JUDGMENT 1. - A case under sections 363 and 384 IPC was registered against the two petitioners and one Arvind Jain. The First Information Report of the case was lodged at the police station Kotwali, Kota. A complaint in the case was made by Phool Chand father of Rachna who is said to be about 15 years of age, alleging that on 6.9.1985, Rachna did not return home from school and when she was searched all over, she was not found. At about 8.30 they contacted the petitioner Durgalal and then Durgalal as well as Brijraj son of Phool Chand together searched Rachna but she was not found. Durgalal suggested that she should be at Ksheer Sagar hotel, Jaipur. Phool Chand told him to accompany him to Jaipur but Durgalal refused to go. Brijraj lodged a report at the police station Vidhayakpuri, Jaipur, that his sister Rachna was kidnapped by the petitioner Prakash and he suggested that they were staying at hotel Ksheer Sagar, Jaipur and the police started their proceedings at once. However, Rachna was not found and Brijraj returned to Kota During this time Durgalal kept on talking to Phool Chand on the telephone that he should marry Rachna with Prakash and also demanded a sum of Rs. 5 lacs, failing which Rachna could even be murdered. This report was lodged by Phool Chand on 8th September, 1985. 2. Durgalal moved an application under Section 438 Cr. P.C. for anticipatory bail, before the Sessions Judge, Kota, which was dismissed on 17th September, 1985. The third accused in this case namely Arvind Kumar was released on bail. The petitioner Prakash moved an application for anticipatory bail before the learned Sessions Judge, Jaipur City, and his application was rejected on 20th Sept., 1985. 3. Both the petitioners moved this Court under Section 438 Cr. P.C. by separate applications and on 4th October, 1985, the following order was passed:- "Heard learned counsel for the petitioner and learned public prosecutor at length. In the circumstances of the case the petitioners are directed to produce Rachna before this Court on 7th October, 1985. Meanwhile, the petitioner shall not be arrested. If the petitioners,want, they may produce Rachna in any police station at Jaipur, from where she can come to the Court under police escort." 4. In the circumstances of the case the petitioners are directed to produce Rachna before this Court on 7th October, 1985. Meanwhile, the petitioner shall not be arrested. If the petitioners,want, they may produce Rachna in any police station at Jaipur, from where she can come to the Court under police escort." 4. The petitioners were ordered to come to this court along with Rachna on 7.10.85, but no one appeared in Court on that date and the reason given by the learned counsel for the petitioners was that the case had not been listed. Thereafter the petitioners contention is that Durgalal reported at the police station Vidhayakpuri, and Rachna was also produced there and the orders of the Court were conveyed but instead of producing Rachna before this Court as directed in the order dated 4th October, 1985 both the petitioners were arrested by the Kota Police with the help of the S.H.O. P.S. Vidhayakpuri in the early hours of 8th October, 1985 and taken away to Kota. In these circumstances, two questions, have arisen before me. The first contention of the learned counsel for the petitioner is that the applications under Section 438 Cr. P C. be treated as applications under section 439 Cr. P C. and in the facts and circumstances of this case the accused petitioner may be released on bail. The second contention is that contempt of court-proceedings be taken against the concerned persons of police station Kotwali, Kota as well as Vidhayakpuri, Jaipur, for disobeying the orders of this Court. In adopting the later course he has requested for time for producing all the relevant material before this Court. It may be mentioned here that in this respect, so far Damodar brother of petitioner Durgalal has given his affidavit. But the version of Prakash, Durgalal and even Rachna will be relevant and unless their version is also known in this matter, it will not be proper to proceed further. Therefore, for these purposes time will be granted to the petitioners. 5. Now. I shall consider the question of treating this application as an application under Section 439 Cr. P.C. First of all a preliminary objections have been raised the usual practice is that an application under Section 439 Cr. P.C. should be first moved before the learned Sessions Judge and when the accused are unsuccessful before that Court, they should come before the High Court. P.C. First of all a preliminary objections have been raised the usual practice is that an application under Section 439 Cr. P.C. should be first moved before the learned Sessions Judge and when the accused are unsuccessful before that Court, they should come before the High Court. Relying on the case of Gurbaksh Singh Sibbia v. The State of Punjab (reported in AIR 1980 S.C. 1632 ) it has been contended that the provisions of Section 438 Cr. P.C. cannot be invoked after the arrest of the accused. Section 438 Cr. P.C. is applicable only so far as the accused person has an apprehension of being arrested or he has reason to believe that he may be arrested for a non-bailable offence and for that case he could be released on anticipatory bail, if the Court considers proper. 