The applicant/accused has moved an application for anticipatory bail under section 438 of Cr. P.C. against the order of issuance of non- bailable warrant passed by the Additional Chief Metropolitan Magistrate, 6th Court, Mazgaon, Mumbai in C.C. 1105/S/2005 in the cases where the offence is registered against the applicant/accused under section 138 of N.I. Act, 1881. Earlier the application for anticipatory bail challenging the said order preferred before the learned Sessions Judge, Greater Bombay is rejected on 4th March, 2014 and four weeks time was granted to enable him to approach the Metropolitan Magistrate Court to apply for cancellation of warrant to grant fresh bail.The learned counsel for the applicant/accused has submitted that the applicant/accused is facing charges under section 138 of N.I. Act & though it is bailable, the learned Magistrate has issued a non-bailable warrant without ascertaining the genuine reasons for the absence of the applicant/accused before the Magistrate. He submitted that due to the 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 EOW, Mumbai on 26 th August, 2013 and he was released by CBI Special Court on 19 th 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 the non-bailable warrant and therefore, he prays that he shall not be arrested on the basis of the 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 the 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 (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 and submitted that anticipatory bail cannot be granted in this case where the Magistrate has issued non-bailable warrant against the applicant/accused. She submitted that:
- many cases are pending against the applicant/accused before the learned trial Magistrate.
- the applicant did not appear before the learned trial Magistrate, non-bailable warrant was issued and further proclamation against the applicant/accused is also issued.
- that the applicant/accused is deliberately avoiding to appear before the learned Magistrate and seeking protection before this Court bypassing a proper procedure of appearance before the learned Magistrate.
Thus, a question 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 the power to grant bail to a person apprehending arrest in non-bailable offence.
“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 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 issue an interim order to grant anticipatory bail under sub-section (1), the court shall indicate therein the date, on which the application for grant of, anticipatory bail shall be finally heard for passing an order thereon, as the court may deem fit; and if the court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely:-
(i) that the applicant shall make himself available for interrogation by a police officer as and when required;
(ii) that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation against him so as to dissuade him from disclosing such facts to the court or to any police officer;
(iii) That the applicant shall not leave India without the previous permission of the court: and
(iv) Such other conditions as may be imposed under sub- section (3) of section 437 as if the bail was granted under that section.
(3) Where the court grants an interim order under sub-section (1), it shall forthwith cause a notice, being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Commissioner of Police, or as the case may be, the concerned Superintendent of police. With a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the court.
(4) The presence of the applicant seeking anticipatory bail shall be obligatory, at the time of final hearing of the application 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).”
Sub-chapter A is about ‘Summons’,
Sub-chapter B covers ‘Warrant of Arrest’
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 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.
“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 shall not, in any case, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.”
Section 76 refers to the provisions of Section 71 as a rider to the production before the Magistrate by the police.
Thus, it is clear on plain reading of Section 76 that if a Magistrate has used the discretion under section 71 and directed the police to release the person on surety, then it is not obligatory on the police officer to produce that person before the Magistrate and he is entitled to be released on the said surety mentioned in the warrant of arrest and shall remain present in the court on the specified date. It is to be noted that under sub-chapter B the legislature did not use a word as “bailable” or “non-bailable”. Warrant is always a warrant of arrest with direction empowering the police to release the accused on some surety or the warrant of arrest is without such orders.
Therefore, the word “non-bailable offence” which is used under section 438 of Cr. P.C. cannot be borrowed while interpreting the provisions of warrant of arrest under Chapter VI of Cr. P.C. Under sub-chapter B, the offence is referred as non-bailable, however, warrants are not classified and worded as non-bailable and bailable warrant though this nomenclature is coined routinely and rightly so as it conveys exact meaning. However, legislature did not use the said terminology “bailable or non-bailable warrant” in said sub-chapter, therefore, the meaning of non-bailable offence cannot be borrowed, transferred or substituted while understanding the meaning of Warrant of Arrest under Chapter VI.
“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, does not conform with the provisions of Section 438 of the Criminal Procedure Code.”
In the decisions of the Full Bench of Madhya Pradesh High Court in Nirbhay Singh (supra), Andhra Pradesh High Court in Smt. Sheik Khasim (supra) and Punjab and Haryana High Court in Puran Singh (supra). In all these cases, the offences in which warrant of arrest were issued were all non-bailable. In the case of Akhalaq Ahmed F. Patel (supra), the learned Single Judge of this Court was dealing with the warrant of arrest issued in the case of the offence of murder under section 302 of IPC. This warrant of arrest was issued by the Court at the time of issuance of process under section 204 of the Cr. P.C. and not like the present case which is distinguishable on two counts, one the offence under section 138 of N.I. Act is a bailable offence and secondly, warrant of arrest was issued by the learned Magistrate not while issuing the process under section 204 but using its powers under section 70 to procure his presence as he failed to attend the Court on number of occasions. Thus, the case of Akhalaq Ahmed F.Patel (supra) is on the different issue and is distinguishable.In R. Sarathkumar (supra) decided by the Single Judge of Madras High Court, the warrant was issued by the Metropolitan Magistrate in a complaint under section 138 of N.I. Act.
In the R. Sarathkumar case it was informed to the Magistrate that the matter was compromised. On 24th March, 2003 the complainant agreed to withdraw the complaint. So, summons in that case was not served on the petitioner 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. 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).
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