RAJENDRA KUMAR SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Mr. Saraswat has submitted that in this case the bail application under section 438 Code Criminal Procedure 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. Sec. 438 Code Criminal Procedure 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 Vs. State of Rajasthan, reported in 1987 RCC P. 370 and has quoted the following passage from the afore,said decision of Vasudeo Vs. State of Rajasthan :

(2.) Mr Sarasv at has cited before me RCC (Feb ) 1988 P. 41 (Maha Singh and Ors. Vs. State of Rajasthan) . In this case Honourable Justice Mr M.B. Sharma has considered the decision rendered in the case of Vasudeo and Ors. Vs. 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 Code Criminal Procedure will not be applicable and the proper course for the accused will be to move an application for bail under Sec. 437 or 439 Code Criminal Procedure as the case may he. In view of the aforesaid Division Bench authority there can be no doubt that the provisions of Sec. 438 Code Criminal Procedure 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 Vs. State of Rajasthan) wherein, it has been observed as under :

(3.) In the aforesaid Division Bench's judgment the matter had come up before the Division Bench by way of a reference as under: