Judgment : The petitioner is the sole accused in a case involving offences under Sections 279 and 337 of IPC, which is pending before the Magistrate court. He failed to appear in court, in disobedience of summons issued from the court, and hence non-bailable warrants were against him. Proceedings under Sections 82 and 83 of the code of Criminal Procedure Code (‘the Code’, for short) were also initiated against him, to proclaim him as an absconding accused. He, therefore, apprehends arrest and hence, this application for anticipatory bail. 2. Onhearing both sides and on a reading of section 438 of the code, and on consideration of the object of the said provision, I find that anticipatory bail cannot be granted to petitioner mainly for three reasons: i) apprehension of arrest of petitioner is not on accusation of having committed any non bailable offence, since the offences involved are only bailable offences; ii) the arrest sought for is consequent to lawful non-bailable warrant issued by a court having jurisdiction since the accused failed to appear on receipt of summons issued by the court; and iii) discretionary relief under section 438 is not intended to be extended in favour of a person who absconded and against whom, coercive steps are initiated by a court, as per law, to secure his presence. 3. Section 438 of the code reads as follows: “438. Direction for grant of bail to person apprehending arrest.- (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. .(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including – .(i) a condition that the person shall make himself available for interrogation by a police officer as and when required; .(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court. .(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. .(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at anytime while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)” 4. A reading of Section 438 of the Code shows that primarily, two factors must exist to invoke Section 438, to grant anticipatory bail. The court must be satisfied that i) there is a reason to believe that the petitioner may be arrested and that ii) such apprehended arrest is on accusation of his having committed a non-bailable offence. Only if both these factors exist, the court may grant anticipatory bail. But, in cases where those twin conditions do not exist, the court shall not grant anticipatory bail under section 438 of the Code. 5. In this case, petitioner has reason to believe that he may be arrested, because non-bailable warrants are issued against him. Thus, there is satisfaction of one of the essentials under section 438. But, the offences involved in this case are all bailable offences and hence there cannot be any apprehension of arrest, on accusation of commission of a non-bailable offence. In this case, petitioner has reason to believe that he may be arrested, because non-bailable warrants are issued against him. Thus, there is satisfaction of one of the essentials under section 438. But, the offences involved in this case are all bailable offences and hence there cannot be any apprehension of arrest, on accusation of commission of a non-bailable offence. Therefore, in cases in which only bailable offences are involved, even if there is any threat of arrest of the accused, such arrest cannot be “on the accusation of having committed a non-bailable offence” and in such cases, there will not be satisfaction of the second factor. Therefore, anticipatory bail cannot be granted in a case where only bailable offence is involved, even if the accused apprehends arrest. 6. A person may have many reasons to apprehend arrest under various circumstances and at different stages of the case. It need not always be “on accusation of his having committed a non-bailable offence.” An accused may apprehend arrest, irrespective of whether the offence committed is a bailable or a non-bailable offence and in certain circumstances, the nature of offence allegedly committed by the accused may not have any relevance to the apprehended arrest. For example, the accused may not appear in court, even after receipt of summons. He may fail to appear in court, in disobedience of the direction issued by the court to appear on a particular day or at a particular stage of the case. He may also default appearance in court in breach off the bond executed by him for his appearance and abscond after his release on bail. Such situations may arise either in cases involving a bailable offence or a non-bailable offence. 7. But, in such cases, the nature of offence committed by the accused may not have relevant to the arrest apprehended. The character of the offence committed by the accused may not have direct nexus to the offence committed by the accused. The offence committed may only be a remote cause or reason for the arrest apprehended. Whether it be a bailable offence or not, the accused’s presence will be sought to be procured in due execution of the non-bailable warrant which is lawfully issued by the court, having jurisdiction. The offence committed may only be a remote cause or reason for the arrest apprehended. Whether it be a bailable offence or not, the accused’s presence will be sought to be procured in due execution of the non-bailable warrant which is lawfully issued by the court, having jurisdiction. Therefore, in such cases, the apprehension of arrest may not be “on accusation of having committed a non-bailable offence” (or a bailable offence), but the threat of arrest may be due to reasons other than what is stated in section 438. Hence, in such cases also, section 438 may not apply. 8. I may also, however, hasten to add that I do not intend to lay down, as an invariable proposition that in all cases where non-bailable warrants are issued by the court, anticipatory bail cannot be granted. Irrespective of issuance of warrant by court, there are yet certain instances where the threat of arrest may still be there, on accusation of commission of a non-bailable offence. To cite an instance, in a case where charge is laid, showing the accused as an absconding accused, the court may issue a non-bailable warrant. In such cases, the police might have deliberately shown the accused to be absconding, though he was available for arrest, with a view to harass him, by causing his arrest in execution of the warrant issued by court. The accused might not even know that he was implicated as an accused in the crime. In such cases, there will be a reason to believe that a person may be arrested and such belief may not merely be due to the non-bailable warrant issued because of disobedience of the court’s order. But, apprehension of arrest may be “on accusation of having committed a non-bailable offence” that being the direct cause for issuance of arrest warrant. 