Himanshu @ Hemant Rajendra Bhatt vs The State Of Maharashtra

Vidya amin IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL ANTICIPATORY BAIL APPLICATION NO. 492 OF 2014

Himanshu @ Hemant Rajendra Bhatt ... Applicant

vs. The State of Maharashtra ... Respondent

Mr. Subhash Jha i/b. Law Global, Advocate for applicant.

Smt. A.A. Mane, APP for the State.

CORAM : MRS. MRIDULA BHATKAR, J.

RESERVED ON : 15th April, 2014. PRONOUNCED ON: 30th April, 2014.

P.C.

The applicant/accused has moved an application for anticipatory

bail under section 438 of Cr. P.C. against the order of issuance of non-

bailable warrant passed by the Additional Chief Metropolitan

Magistrate, 6th Court, Mazgaon, Mumbai in C.C. 1105/S/2005 in the

cases where the offence is registered against the applicant/accused

under section 138 of N.I. Act, 1881. Earlier the application for

anticipatory bail challenging the said order preferred before the learned

Sessions Judge, Greater Bombay is rejected on 4th March, 2014 and four

weeks time was granted to enable him to approach the Metropolitan

Magistrate Court to apply for cancellation of warrant to grant fresh bail.

2. The learned counsel for the applicant/accused has submitted that

the applicant/accused is facing charges under section 138 of N.I. Act &

though it is bailable, the learned Magistrate has issued non-bailable

warrant without ascertaining the genuine reasons of the absence of the

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applicant/accused before the Magistrate. He submitted that due to

communication gap between the applicant and his advocate, he could

not appear before the learned Magistrate and therefore, the trial Court

issued a non-bailable warrant and thereafter issued proclamation

against the applicant/accused. He submitted that the applicant was

arrested by CBI in R.C. No. RC-2/E/2013-EOW, Mumbai on 26 th August,

2013 and he was released by CBI Special Court on 19 th January, 2014.

Therefore, the applicant could not appear before the learned trial

Magistrate. The applicant is extremely apprehensive of his arrest if at

all he appears before the learned trial Court for seeking cancellation of

non-bailable warrant and therefore, he prays that he shall not be

arrested on the basis of non-bailable warrant and prays for anticipatory

bail. While arguing the case, the learned counsel submitted that though

under section 438 of Cr. P.C. bail is granted for non-bailable offence and

section 138 of N.I. Act is a bailable offence, yet the Court has power to

grant anticipatory bail if non-bailable warrant is issued by the

Magistrate as accused apprehends the arrest. In support of his

submissions, he relied on the following decisions:

(i) Judgment of the Single Judge of Madras High Court in the

case of R. Sarathkumar vs. The Inspector of Police,

Neelankarai, Chennai reported in 2004(1) MLJ (Cri) 421.

(ii) Judgment of Single Judge of this Court in the case of

Akhalaq Ahmed F. Patel vs. State of Maharashtra reported in

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1998 Cri. L.J. 3969.

(iii) Judgment of the Single Judge of Madras High Court in the

case of Ragupathi vs. Govindan reported in 2006(2) MLJ

(Cri) 336.

He submitted that the Single Judges of this Court have granted

anticipatory bails earlier in the cases which are registered under the

provisions of Section 138 of N.I. Act.

3. Learned APP opposed the application. She submitted that

anticipatory bail cannot be granted in this case where the Magistrate

has issued non-bailable warrant against the applicant/accused. She

submitted that many cases are pending against the applicant/accused

before the learned trial Magistrate. As the applicant did not appear

before the learned trial Magistrate, non-bailable warrant was issued and

further proclamation against the applicant/accused is also issued. She

submitted that the applicant/accused is deliberately avoiding to appear

before the learned Magistrate and seeking protection before this Court

bypassing a proper procedure of appearance before the learned

Magistrate. She argued that in view of section 70(2) of Cr. P.C., a

warrant of arrest remains in force unless is cancelled by the Court which

issued it or until it is executed. The order of issuance of non-bailable

warrant or order of proclamation undoubtedly can be challenged before

the High Court and it can be cancelled, if found illegal under section

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482 of the Cr. P.C. or under writ jurisdiction. It is necessary for the High

Court to ascertain the legality of the order passed by the learned

Magistrate on the basis of law as well as the facts of each case. The

order can be challenged under section 482 of Cr. P.C. The Magistrate

has passed an order of arrest of the accused under section 70 of Cr. P.C.

which comes under Chapter VI i.e. 'Processes To Compel Appearance'.

