An order passed under S.438 of the Criminal Procedure Code is not appealable under the Criminal Procedure Code, and therefore, the appeal is not maintainable under S.5(i) of the Kerala High Court Act.

J.B. Koshy, J.

The preliminary question to be considered in this appeal is whether an order passed by a learned Single judge under S.438 of the Criminal Procedure Code is appealable before a Division Bench in view of S.5(i) of the Kerala High Court Act. S.5 of the Kerala High Court Act reads as follows:

"5. Appeal from judgment or order of Single Judge: - An appeal shall lie to a Bench of two judges from

(i) a judgment or order of a single judge in the exercise of original jurisdiction;

(ii) a judgment of a single judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate Court/'

The registry refused to number the appeal doubting maintainability.

2. Learned counsel for the appellants mainly relied on the decision of a Full Bench of this Court in K.S. Das v. State of Kerala (1992 (2) KLT 358) wherein it was held that an appeal will lie to a Division Bench under S.5(i) of the Kerala High Court Act against an interlocutory order passed by a Single Judge in an Original Petition while the main petition is pending, in appropriate circumstances. In other words, if the interim order substantially affect or touch upon the substantial rights or liabilities of the parties an appeal will lie from such order of the learned Single Judge notwithstanding the fact that the order challenged is an interlocutory order and the main matter is pending. In that decision the Full Bench referred to the earlier Full Bench decision of this court in State of Kerala & Ors. v. Thankamma & Ors. (1968 KLT 390 (FB)) wherein this Court considered the scope of filing of an appeal under S.5(i) against an interlocutory order passed by a Single Judge before disposing of the Writ Petition finally. It is also submitted that the decision of a Division Bench of this Court in Abubacker Kunju v. Thulasidas (1994 (2) KLT 987) is not applicable as the Court was considering the question whether an appeal will lie against an order passed under S.482 of the Criminal Procedure Code. It was held that an order passed under S.482 is a supervise ;y or revisional order and, therefore, it is not an order passed under the original jurisdiction. Therefore, like orders passed under Art.227 of the Constitution of India orders passed under S.482 of the Criminal Procedure Code are also appealable. Here, the order was passed under the original jurisdiction and, therefore, it is argued that an appeal will lie before a Division Bench against the order passed by the Single Judge under S.438 Cr.P.C.

3. The appellants filed a petition for anticipatory bail under S.438 of the Criminal Procedure Code. The above petition was dismissed by the learned Single Judge as the above section is not applicable as appellants/ petitioners apprehended arrest in connection with a bailable offence. Parties can apply for anticipatory bail under S.438, only if they apprehend arrest in a non-bailable offence. The petitioners were charged for offences under S.138 of the Negotiable Instruments Act which is bailable. The preliminary question to be considered in the appeal is whether such an order passed under S.438 Cr.P.C. by the learned Single Judge is appealable to a Division Bench under S.5(i) of the Kerala High Court Act. At the outset, we note that no appeal is provided under the Criminal Procedure Code against an order passed under S.438 of the Criminal Procedure Code. So, no substantial right of appeal is provided, under the Criminal Procedure Code. According to the appellants, since this is an appeal filed under the original jurisdiction of the High Court, in view of the observations of the Full Bench of this Court in K.S. Das's case (supra), the appeal is maintainable. A Division Bench of this Court in, Manual v. Revenue Inspector (1968 KLT 485) held that no appeal will lie from the decision of a Single Judge of the High Court in a criminal matter before a Bench of two judges under S.5(ii) of the High Court Act. Of cours