6. Sections 437 or 439 came into play once the accused is arrested and an order under these provisions cannot be made on an application under Section 438 Cr. P.C. 7. There is no doubt that on an application under Section 438 Cr.P.C. a person already arrested cannot be released on an anticipatory bail and it is precisely for this reason that the petitioners have moved an application that in the facts and circumstances of the case, when the petitioners have been arrested in spite of the orders of the court not to arrest them, that a request has been made that this application be treated as an application under Section 439 Cr.P.C. It has been seen above that it was ordered on 4.10.85 that the petitioners shall not be arrested, meanwhile, but before taking further orders of this Court, they have been arrested. It is in these unusual circumstances that it has become necessary to convert the application under section 438 Cr.P.C. into one under section 439 Cr. P.C. and this prayer of the petitioners deserves to be accepted. 8. The contention of learned P.P. is that an application under section 439, should be first moved before the Sessions Court and it is only after being unsuccessful before that Court then the petitioners can come before this Court. As for this contention, it can be said that the usual practice is that the persons arrested for non-bailable offence should first approach the Sessions Court for their release and then come to the High Court. As for this contention, it can be said that the usual practice is that the persons arrested for non-bailable offence should first approach the Sessions Court for their release and then come to the High Court. If they are not successful before the Sessions Court, under section 439 Cr. P.C. there is no prohibition that the High Court cannot entertain an application under Section 439 Cr.P.C. unless such an application, is first moved before the Sessions Court. It is in the unusual circumstances of the case that an application under section 438 Cr.P.C. has been allowed to be treated as an application under section 439 Cr.P.C. and if in such a situation the petitioners are made to first apply before the Sessions Court and only after their application is rejected by that Court they can come here, then the very purpose of converting this application under section 439 Cr.P.C. will be defeated. The usual practice of the Courts cannot be converted into a rule to deny relief by the Court, when there is no statutory restriction. 9. Coming to the facts of the case, it is to be seen whether the petitioners can be released on bail or not. On behalf of the petitioners, it is argued that the girl Rachna is a major girl as per the medical examination conducted by the Medical Officer, Saadet Hospital, Tonk. An affidavit, signed by Rachna has also been shown in which she has declared that she is 19 years of age and that she is marrying the petitioner Prakash on her own free-will and not under any compulsion. Several love letters written by Rachna to Prakash have also been shown to me. From the First Information Report, itself it is apparent that Durgalal assisted the complainant in looking for Rachna and Prakash and provided information where they were likely to be. I wanted to see and examine Rachna herself in order to ascertain her wishes but it appears that some other forces were active to see that she was not examined by any one specially court before a bit of tutoring. A school certificate of Rachna as shown by the learned Public Prosecutor also shows her age to be 17 years. Thus she may be 17 or 18 years but she is not less than 16 years. A school certificate of Rachna as shown by the learned Public Prosecutor also shows her age to be 17 years. Thus she may be 17 or 18 years but she is not less than 16 years. On a consideration of the material shown to me, I consider it proper to release both the accused petitioners Prakash Gwalera and Durgalal on bail, if each one of them submits a personal bail bond and a surety in the sum of Rs. 5,000/- each to the satisfaction of learned A.M.J.M. No. 1, South, Kota who is said to be the concerned Magistrate, for their appearance in that Court on all dates of hearing, they shall be released on bail.The petitioners are allowed to furnish further material after a week for proceeding in the matter of contempt of Court.Bail granted. *******