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.
Subsequently, in R.K.Krishna Kumar v. State of Assam and others, AIR 1998 SC 530, the Hon'ble Supreme Court in para 11 has held as follows:-
"11. ...... However, when those material allegations levelled against the appellants are considered vis-a-vis the 'unlawful activities' envisaged under the Act it cannot be said that they are liable for an offence under Section 13 of the Act, much less under the aforesaid offences under the Indian Penal Code. Resultantly, the question of granting anticipatory bail to the appellants under Section 438 of the Code of Criminal Procedure cannot and does not arise for an offence under Section 10 of the Act is bailable; and a direction under the former can be issued only in respect of a non-bailable offence. Viewed in that context the merits of the appellants contention that they have not committed any offence alleged against them need not be gone into."
[Emphasis supplied] Similarly, in Joginder @ Jindi v. State of Haryana , 2008 (10) SCC 138, a Division Bench of the Hon'ble Supreme Court has held as follows:-
"Since the petitioner alleges that the offences charged are bailable offences, the High Court was not justified in holding that custodial interrogation was necessary. Section 438 Cr.P.C. in terms relates to non-bailable offences." Therefore, a petition under Section 438 Cr.P.C. in relation to bailable offences is misconceived, even if it is accepted that alleged offences are bailable. However, if the petitioner surrenders and seeks regular bail, the same shall be considered uninfluenced by any observations made by the High Court."
Madras High Court
S.Kannan vs State Rep. By on 21 February, 2011
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 138of 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 thatSection 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. It was accordingly introduced in the Code of Criminal Procedure, 1973.
4. A very reading of the report would make it very clear that it is only to avoid unnecessary detention in prison for a few days until a person gets out of bail, this provision was recommended and accordingly introduced in the new Code. In the working of the said provision, there were lot of divergent views taken by various courts. All such possible doubts were set at rest by the Hon'ble Supreme Court in the Constitution Bench Judgement in GURBAKSH SINGH SIBBIA v. STATE OF PUNJAB, 1980 SCC (Cri) 465 wherein the Constitution Bench of the Hon'ble Supreme Court has issued guidelines for the courts to follow in the matter of granting anticipatory bail. But, in the said judgement, the Constitution Bench had no occasion to declare that such a petition for anticipatory bail could not be maintained as against a bailable offence where non-bailable warrant has been issued. Subsequently, in R.K.Krishna Kumar v. State of Assam and others, AIR 1998 SC 530, the Hon'ble Supreme Court in para 11 has held as follows:-
"11. ...... However, when those material allegations levelled against the appellants are considered vis-a-vis the 'unlawful activities' envisaged under the Act it cannot be said that they are liable for an offence under Section 13 of the Act, much less under the aforesaid offences under the Indian Penal Code. Resultantly, the question of granting anticipatory bail to the appellants under Section 438 of the Code of Criminal Procedure cannot and does not arise for an offence under Section 10 of the Act is bailable; and a direction under the former can be issued only in respect of a non-bailable offence. Viewed in that context the merits of the appellants contention that they have not committed any offence alleged against them need not be gone into."
[Emphasis supplied] Similarly, in Joginder @ Jindi v. State of Haryana , 2008 (10) SCC 138, a Division Bench of the Hon'ble Supreme Court has held as follows:-
"Since the petitioner alleges that the offences charged are bailable offences, the High Court was not justified in holding that custodial interrogation was necessary. Section 438 Cr.P.C. in terms relates to non-bailable offences." Therefore, a petition under Section 438 Cr.P.C. in relation to bailable offences is misconceived, even if it is accepted that alleged offences are bailable. However, if the petitioner surrenders and seeks regular bail, the same shall be considered uninfluenced by any observations made by the High Court."
