2014 (2) ABR (Cri) 471 ::(2014) 3 BomCR(Cri) 526 ::(2015) 1 Mh LJ (Cri) 328 ::(2015) 2 Mah LJ 84 ::(2017) 179 AllIndCas 6 (BOM) ::2014 AllMR(CRI) 3944

Bombay High Court

Hon'ble Judge(s): Mridula Bhatkar , J

( A ) Criminal P. C. (2 of 1974) S. 438 — Anticipatory bail — Application for — Offence of dishonour of cheque — Magistrate already issuing non-bailable warrant against accused as accused was deliberately avoiding to appear before Magistrate — High Court or Session Court cannot use power to grant anticipatory bail — Rejection of application for anticipatory bail, proper.A question before Court in instant case is limited as to whether High 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 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 ba....