TMI Blog2014 (4) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is pursuant to a warrant of arrest issued by the learned Magistrate for any other purpose but not under section 204 of Cr. P.C. Thus, anticipatory bail cannot be sought when warrant is issued during the trial due to non-attendance of the accused. The anticipatory bail, which is an extraordinary provision which protects the liberty of an individual can be used before he is taken into custody by the police first time after the registration of an offence against him. Once he is taken in custody, this power is not available to the Court and also cannot be invoked. Thus, within the purport of Section 438 of Cr. P.C. grant of pre-arrest bail is not available to the Sessions Court or the High Court when warrant of arrest issued is by the Magistrate except warrant of arrest issued under section 204 of Cr. P.C. Under section 204 of Cr. P.C. the Magistrate takes cognizance and thereafter issues the warrant, so this is the first instance that the person is booked for some offence, which may be either by the police or by the Magistrate. Thus, arrest pursuant to warrant of arrest issued under section 70 of the Code has wider import than the arrest apprehended under section 438 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 anticipatory bail if non-bailable warrant is issued by the Magistrate as accused apprehends the arrest. In support of his submissions, he relied on the following decisions: (i) Judgment of the Single Judge of Madras High Court in the case of R. Sarathkumar vs. The Inspector of Police, Neelankarai, Chennai reported in 2004(1) MLJ (Cri) 421. (ii) Judgment of Single Judge of this Court in the case of Akhalaq Ahmed F. Patel vs. State of Maharashtra reported in 1998 Cri. L.J. 3969. (iii) Judgment of the Single Judge of Madras High Court in the case of Ragupathi vs. Govindan reported in 2006(2) MLJ (Cri) 336. He submitted that the Single Judges of this Court have granted anticipatory bails earlier in the cases which are registered under the provisions of Section 138 of N.I. Act. 3. Learned APP opposed the application. She submitted that anticipatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 non-bailable offence. An offence under section 138 of N.I. Act is a bailable offence, hence a Magistrate issues warrant of arrest in the proceedings under section 138 of N.I. Act, then it being not in non-bailable offence; I am of the view that this Court or Sessions Court cannot use the powers of anticipatory bail under section 438 of Cr. P.C. The learned Sessions Court has hence rightly rejected the application for anticipatory bail. 5. Chapter VI of the Cr. P.C. provides various powers to the Courts to procure the presence of an accused or a witness or any person. If an accused is not appearing before the Court, then in the absence of coercive and deterrent powers, the Court is like a paper tiger. The Court cannot be helpless or powerless if the law is to be implemented. Therefore, the processes to compel the appearance under Chapter VI are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 term in respect of any cognizable offence; (iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested, and (iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice, either reject the application forth with or issue an interim order for the grant of anticipatory bail: Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (2) Where the High Court or, as the case may be, the Court of Session, consider it expedient to is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 the person on surety depending on the circumstances of the facts and issues bailable warrant. The Court may not use that discretion available under section 71 but may simply issue warrant of arrest. The police in execution of the said warrant under section 70 of Cr.P.C. shall without unnecessary delay produce the person before the Court. Under section 76 of Cr. P.C. it is obligatory on the police officer or a person executing the warrant of arrest to produce the person before the Court subject to section 71. Section 76 reads as follows: The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person. Provided that such delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the learned Single Judge has held as under: In view of the aforesaid enunciation of law by various Courts of this country, it is not possible to hold as a proposition of law that Sessions Court or the High Court will have no power to entertain the application for anticipatory bail where either summons or warrants have been issued against the accused. The Court has the jurisdiction to grant anticipatory bail on being satisfied that the accused apprehends arrest in a non-bailable offence. It is difficult, therefore, to appreciate the reasoning of the learned Additional Sessions Judge to the effect that the application for anticipatory bail is inconceivable because the applicant is liable to be arrested on the basis of the directions issued by the Magistrate rather than the police. This reasoning, in my view, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-bailable warrants in non-bailable offences. As per section 438 of Cr. P.C., a person should have reason to believe that he may be arrested on accusation of having committed a non-bailable offence. The Section itself specifies and limits that powers under section 438 can be invoked by the Courts in respect of non-bailable offences only. When the offence is bailable, as a rule, an applicant is bound to get bail. 16. Another crucial question required to be answered is whether powers under section 438 can be invoked by a Court in all the instances of issuance of non-bailable warrant by the Magistrate when non-bailable offences are pending before the Magistrate or not? In Nirbhay Singh (supra) and Akhalaq Ahmed F. Patel (supra), non-bailable warrant was issued by the learned Magistrates while issuing process un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plated 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-bailable or bailable warrant. On number of occasions, a Magistrate is constrained to issue non-bailable warrant to compel a person to appear before the Court as the trial is at a standstill for want of appearance. To remove this stagnation, the appearance is a must. Though pre-arrest bail can be granted under section 438, however, it cannot be granted in any or each and every impending arrest in non-bailable offence, which is pursuant to a warrant of arrest issued by the learned Magistrate for any other purpose but not under section 204 of Cr. P.C. Thus, anticipatory bail cannot be sought when warrant is issued during the trial due to non-attendance of the accused. If all the sub-sections of Section 438 are taken into account, the very language of the statute compels this construction. While granting an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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