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. 4248 of 2008() ----------------------------- ST.2441/2004 OF JUDICIAL FIRST CLASS MAGISTRATE, PATTAMBI .................... PETITIONER/ACCUSED: ------------------------------------ RAJAN.V., DRIVER, ICDS PROJECT, THRISSUR, S/O.VELAYUDHAN, PALLIPPURAM HOUSE, NEDUPUZHA P.O., THRISSUR DISTRICT. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ABBAS, S/O.IBRAHIM, KODALIYIL HOUSE, KODUMUNDA, PATTAMBI. BY PUBLIC PROSECUTOR SRI. M.S. BREEZ. 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. 4248 of 2008 ----------------------------------------------- Dated this the 3rd day of July, 2008. ORDER Petition for anticipatory bail. 2. The alleged offence is under Section 138 of the Negotiable Instruments Act. Petitioner was standing trial in the said offence before Magistrate Court. He was granted bail by the court. When the case was posted for hearing after closing the evidence, the accused did not appear before Court. Though an application was filed, it was dismissed and a non-bailable warrant was issued by the learned Magistrate. Hence, this petition is filed for anticipatory bail. 3. On hearing both sides, I am satisfied that it is not a fit case to grant anticipatory bail for twin reasons: Firstly, Section 438 Cr.P.C. can be invoked only in cases where petitioner has reason to believe that he may be arrested on accusation in a non- bailable offence, but, in this case only bailable offence is involved, the offence being one under Section 138 of N.I. Act. [B.A.4248/08] 2 4. Secondly, non-bailable warrant was issued against the petitioner by a court having competent jurisdiction. The warrant was issued lawfully only because the petitioner was absent on the date of posting. So, the petitioner's arrest is required for execution of a lawful warrant issued by a competent Court. It is not intended to harass the petitioner and hence Court will not interfere, especially by invoking the extraordinary equitable jurisdiction under Section 438 Cr.P.C. If the petitioner is not at fault, he can convince the lower court of the same and can seek regular bail from the said court. His remedy is not by filing an anticipatory bail application. Section 438 Cr.P.C. is not intended to a person who has absented himself from the court during trial and whose presence is required and insisted by the court by issuing a non-bailable warrant. Hence, this petition is dismissed. K. HEMA, JUDGE. Krs.