M.R. Calla, J. - (1.) Mr. Saraswat has submitted that in this case the bail application under section 438 Criminal Procedure Code which had been moved by the petitioner before the Sessions Judge, Jaipur City, Jaipur has been rejected vide order dated 20-11-92 on the ground that the warrants of arrest had already been issued against the petitioner by the concerned Magistrate and therefore. Section 438 Criminal Procedure Code was not applicable and the Sessions Judge therefore, could not give a direction to release the petitioner on anticipatory ball In the order dated 20.11-92 the learned Sessions Judge has referred to a decision of this Court rendered by a Single Bench in Vasudeo v. State of Rajasthan, reported in 1987 RCC P. 370 and has quoted the following passage from the afore,said decision of Vasudeo v. State of Rajasthan : "Once the process issued the normal course is that the accused should appear before the Court and move a proper application under section 437 or section 449 Criminal Procedure Code as the case may he, instead of invoking the provisions under S 438 Criminal Procedure Code unless he is compelled to invoke that jurisdiction for which he must have sound reasons
(2.) Mr Sarasv at has cited before me RCC (Feb ) 1988 P. 41 (Maha Singh and Ors. v. State of Rajasthan) . In this case Hon'ble Justice Mr M.B. Sharma has considered the decision rendered in the case of Vasudeo and Ors. v. State of Rajasthan , and the same has been distinguished. It has been observed that -with due respect to the learned Judge, the above observations may cause a belief that S. 438 Criminal Procedure Code will not be applicable and the proper course for the accused will be to move an application for bail under Section 437 or 439 Criminal Procedure Code as the case may he. In view of the aforesaid Division Bench authority there can be no doubt that the provisions of Section 438 Criminal Procedure Code are applicable to the case of the present nature'. The reliance has been placed on Division Bench authority of this Court reported in 1979 RLW P. 477 (Nand Ram v. State of Rajasthan) wherein, it has been observed as under : "Hence it cannot be safely held that Section 438 Criminal Procedure Code is in-applicable to a case where cognizance of a non-bailable offence has been taken by a Magistrate against any person and a warrant of arrest has been issued to compel his attendance It does not appear from the language used in Sec 438 Criminal Procedure Code that the legislature while enacting the section intended that the power of granting anticipatory bail to a person conferred on the High Court or the Court of Session would he restricted to those cases only where the Magistrate has not taken cognizance of a non-bailable offence against such person and has not issued warrant for his arrest We, therefore, cannot subscribe to the view that in a case where the Magistrate has taken cognizance of a non-bailable offence and has issued warrant for the arrest of such person the protection given by the legislature to such a person by enacting Section 438 Criminal Procedure Code shall cease to exist, because if such a view is taken even a person, who is falsely implicated by his rivals in a non-bailable offence for the purpose of disgracing him or for the purpose of getting him detained in jail for some days and who genuinely believes that he is likely to be arrested shall have no remedy and shall have to submit to custody and remain in prison for some days and then to apply for bail. Section 438 Criminal Procedure Code can be invoked even when the arrest of a person is certain in execution of a warrant for arrest issued by a Magistrate after taking cognizance of a non bailable offence against him."
(3.) In the aforesaid Division Bench's judgment the matter had come up before the Division Bench by way of a reference as under: "Whether it is open to an accused person to apply for bail under Section 438 Criminal Procedure Code 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"?;