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ishwar Chand Vs. State of Himachal Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1976CriLJ386
Appellantishwar Chand
RespondentState of Himachal Pradesh
Cases ReferredSamaila v. Emperor
Excerpt:
- .....522. the last point raises the important question whether the high court has jurisdiction to grant bail in the case of an offence under a rule made under section 3 of the act, it is urged by foe learned advocate general that inasmuch as a special tribunal has been constituted and has been directed to try an offence under any rule made under section 3 the special tribunal alone has power to grant bail to a person accused of such offence. that conclusion, it is said, follows from the circumstance mat the special tribunal has been conferred exclusive jurisdiction to try such offence.23. it is necessary to examine the concept of bail in criminal cases. the object of keeping an accused person in detention during the trial is to secure his appearance for being dealt with according to law.....
Judgment:

R.S. Pathak, C.J.

1. On August 22, 1975 we rendered our opinion on a number or points arising in this and the connected criminal miscellaneous petitions. The reasons for that opinion are now set out,

2. The criminal miscellaneous petitions have been made under the Code of Criminal Procedure, 1973 for the grant of bail to the petitioners.

3. The facts of one of the cases, Criminal Miscellaneous Petition (Main) No. 67 of 1975, may be detailed, The petitioner Ishwar Chand and one Kamal Kapur carry on business in partnership under the name Mahabir Trading Company, Solan They deal in foodgratps. On July 8, 1975 the police accompanied by officers of the Food Supplies Department made a surprise check of the stocks of the Mahabir Trading Company. On the ground that the godowns contained 435 bags of rice and 12 bags of salt in contravention of the Himachal Pradesh Commodities Price Marking and Display Order, the police arrested Kamal Kapur. He was released on bail by the Chief Judicial Magistrate on July 10, 1975. It appears that a case has been registered under the Defence of India Rules, and a report has been submitted by the Station House Officer, Solan to the Chief Judicial Magistrate that it is proposed to arrest the petitioner also. The petitioner applied for anticipatory bail before the Chief Judicial Magistrate but the application was rejected on July 9, 1975 on the ground that the petitioner had not yet been arrested by the police nor had any warrant of arrest been issued against him and the Chief Judicial Magistrate had no power to grant anticipatory bail under Section 438 of the Criminal Procedure Code. The petitioner then applied to this Court for baif

4. It is unnecessary to set out the facts relating to the other cases. It is sufficient to say that broadly they fall into two classes, those where the petitioner has ap- plied for anticipatory bail under Section 438 of the Code and the others where the petitioner has applied for bail under Section 439 of the Code. They are all cases in which the petitioner is alleged to have committed a contravention of the Himachal Pradesh Commodities Price Marking and Display Order, 1975. The points which arise in the different petitions are dealt with generally.

5. The Defence of India Act, 1971 was brought into force on December 4, 1971. It was enacted pursuant to a Proclamation of Emergency by the President under Article 352 (1) of the Constitution declaring that a grave emergency existed whereby the security of India was threatened by grave external aggression, With effect from the next day the Defence of India Rules, 1971 were brought into force. They were made in exercise of the powers conferred by Section 3 of the Defence of India Act. Recently, on June 27, 1975, the President issued a Proclamation under Article 352 (1) of the Constitution declaring that a grave emergency existed whereby the security of India was threatened by internal disturbance. In consequence, the Defence of India (Amendment) Ordinance, 1975 was promulgated by the President on June 30, 1975 for the purpose of amending the Defence of India Act in order to provide for measures associated with the internal security of India. The Act was renamed 'The Defence and Internal Security of India Act' {hereinafter referred to as the 'Act'). Various provisions in the Act were amended for the purpose of including within their scope the enlarged ambit of the Act. By a notification dated July 1, 1975 the Central Government, acting under Section 3 of the Act, published the Defence of India (Amendment) Rules, 1975 in order to bring the Defence of India Rules into line with the amended Act. Rule 1-A was inserted, and it read:--

1-A: Rules to apply also in relation to internal security. - As from the commencement of the Defence of India (Amendment) Rules, 1975, the provisions of these Rules, so far as may be, apply for the purpose of internal security as they apply for the other purposes of the Act and accordingly those provisions shall be construed, wherever necessary, as including also a reference to internal security.

The Rules were now entitled 'The Defence and Internal Security of India Rules' (which may conveniently be referred to hereafter as 'the Rules').

