This application for anticipatory bail was filed by the accused in S.T. No. 1638 of 2012 on the files of the Judicial First Class Magistrate Court, Ponnani under Section 438 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for short).
2. The allegation in the petition was that, he was accused in the above case, which was taken on file on the basis of the private complaint filed by the complainant alleging offence punishable under Section 138 of the Negotiable Instruments Act. He appeared on earlier occasions and thereafter, he could not appear and his bail was cancelled and non bailable warrant was issued and now proceedings under Sections 82 and 83 of the Code has been initiated. So he apprehends that, if he is surrender, he is likely to be remanded. So, he prays for allowing the application.
3. Heard both sides and perused the records.
4. Considering the fact that, as per the allegations itself, it is seen that the petitioner is an absconding accused
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and proceedings under Sections 82 and 83 of the Code are pending apart him. This Court feels that it is not a fit case to invoke the power under Section 438 of the Code in view of the pronouncement made by the Apex Court in this regard. However, this will not affect the Magistrate considering the bail application if he surrenders before the Court and moves for regular bail, considering the fact that, offences under Section 138 of the Negotiable Instruments Act is bailable offence. So, the petitioner is not entitled to get anticipatory bail. But, if the petitioner surrenders before the concerned Magistrate court and moves for regular bail after filing an application for recalling the warrant, then the learned Magistrate is directed to consider and dispose of the bail application on the date of filing of application itself in accordance with law after hearing the counsel for the complainant in this case.
With the above directions and observations, the petition is dismissed.
lsn K. RAMAKRISHNAN, Judge