K.S.TIWANA, J. - (1.) THIS application has arisen as a result of counter cases pending between the parties for mutual exchange of violence on 24th of October, 1979. For the injuries of Balwant petitioner, First Information Report No. 161 dated 24th of October, 1979 was registered at Police Station Bhogpur, District Jullundur under section 307 etc. of the Indian Penal Code. After investigation the opposite party, accused of causing injuries to Balwant Singh petitioner, have been sent up for trial under section 307 of the Indian Penal Code and other allied offences to the Court of Session. On 7th January, 1980, Malkit Singh, respondent. No. 2, filed a complaint before Judicial Magistrate Ist Class Jullundur against the petitioners for the same incident under sections 307, 447 and 323 of the Indian Penal Code. After enquiry under section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the, Code) the learned Magistrate under Section 204 of the Code issued non-bailable warrants for the arrest of the petitioners in the complaint case. The petitioners were not successful in their application before the learned Sessions Judge, Jullundur for anticipatory bail under section 433 of the Code. They have now approached this Court under that section for bail in anticipation apprehending their arrest. Notice was issued to the State and the complainant in this case.
(2.) AT the outset Mr. Sharma, on behalf of the complainant raised an objection that once the Magistrate issues a warrant for the arrest of any accused-person in a complaint after enquiry then he cannot approach the Court under section 438 of the Code for his release in anticipation of the apprehended arrest. He has cited Ram Lal v. The State of Punjab and others, 1976 C.L. R., (Pb. and Hry.) 38, to support his argument. For purposes of reference the reproduction of Section 439 of the Code, is necessary which is as under. "438 (1) When any person has reason to believe that be may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a 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 think fit, including (i) a condition that the person shall make himself available for integration 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 any time 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)". This section does not make any distinction between the arrest by the police or under orders of the Courts for a criminal offence. In the absence of any such distinction the non-bailable warrants issued by Magistrate Ist Class, summoning the accused, at the first instance and an attempt by the police during the course of the investigation for the arrest of the accused for a non-bailable offence are to be considered on the same level. I cannot identify the distinction in the language of the section as has been projected by Mr. Sharma during the course of his arguments. Sub-section (1) of Section 438 of the Code provides that when any person has reason to be believe that he may be arrested on an accusation for a non-bailable offence, he may apply to the Court of Session or High Court and such Court may release him on bail. The main governing feature for the attraction of this provision is the apprehension of arrest of an accused person on accusation of the commission of non-bailable offence whether before the Police or the Magistrate. Reliance has been placed by Mr. Sharma on sub-section (3) of Section 438 of the Code. It is constituted of two parts. The first which concerns about the taking of accused in custody is not attracted for application The second part which is relevant is "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)". This enjoins upon the magistrate, when he, exercising jurisdiction after taking cognizance of the case, decides to summon the accused he has to issue a bailable warrant in the first instance. The bailable warrant has to be issued irrespective of the fact whether the offence is bailable or non-bailable. The making of this provision regarding the issue of a bailable warrant in Chapter XXXIII of the Code, which concerns provisions as to bail and bonds, has a special meaning in the form of a mandate to the Magistrate that unmindful of the nature of the offence he shall issue a bailable warrant, at the first instance. This provision is mandatory and it cannot be by passed or misconstrued.
(3.) THE Magistrate, in the case in hand, in the first instance acted in complete disregard of this provision in issuing non-bailable warrants. The issuing of the non-bailable the warrants gives a cause in my view justifiably, to the petitioner to apprehend arrest and detention in custody in execution of the non-bailable warrants issued by the Courts. They were justified in making an approach to the Courts under section 438 of the Code for their release on bail.;