6. Rule 114 (2) of the Rules empowers the Central Government and the State Government to make orders providing for regulating or prohibiting the production, manufacture, supply and distribution, use and consumption of articles or things and trade and commerce therein or for preventing any corrupt practice or abuse of authority in respect of any such matter. Rule 114 (3) sets out illustrative instances of the grant of such power. Rule 114 (4) declares that an order under Sub-rules (2) and (3) of Rule 114 for regulating by licences, permits or otherwise the movement or transport of any foodstuffs, including edible oil seeds and edible oils, or for controlling the prices or rates at which any such foodstuffs may be bought or sold, shall not be made by the State Government except with the prior concurrence of the Central Government. Rule 114 (11) (a) provides that if a person contravenes any provision of Rule 114 or any order made under that rule, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

7. By a notification dated July 8, 1975 published in the Himachal Pradesh Kajpatra Extraordinary, the Himachal Pradesh Commodities Price Marking and Display Order 1975 (referred to hereafter as 'the Price Marking and Display Order') was promulgated, It provided, inter alia, for the display of a list of prices and opening stocks in respect of specified commodities and for the marking of the price in respect of certain other specified commodities. It also prohibited a dealer from selling or agreeing to sell or offering for sale any article at a price higher than the price so displayed or marked.

8. The Rules contain a special provision in the matter of granting bail to a person accused or convicted of a contravention of the Rules or orders made thereunder. Rule 184 declares.

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 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.

9. The State Government issued a notification dated July 9, 1975 published in the Himachal Pradesh Raj Patra dated July 10, 1975 whereby it specified Rule 114 o the Rules for the purposes of Rule 184 (b).

10. By notification dated July 26, 1975, published in the Himachal Pradesh Raj Patra dated July 29, 1975, the State Government constituted a Special Tribunal for the whole of the State of Himachal Pradesh and directed that the Tribunal would try, inter alia, during the period of operation of the Proclamation of Emergency, the offences specified therein, including all offences under any rule made under Section 3 of the Act.

11. A few of these petitions came on for hearing before our brother D. B, Lai. The learned Judge had already expressed his views in Raghubir Singh v. State, Criminal Misc. Petn. (M) No. 72 of 1975 (Him. Pra), on some of the points in his order dated July 26, 1975, Being of opinion that the points raised substantial questions of law he referred die present petitions to a larger Bench. That is how the cases are now before us.

12. The points raised by counsel for the petitioners are enumerated below;-

(1) The Price Marking and Display Order is invalid inasmuch as the prior concurrence of the Central Government, as required by Rule 114 (4), was not taken when the order was made by the State Government.

(2) Rule 184 does not come into play because it has not been made applicable in respect of a contravention of the Price Marking and Display Order.

(3) When applying Rule 184 the Court must consider whether the element of mens rea was a component of the act alleged to have contravened the relevant rule or order.

(4) Rule 184 is ultra vires inasmuch as it does not fall within the scope of Section 3 of the Act, Iii any event, it does not apply to an application for anticipatory bail. To the aforesaid points, ope more point must be added. It arises op the contention of the learned Advocate General, and it is this:-

(5) The High Court has no jurisdiction to entertain and grant applications for bail after the constitution of the Special Tribunal on July 26, 1975 and the order directing that it would try all offences under any rule made under Section 3 of the Act.

Point 1.

13. It is not disputed by the learned Advocate General that before the Price Marking and Display Order was passed the State Government did not obtain the prior concurrence of the Central Government. The question is whether such prior concurrence was necessary. Rule 114 (4) provides:

(4) Notwithstanding anything contained in Sub-rules (2) and (3) an order under these sub-rules for regulating by licenses, permits or otherwise, the movement or transport of any foodstuffs, including edible oil seeds and edible oils, or for controlling the prices or rates at which any such foodstuffs may be bought or sold shall not be made by the State Government except with the prior concurrence of the Central Government'. The Price Marking and Display Order is not concerned with the Movement or transport of foodstuffs, The point for consideration is whether it is an order for controlling the prices or rates at which foodstuffs may be bought or sold. The Order requires every dealer to display a list of prices and opening stocks in respect of specified commodities and to mark the price in respect of certain other commodities. No dealer can sell or agree to sell or offer for sale any article at a price higher than the price displayed or marked, or refuse to sell or with-hold from sale such article at the price so displayed or marked or omit to include in the fist of prices and opening stock any articles ordinarily kept or stored for sale by him or to display any such list or price of any such Article. None of the provisions relate to the control of prices or rates. Such control has to be exercised by the Central Government or the State Government or by an authority appointed by it. The Price Marking and Display Order contemplates that the listed price or marked price will be a price determined by the dealer either on his own or on instructions from the manufacturer or other person associated in the trade. Not being a price determined by the Government or statutory authority it cannot be said to be a controlled price. When the Price Marking and Display Order prohibits the dealer from selling or agreeing to sell or offering for sale an article at a price higher than the displayed price, it is not a provision in respect of controlled price, Our attention has been drawn to the fourth proviso to Clause (3) of the Order which reads:-Provided further that the retail price of any category of essential articles so displayed shall not exceed the retail price, if any, fixed or recommended by the manufacturers or producer in respect of that category of essential articles.

