JUDGMENT - M.S. RATNAPARKHI, J.:---This is an application for anticipatory bail under section 438 of the Criminal Procedure Code in an offence punishable under sections 147, 148, 302, 307 read with section 149 of the Indian Penal code. Similar application was made before the Additional Sessions Judge, Khamgaon, but it has been rejected by the said Court on 6-12-1989. 2. The petitioners 1 and 2, who are the real brothers, are coming before the Court with the case that they are persons of status in the society and they have been falsely implicated due to political rivallary. The petitioner 1 Dilip is a Municipal Councillor at Kamgaon. Both these petitioners are the businessmen having their business at Khamgaon. It is their contention that they are active workers of the Congress (I) party and the petitioner 1 is also the head of the local gymnacium called Chandanshesh Akhada. It is also their case that there is a rival group of BJP and Shiv Sena which are controlling the other gymnacium called Hanuman Akhada. There were parliamentary elections in the last month in which the petitioners were the active workers of Congress (I) party whereas the deceased Ramkrishna Thombre was the worker of the B.J.P. There used to be always skirmishes between these two groups and the prosecutions/counter prosecutions have been launched against them. On 30th November, 1989 at about 6.30 pm or so, the deceased Ram Krishna was assaulted by some persons and he succumbed to the injuries in the same assault. This assault took place near about Variety Square adjoining the Hindu Maha Sabha office at Khamgaon. Another person Kishor Ruparel was also assaulted. The brother of the deceased Ram Krishna lodged F.I.R. with the police in which he disclosed that the present petitioners 1 and 2 are intimately connected with the assault on the deceased Ramkrishna. The petitioners, therefore, say that they have genuine apprehension that they would be arrested in connection with this offence. It is also their say that false accusations are being made against them due to political rivallary. They are prepared to abide by the conditions to be imposed by this Court. They have, therefore, applied for anticipatory bail. 3. Notice was issued to the Public Prosecutor who has filed a detailed reply. According to them the prosecution is not false. It is also their say that false accusations are being made against them due to political rivallary. They are prepared to abide by the conditions to be imposed by this Court. They have, therefore, applied for anticipatory bail. 3. Notice was issued to the Public Prosecutor who has filed a detailed reply. According to them the prosecution is not false. The offence has been registered and the investigation has been progressed and sufficient material has been collected to implicate both the petitioner. It is also their contention that the petitioners are absconding from Khamgaon since the date of the offence and the police have not been able to arrest them inspite of the best efforts even till today. According to the prosecution, it is not a fit case for grant of anticipatory bail. 4. Mr. Masodkar, the learned advocate for the petitioners strenuously contended before me that this case is an out come of the political rivallary existing at Khamgaon. The rivallary has been sharpened, according to him, because of the last Lok Sabha elections in which Congress (I) and the B.J.P. were opposing each other. According to him, the petitioners belong to Congress (I) faction whereas the deceased and the so-called eye witnesses belong on BJP faction. It was also strenuously contended by him that because of his growing stature-politically and socially, people want to harm him so that he will be out of competition in the next General elections and with that view everything possible is being done to defame him. This prosecution, according to them, is one such measure adopted by the rivals of the petitioners. It was also contended that he has strong apprehension, well based, regarding his arrest. 5. The fact that the apprehensions of the petitioners are well based is not disputed in this case because it is the contention of the Police also that they want to arrest both of these persons. But they could not lay their hands thereon only because they have managed to abscond for the last more than 21 days. As far as the first requirement of anticipatory bail is concerned, it is satisfied and there need not be more argument on that count. 6. The real question that arises for decision at this stage is, whether the petitioners are entitled, as of right, to anticipatory bail. As far as the first requirement of anticipatory bail is concerned, it is satisfied and there need not be more argument on that count. 6. The real question that arises for decision at this stage is, whether the petitioners are entitled, as of right, to anticipatory bail. Section 438 of the Criminal Procedure Code lays down that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the court of Sessions for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. The discretion has been exclusively vested in the Court of Sessions and the High Court. The statute has not prescribed any guidelines or any conditions. The matter has been completely left at the discretion of the Court and it is the Court who is called upon to use its discretion under the well-established judicial principles. Attempt has been made at times to limit the discretion by prescribing some guide-lines. In fact, (Gurbakshsingh v. State of Punjab)1, A.I.R. 1978 P. H page 1 proposed some guidelines, but the supreme Court in (Gurbakshsingh v. State of Punjab)2, A.I.R. 1980 S.C. page 1632 did not approve of such guidelines. What the Supreme Court observed in this celebrated case that the powers have been vested in the Courts which are manned by experienced personnel with tremendous experience and the matter is left to their discretion without any guide-lines. We have now to consider, in these circumstances, whether the circumstances presented in this case call for the relief which has been specifically claimed by the petitioners in this case. 7. The object in enacting section 438 of the Criminal Procedure Code has been clarified by the Law Commission in its 41st report and it has also been lucidly stated by the Supreme Court in A.I.R. 1980 Supreme Court, page 1632. At the end of para 8 of their Judgment, the Supreme Court as given the back ground which called for the enactment of section 438 Criminal Procedure Code. The Supreme Court observes :--- ..."When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. At the end of para 8 of their Judgment, the Supreme Court as given the back ground which called for the enactment of section 438 Criminal Procedure Code. The Supreme Court observes :--- ..."When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigation when the police are not free agents within their spare of duty, is a great amount of inconvenience, harassment and humiliation. That can take even form of the parading of a respectable person in hand cuffs, apparently on way to a Court of justice. The foul deed is done when an adversary, is exposed to social ridicule and obliquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973." 