2014 (4) TMI 1276 - HC - Indian Laws

Dishonor of Cheque - bailable offence or not - Seeking grant of anticipatory bail under section 438 of Cr.P.C. - issuance of non-bailable warrant passed by the Additional Chief Metropolitan Magistrate - 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? - HELD THAT - 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. 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 Code. It needs to be clarified that such order of issuance of warrant of arrest by the Magistrate can be challenged before the High court under section 482 of the Code or by filing Writ under Article 226/227 of the Constitution, but not under section 438 of the Cr. P.C. - In the present case, the learned APP has pointed out that this applicant/accused has been deliberately avoiding to appear before the learned Magistrate. Application dismissed.

Summary

Issues Involved:
1. Application for anticipatory bail under Section 438 of Cr.P.C.
2. Issuance of non-bailable warrant by the Magistrate under Section 70 of Cr.P.C.
3. Powers of the High Court and Sessions Court to grant anticipatory bail in bailable offences.
4. Legal provisions and judicial precedents related to anticipatory bail and non-bailable warrants.

Detailed Analysis:

1. Application for Anticipatory Bail under Section 438 of Cr.P.C.:
The applicant sought anticipatory bail under Section 438 of Cr.P.C. after a non-bailable warrant was issued by the Additional Chief Metropolitan Magistrate. The applicant's counsel argued that despite the offence under Section 138 of the N.I. Act being bailable, the Magistrate issued a non-bailable warrant due to a communication gap and the applicant's arrest by CBI in another case. The counsel cited precedents where anticipatory bail was granted in similar situations.

2. Issuance of Non-Bailable Warrant by the Magistrate under Section 70 of Cr.P.C.:
The learned APP opposed the application, stating that the Magistrate issued the non-bailable warrant due to the applicant's deliberate absence and multiple pending cases. The APP emphasized that the warrant remains in force until canceled by the issuing court or executed, as per Section 70(2) of Cr.P.C. The APP argued that the application should have been filed under Section 482 of Cr.P.C., not Section 438, making the current application non-maintainable.

3. Powers of the High Court and Sessions Court to Grant Anticipatory Bail in Bailable Offences:
The court examined whether it could invoke its power under Section 438 of Cr.P.C. to grant anticipatory bail when a non-bailable warrant was issued in a bailable offence. The court clarified that Section 438 is meant for non-bailable offences, and anticipatory bail cannot be granted for bailable offences, even if a non-bailable warrant is issued. The Sessions Court had rightly rejected the application for anticipatory bail.

4. Legal Provisions and Judicial Precedents Related to Anticipatory Bail and Non-Bailable Warrants:
The court reviewed various precedents, including judgments from the Madras High Court and this court, where anticipatory bail was granted in cases involving non-bailable warrants. However, the court distinguished these cases based on the nature of the offences and the timing of the warrant issuance. The court emphasized that anticipatory bail under Section 438 is not applicable for warrants issued during the trial for non-attendance in bailable offences.

Conclusion:
The court concluded that anticipatory bail under Section 438 of Cr.P.C. is not available for bailable offences, even if a non-bailable warrant is issued by the Magistrate. The proper remedy for the applicant is to approach the issuing court for cancellation of the warrant under Section 70(2) of Cr.P.C. The application for anticipatory bail was dismissed, upholding the Sessions Court's order and providing the applicant time to seek cancellation of the warrant from the Magistrate.