JUDGMENT 1. - Mr. Saraswat has submitted that in this case the bail application under section 438 Criminal Procedure Code 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. Section 438 Criminal Procedure Code 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 v. State of Rajasthan, reported in 1987 RCC P. 370 and has quoted the following passage from the afore,said decision of Vasudeo v. State of Rajasthan : "Once the process issued the normal course is that the accused should appear before the Court and move a proper application under section 437 or section 449 Criminal Procedure Code as the case may he, instead of invoking the provisions under S 438 Criminal Procedure Code unless he is compelled to invoke that jurisdiction for which he must have sound reasons 2. Mr Sarasv at has cited before me RCC (Feb ) 1988 P. 41 (Maha Singh and Ors. v. State of Rajasthan) . In this case Hon'ble Justice Mr M.B. Sharma has considered the decision rendered in the case of Vasudeo and Ors. v. 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 Criminal Procedure Code will not be applicable and the proper course for the accused will be to move an application for bail under Section 437 or 439 Criminal Procedure Code as the case may he. In view of the aforesaid Division Bench authority there can be no doubt that the provisions of Section 438 Criminal Procedure Code are applicable to the case of the present nature'. In view of the aforesaid Division Bench authority there can be no doubt that the provisions of Section 438 Criminal Procedure Code 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 v. State of Rajasthan) wherein, it has been observed as under : "Hence it cannot be safely held that Section 438 Criminal Procedure Code is in-applicable to a case where cognizance of a non-bailable offence has been taken by a Magistrate against any person and a warrant of arrest has been issued to compel his attendance It does not appear from the language used in Sec 438 Criminal Procedure Code that the legislature while enacting the section intended that the power of granting anticipatory bail to a person conferred on the High Court or the Court of Session would he restricted to those cases only where the Magistrate has not taken cognizance of a non-bailable offence against such person and has not issued warrant for his arrest We, therefore, cannot subscribe to the view that in a case where the Magistrate has taken cognizance of a non-bailable offence and has issued warrant for the arrest of such person the protection given by the legislature to such a person by enacting Section 438 Criminal Procedure Code shall cease to exist, because if such a view is taken even a person, who is falsely implicated by his rivals in a non-bailable offence for the purpose of disgracing him or for the purpose of getting him detained in jail for some days and who genuinely believes that he is likely to be arrested shall have no remedy and shall have to submit to custody and remain in prison for some days and then to apply for bail. Section 438 Criminal Procedure Code can be invoked even when the arrest of a person is certain in execution of a warrant for arrest issued by a Magistrate after taking cognizance of a non bailable offence against him." 3. Section 438 Criminal Procedure Code can be invoked even when the arrest of a person is certain in execution of a warrant for arrest issued by a Magistrate after taking cognizance of a non bailable offence against him." 3. In the aforesaid Division Bench's judgment the matter had come up before the Division Bench by way of a reference as under: "Whether it is open to an accused person to apply for bail under Section 438 Criminal Procedure Code in a case where the Magistrate has taken cognizance of the offence and has passed order for the issue of warrant for the arrest of the accused person"? 4. The Division Bench further taking note of the provisions contained in Sections 437 and 439 Criminal Procedure Code has held that the grounds such as taking of cognizance of an offence against a person and issuing a warrant of his arrest does not debar the High Court or the Sessions Court to consider the application for bail to such person who genuinely apprehands that he is likely to be arrested in execution of the warrant and if the High Court or the Court of Sessions is satisfied after applying its mind to the materials available that if anticipatory bail is refused an irreparable wrong or injustice may result which it is desirable to avoid, provisions of Section 438 Criminal Procedure Code can be invoked. The reference was answered accordingly and the application for anticipatory bail filed by Nandram was ordered to be put before the learned Single Judge for orders. 5. I have considered the aforesaid decisions and I am of the opinion that in cases where the cognizance of a non-bailable offence has been taken by a Magistrate and the warrants have been issued for his arrest, Section 438 Criminal Procedure Code does not stand excluded and it is open for the High Court or the Court of Sessions to exercise the powers under Section 438 Criminal Procedure Code in an appropriate case and it is not necessary to make the petitioner wait for his arrest and then apply for bail nor, it is incumbent upon him to take recourse to the provisions of Section 437 and Section 439 Criminal Procedure Code The decision rendered in Vasudeo and Ors. v. State of Rajasthan (supra) appears to have been taken without considering the aforesaid authority of the Division Bench as the case of Nand Ram v. State of Rajasthan was not brought to the notice to the learned Single Judge who decided Vasudeo's case. Moreover, to Vasudeo's case also the Court had observed that creating a terror at the cost of somebody else can neither be said to be a policy of the Government nor, can be considered as the one for the purpose of accepting or refusal of the bail and further, while observing that once the process issued the normal course is to apply under Section 437 or 439 Criminal Procedure Code as the case may be instead of invoking the provisions under Section 438 Criminal Procedure Code it has been coupled with the further observation that unless he is compelled to invoke that jurisdiction for which he must have sound reasons, therefore, even on the authority of Vasudeo's case the provisions of Section 438 Criminal Procedure Code cannot be said to be completely excluded and in a given case there is no bar against the exercise of power under Section 418 Criminal Procedure Code and it may be invoked in appropriate case. In any case the decision in Vasudeo's case is clearly distinguishable and in fact already stands distinguished in Maha Singh v. Stare of Rajasthan (supra) and I am of the considered opinion that the view taken by the learned Sessions Judge in the case at hand with reference to Vasudeo's case cannot be accepted to be the correct view in view of the decisions of this Court in Maha Singh and Ors. v. State of Rajasthan (supra) and the view taken in Nand Ram v. State of Rajasthan (supra) 6. Coming to the merits of the case, it has been argued by Mr. Saraswat that the present accused-petitioner was only standing in the company of Narayani, Beena, Santosh and Binsi against whom the allegation is that they put the complainant Smt. Vimla to fire by sprinkling the Oil over her. The learned Additional Public Prosecutor has also read out the dying declaration of Smt. Vimla and has frankly submitted that all that has been said against the petitioner is that he was also present on the sopt. 7. The learned Additional Public Prosecutor has also read out the dying declaration of Smt. Vimla and has frankly submitted that all that has been said against the petitioner is that he was also present on the sopt. 7. In the facts and circumstances of the case and looking to the nature of the allegation against the present accused-petitioner, I am of the I opinion that the accused-petitioner should be released on bail under section 438 Criminal Procedure Code Consequently I allow this bail application under section 438 Criminal Procedure Code. 8. It is, therefore, ordered that the petitioner Rajendra Kumar Sharma @ Raju S/o Shri Sita Ram Sharma by caste Brahmin, R/o Shiv Marg, Bani Park, Jaipur if sought to be arrested by the SHO/Arresting Officer/Investigating Officer, Session Court Jaipur City, Jaipur in connection with Sessions Case No. 223/92 registered in that court for offence under section 302/34 Indian Penal Code subject to his furnishing a personal bond in the sum of Rs. 10,000/-(Rs. Ten Thousand) with two sureties of Rs. 5,000/- (Rs. Five Thousand) each to the satisfaction of the Sessions Judge of the said court, be released on bail, on the following conditions : 1. that the petitioner shall make himself available for interrogation by a police officer as and when required; 2. that the petitioners shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the Court, or any police officer; and 3. that the petitioner shall not leave India without the previous permission of the Court. Bail granted. *******