S.K.M. Lodha, J.
1. This is an application for the grant of anticipatory bail filed by Bhopal Singh son of Guman Singh and Bhanwar Singh son of Prabhu Singh, who have reason to believe that they may be arrested on accusations of having committed offences under Sections 147 143, 149, and 307, IPC.
2. A first information report was lodged oh 28th May, 1978 against them and three others by Jas Raj son of Bhairon Singh of Sheotalab stating that when he and Harilal resident of Sheotalab were standing in front of Anop Mandir, bus stand of Mundara, at about 1.30 pm. Ranjeet Singh son of Bhopalsingh, Bhanwarsingh son of Prabhusingh, Bhopalsingh son of Adring an Bhopal Singh son of Gaman Singh came near them and they were armed with weapons Ranjeet Singh had a 'Kulhari in has hand, whereas Bhanwar Singh had a 'Dharia' and the remaining three persons had lathis in their hands They came there with an intention to kill Hari Lal and attacked him The complainant, Jas Raj, after going at some distance, cried and thereafter from the sice of the hocels Jai Singh and Sardar Singh came running The complainant snatched the 'Kulhari' from the hand of Ranjeet Singh Hari Lal who was in a serious condition, was taken to the hospital at sadri. On inquiry, the complainant tied that Ranjeet Singh and Bhanwar Singh (Petitioner) inflicted injuries on Hiri Lal and the other aforesaid three persons including the petitioner Bhopal Singh beat him with lathis with an intention to kill Hari Lal. It was also mentioned in the first information from report that these five persons had an intention to kill Hari Lal as they had enmity with him. It was also mentioned in the first information report that these five persons had an intention to kill Hari lal. The Kulhart' which was snatched, was the produced by the complainant before the police at the time of lodging the first information report. Bhtkamchand Station House Officer, Sadri. registered the case as aforesaid The first information report was read before me by the earned Counsel for the petitioner. Along with the application Under Section 438,Cr.P.C. injuries & X-ray reports were also submitted by the petitioners 'Eight injuries were inflicted on the person of Hari Lal, out of which four are or cited wounds and four are abrasions. It has been mentioned in the injury report that four injuries were caused by sharp-edged weapon, and the other injuries were caused by blunt weapon X-ray report shows that there was a hair'-line fracture at the lower end of the left radius and in the opinion of the Doctor, as mentioned in the report, injury in the lower end of the left forearm (wrist) was grievous. Shri Dinkarlal Mehta appearing on behalf of Sohansingh Submitted on 21-6-78 copies of five affidavits of (1) Jafeingh, (2) Sotiansingh, (3) Sardarsingh. (4)Jasraj & (5)jBhikam chand which were submitted btfore the Sessions Judge, Pali, with a braver that they may be treated as part of the record of the case.
3. I have heard Mr Maiudar Mridul, It tired course for the petitioners, and Mr. M D Purohit, Public Prcsecutor, aid Mr. Dinkar Lal Mehta at some length and have perused the papers placed or leered by the learned Counsel for the petitioners and the learned Counsel for Sohan Sirgh The police diary of the case was also perused by me I have carefully read the application for grant of anticipatory bail and considered the arguments advanced by the earned Counsel for the petitioners. It is not proper to go into the merits or demerits of the case at this stage. In Gurbaksh Singh Sibia v. State of Punjab A.I.R. 1978 punj. & har. 1 (FB), their Lordships of the Punjab and Haryana High Court, while considering the provisions of Section 438, Cr.P.C. have summarised the main conclusions as under:
1. That the power under Section 438, Criminal Procedure Code, is of an extraordinary character and must be exercised in excepional cases only.
2. That neither Section 438, Crimminal Procedure Code, nor any other provisions of the Code authorises the grant of blanket anticipatory bail for offences not yet committed or with regard to accusation not so far levelled.
3. That the said power is not unguided or uncanalised but all the limitations imposed in the preceding Section 437, Criminal Pr cedure Code, are implicit therein and must be read into Section 438, as well.
4. That in addition to the limitations imposed in Section 437 Criminal Procedure Code, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail.
5 That where a legitimate case for the remand of the offence to the police custody under Section 167(2) can be made out by the Investigating Agency or a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out, the power under Section 438 of the Code be not exercised.
6. That the discretion under Section 438, Criminal Procedure Code be not exercised with regard to offences punishable with death or imprisonment of life unless the Court at the very stage is satisfied that such a charge appears to be false or groundless.
