SURESH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE accused petitioner Suresh has moved this bail application under Section 438 Cr. P. C. in a case under Section 376 IPC read with Section 6 of Indecent Representation of Women (Prohibition) Act, 1986. THE allegations against the petitioner are that he committed rape with the prosecutrix and threatened her to make public her nude photographs. During the course of arguments following three questions emerged. (1) Whether a Judicial Magistrate in exercise of powers under Section 71 Cr. P. C. can convert warrant of arrest into bailable warrant in a case triable by the Sessions Court ? (2) Whether the provisions contained in Section 71 Cr. P. C. are applicable only to the witnesses ? (3) What is the scope of sub-section (3) of Section 438 Cr. P. C. ?

(2.) LEARNED advocate of the Bar who were invited to assist the court made their respective submissions.

(3.) IN so far as interpretation of Section 71 Cr. P. C. is concerned, I am of the view that a Judicial Magistrate under this section can convert warrant of arrest into bailable warrant. The word `person' used in this section can be attracted to the accused as well as the witnesses. This court had occasion to interpret Section 70 (2) of Cr. P. C. in Santu Ram vs. State of Rajasthan (4) and it was indicated that in sub-section (2) of Section 70 Cr. P. C. the Magistrate had all the powers to reconsider the orders with regard to issue of non-bailable warrants.