IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 Bail Appl..No. 408 of 2008() ---------------------------- CC.2211/2006 of J.M.F.C.-I, KOLLAM .................... PETITIONER/ACCUSED ----------------------------------- K.S.BABY @ PREMAKUMARI AMMA, W/O. K.MOHANDAS, J.S.BHAVAN, ULIYANADU, KARAMKODU P.O., KOLLAM. BY ADV. SRI.R.SATISH KUMAR RESPONDENTS: STATE AND COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, CHATHANNOOR POLICE STATION, KOLLAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.VINOD, KUNNUMPURATHU VEEDU, PANAYAM P.O., PERINADU, KOLLAM. R1 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 408 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January, 2008 O R D E R Application for anticipatory bail. The petitioner faces allegations in a crime registered under Section 138 of the N.I. Act. The cheque is for an amount of Rs. 4 lakhs. The petitioner had surrendered and was enlarged on bail. Inter alia, a condition was imposed that the petitioner must deposit an amount of Rs.40,000/- as cash security which will be repaid to her as and when the proceedings are completed. The petitioner could not remit the said amount of Rs.40,000/- Consequently a warrant of arrest has been issued by the learned Magistrate. The petitioner apprehends that if and when she surrenders, she shall not be released on bail unless she deposits the amount of Rs.40,000/- In these circumstances the learned counsel prays that directions under Section 438 Cr.P.C. may be issued in favour of the petitioner. The petitioner has already been granted regular bail. The warrant of arrest issued by the learned Magistrate is chasing her because of her inability to comply with the condition B.A.No. 408 of 2008 2 imposed. Virtually the petitioner attempts to challenge Annex.A1 order, which has not been formally challenged in accordance with law. That technical inadequacy notwithstanding, I am satisfied that in the interests of justice anticipatory bail can and ought to be granted in favour of the petitioner. 2. No reasons are shown by the learned Magistrate to justify imposition of the harsh and, according to me, unjustified condition that an amount of Rs.40,000/- must be deposited as cash security to claim regular bail. The learned Magistrate has not in the impugned order shown any reasons to justify the imposition of such a condition. I must deprecate such practice of the Magistrates insisting on cash deposit as condition for release on bail in a prosecution under Section 138 of the N.I. Act, without any special or specified reason. 3. I am satisfied, in the facts and circumstances of this case, that directions under Section 438 Cr.P.C. can be issued in favour of the petitioner. 4. In the result: (1) This application is allowed. (2) The following directions are issued under Section 438 B.A.No. 408 of 2008 3 Cr.P.C. (a) The petitioner shall surrender before the learned Magistrate on 12.2.2008 at 11 a.m. If she has already executed bond with two solvent sureties as directed in the order dt. 11.9.2007, she shall be forthwith released without insisting on any cash deposit. If the petitioner has not executed such bond, she shall be permitted to execute such bond and thereafter she shall be released from custody. (c) If the petitioner does not appear before the learned Magistrate as directed in clause (1) above, these directions shall lapse on 12.2.08 and the police shall be at liberty thereafter to arrest the petitioner and deal with her in accordance with law. (d) If the petitioner were arrested prior to her surrender on 12.2.2008 as directed in clause (1) above, she shall be released on bail on her executing a bond for Rs.25,000/- without any surety undertaking to appear before the learned Magistrate on 12.2.2008. (R. BASANT) tm Judge B.A.No. 408 of 2008 4