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Valsalakumari, K.V. vs State of Kerala

High Court Of Kerala · Decided on 27 August 2012 · Citation: (2013) 2 BC 161 : (2013) 3 Crimes 5 : (2013) 1 ILR (Ker) 450

HON’BLE JUDGES
Babu Mathew P. Joseph, J
ACTS & SECTIONS REFERRED
Criminal Procedure Code, 1973 (CrPC) — Section 438, 82 · Negotiable Instruments Act, 1881 (NI) — Section 138
RESULT
Dismissed
CASE NUMBER
B.A. No. 6404 of 2012
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Judgment

4 paragraphs · 331 words

Babu Mathew P. Joseph, J.—This petition is filed u/s 438 of Cr.P.C. for anticipatory bail. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor appearing for the respondent.

2.

The petitioner is the accused in S.T. No. 1484 of 2007 on the file of the Judicial First Class Magistrate''s Court, Ponnani. The offence alleged against her is u/s 138 of the Negotiable Instruments Act.

3.

Learned counsel for the petitioner submits that the learned Magistrate issued non-bailable warrant against the petitioner for securing her presence in the Court. Since her presence could not be secured, the learned Magistrate proceeded against her u/s 82 of Cr.P.C. In such a circumstance, the petitioner has preferred this petition u/s 438 of Cr.P.C.

4.

S. 438 of Cr.P.C. is attracted only when a person is apprehending arrest on accusation of having committed a non-bailable offence. Here, the petitioner does not apprehend arrest on accusation of having committed a non-bailable offence. But, her apprehension is the consequences of the steps taken by the learned Magistrate u/s 82 of Cr.P.C. Moreover, the offence alleged in this case is u/s 138 of the Negotiable Instruments Act which is not at all a non-bailable offence. Even if that is a non-bailable offence, in the circumstances, S. 438 will not be attracted. Here, the learned Magistrate is proceeding against the accused not because she is accused of having committed a non-bailable offence. In any view of the matter, Section 438 of Cr.P.C. cannot be invoked by the petitioner for the purpose for which she has approached this Court by filing this petition. This petition is only to be dismissed as not maintainable. Therefore, it is dismissed. Learned counsel for the petitioner now submits that if the petitioner approaches the learned Magistrate, there is every chance for sending her to jail turning down her prayer for bail. In the circumstances, it is for the petitioner to approach the learned Magistrate apprising the true facts seeking appropriate reliefs.