A petition for anticipatory bail is not maintainable in a case involving a bailable offence where a non-bailable warrant has been issued. The accused can approach the court to recall the warrant instead.

1. Apprehending arrest at the hands of the 1st respondent in connection with the case in S.T.C.No.1736 of 2008 on the file of the learned Judicial Magistrate NO.I, Ponneri, Thiruvallur District, the petitioner, who happens to be the sole accused in the said case, has come up with this original petition. This case has been instituted on a private complaint filed by the 2nd respondent for an offence under Section 138 of the Negotiable Instruments Act, 1881.

2. On service of summons, the petitioner was appearing before the learned Judicial Magistrate. But on a particular date of hearing, he did not appear and therefore, non-bailable warrant was issued for his arrest. The petitioner was aggrieved by the same. He filed a petition before this Court in Crl.O.P.No.29499 of 2010 seeking anticipatory bail. However, this court disposed of the petition with a direction to the petitioner to appear before the learned Magistrate with a petition under Section 70 (2) of Cr.P.C. to recall the non-bailable warrant and with further direction to the learned Judicial Magistrate to recall the same. Subsequently, the petitioner appeared before the learned Magistrate on 31.12.2010 and requested the court to recall the non-bailable warrant. According to the petitioner, though a direction was issued by this court to recall the warrant, the learned Magistrate did not recall the warrant. Instead, according to him, the said petition filed under Section 70(2) of Cr.P.C. was kept pending by the learned Magistrate without passing any order till 12.01.2011 and instead, the learned Magistrate directed the petitioner to produce two sureties worth Rs.25,000/- out of which, one should be blood relative to the petitioner. With these allegations, the petitioner has come up with this original petition seeking anticipatory bail apprehending arrest at the hands of the 1st respondent-police.

3. At the outset, it is needless to point out that this petition is not at all maintainable, since the offence under Section 138 of Negotiable Instruments Act is bailable. Though there may be apprehension of arrest at the hands of the police, still for the said apprehension, a petition for anticipatory bail cannot be entertained. The relief under Section 438 of Cr.P.C. is available only in respect of a case involving non-bailable offence. The question, as to whether a request for anticipatory bail under Section 438 of Cr.P.C. is maintainable in respect of a bailable offence on the ground that there has been a non bailable warrant issued by the Court, has been confronting the courts very often. There has been divergent arguments advanced at the bar though the Hon'ble Supreme Court had occasions to consider the said legal position on several times. Therefore, it is necessary to have a survey of the judgements on this subject in the light of the provision enshrined in Section 438 of Cr.P.C. It is needless to point out that Section 438 of Cr.P.C. was introduced as recommended in the 41st Law Commission Report. In the old Code of Criminal Procedure , there was no specific provision enabling the courts to grant anticipatory bail. The need for making such a provision was expressed by the Law Commission in the following words:-

"The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail .........."The, Law Commission, therefore, recommended for a provision for grant of anticipatory bail