IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 Bail Appl..No. 5665 of 2008() --------------------------------------- AGAINST CASE NO.2711/SS/2007 ON THE FILE OF METROPOLITAN MAGISTRATE 10TH COURT AT ANDHERI, MUMBAI. ..... PETITIONERS/ACCUSED NOS 2 TO 4 ----------------------- 1. K. SREENIVASAN, AGED 73, S/O. LATE KRISHNASWAMI REDDIAR, KADAKAMPALLY, PANNIVIZHA, ADOOR. 2. S.V.SURESH, S/O. K. SREEIVASAN AGED 41, KADAKAMPILLY, PANNIVIZHA, ADOOR, PROPRIETOR, M/S. PAVEETHRA MINI MUTHOOT ROYA SQUARE, ADOOR. 3. S. RAMESH, S/O. K. SREENIVASAN, AGED 45, KADAKAMPILLY, PANNIVIZHA, ADOOR. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT: COMLAINANT ----------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------------------------- B.A.No.5665 of 2008 ------------------------------------------------- Dated this the 16th day of September, 2008 O R D E R Petition for anticipatory bail. 2. Petitioners are accused nos. 2 to 4 in a case pending before the Metropolitan Magistrate at Mumbai. The alleged offence is under Section 138 of Negotiable Instruments Act. Non-bailable warrants are issued against them and they apprehend arrest. 3. Learned counsel for the petitioners submitted that the petitioners would require some time for arranging local sureties and hence, anticipatory bail may be granted to the petitioners. It is conceded that originally only bailable warrant was issued against the petitioners, since they failed to appear. But, later, non bailable warrants were issued against the petitioners and hence, they apprehend arrest. 4. On a reading of Section 438 Crl.P.C., it is clear that only if the twin conditions in the said provision are satisfied, anticipatory bail can be granted. One of the conditions is that BA No.5665/08 2 the apprehended arrest must be on accusation of having committed a non bailable offence. In this case, arrest is apprehended not because the petitioners are involved in a non bailable offence. Their presence is sought to be secured by execution of non-bailable warrant lawfully issued by a court, consequent to petitioners' non appearance before the court in spite of issuance of bailable warrant. Section 438 is not intended to interfere with the lawful proceedings before the trial court. For all of these reasons, anticipatory bail cannot be granted. The petition is dismissed. K.HEMA, JUDGE csl