JUDGMENT Nagendra Prasad Singh, J. The petitioners are accused of offences under section 302 read with sections 148 and 149 of the Indian Penal Code as well as under section 27 of the Arms Act. The petitioners were taken in custody during the investigation and after submission of final form were released on ball by orders passed by this Court. Before the order of commitment, the petitioners have filed this application under section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for grant of anticipatory bail. A prayer has been made to direct the Magistrate, who is to pass the order for commitment, to release the petitioners on bail after such order. The Stamp Reporter has raised an objection regarding the maintainability of such an application. 2. Section 438 of the Code empowers the High Court or the court of session to pass orders directing any person who has reason to believe that be may be arrested on an accusation of having committed a non-bailable offence to be released on bail, in the event of such arrest. The present application raises an interesting question as to whether such power can be exercised while the matter is pending before the committing magistrate. I may observe at the outset that section 438 neither prescribes any guidelines in respect of cases where such powers should be exercised nor it says about the stage at which this power should be exercised. But on a plain reading, it has to be held that an application for anticipatory bail can be made by any person who has reasons to believe that be may be arrested on an accusation of having committed non-bailable offence, i.e., at a stage before he is taken in custody. Admittedly, there is no question of granting anticipatory bail when a person is either in custody or has been released on bail. In the instant case, as already stated above, the petitioners are on bail, but, according to the learned counsel for the petitioners, they are apprehending that they may be taken in custody when an older for commitment is made against them, and, as such, they have invoked the power of this Court under section 438 of the Code so that they may not be taken in the custody at the stage of passing of the commitment order. 3. 3. The relevant portion of section 209 of the Code is as follows : “When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall….. (a) commit the case to the Court of Session, (b) subject to the provisions of the Code relating to bail, remand the accused to custody during, and until the conclusion of the trial." In view of this section, whenever it appears to the Magistrate that the offence is triable exclusively by a Court of session, he has to commit the case to the court or session, and, subject to the provisions or this code relating to bail, remand the accused to custody during and until the conclusion or the trial. In my view, clause (b) of Section 209 requires the committing magistrate to remand the accused to custody during and until the conclusion of the trial. In view of this provision the remand of any accused to custody during the sessions trial is validated otherwise his detention in custody would have become without an authority in law. It cannot be disputed that the proviso to sub-section (2) of section 309 of the Code which is a provision for remand during trial is not applicable to a sessions trial and is applicable only to trial by magistrate. In view of the expressions "until conclusion of trial", there should not be any difficulty in holding that the framers of the Code vested power in the magistrate passing an order or commitment to remand an accused until the conclusion of the sessions trial. This is, however, subject to power of granting bail. 4. On a plain reading, section 438 does not contemplate granting of anticipatory bail to a person who is already on bail merely because at a later stage he has to be taken in custody Learned counsel appearing for the petitioners, however, has placed reliance on a Bench decision of Madhya Pradesh High Court in the case of Ramsewak and others v. State of M.P., where it was held that anticipatory bail can be granted by the High Court or the Sessions Judge even at the stage of passing the commitment order. The learned Judges have arrived at the said conclusion primarily on the expressions "subject to the provisions of this Code relating to bail" occurring in clause (b) of section 209. With all due respect for the learned Judges who decided the aforesaid case, I am unable to agree with the said view. The expression "subject to the provisions or this Code relating to bail', in my opinion, only make it clear that even after remanding the accused to custody after passing an order of commitment, the court concerned or a superior court can entertain an application for bail which has to be disposed of on merit of the case. It cannot be interpreted to mean that all provisions relating to bail, including grant of anticipatory bail, become applicable at that stage. 5. As it has been pointed out on several occasions by this Court as by the Supreme Court, the very purpose of incorporating a provision like section 438 in the Code of Criminal Procedure is to save persons from malicious arrest and detention on charge which may be motivated. The Law Commission itself in its 41st Report while recommending a provision of anticipatory bail, observed as follows: “Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because some times influential persons try to implicate their rivals in false case for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. The necessity for granting anticipatory bail arises mainly because some times influential persons try to implicate their rivals in false case for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.” Similarly, the Supreme Court in the case of Balchand Jain Vs State of Madhya Pradesh while considering the scope of section 438 of the Code, observed: "From what has been laid it is clear that the intention of the Legislature in enshrining the salutary provision in Section 438 of the Code which applies only to non-bailable offences was to see that the liberty of the subject is not put in jeopardy on frivolous grounds at the instance or unscrupulous or irresponsible persons or officers who may sometimes be in charge of prosecution." No such danger can be apprehended by an accused person from a court which is exercising judicial powers. In other words, when the committing magistrate passes a commitment order and remands the accused persons to custody, it shall be presumed that such order has been passed in exercise of judicial discretion after such court was satisfied about the nature of allegation made against such accused persons. In such a situation, there is no question of the Sessions Judge or this Court coming to save such accused persons from being taken in custody on a frivolous or malicious charge. If the contentions, which have been raised on behalf of the petitioners, are accepted, that power under section 438 of the Code can be exercised at any stage of the criminal proceeding, including during trial, when the accused concerned is already on bail, then the logical end will be that after conclusion of the sessions trial and before the judgment is delivered, an accused may invoke the power of this Court under section 438 of the Code for grant of anticipatory bail so that he may not be taken in custody after judgment of conviction by the sessions court. In my view, this will lead to an absurd result. Although in Section 438 there is no mention of any stage, till when the power is to be exercised, but it has to be construed taking into consideration the object and the purpose for which such provision was incorporated in the Code. In my opinion, there is no question of exercise of power under section 438 when the accused persons are on bail and the Magistrate is considering the question of passing an order of commitment in terms of section 209 of the Code. If any such direction is given at this stage it will not be granting an anticipatory bail but an order that the bail of such accused persons be not cancelled even if an order of commitment has been passed against them. This is beyond the scope of section 438. A learned Judge of Rajasthan High Court in the case of Rewat Dan and others Vs. State of Rajasthan has also taken the view that power under section 438 of the Code cannot be exercised at the stage of passing of the commitment order. I am in respectful agreement with the said view. 6. The result is that the application for anticipatory ban is not maintainable and the objection of tile Stamp Reporter is valid and well founded. The application is accordingly, held to be not maintainable. In my view, the proper course for the petitioners's that when the order of commitment is passed and they are taken in custody, they should make a prayer for grant of regular bail, which, shall be disposed of in accordance with law. Muneshwari Sahay, J. I agree. Application not maintainable.