1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRI. WRIT PETITION NO. 479/2010 Mahendra Dattatraya Nikalje & Others ( V. ) The State of Maharashtra & Others. _______________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________________________________________ Mr. Sachin Deshmukh, Advocate for petitioners. Mr. V.D. Rakh, A.P.P. for State. CORAM : [A.V. NIRGUDE, J.] PER COURT : 1. The matter was not on board. Taken on board. Heard. 2 This writ petition is filed in order to challenge the legality of the order dated 28th April, 2010 passed by the learned Judicial Magistrate (First Class), Ambejogai, allowing the investigation officer’s application and sending the petitioners in Police custody in connection to Crime No. 32/2010. 3 The brief back ground of this case is as under. On 26/12/2009 the complainant came 2 to the petitioners’ house. The complainant happened to be the mother of the petitioner no.1. The petitioners and the complainant had a quarrel and the petitioner no.2 allegedly manhandled the complainant and pushed her down. Thereafter, the petitioner no.2 picked up a stone and dealt a blow on the thigh of the complainant. The complainant is 65 years old woman and due to this incident, she was taken to hospital where her treatment was started. Within two days, she lodged complaint. Initially, the police refused to take cognizance of her complaint because at that time, they thought that it was a case of simple hurt etc.. However, on 19th March, 2010 after about 2 ½ months from the date of incident, the police received medical certificate and it was revealed that the complainant had sustained fracture to her limb. The certificate mentioned that the complainant had suffered a grievous hurt. The Police promptly registered offence against the petitioners and charged them for offences 3 punishable under sections 325, 504, 506 r/w section 34 of Indian Penal Code. In the mean time, they were arrested and they were produced before the learned Magistrate on 28th April, 2010. The Investigation officer surprisingly sought police custody remand of the petitioners, saying that that the stone, deadly weapon which was allegedly used at the time of incident was required to be recovered and so he sought police custody remand. The learned Magistrate held that this was probably case under section 326 of Indian Penal Code because deadly weapon was used for causing grievous hurt and therefore, allowed request of the Investigation Officer and refused to release the petitioners on bail. The learned Magistrate in my view, committed an error. He ignored an important aspect of this case that the prosecution did not charge the petitioners under section 326 of Indian Penal Code at all. Even when the Police custody was sought, the police did not say 4 that this was a case of causing grievous hurt by using deadly weapons. If this was a case under section 325, 504, 506 r/w section 34 of Indian Penal Code then the offences were bailable and if the petitioners had sought bail, the learned Magistrate could not have refused the same. The petitioners were before the learned Sessions Judge, Ambejogai when they sought anticipatory bail. Their bail application was opposed by the prosecution on the ground that they are not charged with an offence which is non bailable one. On this very ground, the learned Sessions Judge refused them protection. In the light of these events, the order of the learned Judicial Magistrate (First Class), is erroneous and deserves to be set aside. The applicants are taken in Magisterial Custody Remand and the learned Magistrate shall now consider their application for bail on merits. W.P. stands disposed of. 4 The parties to act on the copy of this 5 order duly authenticated by the Court Sirastedar of this court. Dt : 29th April, 10 [A.V. NIRGUDE, J.] tsk/