisation which makes the prosecution story doubtful. It is next alleged that the recovery of posters, letters etc. is all planted by the police and that nothing has been recovered from their possession. It is then averred that the police has not filed the challan within sixty days of the petitioners' arrest as provided under section 167 Cr. PC. and the courts below have ignored the mandatory provisions of section 167 while disposing of their bail application.
(4) As observed in my order dated October 19, 1976, Sub-Inspector, Harish Joshi, on receipts of secret information, organized a raid in room No. 305, Vithalbhai Patel House on June 23, 1976 and recovered various documents and pamphlets from the possession of the accusedpetitioners. From their personal search, certain pamphlets, showing their association with the banned organisation, namely, C.P.I. (M&L;) were further allegedly recovered and these two petitioners were arrested in violation of rules 33 and 43 of the defense of India Rules, 1971.
(5) Rule 184 of the said Rules, provides as under :
'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 there under shall, if 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 there under 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.'
(6) If only rule 184 was to be considered, the general rule is that no bail is to be granted unless after giving an opportunity to the prosecution the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of contravention of the rules or orders notified for purposes of rule 184. From the material allegedly recovered by the police it cannot be said that the court is satisfied that there are reasonable grounds for believing that the accused are not guilty of such contravention. Faced with this difficulty, learned counsel for the accused submitted that as no challan has been filed within sixty days of their arrest, the court is bound to pass an order for release of the accused on bail if the accused are prepared to and do furnish bail in view of the provisions of proviso (a) to subsection (2) of section 167 of the Code of Criminal Procedure, 1973. It was submitted that the provisions of the aforesaid proviso override the provisions of rule 184 of the defense of India Rules and do not, in any case, come in conflict with it. It was further submitted that under the proviso the power of the court to remand exhausts itself if no challan is filed within a total period exceeding sixty days since the arrest of the accused and there is no inherent power of remand I unless it is expressly conferred. So far as this interpretation of the proviso to sub-section 167(2) Cr. Pc is concerned, the submission of the learned counsel finds support from the decision of Ansari, J. as His Lordship then was, in Mohd- Shafi and another v. The State : where the learned Judge held :
'WHENno charge-sheet has been filed within 60 days after the arrest of the accused, then the accused cannot be remanded to custody for a further period either under section 167 or under Section 309 of the Code. The proviso to Section 167 only makes the provisions of Chapter 33 applicable to a person released on bail under the proviso. If under the proviso to Section 167, the Magistrate has no power to remand the accused to custody for a further period and if in the absence of a charge-sheet the Court has no power under Section 309 to remand the accused to custody, then the prohibition cast on a Magistrate under section 437(1) does not come into play. It is only when the accused can be lawfully remanded to custody that the power is given to a Magistrate under Chapter Xxxiii to release him on bail. The Magistrate could then exercise such power subject to the prohibition contained in sub-section (1) of Section 437. The Magistrate, thereforee, cannot refuse bail to an accused person under the proviso to Section 167 on the ground that there were reasonable grounds for believing that the accused was guilty of an offence punishable with death or imprisonment for life. Where a person applies under Section 167(2) for bail on the expiry of 60 days after the date of his arrest on the ground that no charge-sheet had been filed within this period, the Magistrate would be acting wrongly in refusing to grant bail merely on the ground that there was a prohibition against his release under Section 437(1) as he was satisfied that there were grounds for believing that he was guilty of an offence punishable with death or imprisonment for life.'
This view of Ansari, J. also finds support from the judgment of the Supreme Court in Natabar Parida and others v. State of Orissa: 1975 Cri. L.J. 1212 where the Supreme Court considered such a law as 'paradise for the criminals' as in serious offences it may not be possible for the police in circumstances beyond their control to complete the investigation within a period of 60 days and yet the Magistrate will be bound to pass an order of release of the accused on bail if he is prepared to and does furnish bail.