Even here, what is contemplated is a price fixed or recommended by the manufacturer or producer. Neither the Government nor any statutory authority decides what that price will be. The matter is left entirely to the manufacturer or producer.

14. In my opinion, it was not neces sary for the State Government to secure the prior concurrence of the Central Government when issuing the Price Marking and Display Order. The Himachal Pradesh Commodities Price Marking and Display Order, 1975 or any part thereof, is not ultra vires.

Points 2, 3 and 4,

15. The first question is whether Rule 184 of the Defence and Internal Security of India Rules, 1971 comes into play in these petitions. Rule 184 provides the conditions which must be satisfied before a person accused or convicted of a contravention of the Rules or orders made thereunder can be released on bail or on his own bond. The two conditions are:

(a) The prosecution must be given an opportunity to oppose the application for release, and

(b) Where the prosecution opposes the application and the contravention is of any such provision of the 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.

The challenge before us to the applicability of Rule 184 U really directed in relation to Clause (b) of the Rule.

16. On its plain language Clause (b) of Rule 184 is attracted in relation to a contravention of such provision only of a Rul6 or order made thereunder as may be specified for the purposes of that clause by the Central Government or the State Government. It cannot be invoked in other cases.

17. The notification dated July 19, il975, made in pursuance of Clause (b) of Rule 184 specifies Rule 114 only for the purposes of that clause. The Price Marking and Display Order has not been specified.

18. Now Rule 184 clearly speak of both Rules and orders. There is a distinction between a Rule and an order made under the Rules, and that distinction is writ large on the face of the Rules. Rule 7 (1) prohibits a person from entering prohibited places without the permission of the Government, and Rule 7 (5) directly makes punishable a contravention of such prohibition. So also does Rule 9 in respect of regulated entry in protected areas, In contrast Rule 11 empowers the Government to make orders for controlling or regulating the admission of persons as respects prohibited places and protected places or protected areas. It includes a provision for the punishment of a person contravening any such order. The Rules are replete with instances which disclose a clear division between the contravention of a Rule and the contravention of an order. Rule 183 which deals with the cognizance by a court or Tribunal of an alleged contravention 'of these rules, or of any order made thereunder' also evidences that distinction. Separate provision has been made by Clause (3) of that rule for the courts which will try a contravention of certain rules and the courts which will try a contravention of certain orders. Indeed, the very provision, Rule 114 (11) (a), which makes the contravention an offence, speaks of the contravention of a provision of Rule 114 and disjunctively of the contravention of an order made under that rule. The distinction between a contravention of a rule and the contravention of an order is also reflected in the Act itself, As an instance, reference may be made to the several clauses of Section 3 (3). This dichotomy between the rules and orders is carried through the entire statutory scheme.

19. It has been observed in Raghubir Singh Criminal Misc. Pern. (M) No. 72 of 1975 (Him. Pra.) (supra) that when Rule 114 was mentioned in the notification dated July 9, 1975 it must be considered to include reference to the orders made under it. With great respect, on the considerations mentioned above, I am unable to agree. A contravention of an order made under Rule 114 cannot be regarded as a contravention of Rule 114. An analysis of Rule 114 indicates that while some of the provisions directly operate to create an obligation, others merely grant the power to make an order creating obliga- tions. Sub-rules (2) and (3) of R. 114 fall in the latter class. They confer power on the Central Government and the State Government to make orders for the achievement of specified objectives, and those objectives are sought to be achieved by obligations created by those orders, When the provision creating such obligation is contravened, it amounts to a contravention of the order. It cannot be construed as a contravention of the rule under which the order is made, because the rule itself only constitutes the grant of power to the Government and does not in itself create the obligation of which contravention is alleged. It will be found that certain provisions of Rule 114 operate directly to create an obligation without the need of further making an order for that purpose. An instance is provided by Clause (a) of Sub-rule (6) which requires an authorised Controller of an undertaking to exercise his functions in accordance with instructions given by the appropriate Government, and Clause (b) thereof requires a person having managerial functions in relation to the undertaking to comply with directions given by the authorised Controller. A contravention of that requirement by the authorised Controller or the manager, as the case may be, is a contravention of Sub-rule (6) of Rule 114 and therefore punishable under Rule 114 (11) (a). It may be observed that the confusion arising between mistaking a contravention of a rule with a contravention of an order made under a rule was pointed out by the Patna High Court in Jugal Singh v. Emperor AIR 1943 Pat 315 :44 Cri LJ 745), Also see Betal Singh v. State AIR 1965 AH 78 :1965-1 Cri LJ 137) and Rameshwarlal Khandelwalla v. State : AIR1966Ori164 .

