1 Cri.W.P.No.903/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.903 OF 2010 Dilip Harakchand Jain, Age 45 years, Occ. Business, R/o New Plot, Dhule Road, Amalner, Taluka Amalner, District Jalgaon ... PETITIONER VERSUS 1. The State of Maharashtra through the Principal Secretary, Home Department, Mantralaya, Mumbai – 400 032 (Notice to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad) 2. Vinod Rajdhar Patil, Age 53 years, Occ. Business, R/o Siddhi Vinayak Colony, Dhule Road, Amalner, Taluka Amalner, District Jalgaon. 3. Sandesh Bipin Gujrathi, Age 44 years, Occ. Business, R/o New Plot, Amalner, Taluka Amalner, District Jalgaon. 4. Prakash Popatlal Patil, Age 53 years, Occ. Agriculture, R/o New Plot, Dhule Road, Amalner, Taluka Amalner, District Jalgaon. 5. Ajay Raghunath Kele, Age 43 years, Occ. Business, 2 Cri.W.P.No.903/2010 R/o Galwade Road, Amalner, Taluka Amalner, District Jalgaon 6. Shivaji Avachit Patil, Age 58 years, Occ. Service, 7. Shankar Ramdas Chaudhary, Age 55 years, Occ. Service 8. Somnath Sakharam Brahme, Age 53 years, Occ. Service. Nos.6 to 8 R/o Pratap College, Amalner, Taluka Amalner, District Jalgaon. ... RESPONDENTS ..... Shri R.R. Mantri, Advocate for petitioner Mrs. R.K. Ladda, A.P.P. for respondent No.1 Shri N.B. Suryawanshi, Advocate for respondent Nos.2 to 8 ..... CORAM : U.D. SALVI, J. DATED : 24th November, 2011. ORAL JUDGMENT : 1. Heard. Perused. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by mutual consent of parties. 3. The petitioner has lodged a private complaint being R.C.C. No.45/2010 against the respondents No.2 to 8 and one Dr. Shashank Jagannath Joshi, in the Court of Judicial Magistrate, First 3 Cri.W.P.No.903/2010 Class, Amalner, making accusations of the commission of the offences punishable under Sections 193, 196, 406, 409, 420, 467, 468, 471, 477-A read with Section 34 of the Indian Penal Code, 1860. Learned Judicial Magistrate, First Class ordered investigation as per Section 156(3) of the Code of Criminal Procedure into the accusations made on 3.7.2010. It appears that, crime was registered at C.R. No.161/2010 under Sections 193, 196, 406, 409, 420 read with Section 34 of the Indian Penal Code, 1860 at Jalgaon City Police Station against the said accused on 6.7.2010 and the accused therein moved an application under Section 438 of the Code of Criminal Procedure, 1973 before the learned Additional Sessions Judge, Amalner on 30.8.2010. 4. Learned Additional Sessions Judge, Amalner, after hearing the parties, disposed off the said bail application, being Bail Application No.140/2010 with the following order : O R D E R 1) The application is disposed off. 2) The Investigating Officer is directed to give 72 hours notice to the petitioners before their arrest. 3) The petitioners are at liberty to move the Court for anticipatory bail, if such notice is received. 4 Cri.W.P.No.903/2010 4) In the mean time, petitioners to co-operate the Police in the investigation of the crime. 5) Inform the Local Crime Branch, Jalgoan accordingly. 5. Learned Advocate for the petitioner submitted that, the learned Sessions Judge had no jurisdiction to issue directions to the investigating officer to give 72 hours notice to the respondents/ accused before their arrest while disposing off the application under Section 438 of the Code of Criminal Procedure, 1973. Learned Advocate for the petitioner further submitted that, the learned Sessions Judge further erred in passing such directions despite finding misconceived apprehensions of the petitioner regarding their arrest vide para No.6 of the impugned order. 6. Reading of the Section 438 of the Code of Criminal Procedure discloses that the learned Sessions Judge could have only passed a direction under the said section that in the event of the arrest of the petitioners, they were to be released on bail. Issuance of directions to the investigating officers for giving of notice before their arrest was not envisaged under the said provision. Obviously, the learned Additional Sessions Judge, Amalner acted without jurisdiction while giving directions to the 5 Cri.W.P.No.903/2010 investigating officer, as aforesaid. This position of law is not disputed by Mr. Suryawanshi, learned Advocate for the respondents, but he submitted that there are reasons for passing such directions and the said reasons are very much apparent in the closing lines of para No.6 of the impugned order, which read as under : “Consequently, I am of the opinion that simply because the crime is registered at the instance of orders passed by the J.M.F.C., the apprehension of the petitioners cannot be said to be well founded. However, the possibility of their arrest also cannot be ruled out. Under the scenario, I am of the opinion that, since the picture is not clear, if Investigating Officer feels that the petitioners are to be arrested, he to give notice of 72 hours, . . . .” 7. The issue in the present petition is principally over the exercise of jurisdiction and not what the learned Additional Sessions Judge felt about the possibility of the arrest of the applicants. If he felt that there were genuine apprehensions regarding the arrest on accusation of having committed a non- bailable offence and the applicants were justified in seeking the protection as envisaged under Section 438 of the Code of Criminal Procedure, the only course available to the learned Sessions Judge was to pass directions for grant of anticipatory bail in the event of 6 Cri.W.P.No.903/2010 such apprehended arrest. Impugned order, therefore, requires to be interfered with. 8. At this stage, Mr. Suryawanshi, learned Advocate for the respondents seeks extension of the protection to the respondents for moving a fresh application under Section 438 of the Code of Criminal Procedure. This move is opposed by the petitioners. Learned A.P.P. for the State makes a statement that investigation is yet not complete. Looking to the past and the present, there is no need to grant any protection. However, the respondent Nos.2 to 8, more particularly the said accused are free to move a fresh application under Section 438 of the Code of Criminal Procedure, which shall be decided on its own merits in accordance with law. Hence the order : 9. Order dated 27.8.2010, passed by the learned Additional Sessions Judge, Amalner, in Bail Application No. 140/2010 is set aside. Rule is made absolute in terms of the aforesaid order. Criminal Writ Petition No.903/2010 stands disposed off accordingly. ( U.D. SALVI, J. ) (