K.N. Basha, J.—The petitioner has come forward with this petition, praying to grant anticipatory bail for him on the ground that he is facing trial in C.C. No. 324 of 2004 on the file of the Court of Judicial Magistrate, Kallakuruchi, for the offence under Section 138 of the Negotiable Instruments Act wherein a non-bailable warrant is issued against him.

2. Heard both sides.

3. Mr. A. Balaguru, the learned Counsel for the petitioner submitted that the petitioner was not able to appear before the Trial Court on 15.7.2005, though he was regularly appearing for all the dates of hearing, as a result of which, the learned Magistrate has issued a non-bailable warrant against the petitioner.

4. The offence under Section 138 of the Negotiable Instruments Act is a bailable one, since the same is punishable with imprisonment for a maximum period of two years. But, unfortunately, the learned Magistrate has issued non-bailable warrant without a preceding bailable warrant where the offence is bailable, is not in accordance with the scheme of the Criminal Procedure Code and hence illegal. Therefore, while exercising the power conferred under Section 87, Cr.P.C. and issuing a warrant, in a case of bailable offence, the Magistrate shall always issue at the first instance a bailable warrant (including the endorsement provided under Section 71, Cr.P.C.). If the person does not appear before the Court even after execution of bailable warrant, and only then the Magistrate may issue a non-bailable warrant.

5. Section 71 of the Code of Criminal Procedure reads as follows:

“Power to direct security to be taken:

(1) Any Court issuing a warrant for the arrest of any person may in its discretion directed by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.

(2) The endorsement shall state—

(a) the number of sureties;

(b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound;

(c) the time at which he is to attend before the Court.

(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court.”

6. The decision of a learned Single Judge of this Court is brought to my notice reported in 1994(2) LW (Cri.) 764 in J.K.S. Manickam v. The Inspector of Police, Kumarapalayam, Salem District and Another1. The learned Single Judge of this Court held that Section 138 of the Negotiable Instruments Act is bailable offence and the anticipatory bail petition is not maintainable. But the learned Judge has observed that the power under Section 71 of the Cr.P.C. may be exercised by the Magistrate as well as by the police officers concerned and thereby indicating that the execution of the non-bailable warrant by arresting the concerned persons is not necessary. The learned Judge made the following observation in the above cited decision:

“…It is rather crystal clear that the police officer to whom the warrant had been forwarded for execution is given a discretion, from the person sought to be arrested, to take security under Section 71, Cr.P.C.”

Another decision of this Court in R. Sarathkumar v. The Inspector of Police2, C-9 Police Station, Neelankarai, Chennai is also brought to my notice. The learned Judge in that decision has also considered the earlier decision of this Court, extracted supra, and held that though the offence under Section 138 is a bailable one, the Court is empowered to grant anticipatory bail to a person, against whom NBW was issued by the Magistrate. This Court has held, in that decision, as follows:

“Therefore this Court, exercising the power under Section 482 read with Section 438, Cr.P.C. has the power to grant anticipatory bail, since non-bailable warrant has been i