HIMANSHU @ HEMANT RAJENDRA BHATT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The applicant/accused has moved an application for anticipatory bail under section 438 of Cr. P.C. against the order of issuance of non bailable warrant passed by the Additional Chief Metropolitan Magistrate, 6th Court, Mazgaon, Mumbai in C.C. 1105/S/2005 in the cases where the offence is registered against the applicant/accused under section 138 of N.I. Act, 1881. Earlier the application for anticipatory bail challenging the said order preferred before the learned Sessions Judge, Greater Bombay is rejected on 4th March, 2014 and four weeks time was granted to enable him to approach the Metropolitan Magistrate Court to apply for cancellation of warrant to grant fresh bail.

(2.) The learned counsel for the applicant/accused has submitted that the applicant/accused is facing charges under section 138 of N.I. Act & though it is bailable, the learned Magistrate has issued nonbailable warrant without ascertaining the genuine reasons of the absence of the applicant/accused before the Magistrate. He submitted that due to communication gap between the applicant and his advocate, he could not appear before the learned Magistrate and therefore, the trial Court issued a nonbailable warrant and thereafter issued proclamation against the applicant/accused. He submitted that the applicant was arrested by CBI in R.C. No. RC2/E/2013EOW, Mumbai on 26th August, 2013 and he was released by CBI Special Court on 19th January, 2014. Therefore, the applicant could not appear before the learned trial Magistrate. The applicant is extremely apprehensive of his arrest if at all he appears before the learned trial Court for seeking cancellation of nonbailable warrant and therefore, he prays that he shall not be arrested on the basis of nonbailable warrant and prays for anticipatory bail. While arguing the case, the learned counsel submitted that though under section 438 of Cr. P.C. bail is granted for nonbailable offence and section 138 of N.I. Act is a bailable offence, yet the Court has power to grant anticipatory bail if nonbailable warrant is issued by the Magistrate as accused apprehends the arrest. In support of his submissions, he relied on the following decisions:

(3.) Learned APP opposed the application. She submitted that anticipatory bail cannot be granted in this case where the Magistrate has issued nonbailable warrant against the applicant/accused. She submitted that many cases are pending against the applicant/accused before the learned trial Magistrate. As the applicant did not appear before the learned trial Magistrate, nonbailable warrant was issued and further proclamation against the applicant/accused is also issued. She submitted that the applicant/accused is deliberately avoiding to appear before the learned Magistrate and seeking protection before this Court bypassing a proper procedure of appearance before the learned Magistrate. She argued that in view of section 70(2) of Cr. P.C., a warrant of arrest remains in force unless is cancelled by the Court which issued it or until it is executed. The order of issuance of nonbailable warrant or order of proclamation undoubtedly can be challenged before the High Court and it can be cancelled, if found illegal under section 482 of the Cr. P.C. or under writ jurisdiction. It is necessary for the High Court to ascertain the legality of the order passed by the learned Magistrate on the basis of law as well as the facts of each case. The order can be challenged under section 482 of Cr. P.C. The Magistrate has passed an order of arrest of the accused under section 70 of Cr. P.C. which comes under Chapter VI i.e. 'Processes To Compel Appearance'.