Raghuvendra Singh Rathore, J. - (1.) THIS bail application has been filed against the order dated 19th July, 2010 passed by learned Sessions Judge, Jaipur City, Jaipur in Criminal Misc. Anticipatory Bail Application No. 2969/2010 arises out of the complaint No. 821/2010 for the offence under Section 420 IPC whereby the bail application of the petitioner was rejected. In this case, a complaint was filed by one Lakhan Singh on 16th July, 2007 with the accusation that the accused petitioner had cheated him. The allegation against the petitioner is that while executing an agreement to sell, he had received an amount of Rs. 21,000/ -. The grievance of the complainant is that the accused petitioner failed to get the title of the property transferred in his name. On having considered the complaint and the statement of the complainant under Section 200 Cr.P.C., the learned trial court took cognizance vide its order dated 29th February, 2008 and issued process by way of non bailable warrant, at the first instance. Therefore, the petitioner moved a pre arrest bail application under Section 438 Cr.P.C., before the learned court below.
(2.) THE pre arrest bail application of the petitioner had been dismissed by the learned Sessions Judge, Jaipur City, Jaipur primarily on the ground that in cases where the matters are pending before the court, the provision under Section 438 Cr.P.C. is not applicable. Learned trial court has placed reliance on the case of Jasveer Singh vs. State of Rajasthan : RLW 2009 (3) 1945. It is a settled principal of law that an application for pre arrest bail is maintainable in case where non bailable warrants have been issued by the learned trial court after taking cognizance. As back as in the year 1979, a question was referred before the Division Bench of this Court in the case of Nand Ram vs. The State of Rajasthan, : 1979 RLW 477 that: - - Whether it is open to an accused person to apply for bail under sec. 438 Cr.P.C. in a case where the Magistrate has taken cognizance of the offence and has passed order for the issue of warrant for the arrest of the accused person?
(3.) THE said question, after thoroughly taking into consideration the relevant provision of the Act as well as the case law, the learned Division Bench had answered the question in the following terms: Section 438 Cr.P.C. can be invoked even when the arrest of a person is certain in execution of warrant of arrest issued by a Magistrate after taking cognizance of an non -bailable offence against him. Further it was laid down that: It does not affect the powers of the court to grant or refuse bail or anticipatory bail to such person. Even the person against whom cognizance has been taken by a Magistrate and a warrant of arrest in the first instance has been issued for his arrest may be released on bail under Section 437 Cr.P.C. by the Magistrate himself or under Section 439 Cr.P.C. by the High Court or the Sessions Judge after he appears or is arrested or brought before the court. Hence, the mere taking of cognizance against a person and issuing a warrant for his arrest does not debar the High Court or the Sessions Judge to consider the application of such person for anticipatory bail if such person genuinely apprehends that he is likely to be arrested in execution of the warrants, and, if the High Court or the Court of Session is satisfied after applying its mind to the materials available that if anticipatory bail is refused an irreparable wrong or injustice may result which it is desirable to avoid.;