SAXENA, J. - (1.) HEARD. Perused the challan papers.
(2.) INITIALLY the case under Sections 341, 323, 379 and 356/34 IPC was registered against the petitioners and their father Amada Ram and they were bailed out under Section 437 Cr. P. C However, after investigation a challan for offence punishable under Sections 394 and 447 IPC was filed against the petitioners in the Court. On that day the petitioners apprehending their arrest did not appear in the Court. An application for dispensing with their attendance was filed on their behalf, which was dismissed by the learned Magistrate who also ordered for issuing non-bailable warrants against the petitioners. The petitioners thereafter filed, application under Section 438 Cr. P. C. before the learned Additional Sessions Judge, Chhitorgarh under Section 438 Cr. P. C, who by his order dated 4-1-92 rejected the same on the ground that application under Section 438 Cr. P. C. was not maintainable. Under Section 438 (1) Cr. P. C. when any person has reason to believe that he may be arrested on an accusation of having committed non-bailable offence, may apply to the High Court or to the Court of Sessions for the grant of anticipatory bail & if a Magistrate taking cognizance of such offence decides that warrant of arrest should issued in the first instance against that person, then a direction can be given to him granting anticipatory bail to issue bailable warrant instead of warrant of arrest. Therefore, the learned Sessions Judge has mis-interpreted the provisions of Section 438 Cr. P. C. and has wrongly held that in such a contingency, a petition under Section 438 Cr. P. C. was not legally maintainable. In Moti Lal vs. State of Rajasthan (1), it has been held that if an accused is granted bail in non-bailable offence and during investigation on account of new facts some other non-bailable offence is also added, in the same matter then the accused need not be arrested. In that case, also, this Court had granted anticipatory bail to the accused. Similar are the facts of the case in hand. Hence, keeping in view all the relevant facts and circumstances in this case, I am of the considered opinion that there exist sufficient and valid grounds for granting anticipatory bail to the petitioners. I accordingly allow this petition and direct that the Additional Munsif and Judicial Magistrate. Kapasan shall withdraw the non-bailable warrants issued against the petitioners and instead shall issue bailable warrants against them in this case. It is further ordered that if the petitioners are arrested in criminal case No. 254/91 pending in the court of Additional Munsif and Judicial Magistrate, Kapasan, petitioner Girdhari Lal and Narayan be released on bail provided each of them executes his personal bond for an amount of Rs. 5,000/- and a surety bond in the like amount to the satisfaction of the learned Addl. Munsif and Judicial Magistrate, Kapasan for their regular appearance before him on each and every date of hearing and whenever ordered to do so. . ;