The petitioner is the sole accused in a case involving offences under Sections 279 and 337 of IPC, which is pending before the Magistrate court. He failed to appear in court, in disobedience of summons issued from the court, and hence non-bailable warrants were against him. Proceedings under Sections 82 and 83 of the code of Criminal Procedure Code (‘the Code’, for short) were also initiated against him, to proclaim him as an absconding accused. He, therefore, apprehends arrest and hence, this application for anticipatory bail.

2. Onhearing both sides and on a reading of section 438 of the code, and on consideration of the object of the said provision, I find that anticipatory bail cannot be granted to petitioner mainly for

three reasons: i) apprehension of arrest of petitioner is not on accusation of having committed any non bailable offence, since the offences involved are only bailable offences; ii) the arrest sought for is consequent to lawful non-bailable warrant issued by a court having jurisdiction since the accused failed to appear on receipt of summons issued by the court; and iii) discretionary relief under section 438 is not intended to be extended in favour of a person who absconded and against whom, coercive steps are initiated by a court, as per law, to secure his presence.

3. Section 438 of the code reads as follows:

“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 Sessions for direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

.(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including –

.(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

.(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court.

.(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

.(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at anytime while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)”

4. A reading of Section 438 of the Code shows that primarily, two factors must exist to invoke Section 438, to grant anticipatory bail. The court must be satisfied that i) there is a reason to believe that the petitioner may be arrested and that ii) such apprehended arrest is on accusation of his having committed a non-bailable offence. Only if both these factors exist, the court may grant anticipatory bail. But, in cases where those twin conditions do not exist, the court shall not grant anticipatory bail under section 438 of the Code.

5. In this case, petitioner has reason to believe that he may be arrested, because non-bailable warrants are issued against him. Thus, there is satisfaction of one of the essentials under section 438. But, the offences involved in this case are all bailable offences and hence there cannot be any apprehension of arrest, on accusation of commission of a non-bailable offence.