IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION NO. 1787/2009 (Manohar Ganpatrao Mutey ..vs. State of Maharashtra.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : S.R.DONGAONKAR, J. DATE : 6 th May, 2009 CRIMINAL APPLICATION NO. 1188/2009 Heard Shir Mardikar, Advocate, for the applicant. Filing of typed copy of the F.I.R. and certified copy of the order are presently dispensed with. The same be filed as and when directed by the Court. Application disposed of. CRIMINAL APPLICATION NO. 1187/2009 Heard Shri Mardikar, Advocate, for the applicant and Shri Mandpe, APP, for respondent. It appears that the applicant was being tried for the offence under Section 354 of the I.P.C. However, after recording of evidence of P.W.1, Smt. Sathawane, learned J.M.F.C. found that the offence against the applicant was made out under Section 376 r/w 511 of the IPC. Therefore, learned J.M.F.C. has found that he has no jurisdiction to try the said offence and he directed committal of the case to the Sessions. It appears that, as the applicant was absent, N.B.W. was issued. The applicant then moved the learned Sessions Judge for anticipatory bail. The learned Sessions Judge, however, rejected that application by the impugned order. It appears that the applicant was sought to be taken in custody because he was absent and N.B.W. was issued against him. It appears that the learned Sessions Judge did not consider the principles laid down in 2003 Cri.L.J. 5038, Bharat Chaudhary and another vs. State of Bihar and another. The applicant was on bail when his trial for the offence under Section 354 of IPC was being proceeded. No doubt, for the evidence of P.W.-1, the learned Magistrate considered that the offence was under Section 376 r/w Section 511 of the I.P.C., but fact remains that the report lodged by the prosecutrix was for the offence under Section 354 of the I.P.C. In these circumstances, to my mind, the learned Sessions Judge should have considered this aspect of the case. As the matter is now pending before the Sessions Court, it is in the fitness of things to direct him to consider the application of the applicant in the light of the judgment of the Apex Court referred above. Therefore, this application is disposed of with a liberty to the applicant to move the Sessions Court again. The learned Sessions Judge shall consider the application of the applicant, if moved, keeping in mind the observations of the Apex Court in 2003 Cri.L.J. 5038, Bharat Chaudhary and another vs. State of Bihar and another and pass appropriate orders without being influenced by his earlier order. Application disposed of. The applicant is allowed to move the Sessions Court latest by 11th May, 2009, till then the respondent may not arrest him. JUDGE Rvjalit