The present application is not filed under section 482 of Cr. P.C. which

confers inherent power to the High Court to pass directory orders to

give effect to any order under this Code and also to prevent abuse of the

process of any Court and also to secure the ends of justice. Therefore,

the Application is not maintainable and hence rejected

4. Thus, a question before me is limited as to whether this Court can

invoke its power under section 438 of Cr. P.C. to grant anticipatory bail

when the Magistrate has issued non-bailable warrant in the case filed

under section 138 of N.I. Act. Under section 438 of Cr. P.C., the Sessions

Court and High Court has power to grant bail to a person apprehending

arrest in non-bailable offence. If a person is arrested in the bailable

offence, then he has right to be released on bail by giving surety either

before the police or before the learned Magistrate. When a person is

arrested in non-bailable offence, then it is a discretion of a Court

depending on the gravity of a matter to grant bail or not. Therefore,

Section 438 provides a special provision to protect liberty against the

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arrest in non-bailable offence and get pre-arrest bail. The section

unequivocally states that the power to grant pre-arrest bail can be used

by the Court only in respect of reasonable apprehension of an arrest in

non-bailable offence. An offence under section 138 of N.I. Act is a

bailable offence, hence a Magistrate issues warrant of arrest in the

proceedings under section 138 of N.I. Act, then it being not in non-

bailable offence; I am of the view that this Court or Sessions Court

cannot use the powers of anticipatory bail under section 438 of Cr. P.C.

The learned Sessions Court has hence rightly rejected the application for

anticipatory bail.

5. Chapter VI of the Cr. P.C. provides various powers to the Courts to

procure the presence of an accused or a witness or any person. If an

accused is not appearing before the Court, then in the absence of

coercive and deterrent powers, the Court is like a paper tiger. The Court

cannot be helpless or powerless if the law is to be implemented.

Therefore, the processes to compel the appearance under Chapter VI are

provided by the legislature. The Court is required to first issue

summons, thereafter a bailable warrant and if a person is not appearing

before the Court then to issue non-bailable warrant. Issuance of

warrant of arrest without issuing summons or bailable warrant is always

deprecated. However, after taking proper steps for procuring the

appearance of the person, if he remains absent without good cause,

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then Magistrate if issues warrant of arrest during the trial, it is the duty

of the police to arrest the person and produce him before the said Court.

A Magistrate is a master of his Court and a learned Magistrate knows

that an accused/a witness is avoiding to appear in the Court

deliberately, therefore, he issues a non-bailable warrant. Thus, there are

different stages when order directing the police to produce a particular

person before the Magistrate are issued.

6. Under Section 70(1) of the Code of Criminal Procedure, warrant

of arrest can be issued.

7. Section 70(2) reads as follows:

"Every such warrant shall remain in force until it is cancelled by

the Court which issued it, or until it is executed. (emphasis supplied)

Therefore the Court, who has issued the warrant, has power and

discretion to cancel the warrant. After issuance of non-bailable warrant,

the accused/witness has to appear before the Court and he may file an

application explaining the reasons for his non-appearance, then it is

upto the trial Court to consider the application to release him on bail or

to take him in prison. Such order cannot be considered as an order

passed in non-bailable offence.

8. The offences are categorized in two groups in the schedule in the

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Cr. P.C., i.e. bailable and non-bailable depending on the gravity and the

seriousness of the offence and therefore a bail is a right of the accused

in all bailable offences. If a person is made an accused in non-bailable

offence, then his liberty is in jeopardy, so valuable provision under

section 438 for grant of anticipatory bail is made in the Code

9. Section 438 of Cr. P.C. reads as under:

"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 Session for a direction under this section that in the event of such arrest, he shall be released on bail; and that court may,

after taking into consideration, inter alia, the following factors.

(i) the nature and gravity or seriousness of the accusation as apprehended by the applicant;

(ii) the antecedents of the applicant including the fact as to

whether he has, on conviction by a court previously undergone imprisonment for a term in respect of any cognizable offence;

(iii) the likely object of the accusation to humiliate or malign

the reputation of the applicant by having him so arrested, and

(iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice, either reject the application forth with or issue an interim

order for the grant of anticipatory bail:

Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (2) Where the High Court or, as the case may be, the Court of Session, consider it expedient to issue an interim order to grant anticipatory bail under sub-section (1), the court shall indicate therein the date, on which the application for grant

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of, anticipatory bail shall be finally heard for passing an order thereon, as the court may deem fit; and if the court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely:-

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

(ii) that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation against him so as to dissuade him from disclosing such facts to the court or to any police

officer;

(iii) That the applicant shall not leave India without the previous permission of the court: and

(iv) Such other conditions as may be imposed under sub-

section (3) of section 437 as if the bail was granted under that

section.

