The main legal point established in the judgment is that the maintainability of an application for anticipatory bail under Section 438, CrPC is preconditioned on the offence being non-bailable.

Jitendra Ray Goyal, J.-This is an application under Section 438 CrPC for anticipatory transit bail to the petitioner. According to the petitioner, one criminal matter under Section 138, of the Nagotiable Instruments Act is pending in the Court of Additional Chief Judicial Magistrate, Solan, Himachal Pradesh. Apprehending the arrest in that case, this anticipatory transit bail for a limited period has been sought. Learned Counsel for the petitioner contended that a false complaint has been filed against him and the petitioner received a summon issued by Additional Chief Judicial Magistrate, Solan Himachal Pradesh to be present there on 30/07/2005. Since the petitioner was sick, he immediately sent a letter of request for the postponement of the date but on 28/12/2005 two police men came at his residence, therefore, he is apprehending his arrest in this matter. Reliance has been placed on the Judgment s Harinder Singh and Ors vs. State of Rajasthan, reported in 2005 WLC U.C. 692 (Raj), Mahesh Kumar Sharma vs. State, reported in 2005 WLC U.C. 690 (Raj) and Chandan Mal J. Jain vs. State of Maharashtra and Anr., reported in 2001 (1) RCrD. 504 (Raj.)

2. Learned Public Prosecutor opposed this pre-arrest bail application and contended that even according to the accused petitioner case of bailable nature is pending before the Additional Chief Judicial Magistrate, Solan, Himachal Pradesh, therefore anticipatory bail is not maintainable in view of the provisions of Section 438, of the Code of Criminal Procedure. It is also submitted that alleged offence has been committed in the State of Himachal Pradesh, therefore, for this reason also anticipatory bail is not maintainable before this Court. Reliance has been placed on the full bench Judgment Syed Zafrul Hassan and Anr. vs. State, reported in AIR 1986 Patna 194.

3.I have considered the rival submissions. It is not disputed that alleged criminal matter under Section 138, of the Negotiable Instruments Act, which is pending against the petitioner in the court of Additional Chief Judicial Magistrate, Solan, Himachal Pradesh, is a bailable offence in which the accused petitioner is apprehending his arrest. For deciding the question whether anticipatory bail application in a case of bailable criminal matter is maintainable, it would be useful to have look on the provisions of Section 438, CrPC which reads as under:-

438. Discretion 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 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 theHigh 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 a 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 any time 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 per