Shiv Kumar Sharma, J.- The accused petitioner Suresh has moved this bail application under Section 438 CrPC 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 CrPC can convert warrant of

arrest into bailable warrant in a case triable by me Sessions Court?

2) Whether the provisions contained in Section 71 CrPC are applicable only to the witnesses?

3) What is the scope of sub-section (3) of Section 438 CrPC ?

(2). Learned advocate of the Bar who were invited to assist the court made their respective submissions. (3). In Gurubaksh Singh Sibbia vs. State of Punjab AIR 1980 SC 1632, their Lordships of the Supreme Court indicated that the High Court and the court of Sessions to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit to do so on th