G.N. Sabhahit, J.
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 boilable 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.
4. In order to successfully invoke the jurisdiction under Section 438 Cr. P.C., the petitioner, apart from satisfying the conditions under Section 437, must, in addition, make out a special case for securing an order of anticipatory bail which is of an exceptional type. He must prove that the charge levelled against him is mala fide and stems from ulterior motive. Mere allegation of mala fides by an offender and a vehement claim of innocence put forward by him are manifestly insufficient for arriving at such a conclusion by the Court. The burden of establishing the mala fides is on the person alleging. It is for the petitioner to prima facie substantiate his allegation that the charge of serious non boilable offence against him has been levelled mala fide.
5. In respect of non boilable offences, all the conditions imposed by Section 437 of the Code are implicitly contained in Section 438 as well. Now a reference to Section 437 would show that it, in terms, contains a prohibition to grant bail in all cases where there appears reasonable grounds for believing that the offender has been guilty of an offence punishable with death or imprisonment for life. The nature and the seriousness of the charge by itself, therefore, is one of the important considerations for the non-release of an accused person on bail. Therefore, where the nature of the charge is so serious as to be punishable with death or imprisonment for life, it would normally be inapt to exercise the power of the grant of anticipatory bail at the very threshold of the investigation unless the Court at that very stage is satisfied that such a charge is false or groundless.
6. The petitioners in the instant case are charged with an offence under Section 396 I.P.C. They have not at this stage established that the said charge is groundless nor that it is inspired by mala fides. The offence is punishable with death or imprisonment for life. That being so, bail cannot, be granted normally under Section 437 Cr. P.C. If that be so, it is obvious that anticipatory bail also cannot be granted.
7. Though one of the petitioners pleaded that his name was not to be found in the complaint and the F.I.R. based on it, that by itself, as rightly pointed out by the learned Government Pleader, cannot go to destroy the entire investigation made by the police. The learned Government Pleader pointed out that the name of the petitioner is involved by the injured and other eye-witnesses and hence, he was charged with the offence.
8. In the case of the other petitioner, he no doubt produced a Doctor's certificate to show that he took treatment from the doctor. The certificate does not say that he was admitted as an inpatient in the hospital. Hence, that would not help him in any way. His name is found in the complaint and the F.I.R. That being so, the petitioners have failed to establish that the charge against them is groundless.
9. The petitions, therefore, are devoid of merits and the same are rejected,