Whether accused can seek anticipatory bail when Magistrate has issued arrest warrant against him?

A Magistrate who issues a warrant knows fully why the accused is avoiding to remain present before the Court and non-appearance causes obstruction in the smooth working of the Court. It is a hurdle in speedy disposal of the matter and therefore the Magistrate issues non-bailable or bailable warrant. On number of occasions, a Magistrate is constrained to issue non-bailable warrant to compel a person to appear before the Court as the trial is at a standstill for want of appearance. To remove this stagnation, the appearance is a must. Though pre-arrest bail can be granted under section 438, however, it cannot be granted in any or each and every impending arrest in non-bailable offence, which is pursuant to a warrant of arrest issued by the learned Magistrate for any other purpose but not under section 204 of Cr. P.C. Thus, anticipatory bail cannot be sought when warrant is issued during the trial due to non-attendance of the accused. If all the sub-sections of Section 438 are taken into account, the very language of the statute compels this construction. While granting anticipatory bail, the Court has to consider the four factors including the antecedants of the applicant. There is a provision of interim bail, so also it is obligatory for the Court to give notice to the Public Prosecutor and hear the prosecutor. However, if the warrant of arrest is issued by the Judicial  Magistrate for non-attendance of a particular person, then it is not obligatory on the said Magistrate to hear the prosecution. There is no such provision of interim bail available while cancelling the warrant issued under section 70 of Cr. P.C. Moreover, while granting anticipatory bail, the Court has to see that the applicant shall be available for interrogation by the police officer as and when required. Thus, it is amply clear that the anticipatory bail, which is an extraordinary provision which protects the liberty of an individual can be used before he is taken into custody by the police first time after the registration of an offence against him. Once he is taken in custody, this power is not available to the Court and also cannot be invoked. Thus, within the purport of Section 438 of Cr. P.C. grant of pre-arrest bail is not available to the Sessions Court or the High Court when warrant of arrest issued is by the Magistrate except warrant of arrest issued under section 204 of Cr. P.C. Under section 204 of Cr. P.C. the Magistrate takes cognizance and thereafter issues the warrant, so this is the first instance that the person is booked for some offence, which may be either by the police or by the Magistrate.
  Thus, arrest pursuant to warrant of arrest issued under section 70 of the Code has wider import than the arrest apprehended under section 438 of the Code. It needs to be clarified that such order of issuance of warrant of arrest by the Magistrate can be challenged before the High  court under section 482 of the Code or by filing Writ under Article 226/227 of the Constitution, but not under section 438 of the Cr. P.C.

Bombay High Court

Himanshu @ Hemant Rajendra Bhatt vs The State Of Maharashtra

on 30 April, 2014
Bench: Mridula Bhatkar

Citation; 2015(2) MHLJ 84

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