MAHANTHAGOUDA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) These two petitions are for anticipatory bail under Section 438 Cr. P.C. An F.I.R. is submitted against the accused for the offences punishable under Sections 324, 325, 327 and 396 I.P.C. In the case of Mahanthagouda, petitioner in Cr. P. No. 94/1978, it is submitted that his name is not to be found either in the complaint or in the F.I.R. which is based on the complaint and so, there is no case made out against him, prima facie, under Section 396 I.P.C. and hence, he should be released on anticipatory bail. As for the other petitioner - Nana-gouda, petitioner in Cr. P. No.101/1978- it is submitted that though no doubt his name appears in the complaint and the F.I.R. the Assistant Medical Officer, Kallur, has certified that he was under his treatment on 8-12-1977 and that he was advised complete rest. So, the learned Counsel submitted that in all probability, he was not present at the spot and did not participate in the crime. Hence, he submitted that he should also be granted anticipatory bail.

(2.) These submissions are resisted by the learned High Court Government Pleader. He submitted that the F.I.R. is not an encyclopaedia of events and that during investigation, the injured and the eye-witnesses have clearly involved Mahanthagouda and, therefore, it cannot be said that there is no prima facie case for the charges against him. With regard to the other petitioner, he submitted that though the doctor certified that he took treatment on 8-12-1977, the doctor has nowhere mentioned that he was admitted as an inpatient in the hospital. That being so, nothing prevented, according to the learned Government Pleader, the accused to go to the spot and commit the crime and since both these petitioners are involved in an offence punishable under Section 396 I.P.C., he submitted that anticipatory bail should not be granted.

(3.) The Supreme Court of India, in the case of Balchand Jain v. State of Madhya Pradesh AIR 1977 SC 366 : 1977 Cri LJ 225, has ruled that Section 438 of the Code is an extraordinary remedy and should be resorted to only in special cases. It would be desirable if the Court before passing an order under Section 438 of the Code issues notice to the prosecution to get a clear picture of the entire situation. Elaborating the aspect and referring to the Law Commission's report in this behalf, the Supreme Court has observed in para 15 of the judgment thus- We think that rule of prudence requires that notice should be given to the other side before passing a final order for anticipatory bail so that wrong order of anticipatory bail is not obtained by a party by placing incorrect or misleading facts or suppressing material facts.... we may of course point out that in emergent cases the Courts may make an interim order of anticipatory bail before issuing notice to the other side. From what has been said it is clear that intention of the Legislature in enshrining the salutary provision in Section 438 of the Code which applies only to non-bailable offences was to see that the liberty of the subject is not put in jeopardy on frivolous grounds at the instance of unscrupulous or irresponsible persons or officers who may sometimes be in charge of prosecution. The Supreme Court also emphasised that Section 438 should be read in conjunction with other provisions of law. Elaborating this aspect, a Full Bench of the Punjab and Haryana High Court in the case of Gurbaksh Singh Sibia v. State of Punjab AIR 1978 Punj & Har 1 : 1978 Cri LJ 20 has explained that a statute must be construed as a whole and any interpretation of a particular provision, which would render other material provisions nugatory, is to be avoided, if possible. Applying this maxim, it is plain that the grant of blanket anticipatory bail cannot be read into Section 438 Cr. P.C. The said power is not unguided or uncanalised, but all the limitations imposed in the preceding Section 437 Cr. P.C. are implicit therein and must be read into Section 438 as well. In addition to the limitations imposed in Section 437, the petitioner must further make out a special case for the exercise of the power to grant anticipatory bail.