IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 Bail Appl..No. 4249 of 2008() ----------------------------- CC.125/2004 of J.M.F.C., PATTAMBI .................... PETITIONER/ ACCUSED: ------------------------- ABDUL HAKKIM, S/O.MUHAMMED, KINATTINGAL VEEDU, THALASSERY AMSOM DESOM. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, PATTAMBI POLICE STATION, PATTAMBI. BY PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ----------------------------------------------- Bail Appl.No. 4249 of 2008 ----------------------------------------------- Dated this the 3rd day of July, 2008. ORDER Petition for anticipatory bail. 2. Petitioner is the sole accused against whom a charge was laid under Section 337 and 304-A of Indian Penal Code. According to prosecution, on 25.12.2003 at about 7.30 p.m. petitioner drove an autorickshaw in a rash and negligent manner and caused injury to the passengers in the autorickshaw. One of the passengers succumbed to the injuries sustained in the accident. 3. The offences alleged against the petitioner are bailable offence. But, the petitioner seeks anticipatory bail under Section 438 Cr.P.C. Can this be done? Section 438 of the Cr.P.C. reads as follows: “438. Direction for grant of bail to person apprehending arrest.-- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or [B.A.4249/08] 2 the Court of Session for a direction under this Section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following, namely:-- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail; Provided that, where the High Court or, as the case may be, Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer-in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, he Court considers such presence necessary in th interest of justice. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the [B.A.4249/08] 3 facts of the particular case, as it may thinks fit, including-- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section(1).” 4. On reading of Section 438 Cr.P.C., it is clear that anticipatory bail can be granted only in cases where a person has reason to believe that he may be arrested “on accusation of having committed a non-bailable offence”. In this case, there is no such reasonable belief of any arrest being effected on accusation of having committed any non-bailable offence. The offences allegedly committed by the petitioner are bailable offences and therefore going by the language of Section 438 [B.A.4249/08] 4 Cr.P.C. the said Section cannot be invoked in this case to grant of any order in favour of the petitioner. The legislature intended to grant anticipatory bail only in cases involving non-bailable offence and it is so explicit from the unambiguous language in the provision. The court cannot introduce or import any expression into the provision and extend an order of anticipatory bail to the accused who is involved in bailable offence as well. 5. There are other reasons also for refusing the prayer. Petitioner's arrest is required since a non-bailable warrant is issued from the Magistrate Court. The petitioner was admittedly absent from the court during trial and, hence the warrant issued by the learned Magistrate cannot be said to be illegal or without jurisdiction. Therefore, this Court cannot stand in the way of executing a lawful warrant issued from a court of competent jurisdiction. If the issuance was not proper or legal, it can be challenged or the petitioner can bring it to the notice of the trial court itself, in which event, it may be recalled by the same court which issued the warrant. He can surrender before the court which has issued the warrant if he apprehends any torture or harassment from the part of the police and seek [B.A.4249/08] 5 to recall warrant. But granting of anticipatory bail is not the remedy. The discretionary relief under Section 438 Cr.P.C., which in my view, cannot be misused to interfere with any lawful proceedings pending before a lower court, especially when other remedies are available to the accused. Learned counsel for the petitioner submitted that a direction may be issued to the learned Magistrate to consider the bail application on the same day of filing of the same by the petitioner. I am confidant that even without such a direction, the learned Magistrate will and is bound to consider any application filed before him, in accordance with law. Therefore, no specific direction is necessary to that extent. Petition is dismissed. Sd/- K. HEMA , JUDGE. Krs.