Regupathi vs Govindan and Another

K.N. Basha, J.—The petitioner has come forward with this petition, praying to grant anticipatory bail for him on the ground that he is facing

trial in C.C. No. 324 of 2004 on the file of the Court of Judicial Magistrate, Kallakuruchi, for the offence u/s 138 of the Negotiable Instruments

Act wherein a Non-Bailable Warrant is issued against him.

Heard both sides.

Mr. A. Balaguru, the learned Counsel for the petitioner submitted that the petitioner was not able to appear before the trial Court on 15.7.2005,

though he was regularly appearing for all the dates of hearing, as a result of which, the learned Magistrate has issued a Non-Bailable Warrant

against the petitioner.

The offence u/s 138 of the Negotiable Instruments Act is a bailable one, since the same is punishable with imprisonment for a maximum period

of two years. But, unfortunately, the learned Magistrate has issued non-bailable warrant without a preceding bailable warrant where the offence is

bailable, is not in accordance with the scheme of the Criminal Procedure Code and hence illegal. Therefore, while exercising the power conferred

u/s 87, Cr. P. C. ''and issuing a warrant, in a case of bailable offence, the Magistrate shall always issue at the first instance a bailable warrant

(including the endorsement provided u/s 71, Cr.P.C.). If the person does not appear before the Court even after execution of bailable warrant, and

only then the Magistrate may issue a non-bailable warrant.

Section 71 of the Code of Criminal Procedure reads as follows:

Power to direct security to be taken:

(1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, If such person

executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court,

the officer to whom the warrant is directed shall take such security and shall release such person from custody.

(2) The endorsement shall state-

(a) the number of sureties;

(b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound;

(c) the time at which he is to attend before the Court.

(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court.

The decision of a learned single Judge of this Court is brought to my notice reported in 1994 2 LW (Cri) 764 in J.K.S. Manlckam v. The

Inspector of Police, Kumarapalayam, Salem District and Anr.. The learned single Judge of this Court held that Section 138 of the Negotiable

Instruments Act is bailable offence and the anticipatory ball petition is not maintainable. But the learned Judge has observed that the power u/s 71

of the Cr.P.C. may be exercised by the Magistrate as well as by the police officers concerned and thereby Indicating that the execution of the non-

bailable warrant by arresting the concerned persons is not necessary. The learned Judge made the following observation in the above cited

decision:

...it is rather crystal clear that the police officer, to whom the warrant had been forwarded for execution is given a discretion, from the person

sought to be arrested, to take security u/s 71, Cr.P.C.

Another decision of this Court reported in 2004 MLJ (Cri) 421 in R. Sarathkumar v. The Inspector of Police, C-9 Police Station, Neelankaral,

Chennal is also brought to my notice. The learned Judge in that decision has also considered the earlier decision of this Court, extracted supra, and

held that though the offence u/s 138 is a ball-able one, the Court is empowered to grant anticipatory bail to a person, against whom NBW was

Issued by the Magistrate. This Court has held, in that decision, as follows:

Therefore this Court, exercising the power u/s 482 read with 438, Cr.P.C. has the power to grant anticipatory bail, since non-bailable warrant has

been Issued by the Magistrate for a bailable offence.

The learned Judge has also held in the decision, as cited supra, that:

Non-bailable warrant Issued without a preceding bailable warrant where the offence is bailable is not in accordance with the scheme of the

Criminal Procedure Code and hence illegal. Therefore, while exercising the power conferred u/s 87, Cr.P.C. and issuing a warrant, in a case of

bailable offence, the Magistrate shall always issue at the first instance a bailable warrant (including the endorsement provided u/s 71, Cr. P.C). If

the person does not appear before the Court even after execution of bailable warrant, then, and only then the Magistrate may issue a non-bailable

warrant. Therefore, in all cases u/s 138 of the Negotiable instruments Act, though it is possible or there is no legal infirmity for the Magistrate to

issue a non-bailable warrant for the reasons to be recorded in writing, yet, considering the bailable nature of the offence u/s 138 of the Negotiable

Instruments Act the Magistrate shall always Issue ""bailable warrant"" at the first instance. For the above reasons there appears no reason or no

circumstances warranting the issue of non-bailable warrant in this case.

The above said proposition laid down by this Court is squarely applicable to the instance case, wherein the learned Magistrate, instead of

following the procedure contemplated u/s 71 of the Cr.P.C. has, straightway issued NBW against the petitioner, who is facing trial only u/s 138 of

the Negotiable Instruments Act, as a result of which, this Court is having power to grant anticipatory ball to the petitioner, by invoking Section 482

of the Cr.P.C. also.

Considering the facts and circumstances of the case, I am inclined to release the petitioner on anticipatory bail in the event of his arrest on his

executing a bond for a sum of Rs. 10,000/- (Rupees Ten Thousand only) together with two sureties each for a like sum to the satisfaction of the

Judicial Magistrate, Kallakurichi.

The petitioner shall surrender before the Court referred to above, for executing the bond and furnishing sureties within two weeks from the date of

receipt of a copy of this order, falling which, this order shall stand cancelled.