K.D. SHARMA, J—The following question has been referred to us for decision by a learned single Judge of this Court:—

"Whether it is open to an accused person to apply for bail under sec. 438 Cr.P.C. 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?"

Before dealing with this question we would like to determine the true scope of sec. 438 Cr.P.C., Sec. 438 Cr.P.C. reads as follows:—

"S. 438 Direction for grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section, and that Court may, if it thinks fit direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub-sec. (1) it may include such condition in such directions in the light of the facts of the particular case as it may think fit including—

(i) a condition that the person shall make himself available for interrogation by a police officer as and when requ

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