(3) Where the court grants an interim order under sub-section (1), it shall forthwith cause a notice, being not less than seven

days notice, together with a copy of such order to be served on the Public Prosecutor and the Commissioner of Police, or as the case may be, the concerned Superintendent of police. With a view to give the Public Prosecutor a reasonable opportunity

of being heard when the application shall be finally heard by the court.

(4) The presence of the applicant seeking anticipatory bail shall be obligatory, at the time of final hearing of the application and passing of final order by the court, if on an application made to it by the Public Prosecutor, the court

considers such presence necessary in the interest of justice. (5) On the date indicated in the interim order under sub- section (2), the court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it

may either confirm, modify or cancel the interim order made under subsection (1)."

10. Chapter VI is classified in sub-chapter A, B and C. Sub-chapter A

is about 'Summons', sub-chapter B covers 'Warrant of Arrest' and sub-

chapter C is regarding 'Proclamation and attachment'. In sub-chapter B,

the warrant of arrest is issued under section 70 of the Code by the Court

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and Section 71 states that the Court has discretion while issuing the

warrant of arrest to direct the police by endorsement on the warrant

that, if such person executes a bond with sufficient securities and attend

the Court at specified time then he may be released from custody after

execution of such security. The details of the surety may be mentioned

in the order. Thus, under section 71 the Court authorizes the police

officer to release the person on surety depending on the circumstances

of the facts and issues bailable warrant. The Court may not use that

discretion available under section 71 but may simply issue warrant of

arrest. The police in execution of the said warrant under section 70 of

Cr.P.C. shall without unnecessary delay produce the person before the

Court. Under section 76 of Cr. P.C. it is obligatory on the police officer

or a person executing the warrant of arrest to produce the person before

the Court subject to section 71. Section 76 reads as follows:

"The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to

security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person.

Provided that such delay shall not, in any case, exceed

twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court."

Section 76 refers to the provisions of Section 71 as a rider to the

production before the Magistrate by the police. Thus, it is clear on plain

reading of Section 76 that if a Magistrate has used the discretion under

section 71 and directed the police to release the person on surety, then

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it is not obligatory on the police officer to produce that person before

the Magistrate and he is entitled to be released on the said surety

mentioned in the warrant of arrest and shall remain present in the court

on the specified date. It is to be noted that under sub-chapter B the

legislature did not use a word as "bailable" or "non-bailable". Warrant

is always a warrant of arrest with direction empowering the police to

release the accused on some surety or the warrant of arrest is without

such orders. Therefore, the word "non-bailable offence" which is used

under section 438 of Cr. P.C. cannot be borrowed while interpreting the

provisions of warrant of arrest under Chapter VI of Cr. P.C. Under sub-

chapter B, the offence is referred as non-bailable, however, warrants are

not classified and worded as non-bailable and bailable warrant though

this nomenclature is coined routinely and rightly so as it conveys exact

meaning. However, legislature did not use the said terminology

"bailable or non-bailable warrant" in said sub-chapter, therefore, the

meaning of non-bailable offence cannot be borrowed, transferred or

substituted while understanding the meaning of Warrant of Arrest under

Chapter VI.

11. In the case of Akhalaq Ahmed F. Patel (supra), the offence was

registered under section 498A, 302 r/w. 34 of IPC against the petitioner

who was released on bail on 24 th January, 1996. Nearly after 2 years

private complaint was presented before the Additional Chief

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Metropolitan Magistrate, Borivili, Mumbai. On the basis of the

complaint, the learned Magistrate issued non-bailable warrant. Against

that order, the petitioner moved an application for anticipatory bail

under section 438 of Cr.P.C, which was rejected by the Additional

Sessions Judge. The Single Judge of this Court turned down the order

of Sessions Judge and relied on number of cases especially (i) Full

Bench decision of Andhra Pradesh High Court in the case of Smt. Sheik

Khasim vs. State reported in AIR 1986 AP 345; (ii) Full Bench

decision of Madhya Pradesh High Court in the case of Nirbhay Singh

vs. State of Madhya Pradesh reported in MANU/MP/0316/1994; and

(iii) Division Bench judgment of Punjab and Haryana High Court in the

case of Puran Singh vs. Ajit Singh reported in

MANU/PH/0351/1984. In the case of Akhalaq Ahmed F. Patel

(supra) in the last portion of paragraph 3, the learned Single Judge has

held as under:

"In view of the aforesaid enunciation of law by various Courts of this country, it is not possible to hold as a proposition of law that Sessions Court or the High Court will have no power to entertain the application for anticipatory bail where either summons or warrants have been issued against the accused.

