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1988 Supreme(MP) 188
High Court Of Madhya Pradesh
K. L. SHRIVASTAVA
SHANTILAL - Appellant
Versus
STATE OF M.P. - Respondents
MISC. CRI. CASE 902 Of 1988
Decided On : 08/23/1988
A.N.PRADHAN, S.K.PAWANEKAR
The provision in Section 49B(I) of the Madhya Pradesh Excise Act, 1915, bars the grant of anticipatory bail in respect of a person accused of an offence under Section 49A of the Act.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 438 - BAIL - ANTICIPATORY BAIL - APPLICABILITY - OFFENCE UNDER SECTION 49A OF THE MADHYA PRADESH EXCISE ACT, 1915 - WHETHER SECTION 438 OF THE CODE IS APPLICABLE - WHETHER THE PROVISION IN SECTION 49B OF THE ACT BARS THE GRANT OF ANTICIPATORY BAIL - INTERPRETATION OF SECTION 49B(I) AND (II) OF THE ACT - RIGHT TO PERSONAL LIBERTY UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA - PRINCIPLES OF NATURAL JUSTICE - APPLICABILITY AND SCOPE - JUDICIAL REVIEW.
Fact of the Case:
The petitioner, accused of an offence under Section 49A of the Madhya Pradesh Excise Act, 1915, filed an application for anticipatory bail under Section 438 of the Criminal Procedure Code, 1973. The prosecution opposed the application, contending that Section 49B of the Act barred the grant of anticipatory bail and that the opposition to the bail application was conclusive against the petitioner.
Finding of the Court:
The court held that Section 438 of the Code was applicable to the case as the offence under Section 49A of the Act was not a bailable offence. However, the court also held that the provision in Section 49B(I) of the Act barred the grant of anticipatory bail in respect of a person accused of an offence under Section 49A of the Act.
Issues: 1. Whether Section 438 of the Code is applicable to an offence under Section 49A of the Madhya Pradesh Excise Act, 1915? 2. Whether the provision in Section 49B of the Act bars the grant of anticipatory bail? 3. Whether the right to personal liberty under Article 21 of the Constitution of India and the principles of natural justice are applicable in the context of anticipatory bail?
Ratio Decidendi: 1. Section 438 of the Code is applicable to an offence under Section 49A of the Act as the offence is not a bailable offence. 2. The provision in Section 49B(I) of the Act bars the grant of anticipatory bail in respect of a person accused of an offence under Section 49A of the Act. 3. The right to personal liberty under Article 21 of the Constitution of India and the principles of natural justice are applicable in the context of anticipatory bail, but their application may be excluded by the legislature either expressly or by necessary implication in order to meet a particular contingency.
Final Decision: The application for anticipatory bail was rejected.
( 1 ) THIS is an application under S. 438 of the Criminal P. C. 1973 (for short 'the Code') for grant of anticipatory bail.
( 2 ) SUBMISSION of the learned counsel for the petitioner is that the petitioner reasonably apprehends his arrest in connection with Crime No. 98/88 of P. S. Petlawad relating to an offence under S. 49a of the Madhya Pradesh Excise Act, 1915 (for short 'the Act') and he deserves to be enlarged on anticipatory bail.
( 3 ) THE learned counsel appearing for the prosecution opposes the petitioner's application. He contends that under S. 59 of the Act all offences punishable thereunder are bailable within the meaning of the Code and the applicability of the provision under S. 438 of the Code for grant of anticipatory bail is attracted only in cases on non-bailable offences. It is next contended that in view of the provision in S. 49-B (i) of the Act, application for grant of anticipatory bail cannot be entertained at all. It is further urged that in addition to the provision there is the prosecution's opposition to the petitioner's prayer for bail and this, under law, is conclusive on the question of grant of bail.
( 4 ) THE point for consideration is whether the prayer for grant of bail should be allowed.
( 5 ) I shall first take up the contention regarding the in applicability of S. 438 of the Code on the footing that the offence in question is bailable.
( 6 ) IT is clear from a perusal of S. 438 of the Code that it is available to a person having reason to believe that he may be arrested on an accusation of having committed a non-bailable offence.
( 7 ) SECTION 2 (a) of the Code defines bailable offence as under :-"in this Code, unless the context otherwise requires - (a) 'bailable offence' means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and 'non-bailable offence' means any other offence. "as the definition points out, the context has its own importance.
( 8 ) IN order to find out whether a particular I. P. C. Offence is bailable or non-bailable reference has to be made to column 5 of 1st Schedule to the Code. In regard to offence, against other laws, reference in this connection has to be made to the II Schedule to the code. Where, however, the statute itself provides separately as to the offence being bailable or non-bailable that provision must prevail.
( 9 ) AN offence being non-bailable does not mean that bail can in no case be granted. A perusal of S. 436 of the Code reveals that a person accused of a bailable offence is entitled to bail as of right. However, where a person is accused of a non-bailable offence, it is not so. All that 'non-bailable' implies is that unlike the person accused of a bailable offence a person accused of non-bailable offence cannot claim bail as of right and the question of grant of bail to such a person is left by the legislature in the court's discretion to be exercised on a consideration of the totality of the facts and circumstances of a given case. The discretion has, of course, to be a judicial one 'informed by tradition methodized analogy disciplined by system and sub-ordinated to the primordial necessity of order in social life.
( 10 ) IT is true that under S. 59 of the Act all offences under the Act have been made bailable but S. 49b strikes a discordant note. It is in these words :-"s. 49-B. Bail not to be allowed for offences under this Chapter - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (No. 2 of 1974) of S. 59 - (i) no application for an anticipatory bail shall be entertained by any court in respect of a person accused of an offence under S. 49a; (ii) no application for bail of a person accused of an offence under S. 49-A shall be allowed if opposed by the prosecution; provided that no court of Magistrate shall authorise detention of such person in custody during the course of investigation for a period exceeding one h
