Anticipatory bail not maintainable against trial warrant in cheque dishonour proceedings; challenge lies before the issuing court or in writ jurisdiction.

Anticipatory bail under section 438 CrPC was treated as unavailable against a warrant issued by the Magistrate during trial in proceedings under section 138 of the Negotiable Instruments Act, because section 438 applies to apprehended arrest for a non-bailable offence and the cheque dishonour offence is bailable. A warrant under section 70 CrPC is a process to secure appearance and continues until cancelled by the issuing court under section 70(2). The proper course was to seek cancellation before the same court; the warrant could also be challenged under section 482 CrPC or writ jurisdiction, but not through anticipatory bail.

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Issues: Whether anticipatory bail under section 438 of the Code of Criminal Procedure, 1973 is maintainable against a warrant of arrest issued by the Magistrate during trial in proceedings under section 138 of the Negotiable Instruments Act, 1881, and whether the proper remedy lies in challenging the warrant before the issuing Court or under inherent/writ jurisdiction.

Analysis: Section 438 of the Code of Criminal Procedure, 1973 applies where a person has reason to believe that he may be arrested on an accusation of a non-bailable offence. The offence under section 138 of the Negotiable Instruments Act, 1881 is bailable. A warrant issued under section 70 of the Code is a process to secure appearance and remains in force until cancelled by the issuing Court under section 70(2). The distinction between arrest pursuant to a warrant issued to compel attendance and apprehension of arrest for a non-bailable offence was treated as material. The Court held that where the warrant is issued during trial for non-appearance of an accused in a bailable offence, the remedy is to approach the same Court for cancellation of the warrant, and not to invoke anticipatory bail. The warrant could be challenged under section 482 of the Code of Criminal Procedure, 1973 or under writ jurisdiction, but not under section 438.

Conclusion: Anticipatory bail was held to be not maintainable, and the application was rejected.

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