Anticipatory bail remains maintainable despite a Magistrate-issued warrant where arrest for a non-bailable offence is apprehended.

Section 438 anticipatory bail remains maintainable where arrest is apprehended pursuant to a Magistrate-issued non-bailable warrant, because the source of the apprehension does not by itself exclude the statutory remedy. On the facts noted, anticipatory bail was also considered justified where the accused had earlier obtained bail in the connected matter, the later complaint was delayed, and there was no material showing risk of absconding, tampering with evidence, or influencing witnesses. The article's ratio is that apprehension of arrest for a non-bailable offence is enough to invoke Section 438 unless the facts otherwise disqualify relief.

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Issues: (i) whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 is maintainable when arrest is apprehended pursuant to a non-bailable warrant issued by a Magistrate; (ii) whether the petitioner was entitled to anticipatory bail on the facts of the case.

Issue (i): Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 is maintainable when arrest is apprehended pursuant to a non-bailable warrant issued by a Magistrate.

Analysis: The power under Section 438 is attracted by an apprehension of arrest in connection with a non-bailable offence. The source of apprehended arrest does not alter the jurisdiction, and there is no statutory basis to exclude the remedy merely because the warrant has been issued by a Magistrate rather than by the police. The reasoning that anticipatory bail is unavailable once a warrant is issued was held not to be the correct legal position.

Conclusion: The application under Section 438 was maintainable notwithstanding the non-bailable warrant.

Issue (ii): Whether the petitioner was entitled to anticipatory bail on the facts of the case.

Analysis: The petitioner had already been released on bail in the earlier case arising from the same incident. The subsequent complaint was lodged after a substantial delay, the petitioner was in government service and a resident of Mumbai, and there was no material indicating likelihood of absconding, tampering with evidence, or interfering with witnesses. These circumstances made the case fit for the grant of anticipatory bail.

Conclusion: The petitioner was entitled to anticipatory bail.

Final Conclusion: The Court upheld the maintainability of anticipatory bail despite the Magistrate-issued warrant and granted protection from arrest on appropriate terms.

Ratio Decidendi: Section 438 of the Code of Criminal Procedure, 1973 is available where a person reasonably apprehends arrest for a non-bailable offence, and the remedy is not excluded merely because the apprehended arrest arises from a Magistrate-issued warrant.

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