8. The need to have such powers expressly in the Statute was felt even by the Law Commission and the reasons given by the Law Commission in their 41st Report (39.9) are more or less similar. The purpose for using this provision is one to protect a citizen against frivolous prosecutions, to protect his liberty and dignity which otherwise could not be protected if the law takes its own turn; to avoid inconvenience, harassment and humiliation which a party is expected to meet at the hands of prosecution machinery and to avoid a social ridicule and obliquy which is a citizen is exposed to. These according to me, are the salient purposes which underline grant of anticipatory bails. Though the provisions of section 438 of the Criminal procedure Code do not prescribe any limitations on the powers of the Court, and though the provisions of the section are not subjected to the limitations imposed in section 437 or section 439 of the Criminal Procedure Code, it is for the Court to decide as to whether the discretion which has been exclusively vested in them should be exercised this way or that way depending upon the circumstances of each case. 9. 9. Though the Supreme Court held that section 438 was, in fact, rendering a considerable assistance in achieving the ends of Article 21 of the Constitution, the supreme Court has not lagged behind giving some cautions. The Supreme Court repealled the argument that in no case anticipatory bail can be granted in the cases punishable with death or imprisonment for life. But while repealling this argument, a word of caution has also been there where the Supreme Court at the end of para 18 of their judgment observed --- "Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal" In para 30 of the judgment the supreme Court observed--- "It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstance the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail". The observations in para 31 are more important where the Supreme Court says--- "In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice such an order would not be made But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and equally that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous too enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. There are several other considerations, too numerous too enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail." We have now to find out, whether the circumstances that are established in this case justify the grant of anticipatory bail. 10. The reply has been filed on behalf of the State and what is apparent from the petition as well as the reply is that there are political rivallaries represented by each section at Khamgaon. The petitioners belong to another section A lot of dust had accumulated because of the parliamentary elections which took place prior to the incident. All these circumstances are there and there is no doubt about it We have now to proceed further to find out what circumstances have been attempted to be established by the prosecution. Copy of the case diary has been made available to this Court. We are told that the original has been produced before the Khamgaon Court. The F.I.R. in this case has been lodged at about 7.30 p.m. by Kisan Thombre who happens to be the brother of the deceased. Enough to point out at this stage that the offence has occurred at about 6.45 p.m. and the F.I.R. has been lodged within 15 minutes thereafter. The FIR is a very short document and the material averments therein are that, the petitioner 1 Dilip and Gopi had caught hold of both hands of the deceased. Petitioner 1 then instigated his brother as a result of which Ashok (petitioner 2) assaulted the deceased Ramkrishna with the Gupti. This is in short the disclosure that the brother of the deceased made before the Police immediately after 45 minute of the incident. The investigating machinery has recorded the statement of Kisan subsequently on 1-12-1989 when he has reiterated the same story as far as the complicity of present petitioners is concerned. This is in short the disclosure that the brother of the deceased made before the Police immediately after 45 minute of the incident. The investigating machinery has recorded the statement of Kisan subsequently on 1-12-1989 when he has reiterated the same story as far as the complicity of present petitioners is concerned. Ukharda is another witness who has also reiterated the same story before the police as far as the complicity of the present petitioners vis-a-vis deceased Balkrishna is concerned. Prakash Ghadge is another witness who states about the part played by petitioners 1 and 2 in assaulting the deceased. He also states that he saw Kishor with bleeding injuries on the face. Raju Dhawale is another person who speaks about the complicity about the petitioners 1 and 2 before the Police. What was urged by Mr. Masodkar, the learned advocate for the petitioners, was that another witness Kishor was examined by the prosecution and he does not dispose about the assault by the accused and deceased. It was strenuously contended before me by the accused and deceased. It was strenuously contended before me by the learned Advocate that Kishor is very much a victim of the assault as the deceased was and still he does not make any mention of the names of the petitioners. There appears to be some mistake as far as the factual aspect is concerned. What is apparent from the record, which has been made available for my perusal, is that Kishor was assaulted initially and when he fell down unconscious, he was immediately removed to the hospital and the assault on the deceased followed thereafter. The spot of incident was the same, but the incidents were not simultaneous. This is why Kishor does not say about the assault on the deceased because he was not there. 