The Court has the jurisdiction to grant anticipatory bail on being satisfied that the accused apprehends arrest in a non- bailable offence. It is difficult, therefore, to appreciate the reasoning of the learned Additional Sessions Judge to the effect that the application for anticipatory bail is inconceivable because the applicant is liable to be arrested on the basis of the directions issued by the Magistrate rather than the police. This reasoning, in my view, does not conform with the provisions of Section 438 of the Criminal Procedure Code."

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12. I have gone through the decisions of the Full Bench of Madhya

Pradesh High Court in Nirbhay Singh (supra), Andhra Pradesh High

Court in Smt. Sheik Khasim (supra) and Punjab and Haryana High

Court in Puran Singh (supra). In all these cases, the offences in which

warrant of arrest were issued were all non-bailable. In the case of

Akhalaq Ahmed F. Patel (supra), the learned Single Judge of this Court

was dealing with the warrant of arrest issued in the case of the offence

of murder under section 302 of IPC. This warrant of arrest was issued

by the Court at the time of issuance of process under section 204 of the

Cr. P.C. and not like the present case which is distinguishable on two

counts, one the offence under section 138 of N.I. Act is a bailable

offence and secondly, warrant of arrest was issued by the learned

Magistrate not while issuing the process under section 204 but using its

powers under section 70 to procure his presence as he failed to attend

the Court on number of occasions. Thus, the case of Akhalaq Ahmed F.

Patel (supra) is on the different issue and is distinguishable.

13. In R. Sarathkumar (supra) decided by the Single Judge of

Madras High Court, the warrant was issued by the Metropolitan

Magistrate in a complaint under section 138 of N.I. Act. In the said case

it was informed to the Magistrate that the matter was compromised. On

24th March, 2003 the complainant agreed to withdraw the complaint.

So, summons in that case was not served on the petitioner and the

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petitioner/accused did not remain present. Therefore, the Magistrate

issued non-bailable warrant and so he approached the High Court for

anticipatory bail. Thus, the Magistrate issued non-bailable warrant for

the bailable offences under section 138 of N.I.Act. It was held that

though the offence is bailable, the warrant issued is non-bailable,

therefore, anticipatory bail can be granted. The Court held that the

power of issuance of warrant cannot be exercised mechanically. It was

held that High Court has inherent power under section 482 of Cr. P.C.,

however, since it was not argued, orders cannot be passed exercising the

power under section 482 of Cr. P.C. and therefore, the High Court has

exercised the powers under section 482 r/w. 438 of Cr. P.C. With respect

I cannot subscribe the view taken by the learned Single Judge of Madras

High Court for the reasons given above.

14. In the case of Ragupathi (supra) the learned Single Judge of

Madras High Court has relied on earlier ratio laid down in R.

Sarathkumar (supra).

15. Thus, in all the cases discussed above except the decision of the

Single Judge of Madras High Court, the respective Magistrates have

issued non-bailable warrants in non-bailable offences. As per section

438 of Cr. P.C., a person should have reason to believe that he may be

arrested on accusation of having committed a non-bailable offence. The

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Section itself specifies and limits that powers under section 438 can be

invoked by the Courts in respect of non-bailable offences only. When

the offence is bailable, as a rule, an applicant is bound to get bail.

16. Another crucial question required to be answered is whether

powers under section 438 can be invoked by a Court in all the instances

of issuance of non-bailable warrant by the Magistrate when non-bailable

offences are pending before the Magistrate or not? In Nirbhay Singh

(supra) and Akhalaq Ahmed F. Patel (supra), non-bailable warrant was

issued by the learned Magistrates while issuing process under section

204 of Cr. P.C. i.e. immediately after taking the cognizance of the matter.

In Puran Singh (supra) the Division Bench of Punjab and Haryana High

Court held that that the power to grant anticipatory bail cannot be

restricted only till the time and order is passed by the Magistrate under

section 204 of Cr. P.C. against the accused. Section 438 is to be used

liberally as it vests wider power to the Court to achieve the object to

protect the individuals' liberty. Relying on sub-section (1) and (3) of

Section 438 in Puran Singh (supra) it was held that it was an intention

of the legislature that the power conferred under section 438 can be

exercised till the order regarding bailable warrant had been issued by

the Magistrate. However, in all the judgments referred above, the

learned Judges of the respective High Courts have unanimously laid

down the ratio that to grant a bail under section 438(1) of Cr. P.C.

