M.B. Sharma, J. - (1.) The only ground on which the learned Sessions Judge has dismissed the application of the accused petitioners under Section 438 Cr. P.C. is that once the Magistrate has taken cognizance of the offence Section 438 Cr. P.C. is not attracted In taking the aforesaid view the learned Judge has referred to the case of Vasudeo and others v. State, RCC-1987 page 370 . In that case in para 4 of the judgment the learned Judge observed that: "Once the process issued the normal course is that the accused should appear before the Court and move a proper application under S. 437 or S. 439 Cr. P.C. as the case may be, instead of invoking the provision under S. 438 Cr.P.C. unless he is compelled to invoke that jurisdiction for which he must have sound reasons."
(2.) The contention of the learned counsel for the petitioners is that a Division Bench of this Court in Nand Ram v. The State of Rajasthan, RLW 1979 page 477 , has taken a view that Section 438 Cr. P.C. is applicable to the case when the learned Magistrate has taken cognizance of offence and issued non-bailable warrants. The court said that: "Hence it cannot be safely held that section 418 Cr. P.C. is in' applicable to a case where cognizance of a non-bailable offence has beet taken by a Magistrate against any person and a warrant of arrest has beet issued to compel his attendance. It does not-appear from the language used in Section 438 Cr.P.C. 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 be 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 hi: arrest. We, therefore, cannot subscribe to the view that in a case when the Magistrate has taken cognizance of a non-bailable offence and hat Issued warrant for the arrest of such person, the protection given by tin legislature to such a person by enacting section 438 Cr. P.C. shall cease to exist, because if such a view is taken even a person, who is false implicated by his rivals in anon-bailable offence for the purpose o disgracing him or for the purpose of getting him detained in jail for som 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 fa some days and then to apply for bail. Section 438 Cr. P.C. can be invoker even when the arrest of a person is certain in execution of a warrant arrest issued by a Magistrate after taking cognizance of a non-bailable offence against him."
(3.) In view of the above mentioned Division Bench authority there can be no dispute that even in a case of present nature where after taking cognizance of the offence arrest warrants are issued, Section 438 Cr. P.C. can be attracted Even the learned Judge in the aforesaid case of Vasudeo (supra) has not said that Section 438 Cr. P.C. will not be applicable. Rather he has said that instead of invoking the provisions of Section 438 Cr. P.C. he should appear before the court and move a proper application under Section 437 or 439 Cr P.C. as the case ma; be unless he is compelled to invoke that jurisdiction for which he must haw sound reasons. With due respect to the learned Judge the above observation may cause a belief that section 438 Cr. P.C. will not be applicable, and the propel course for the accused will be to move application for bail under Section 437 or 439 Cr. P.C as the case may be. In view of the aforesaid Division Bench authority there can be no dispute that provisions of Section 438 Cr.P.C. are applicable to the case of present nature.;