11. Normally while dealing with the applications for anticipatory bails, the Court has no opportunity to have material before it, because it is a very initial stage. The Supreme Court has observed this only in A.I.R. 1980 S.C. page 1632, but even in other cases. The reason is obvious that a person apprehending arrest rushes to the Court immediately, he gets an apprehension and perhaps at that time the Police machinery has not moved in the course of investigation. The Supreme Court has observed this only in A.I.R. 1980 S.C. page 1632, but even in other cases. The reason is obvious that a person apprehending arrest rushes to the Court immediately, he gets an apprehension and perhaps at that time the Police machinery has not moved in the course of investigation. The Supreme Court has observed even in the reported case which I have referred to above that there is hardly any material and the absence of the material is a circumstance which the Court has to take into consideration while considering such applications. Fortunately, for the prosecution in this case more than 20 days have elapsed and though the Police were not able to lay their hands on the culprits, they have proceeded with the investigation and they have collected the material which can implicate the petitioners 1 and 2. This is not a case where there is absolutely no material and the Court has to decide only on the general principles. As already pointed out, a discretion has been vested in the Courts Statute has not limited the discretion in any way, but the per ponderance of the judicial decisions have laid down some guiding principles. Precedents established, therefore, show that whenever a discretion is vested in the court, that has to be exercised on sound judicial principles. This Court now has to weigh the circumstances which the prosecution has been able to put up before the Court and then to decide whether to use the discretion in a particular way or not. To repeat it once again, though section 438 of the Criminal Procedure Code may not be subjected to limitations incorporated in sections 438 and 439, this Court has to decide whether a person against whom clinching material has been collected by the prosecution during the investigation should be released on anticipatory bail. After all, the purpose of anticipatory bail is well defined or well described. The main purpose of such remedy is to protect the person who under a garb of criminal prosecution is harassed that his stature in the society is lowered. If the Court comes across a prosecution of a like nature, then it will definitely be bound to protect the individual and his stature and reputation. The main purpose of such remedy is to protect the person who under a garb of criminal prosecution is harassed that his stature in the society is lowered. If the Court comes across a prosecution of a like nature, then it will definitely be bound to protect the individual and his stature and reputation. But if a case is brought before the Court where the prosecution can say that they have collected such and such material against the accused, should it be justifiable to grant anticipatory bail? In my view, looking to the observations of the Supreme Court in the reported case (referred to above), it will not be justifiable for this Court to grant anticipatory bail inspite of the facts that sufficient material has been collected. In that case, the only way available to the accused is to surrender and then to take further steps permitted by law, but in no case, can there be a request for anticipatory bail. 12. I have so far discussed the material that has been collected by the prosecution. There is no dispute regarding the fact that the petitioners are the workers of the political party and it is in the petition itself that the petitioner 1 is running in race for the ticket for the Assembly Elections. In fact, this is not very relevant for my purpose as far as the present petition is concerned. But this is relevant to explain and appreciate the weight that the petitioner 1 has in the society. Another circumstance which can be inferred from the record is that, though petitioners 1 and 2 call themselves to be businessmen of Khamgaon, the police have not been able to lay their hands on these persons, for more than three weeks so far. This speaks volume about their strength in evading the ordinary course of law. The garb of this petition is being used in evading the natural course of law. The fact remains, and there is no dispute regarding this that the petitioners have not made themselves available to the police. In fact, when I went through the case diary, I find that all the accused who have been booked for this offence are absconding and the police have not been able to lay their hands even against one out of seven. This is to some extent a misuse of the status which the accused have attained. 13. In fact, when I went through the case diary, I find that all the accused who have been booked for this offence are absconding and the police have not been able to lay their hands even against one out of seven. This is to some extent a misuse of the status which the accused have attained. 13. To sum up, this is a case where the prosecution is coming before the Court positively with a material to implicate the accused with this offence. It may be that the author of the F.I.R. was the real brother of the deceased. But that does not disqualify him from lodging the report before the police. It may be a faction-ridden society, but that does not alter the appreciation of the material before the Court. The position which prevails at this stage is that the influential persons of the stature of the accused, knowing full well, that sufficient material has been collected against them, are evading the normal course of law by keeping themselves away from the clutches of the investigating machinery. At this stage, it cannot with any degree of certainty be said that the material collected by the prosecution has no decisive truth. We have to look to it Prima facie as it stands. There is no scope for appreciation or shifting at this stage. 14. In these circumstances, it is not possible to allow the application for anticipatory bail. In the circumstances standing as they are, it would not be fair for this Court to use its discretion for grant of anticipatory bail. The application is, therefore, rejected. Rule is discharged. Rule discharged. -----