20. In my opinion, Clause (b) of Rule 184 cannot be applied to a contravention of any provision of the Price Marking and Display Order.

21. The questions whether Rule 184 Is ultra vires, whether it can be invoked on an application for anticipatory bail and whether the element of mens rea must be considered when applying the Rule have been raised because the petitioners object to the application of Clause (b) of Rule 184, Inasmuch as the present petitions arise out of proceedings in respect of a contravention of the Price Marking and Display Order and as, in my opinion, Clause (b) of Rule 184 cannot be applied to such contravention it is not necessary to consider the aforesaid questions.

Point 5

22. The last point raises the important question whether the High Court has Jurisdiction to grant bail in the case of an offence under a Rule made under Section 3 of the Act, It is urged by foe learned Advocate General that inasmuch as a Special Tribunal has been constituted and has been directed to try an offence under any Rule made under Section 3 the Special Tribunal alone has power to grant bail to a person accused of such offence. That conclusion, it is said, follows from the circumstance mat the Special Tribunal has been conferred exclusive jurisdiction to try such offence.

23. It is necessary to examine the concept of bail in criminal cases. The object of keeping an accused person in detention during the trial is to secure his appearance for being dealt with according to law on the charge made against him. The principle underlying his release on bail is that he is presumed under the law to be innocent till his guilt is proved, and as a presumably innocent person he is entitled to freedom and an opportunity to look after his case, provided his attendance is secured by proper security. On the security being furnished he is released. He is released from the custody of the officers of the law and entrusted to the private custody of persons who become bound as sureties to produce him to answer according to law to the charge at a specified date or place. The release of the accused on bail is tantamount merely to change of custody. He is delivered into the hands of the sureties and is considered to be in their custody. Some courts have taken the view that a person released on bail must be considered to be detained in the constructive custody of the Court through his surety, and table to be produced before a court whenever required.

24. It may also be pointed out that the power to grant bail is not directly involved in the trial of an offence, Although the trial of the accused requires his appearance in Court, his release on bail does not affect the proceeding inasmuch as his appearance _ in court when required is one of the conditions on which he is granted bail. As pointed out before, his release on bail is merely a transfer of his person from one custody to another. The trial proceeding is not interfered with by releasing him on bail. It has been observed by Meredith J. in Gopal Marwari v. Emperor AIR 1943 Pat 245 that the right to apply for bail is not a right appertaining to any pending judicial proceeding against the accused. It would seem from Section 11 (5) of the Defence and Internal Security of India Act, 1971 that the trial before a Special Tribunal can proceed without his presence, It will also be noticed that the provisions relating to bail are set out in the Code of Criminal Procedure independently of the provisions relating to trials. That in its nature it is not a part of the trial procedure is evident from the circumstance that bail is contemplated even before the trial commences and also after conviction. There is the further circumstance that although the trial may take place before a subordinate criminal court the power to grant bail has also been vested in the High Court,