[Emphasis supplied] But, a judgement of this Court rendered by a Hon'ble Judge of this Court inR.Sarath Kumar v. The Inspector of Police, 2004 MLJ (Cri) 421 and another judgement of yet another Hon'ble Judge of this Court in Regupathi v. Govindan and another , 2006 (2) MLJ (Crl) 336 : 2006 Crl.L.J. 4232 are very often quoted to substantiate the contention that anticipatory bail petition is maintainable even in a case involving bailable offence. I had an occasion to closely go through these two judgements while deciding the case in Venkatesh Babu v. State of Tamil Nadu, 2009 1- L.W. (Crl) 80 wherein I have held that in respect of a case involving bailable offence, though the fact remains that a non bailable warrant has been issued against the accused, the same shall not convert the offence into one of non-bailable so as to maintain a petition under Section 438 of Cr.P.C. I have also held that even Section 482 of Cr.P.C. cannot be invoked to issue a direction for the release of the accused on arrest. I was of the view that what cannot be expressly done under Section 438 of Cr.P.C. cannot be impliedly done under Section 482 of Cr.P.C. After the judgement, in Venkatesh Babu's case cited supra, was reported in Law Weekly Criminal , a learned Advocate from Tiruchirappalli Bar Association has written a critical analysis of the said judgement in the Journal Section of 2009 (1) L.W. (Criminal) 62 (JS) wherein he has stated that the said judgement has not decided the law correctly. He has further stated in the article that the inherent power of the High Court is quite flexible and when an individual's personal liberty is in jeopardy, that too due to the mistake of the court and for no fault of the party the High Court can and must unhesitatingly exercise its inherent power to rectify the error by either quashing the NBW or by granting anticipatory bail. He has further sated that the plenary powers of the High Court under Section 482 Cr.P.C. cannot be put in a straight-jacket formula or water tight compartment. It is not to trot along the path of justice like a blinkered horse. It is good to remember the age old legal axioms that justice must be tempered with mercy, laws are made for men and not vice versa, etc. which have a purpose and meaning. The article further proceeds to say that the tendency to tinker with an individual's liberty in a casual manner must be eschewed at all costs. In my view , these comments made by the learned Advocate are very fair and such comments would truly contribute for the march of law. Courts are not unduly sensitive to fair comment or even outspoken comments made regarding their judgements and orders made objectively and fairly. But, at the same time, the critics should not cross their bounds so as to make unwarranted comments or insinuations about the judgements which may impede the confidence of the people in the judicial system of the country. Be that as it may, let me again return back to the discussion on the legal issue.
5. After the judgement in Venkatesh Babu's case cited supra, the very same issue came up for consideration before thiis Court in Ravi v. The State , rep. By the Inspector of Police, Jayakondam Police Station, Ariyalur District and another, 2009 (2) MWN (cr.) 138 wherein, yet another Hon'ble Judge of this Court in paragraph 5 has held as follows:-
"5. The instance case does not come under sub-section (2) of Section 436 . Therefore, this court is of the view that the petition must fail. Accordingly, this petition is dismissed. The petitioner can very well seek the cancellation of the Non-Bailable Warrant or surrender and seek his release on bail underSection 436 of Cr.P.C. since admittedly he has not executed any bond on earlier occasion."
6. Now, coming to the judgement of this Court in R.Sarathkumar's case cited supra, the learned Judge, has in more than one place, stated that the petition for anticipatory bail is not maintainable in a case falling under Section 138 of the Negotiable Instruments Act because the offence is bailable. However, the learned Judge at last granted anticipatory bail. In my considered opinion, the said judgement has not laid down the law correctly in view of the law laid down by the Hon'ble Supreme Court on several occasions, more particularly, in R.K.Krishna Kumar's case reported in AIR 1998 SC 530 and Joginder @ Jindi's case reported in (2008) 10 SCC 138 referred to above. The other judgement of yet another learned Judge of this Court in Regupathi's case reported in 2006 Cr.L.J. 4232 also relates to an offence under Section 138 of the Negotiable Instruments Act, wherein also the learned Judge had no occasion to consider the judgement of the Hon'ble Supreme Court in R.K.Krishna Kumar's case referred to above. The learned Judge has relied on the earlier judgement of this Court in R.Sarathkumar's case. It was only after analysing all the above and in the light of the various judgements of the Hon'ble Supreme Court, I had to hold in Venkatesh Babu's case, cited supra, that such a petition for anticipatory bail is not maintainable in respect of a bailable offence notwithstanding the fact that non bailable warrant has been issued. It is not as though the person against whom non-bailable warrant is issued is remediless. He can very well approach the court concerned for recall of warrant. The only apprehension which is raised very often is that the accused may be remanded to judicial custody by the Magistrate declining to recall the warrant. Though there may be such instances, for that matter, the High Court cannot assume jurisdiction under Section 438 of Cr.P.C. to entertain a petition for anticipatory bail in such a situation. At this juncture, it is also worthwhile to refer to the guideline No.(ii) issued by the Hon'ble Supreme Court in Gurubaksh SinghSibbia's case reported in AIR 1980 SC 1632 which reads as follows:-
ii) Before power under Sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere "fear" is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section."
[Emphasis supplied] It is needless to point out that if the view taken by the High Court on a particular legal issue is not in consonance with either the judgement of the Hon'ble Supreme Court on the same issue or if the same runs contrary to the statutory provision, surely, the said judgement requires to be rendered as per incuriam. In this regard, we may refer to the recent judgement of the Hon'ble Supreme Court in Kishan Rao v. Nikhil Super Speciality Hospital and another, (2010) 5 SCC 513, wherein, the Hon'ble Supreme Court in paragraphs 54 and 55 has held as follows:-
"54. When a judgement is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered per incuriam. This concept of per incuriam has been explained in many decisions of this Court. Justice Sabyasachi Mukharji (as his Lordship then was) speaking for the majority in the case of A.R. Antulay vs. R.S. Nayak and anotherreported in (1988) 2 SCC 602 explained the concept in paragraph 42 at page 652 of the report in following words:-
"42. ..... 'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
Subsequently also in the Constitution Bench judgement of this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and others reported in (1990) 3 SCC 682, similar views were expressed in para 40 at page 705 of the report.
