1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Criminal Application No.2607 of 2008 (The State of Maharashtra, through PSO, Lakhani v. Rajendra @ Raju s/o Asaram Nirwan) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Shri T.A. Mirza, APP for Applicant/State. Shri N.N. Mothghare, Advocate for Non-Applicant. CORAM : R.C. Chavan, J. DATE : 8th December, 2008 This is an application under Section 482 of the Code of Criminal Procedure, whereby the prosecution seeks quashing and setting aside the order passed by the learned Additional Sessions Judge, Bhandara on 8-2-2008 in Criminal Revision No.80 of 2007. I have heard the learned Additional Public Prosecutor for the applicant/State as well as the learned counsel for the non-applicant/accused. In this case, the non-applicant had surrendered before the learned Magistrate on 24-10-2007 and was remanded by the learned Magistrate to magisterial custody. Thereafter the Investigating Officer applied to the learned Magistrate for grant of police custody and, therefore, the learned Magistrate issued a production warrant. The non-applicant was produced on 4-11-2007. On 7-11-2007, the 2 learned Magistrate remanded the non-applicant to police custody till 8-11-2007. On 8-11-2007, the learned Magistrate refused to extend the police custody and took the non-applicant in magisterial custody. This order was challenged by the prosecution by filing a revision before the learned Additional Sessions Judge, Bhandara, who dismissed the same. Aggrieved thereby, the prosecution is before this Court. The learned APP submitted that the reliance by the learned Magistrate on a judgment of the Supreme Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, reported at AIR 1992 SC 1768, was misplaced, since in that case, the accused had been arrested and produced before the Magistrate and after a lapse of fifteen days, police custody remand was sought. He submitted that such are not the facts of the present case. In this case, the accused had himself surrendered and there was no occasion for the police to arrest the accused and produce him before the Court. He submitted that Section 167(1) of the Code of Criminal Procedure begins with the words “whenever any person is arrested and detained in custody”. He further pointed out that sub-section (2) of Section 167 of the Code of Criminal Procedure, which empowers the Magistrate to remand the accused to such custody as the Magistrate may think fit, also pertains to an accused person, who is forwarded under the said Section. Therefore, the learned APP is right in contending 3 that the learned Magistrate should not have placed reliance on the judgment in Anupam J. Kulkarni's case. However, on facts, this is not a case where the learned Magistrate could be said to have erred in refusing the police custody of the non-applicant requiring invocation of inherent powers of this Court. The allegation in the application for police custody at page 39 of the compilation shows that there was a dispute about the contribution collected for the Ganesh festival. The accused pushed the complainant's brother Shalik Ganpat Nirwan. The accused hit the complainant's brother with a revolver's butt, injuring him. Thereafter he was also subjected to a scratch by a weapon called waghnakhi. It cannot be said that there was an assault of a very serious nature, which required investigation by subjecting the non-applicant to police custody. The learned counsel for the non-applicant states that his client has been attending the Police Station on every Monday and would continue to appear before the Investigating Officer as and when the Investigating Officer requires his presence for the purpose of interrogation. Any discovery made at the interrogation during such attendance at the Police Station would obviously be treated as one under Section 27 of the Evidence Act, as the non-applicant for that purpose would be treated as in police custody for the time during which his presence would be required by the Investigating Officer. In view of this, no case for invocation of inherent jurisdiction is made out. 4 The application is rejected. JUDGE pdl