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depends on the merit of a particular case.

17. Section 70 empowers the Magistrate to issue warrant of arrest to

procure the appearance of the person. This statutory power has

deterrent force compelling a person to obey the orders of the Court. It

is a very valuable provision in the Criminal Procedure Code. On

number of occasions the Court is required to issue warrant of arrest,

either bailable or non-bailable. The order of warrant of arrest while

issuing process under section 204 of the Code is one of such

circumstances when a Court may issue warrant. Non-bailable warrant

issued under section 204 in non-bailable offences as per the settled

position can be challenged under section 438 of Cr. P.C. and the person

against whom such warrant is issued may seek a pre-arrest protection

under section 438 of the Code. However, considering the object and

spirit of power of warrant conferred upon the Magistrate, I am of the

view that in all the orders of non-bailable warrant even in non-bailable

offences anticipatory bail under section 438 of the Cr. P.C. cannot be

granted. If a person once granted a regular bail in non-bailable offence

and thereafter he fails to appear before the Court either on the specific

dates or during the trial, then the Magistrate after considering his

conduct may issue warrant of arrest, i.e., non-bailable warrant to

procure his appearance. Under such circumstances, the only proper

remedy available to the said person as contemplated under section

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70(2) of Cr. P.C. is to go before the same Court for cancellation of the

said warrant.

18. A Magistrate who issues a warrant knows fully why the accused is

avoiding to remain present before the Court and non-appearance causes

obstruction in the smooth working of the Court. It is a hurdle in speedy

disposal of the matter and therefore the Magistrate issues non-bailable

or bailable warrant. On number of occasions, a Magistrate is

constrained to issue non-bailable warrant to compel a person to appear

before the Court as the trial is at a standstill for want of appearance. To

remove this stagnation, the appearance is a must. Though pre-arrest

bail can be granted under section 438, however, it cannot be granted in

any or each and every impending arrest in non-bailable offence, which

is pursuant to a warrant of arrest issued by the learned Magistrate for

any other purpose but not under section 204 of Cr. P.C. Thus,

anticipatory bail cannot be sought when warrant is issued during the

trial due to non-attendance of the accused. If all the sub-sections of

Section 438 are taken into account, the very language of the statute

compels this construction. While granting anticipatory bail, the Court

has to consider the four factors including the antecedants of the

applicant. There is a provision of interim bail, so also it is obligatory for

the Court to give notice to the Public Prosecutor and hear the

prosecutor. However, if the warrant of arrest is issued by the Judicial

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Magistrate for non-attendance of a particular person, then it is not

obligatory on the said Magistrate to hear the prosecution. There is no

such provision of interim bail available while cancelling the warrant

issued under section 70 of Cr. P.C. Moreover, while granting

anticipatory bail, the Court has to see that the applicant shall be

available for interrogation by the police officer as and when required.

Thus, it is amply clear that the anticipatory bail, which is an

extraordinary provision which protects the liberty of an individual can

be used before he is taken into custody by the police first time after the

registration of an offence against him. Once he is taken in custody, this

power is not available to the Court and also cannot be invoked. Thus,

within the purport of Section 438 of Cr. P.C. grant of pre-arrest bail is

not available to the Sessions Court or the High Court when warrant of

arrest issued is by the Magistrate except warrant of arrest issued under

section 204 of Cr. P.C. Under section 204 of Cr. P.C. the Magistrate takes

cognizance and thereafter issues the warrant, so this is the first instance

that the person is booked for some offence, which may be either by the

police or by the Magistrate.

19. Thus, arrest pursuant to warrant of arrest issued under section 70

of the Code has wider import than the arrest apprehended under section

438 of the Code. It needs to be clarified that such order of issuance of

warrant of arrest by the Magistrate can be challenged before the High

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court under section 482 of the Code or by filing Writ under Article

226/227 of the Constitution, but not under section 438 of the Cr. P.C.

20. In the present case, the learned APP has pointed out that this

applicant/accused has been deliberately avoiding to appear before the

learned Magistrate. The order passed by the Sessions Court is

absolutely legal and the learned Sessions Judge is fair enough to

provide four weeks breathing time to the applicant/accused to go before

the learned Magistrate and get his warrant cancelled. I maintain the

said order, hence the Application is dismissed.

(MRS. MRIDULA BHATKAR, J.)

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