J.K.S.Manickam vs The Inspector of Police, Kumara Palayam, Salem District and The Commissioner of Police, Kanpur City, U.P. State

Janarthanam, J.—The petitioner, J.K.S.Manickam, it is said, is the Director of Sundaram Spinning Mills, Koma-rapalayam, Salem, It

appears, complaint case No.3109 of 1993 had been filed before the IX Metropolitan Magistrate, Kanpur against him for alleged offence u/s 138

of the Negotiable Instruments Act. On account of his non-appearance before the said Court, a warrant u/s 70 of the Code of Criminal Procedure,

1973 (Act No.2 of 1974 for short Crl.P.C.1) had been issued by the said Court with a direction to the Superintendent of Police, Salem for his

arrest and production before the said Court on 29.7.1994.

The said Superintendent of Police, in turn, it is said, endorsed the said warrant to the Inspector of Police, Komarapalayam, Salem District (1st

respondent) for due execution in accordance with law. The petitioner, apprehending arrest at the hands of the first respondent, resorted to the

present action u/s 438 Crl. P.C, also impleading the Commissioner of Police, Kanpur City, U.P. State, as the Second respondent, praying, for

grant of anticipatory bail.

Arguments Of Mr.R.Shanmughasundaram, learned counsel for the petitioner and Mr.E.Raja, learned Government Advocate (Crl.Side) were

heard.

I am at a loss to understand how the present action is maintainable, on the facts and in the circumstances of the case. Admittedly, from a copy of

warrant produced before Court, it is rather crystal clear that the petitioner had been facing trial for alleged offence u/s 138 of the Negotiable

Instruments Act, 1881 (Act 26 of 1981) (for short ''NI Act'') before the IX Metropolitan Magistrate, Kanpur. The offence u/s 138 thereof must

have to be construed as an offence falling under Classification II of the Schedule attached to Crl.P.C. An offence u/s 138 of NI Act is punishable

with imprisonment, which may extend to one year or with fine, which may extend to twice the amount of the cheque or with both. Since the

punishment prescribed therefor is less than three years, it is a bailable offence, as shown in classification II of the Schedule attached to Crl.P.C.

Once it is a bailable offence, it goes without saying that the present action, which is one for grant of anticipatory bail, is not maintainable.

Relevant at this juncture to point out the salient provisions adumbrated u/s 82 Crl.P.C. dealing with procedure by Magistrate, before whom such

person arrested is brought. It runs as under:-

8.PROCEDURE BY MAGISTRATE BEFORE WHOM SUCH PERSON ARRESTED IS BROUGHT

(1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person

intended by the Court which issued the warrant direct his removal in custody to such court. Provided that, if the offence is bailable, and such

person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been

endorsed u/s 71 on the Warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District

Superintendent or Commissioner shall take such bail or security, as the case may be and forward the bond, to the Court which issued the warrant.

Provided further that if the offence is a non bailable one, it shall be lawful for the Chief Judicial Magistrate (Subject to the Provisions of Section

437), or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in sub

section (2) of Section 78, to release such person on bail.

Nothing in this Section shall be deemed to prevent a police officer from taking security u/s 71.

From what has been extracted above, it is rather crystal clear that the police officer, to whom the warrant had been forwarded for execution is

given a discretion, from the person sought to be arrested, to take security u/s 71 Crl.P.C.

The offence u/s 138 NI Act, being bailable, it behaves upon the Superintendent of Police, Salem, to whom the endorsement had been endorsed

for the purpose of execution, to very well take security u/s 71 and forward the security he had so taken from the petitioner to the concerned Court

with a direction to the petitioner to appear before the said court on the date prescribed in the warrant, namely, 29.7.1994.

With the observations as above, the petition shall stand dismissed.