7. That the larger interest of the public and the State demand that in serious cases like economic offences involving blatant corruption at the higher rung of the executive and political power, the discretion under Section 438 of the Code be not exercised.
8. That mere general allegations of maladies in the petition are inadequate, and the Court must be satisfied on material before it that the allegations of maladies are substantial & the accusation appears code be false and groundless.
4. In Mohan Khidia v. The State of Rajasthan 1977 R.L.W. 258, it has been observed that the petitioner is required to make out a special case for the issuance of a direction under Section 438. Cr.P.C. The following portion from the above judgment may usefully be extracted here:
Section 437, Cr.P.C. is the main provision for bail in regard to non-boilable offences It is followed by Section 438, Cr.P.C. a provision for the grant of anticipatory bail It is manifest that conditions imposed by Section 437(1) Cr.P.C. are implicitly contained in Section 438, Cr.P.C. Other wise the result would be that persons coming from influential section of the society would be able to thaw it the investigation & get them admitted to bail. The legislature did not intend that accused charged with serious offences should be allowed to be pass the provisions of Section 437 CrPC. Section 438 Cr PC does not confer unbridled and unguided power on the courts. The provisions of Section 438 Cr.P.C. are required to be utilized when the prosecuting agency misdirects or attends to oppress and harass innocent persons for political or other reasons.
Now I proceed to decide his application for the grant of anticipatory bail in the light of the above principles laid down in the aforesaid two cases. In this case, it appears from the first information report that the petitioner Bhopal Singh son of Gum an Singh had a lath in his hand while Bhanwar Singh had a Dharia'. The third person Ranjeet Singh who had a 'Kulhari' in his hand and which was snatched by the complainant, is absconding. The other two persons, namely, Lala Ram and Bhopal Singh son of Adring had lathis in their hands. All the accused persons who were armed with weapons like lathis' Dharias' and Kulhari' attacked Hari Lal and because of this he suffered eight injuries mentioned in the injury report On the basis of these allegations the case was registered under Section 307, IPC besides under Sections 147 148 and 149, IPC. Investigation is still to be concluded. A serious point, in these circumstances, arises for my consideration whether, when the investigation is incomplete, it would be proper to grant anticipatory bail to the two petitioners or not In Somabhai v. State of Gujarat 1977 Cr. L.J., it has been observed as under:
The investigation being incomplete it would neither be feasible nor possible to anticipate the material that might be eventually collected.
The court will not be justified in acting on the hypothesis that no further or more serious material incriminating the accused will be unearthed
It was argued by Mr. M.D. Pucohit, learned Public Prosecutor for the State, that Ranjeet Singh, who had a 'Kulhari' in his hand is absconding and lathis and 'Dharia' are still to be recovered. According to him if the petitioners are granted anticipatory bail at this stage, then the recovery of these articles will not be possible, or, at any race this will not be facilitated. There is some force in that argument in as much as incise anticipatory bail is granted to these petitioners, the recovery of lathis and Dharia may not be made. It has further been held in the aforesaid Punjab and Haryana case as under :
Where the investigation agency should reasonably claim that it has to secure incriminating material from information likely to be received from the offender himself, the power of the grant of anticipatory bail cannot be legitimately resorted to. Any such exercise would irreparably exclude the admissible evidence under Section 27 of the Act which might well become available to the prosecution.
The nature of the charge is also not to be lost sight of while confident g the application for grant of anticipatory bail. I may read the relevant portion of Section 307, IPC which runs as under:
Attempt to murder : Who ever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he could be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or such punishment as is here in before mentioned.
5. As the allegation of causing hurt is there, which is borne out from the injury report sentence prescribed is imprisonment for life or such punishment as has been mentioned in Section 307, IPC At this stage it cannot be said that charge is false or groundless. Having considered all the facts and circumstances of the case, it is inapt to exercise the power for the grant of anticipatory bail during the pendency of the investigation. In my opinion, the petitioners have not been successful in making out a special case for that issuance of direction Under 438, Cr.P.C.
6. The application under Section 438,Cr.P.C. is therefore dismissed.
7. Mr. Marudar Mridul orally prays for leave to appeal to the Supreme Court under Article 134 of the Constitution of India. The bail application under Section 438, Cr.P.C. has been rejected and it cannot be said to be a final order under Article 134(1) of the Constitution of India. Besides this, I am unable to certify the case to be a fit one for appeal to the Supreme Court. Consequently, I decline to grant leave to appeal to the Supreme Court,