55. The two-Judge Bench in D'souza's case [2009 (3) SCC 1] has taken note of the decisions in Indian Medical Association v. V.P.Shantha, (1995) 6 SCC 651 and Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, but even after taking note of those two decisions, D'souza's case gave those general directions in paragraph 106 which are contrary to the principles laid down in both those larger Bench decisions. The larger Bench decision in J.J. Merchant (Dr.) v Shrinath Chaturvedi, (2002) 6 SCC 635 has not been noted in D'souza's case. Apart from that, the directions in paragraph 106 in D'souza's case are contrary to the provisions of the governing statute. That is why this Court cannot accept those directions as constituting a binding precedent in cases of medical negligence before consumer Fora. Those directions are also inconsistent with the avowed purpose of the said Act."
7. In this case, as I have already stated, the judgements of this Court in R.Sarathkumar's case and Regupathi's case cited supra are not in consonance with the judgements of the Hon'ble Supreme Court referred to above and also the provision contained in Section 438 of Cr.P.C. Therefore, with respect, I hold that these two judgements are per incuriam and so they are not binding precedents. The judgements of the Hon'ble Supreme Court referred to above only have declared the law binding all the courts through out the country. In such view of the matter, I hold that this petition for anticipatory bail is not maintainable.
8. Now coming to the facts of the case, as of now, there is no non-bailable warrant pending for the arrest of the petitioner. Apprehending arrest in execution of the non-bailable warrant issued earlier when the petitioner approached this Court for anticipatory bail, my predecessor has rightly declined to grant anticipatory bail instead directed the petitioner to appear before the learned Magistrate and get the warrant recalled. Since it was stated that on his appearance the non-bailable warrant was not recalled, this Court by order dated 03.02.2011, directed the Registry to call for remarks from the learned Magistrate. Accordingly, the learned Magistrate has submitted her remarks on 09.02.2011, wherein she has clearly stated that the warrant was recalled on 31.12.2010 and the same is not in force. Thus, as reported by the learned Magistrate, the order of this Court has been complied with. The learned Magistrate has further stated that the petitioner has been directed to produce two sureties on or before 12.01.2011. The learned counsel for the petitioner would submit that such a direction to produce two sureties is beyond the jurisdiction of the learned Magistrate. In my considered opinion, the said contention cannot be countenanced in view of the specific provision contained in Section 88 Cr.P.C. The said provision reads as follows:-
" When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trial."
9. A close reading of the above provision would make it abundantly clear that the learned Magistrate has been empowered to direct the accused to execute bond with sureties so as to ensure his appearance for the future hearings. In this case, since the petitioner had not executed any bond earlier with sureties, the learned Magistrate has thought it fit to direct the petitioner to execute bond with two sureties. Thus, the order of the learned Magistrate cannot be stated to be without jurisdiction.
10. Now coming to the question as to whether the learned Magistrate was justified in directing the petitioner to find two sureties for Rs.25,000/- each, the narration of the following would be necessary.
11. This case has been pending before the learned Magistrate since 2008. Earlier, since the petitioner did not appear, bailable warrant was issued on 24.04.2009 and later on, on 13.05.2010, he appeared before the Court and got the warrant recalled. Thereafter, P.W.1 was examined and the case was adjourned to several hearings at the instance of the petitioner, as he did not come forward to cross examine the said witness. Finally, on 27.08.2010, he did not appear and therefore, non-bailable warrant was issued for his arrest. Subsequently, he appeared before the learned Magistrate along with a petition to recall the warrant. Accordingly, the warrant was recalled and he was directed to cross examine P.W.1 on 15.09.2010 without fail. Thereafter several adjournments were taken by the petitioner. Later on, it appears that there was an attempt to settle the dispute between the parties. On several occasions the presence of the petitioner was dispensed with on petitions filed underSection 317 Cr.P.C. However, there was no progress made in the trial of the case as the petitioner was causing stumbling blocks. Finally on 13.12.2010, the petitioner was again absent and therefore, non bailable warrant was issued. This time, the petitioner appeared before this Court and this Court issued a direction to recall the warrant. Accordingly, the warrant was also recalled. It is in these circumstances, the learned Magistrate was well within her powers under Section 88 Cr.P.C to direct the petitioner to produce two sureties and execute bond. Therefore, the direction issued by the learned Magistrate is fully justified in law and the same does not require any interference at the hands of this Court. The remarks submitted by the learned Magistrate are recorded and accepted.
12. In view of all the above, the Criminal Original petition fails and the same is, accordingly, dismissed. The petitioner is required to produce sureties as directed by the learned Magistrate and execute necessary bond within a period of 15 days from the date of receipt of a copy of this order.
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