MAHA SINGH & ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The only ground on which the learned Sessions Judge has dismissed the application of the accused petitioners under Sec. 438 Cr. P.C. is that once the Magistrate has taken cognizance of the offence Sec. 438 Cr. P.C. is not attracted In taking the aforesaid view the learned Judge has referred to the case of Vasudeo and others Vs. State, RCC-1987 page 370 . In that case in para 4 of the judgment the learned Judge observed that:

(2.) The contention of the learned counsel for the petitioners is that a Division Bench of this Court in Nand Ram Vs. The State of Rajasthan, RLW 1979 page 477 , has taken a view that Sec. 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:

(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, Sec. 438 Cr. P.C. can be attracted Even the learned Judge in the aforesaid case of Vasudeo (supra) has not said that Sec. 438 Cr. P.C. will not be applicable. Rather he has said that instead of invoking the provisions of Sec. 438 Cr. P.C. he should appear before the court and move a proper application under Sec. 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 Sec. 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 Sec. 438 Crimial P.C. are applicable to the case of present nature.