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TMI Blog2014 (4) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... & though it is bailable, the learned Magistrate has issued non-bailable warrant without ascertaining the genuine reasons of the absence of the applicant/accused before the Magistrate. He submitted that due to communication gap between the applicant and his advocate, he could not appear before the learned Magistrate and therefore, the trial Court issued a non-bailable warrant and thereafter issued proclamation against the applicant/accused. He submitted that the applicant was arrested by CBI in R.C. No. RC-2/E/2013-EOW, Mumbai on 26th August, 2013 and he was released by CBI Special Court on 19th January, 2014. Therefore, the applicant could not appear before the learned trial Magistrate. The applicant is extremely apprehensive of his arrest if at all he appears before the learned trial Court for seeking cancellation of non-bailable warrant and therefore, he prays that he shall not be arrested on the basis of non-bailable warrant and prays for anticipatory bail. While arguing the case, the learned counsel submitted that though under section 438 of Cr. P.C. bail is granted for non-bailable offence and section 138 of N.I. Act is a bailable offence, yet the Court has power to grant ant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give effect to any order under this Code and also to prevent abuse of the process of any Court and also to secure the ends of justice. Therefore, the Application is not maintainable and hence rejected 4. Thus, a question before me is limited as to whether this Court can invoke its power under section 438 of Cr. P.C. to grant anticipatory bail when the Magistrate has issued non-bailable warrant in the case filed under section 138 of N.I. Act. Under section 438 of Cr. P.C., the Sessions Court and High Court has power to grant bail to a person apprehending arrest in non-bailable offence. If a person is arrested in the bailable offence, then he has right to be released on bail by giving surety either before the police or before the learned Magistrate. When a person is arrested in non-bailable offence, then it is a discretion of a Court depending on the gravity of a matter to grant bail or not. Therefore, Section 438 provides a special provision to protect liberty against the arrest in non-bailable offence and get pre-arrest bail. The section unequivocally states that the power to grant pre-arrest bail can be used by the Court only in respect of reasonable apprehension of an arrest in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered as an order passed in non-bailable offence. 8. The offences are categorized in two groups in the schedule in the Cr. P.C., i.e. bailable and non-bailable depending on the gravity and the seriousness of the offence and therefore a bail is a right of the accused in all bailable offences. If a person is made an accused in non-bailable offence, then his liberty is in jeopardy, so valuable provision under section 438 for grant of anticipatory bail is made in the Code 9. Section 438 of Cr. P.C. reads as under: 438 Direction for grant of bail to person apprehending arrest.-(1) 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 Session for a direction under this section that in the event of such arrest, he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors. (i) the nature and gravity or seriousness of the accusation as apprehended by the applicant; (ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a court previously undergone imprisonment for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and passing of final order by the court, if on an application made to it by the Public Prosecutor, the court considers such presence necessary in the interest of justice. (5) On the date indicated in the interim order under sub-section (2), the court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order made under subsection (1). 10. Chapter VI is classified in sub-chapter A, B and C. Sub-chapter A is about 'Summons', sub-chapter B covers 'Warrant of Arrest' and sub-chapter C is regarding 'Proclamation and attachment'. In sub-chapter B, the warrant of arrest is issued under section 70 of the Code by the Court and Section 71 states that the Court has discretion while issuing the warrant of arrest to direct the police by endorsement on the warrant that, if such person executes a bond with sufficient securities and attend the Court at specified time then he may be released from custody after execution of such security. The details of the surety may be mentioned in the order. Thus, under section 71 the Court authorizes the police officer to release t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstituted while understanding the meaning of Warrant of Arrest under Chapter VI. 11. In the case of Akhalaq Ahmed F. Patel (supra), the offence was registered under section 498A, 302 R/w. 34 of IPC against the petitioner who was released on bail on 24th January, 1996. Nearly after 2 years private complaint was presented before the Additional Chief Metropolitan Magistrate, Borivili, Mumbai. On the basis of the complaint, the learned Magistrate issued non-bailable warrant. Against that order, the petitioner moved an application for anticipatory bail under section 438 of Cr. P.C. which was rejected by the Additional Sessions Judge. The Single Judge of this Court turned down the order of Sessions Judge and relied on number of cases especially (i) Full Bench decision of Andhra Pradesh High Court in the case of Smt. Sheik Khasim vs. State reported in AIR 1986 AP 345; (ii) Full Bench decision of Madhya Pradesh High Court in the case of Nirbhay Singh vs. State of Madhya Pradesh reported in and (iii) Division Bench judgment of Punjab and Haryana High Court in the case of Puran Singh vs. Ajit Singh reported in. In the case of Akhalaq Ahmed F. Patel (supra) in the last portion of paragraph 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and the petitioner/accused did not remain present. Therefore, the Magistrate issued non-bailable warrant and so he approached the High Court for anticipatory bail. Thus, the Magistrate issued non-bailable warrant for the bailable offences under section 138 of N.I. Act. It was held that though the offence is bailable, the warrant issued is non-bailable, therefore, anticipatory bail can be granted. The Court held that the power of issuance of warrant cannot be exercised mechanically. It was held that High Court has inherent power under section 482 of Cr. P.C., however, since it was not argued, orders cannot be passed exercising the power under section 482 of Cr. P.C. and therefore, the High Court has exercised the powers under section 482 R/w. 438 of Cr. P.C. With respect I cannot subscribe the view taken by the learned Single Judge of Madras High Court for the reasons given above. 14. In the case of Ragupathi (supra) the learned Single Judge of Madras High Court has relied on earlier ratio laid down in R. Sarathkumar (supra). 15. Thus, in all the cases discussed above except the decision of the Single Judge of Madras High Court, the respective Magistrates have issued non-bailab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on can be challenged under section 438 of Cr. P.C. and the person against whom such warrant is issued may seek a pre-arrest protection under section 438 of the Code. However, considering the object and spirit of power of warrant conferred upon the Magistrate, I am of the view that in all the orders of non-bailable warrant even in non-bailable offences anticipatory bail under section 438 of the Cr. P.C. cannot be granted. If a person once granted a regular bail in non-bailable offence and thereafter he fails to appear before the Court either on the specific dates or during the trial, then the Magistrate after considering his conduct may issue warrant of arrest, i.e., non-bailable warrant to procure his appearance. Under such circumstances, the only proper remedy available to the said person as contemplated under section 70(2) of Cr. P.C. is to go before the same Court for cancellation of the said warrant. 18. A Magistrate who issues a warrant knows fully why the accused is avoiding to remain present before the Court and non-appearance causes obstruction in the smooth working of the Court. It is a hurdle in speedy disposal of the matter and therefore the Magistrate issues non-bailab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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