25. It is urged by the petitioners that the Special Tribunal has no jurisdiction to grant bail and the power in that behalf continues to reside with the ordinary criminal courts. Alternatively, it is said, even if it be taken that the power to grant bail which was conferred by the Code of Criminal Procedure on the trial Court is now exercisable by the Special Tribunal when trying an offence, the High Court continues to enjoy the powers conferred on it by the Code in the matter of granting bail. It is unnecessary in the present cases, to decide whether the Special Tribunal has the power to grant bail and the subordinate criminal courts do not continue to enjoy that power. It is sufficient, it seems to me, for disposing of these petitions to decide whether this Court has power to grant bail, The power to grant bail con-ferred on the High Court is a special power. It is immaterial, as has been observed before, that there is no proceeding pending before it in relation to the accused, that the trial is pending before a subordinate criminal court or that it has not even commenced at all. Section 438 of the Code of Criminal Procedure, 1973 empowers the High Court to grant anticipatory bail- Section 239 empowers the High Court to grant bail when a person accused of an offence is in custody. It is a power exercised independently of the power of the trial court to grant bail. Although in practice the High Court will require an applicant for bail to apply first to the trial Court in appropriate cases it may even in the first instance entertain a bail application itself. Therefore, even if it be assumed, that the power of the subordinate criminal court to grant bail has now been transferred in law to the Special Tribunal, the jurisdiction of the High Court under Section 439 is not excluded. Nor is there any reason to suppose that the High Court has, because of the powers conferred on the Special Tribunal, lost its statutory power of granting anticipatory bail, It has been urged by the learned Advocate General that the High Court ceases to have jurisdiction because of the fact that a Special Tribunal has been constituted, and reliance is placed on Samaila v. Emperor AIR 1917 Lah 138 :18 Cri LJ 927) and Re. Bhurekhan Walimohammad Khan : AIR1967MP94 , In my opinion, those cases are of no assistance to the State. In the present petitions we are not concerned with the power to try an offence. The questions raised relate to the grant of bail. As I have said before, even n it be granted that the Special Tribunal has replaced the Subordinate criminal courts in the matter of trying offences under the Act of 1971 and of granting bail, the jurisdiction of the High Court in the matter of granting bail, being distinct and separate from the power granted to the subordinate criminal courts, remains unaffected.

26. It is well accepted that an ouster of the jurisdiction of the ordinary courts should not be readily inferred and that such ouster must either be clearly expressed or necessarily implied. What is part of the general law has been expressly affirmed by Section 36 of the Defence and Internal Security of India Act, 1971 which provides that the ordinary criminal and civil courts shall continue to exercise jurisdiction, except as may be provided in that Act or in any rule made thereunder or in any order made under any such rule by the Central Government or the State Government or by an officer not below the rank of Collector empowered under subsection (1) and Sub-section (2) of Section 34 to make such order. Our attention has been invited by the learned Advocate General to Section 5 of the Code of Criminal Procedure, 1973 which provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any Special jurisdiction or power conferred, or any special form of procedure prescribed, by 'any other law for the time being in force. To my mind, in order that Section 51 should have the effect of ousting the jurisdiction of the High Court it is necessary that there should be something in the Act of 1971 or the Rules pointing already to the conclusion. Neither in the Act nor in the Rules is there anything to compel one to the conclusion that the Act or the Rules intend to exclude the powers of the High Court altogether. Indeed, Section 12 (2) of the Act expressly vests an appellate jurisdiction in the High Court, although in a restricted category of cases. It seems to me abundantly clear that no matter which way the question is looked at the power of the High Court to grant bail is not affected by the jurisdiction vested in the Special Tribunal. Our attention has been drawn by the learned Advocate General to the provisions of Section 12 (2) of the Act, which prohibits the ordinary courts from having any jurisdiction of any kind in respect of any proceeding of a Special Tribunal, Giving that provision its widest amplitude, I am still not satisfied that it takes away from the High Court its powers in the matter of bail. As has been observed above, the Brant of bail does not appertain to any pending judicial proceeding and does not interfere with the conduct of the trial, When the High Court grants bail it does not exercise any jurisdiction in respect of any proceeding of a Special Tribunal. The proceeding before the Special Tribunal remains intact and undisturbed.

27. It is pointed out by the learned Advocate General that in the Code of Criminal Procedure 1898, which was in force when the Defence of India Rules, 1971 were enacted, the provisions relating to bail were set out in Chapter 39 which formed part of Part IX dealing with 'supplementary' provisions. It is urged that if the scheme of Part IX is examined it will be found to correspond with Part XIX of the Defence of India Rules dealing with 'supplementary and procedural' provisions. We are invited to consider whether the presence of Rule 184 in this Part does not mean that the power to grant bail has been expressly conferred on the Special Tribunal, Even if that be assumed, there is nothing which necessarily war- rants the conclusion that the powers of the High Court in the matter of bail have been abridged or ousted.

28. In my opinion, the High Court has power under Section 438 and Section 439 of the Criminal Procedure Code, 1973 to grant bail to the petitioners.


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