(7) If the provisions of the proviso to sub-section (2) of section 167 of the Code are analysed, it will be noticed that (i) the total period of detention under the sub-section cannot exceed sixty days and (ii) on the expiry of sixty days it is the duty of the Magistrate to release the accused on bail if the accused is prepared to and does furnish bail. However, the stage of release of the accused will come only after the Magistrate has passed the requisite order determining the amount of the bond and the number of sureties, if any. The Magistrate may decide not to ask for any surety and may be satisfied only with the personal bond for a particular amount to be given by the accused. But, in any case such an order has first to be passed by the Magistrate.
(8) If the matter had rested only with the aforesaid proviso to subsection (2) of Section 167 of the Code, there would have been no difficulty but the matter does not rest there. One has also to consider the non obstinate clause in rule 184 of the defense of India Rules and the purpose, policy and the intention behind it. Rule 184 deals with the special provision regarding bail and the non obstinate clause is in these words:
'NOTWITHSTANDINGanything contained in the Code of Criminal Procedure, 1898 (5 of 1898).............................'.
It is true that the Code of Criminal Procedure, 1898 has since been repcaled by the Code of Criminal Procedure, 1973 and lor the construction of reference to a repealed enactment, section 8 o'i the General Clauses Act comes into play and the effect of it is that instead of the Code of Criminal Procedure, 1898, one has to read the Code of Criminal Procedure, 1973 in the non obstinate clause occurring in rule 184 of the aforesaid Rules. Reading the Code of Criminal Procedure, 1973 in rule 184 of the said Rules, one has to consider what is the effect of this non obstinate clause in matters regarding bail contained in the Code of Criminal Procedure, 1973.
(9) The power of remand is co-extensive with the power to grant bail. If the power to remand finishes, there is no question of asking the accused to furnish bail; then automatically the order will be to release the accused. The jail authorities have no right to detain a person without an order in respect of the accused. Jail is merely an abode for a convict or an accused, where he is lodged either under the orders ' of the court or under special or local law.
(10) The argument of the learned counsel for the petitioners was that after since proviso to sub-section (2) of Section 167 deals with the powers of the court to remand the accused and not the grant or refusal of bail, the proviso to the aforesaid sub-section (2) does not come in conflict with rule 184 of the defense of India Rules.
(11) As noticed earlier for giving complete effect to the said proviso to sub-section (2) of Section 167 the court has to pass an order for release of the accused on bail but this is precisely what rule 184 of the said Rules prohibits, notwithstanding anything in the Code of Criminal Procedure. If the accused is not prepared to furnish bail or does not furnish bail, the Magistrate will have to make an order remanding him to custody. thereforee, it cannot be said that the power of remand exhausts itself in all eventualities. In view of the provisions of rule 184, the power to remand will have to be implied even after expiry of sixty days.
(12) 'THE non obstinate clause in rule 184 is very wide. It negatives all powers of the court to release a person on bail, except in the circumstances mentioned in the rule. Sub-section (2) of Section 167 is a provision of general law. Rule 184 is a special enactment and if it is in conflict with the general law, it must over ride it. In the present case, apart from the general proposition there is an express non obstinate clause. It is true that the court has to make an attempt to read the provisions of general law and special law in harmony and to reconcile them if possible but reconciliation cannot be taken to such an extent as to completely nullify the provisions of special law. If full effect is given to the provisions of proviso to sub-section (2) of Section 167 of the Code, it will completely defeat the purpose, policy and the intention behind rule 184 of the defense of India Rules. This will be precisely against all canone of construction and this type of construction has, thereforee, to be necessarily avoided;. It must, thereforee, he held that the petitioners cannot derive any benefit from the provisions of the proviso to sub-section (2) of Section 167 Cr. Pc in presence of the special provision contained in rule 184 of the defense of India Rules.
13. Learned counsel for the petitioners also referred to various authorities of this Court where the persons have been released on bail but all those authorities relate to cases where the court felt satisfied on the facts of those cases that there were no reasonable grounds for believing that the accused was guilty of the alleged contravention of rule 33 of the aforesaid Rules. No facts have been alleged in the application to show that the prosecution is deliberately not filing the challan in spite of the fact that the investigations are complete from i which it could be presumed that even the State is satisfied that there are no grounds for believing that the accused have violated rule 33 of the Rules.
(14) For the aforesaid reasons, the bail application of Sudhir Goyal and Tejinder Singh is dismissed.
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