9. There may be other circumstances also. In some cases, the court may issue a non-bailable warrant in lieu of summons, after filing of charge sheet in a non-bailable offence and there may be a threat of arrest. The apprehension of arrest in such cases will have direct nexus to the nature of offence committed and his arrest may be sought for, “on accusation of having committed a non-bailable offence” and not due to any reason other than this. The apprehension of arrest in such cases will have direct nexus to the nature of offence committed and his arrest may be sought for, “on accusation of having committed a non-bailable offence” and not due to any reason other than this. Hence, in cases in which the court is satisfied that a person has reason to believe that he may be arrested “on accusation of having committed a non-bailable offence”, anticipatory bail may be granted. But the threat of arrest must have direct nexus to the non-bailable offence committed by him and it may not be a remote cause for the arrest and the court must be satisfied that there was no justification in issuing a non-bailable warrant against the accused. .10. Inthis case, arrest apprehended by petitioner is not on the ground that he committed any bailable or non-bailable offence. Irrespective of nature of the offence, which he allegedly committed, his arrest is sought for, to secure his presence in execution of non-bailable warrant lawfully issued by the court having jurisdiction. He failed to appear in court, in disobedience of the summons issued from the court, and he also absconded and evaded all coercive steps taken by the court to procure his presence in court. So, the nature of offence committed by him is not the direct cause for the apprehended arrest but the arrest is necessitated because of reasons other than on accusation of .commission of a particular offence. 11. The petitioner has no case that warrant was issued illegally or without jurisdiction. There is also nothing on record at present to show that the Magistrate court committed an error or impropriety in issuing warrant against petitioner. Thus, in any view of the matter, no ground exists to invoke section 438 to grant anticipatory bail to petitioner. At any rate, the apprehended arrest is for reason other than “on an accusation of having committed a non-bailable offence.” 12. Apart from all these, section 438 of the code has a well-intended object. It is introduced into the code as a benevolent provision, by which, a person is granted bail, even before arrest is effected, in anticipation of his arrest. The court must bear in mind that this equity, benevolence or luxury is extended to a person who is accused of a non-bailable offence and too, ordinarily, without hearing the alleged victim. It is introduced into the code as a benevolent provision, by which, a person is granted bail, even before arrest is effected, in anticipation of his arrest. The court must bear in mind that this equity, benevolence or luxury is extended to a person who is accused of a non-bailable offence and too, ordinarily, without hearing the alleged victim. So, there must be a definite object for laying down such a benevolent provision in favour of an accused. It is not unusual that a person may be falsely implicated in an offence and it is also likely that he may be harassed or humiliated, without any basis, by an arrest and detention. This may be done on the basis of a false or ill-motivated complaint. It may also be likely that police may subject a person to custodial torture, under the pretext of interrogation. So, the provision under section 438 is brought into the code, with the intention to protect a person from being subjected to unnecessary and unwarranted harassment or humiliation after arrest, by custodial torture or unwarranted pre-trial detention. 13. Therefore, the benefit under section 438 of the code may not be invoked, in favour of any body and every body, on the mere request made by him or her, and on merely being satisfied that there is apprehension of his arrest on commission of a non-bailable offence. It is not enough that the twin factors in section 438 are satisfied but the court must also confirm that the equity is shown only to the right and deserving person. The court will grant the relief only to the person who deserves the relief and to ensure that the benefit under section 438 of the code goes only to a deserving person, the court has to evaluate the various facts and circumstances of each case and distinguish between the right and the wrong. This will be possible, only if the court exercise its discretion in a judicial manner. 10.14. “In its ordinary meaning, the word “discretion” signifies unrestrained exercise of choice or will; freedom to act according to one’s own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one’s own judgment. This will be possible, only if the court exercise its discretion in a judicial manner. 10.14. “In its ordinary meaning, the word “discretion” signifies unrestrained exercise of choice or will; freedom to act according to one’s own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one’s own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law”. (See Tomlin’s Law Dictionary.) (vide Union of India v. Kuldeep Singh, (2004) 2 SCC 590). 115. Thus, while invoking section 438 of the code, the court must pay attention to discern between right and wrong and it is bound by the reason and law also, while exercising its discretion. In this case, petitioner defaulted in appearance in court during trial and non-bailable warrants were issued repeatedly to secure his presence during trial. Steps under section 82 and 83 off the code were also initiated to proclaim him, as an absconding accused. The petitioner absconded and failed to appear in court, despite repeated issuance of warrants. His act caused considerable delay in disposal of the case, by his default. All these consumed considerable time of the court and ultimately, this case remains pending even after a long period. It could not be disposed of, because of the default of the accused. .16. In my considered view, it may not be proper to invoke power under section 438 of the Code, in favour of a person who absconded, without reasonable cause and whereby, the trial court was .forced to initiate coercive steps to procure his presence in court. Section 438 of the code is not intended to be used in favour of any ‘chronic absconder’. If exercise of judicial discretion is the criteria to invoke section 438 of the code, I am of view that the provision may not be used in favour of a defaulter, who jumped bail, without any reasonable excuse. Section 438 of the code is not intended to be used in favour of any ‘chronic absconder’. If exercise of judicial discretion is the criteria to invoke section 438 of the code, I am of view that the provision may not be used in favour of a defaulter, who jumped bail, without any reasonable excuse. In cases where non-bailable warrants are issued against the accused, unless the court is satisfied that there was some impropriety or illegality in issuing the warrant or that the warrant was issued wrongly, the court shall not ordinarily intervene in the lawful proceedings before the lower court. Because, the discretion under section 438 Cr.P.C. is not intended to be exercised to interfere with the lawful proceedings before another court. 117. Thus, on facts and on law, section 438 of the code will not apply to the facts of this case and hence, anticipatory bail cannot be granted to petitioner. Still, I make it clear that it is open to the petitioner to surrender before the Magistrate court and to file an application for bail, and satisfy learned Magistrate that he was not evading the process of the court, or that he did not intend to abscond. In such event, learned Magistrate shall dispose of the bail application, untrammeled by any of the observations made in this order, on merit. I also make it clear that the observations made in this order are all based only on the oral submissions made, without being any supporting materials. 118. I would also add that the considerations for granting bail are different from the consideration for granting anticipatory bail and the refusal of anticipatory bail under section 438 of the code may not by itself be a ground to refuse bail to an accused, under Section 437 or 439 of the Code. Petition is dismissed.