IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO. 4217 OF 2007. APPLICATION NO. 4217 OF 2007. APPLICATION NO. 4217 OF 2007. Mukesh R.Shiyal and others. ... Applicants. Versus. State of Maharashtra ... Respondent. Shri Niranjan Mundargi i/by Shri Chaitanya Pendse for the Applicants. Shri V.B.Konde-Deshmukh, A.P.P. for the Respondent. Shri V.M.Waghela for the son of the victim. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. (Vacation (Vacation (Vacation Judge.) Judge.) Judge.) DATED DATED DATED : 3rd January, 2008. : 3rd January, 2008. : 3rd January, 2008. P.C.: P.C.: P.C.: 1. Heard the Advocate for the Applicants and the learned A.P.P. for the State and the learned Advocate appearing for the son of the victim. By consent, taken up for hearing. The Application for anticipatory bail has been rejected by the learned Assistant Sessions Judge. 2. The submissions of the learned Advocate for the Applicants is that the learned Assistant Sessions Judge has not considered the application for anticipatory bail filed by the Applicants on merits. The second submission is that the Application has been rejected by the learned Assistant Sessions Judge only on the ground that by order dated 24th December 2007, the Application made by the prosecution for cancellation of bail was : 2 : 2 : 2 : allowed by the learned Additional Chief Metropolitan Magistrate and the Applicants have not challenged the said order. The submission of the Advocate for the Applicants is that the order dated 24th December 2007 was never served to the Applicants and the Applicants were not heard before passing the said order. He submitted that this is a fit case to grant anticipatory bail. The learned A.P.P. and the Advocate for the son of the victim have opposed the Application. I have carefully considered the submissions. 3. The learned A.P.P. appearing for the State has produced for my perusal a copy of the order dated 24th December 2007. Initially an offence was registered under sections 324, 504 read with 34 of the Indian Penal Code. Subsequently, the victim expired and the prosecution applied section 302 of the IPC. An application was made to the learned Additional Chief Metropolitan Magistrate by the prosecution seeking permission to re-arrest the Applicants. By an order dated 24th December 2007, the learned Additional Chief Metropolitan Magistrate has observed that the investigating agency is permitted to re-arrest the Applicants. The order dated 24th December 2007 is not an order cancelling the bail granted earlier to the Applicants. : 3 : 3 : 3 : 4. A perusal of the order dated 28th December 2007 passed by the learned Assistant Sessions Judge shows that the merits of the case made out by the Applicants have not been considered and the Application for anticipatory bail is rejected only on the ground that the Applicants have not challenged the order dated 24th December 2007. Considering the nature of the order dated 24th December 2007, the learned Assistant Sessions Judge could not have rejected the Application for anticipatory bail only on the ground that the Applicants have not challenged the said order. In my view, the learned Assistant Sessions Judge ought to have considered the Application for grant of anticipatory bail on merits. 5. Hence the following order is passed: i) The order dated 28th December 2007 passed in Anticipatory Bail Application No.1571 of 2007 is quashed and set aside and the said Application is restored to file. ii) The parties are directed to appear before the concerned Sessions Court on Monday 7th January 2008. The Sessions Court will make an endeavour to decide the Application for anticipatory bail on the same day. If the learned Judge is unable : 4 : 4 : 4 : to decide the Application on the same day, he will consider the prayer for grant of interim relief made by the Applicants in the said Application. iii) Till 7th January 2008, the Applicants shall not be arrested in connection with C.R.No.528 of 2007 of Chembur Police Station subject to condition that the Applicants will personally remain present before the Sessions Court on 7th January 2008 and they will attend the concerned Police Station as and when called upon to do so and will cooperate for the investigation. iv) All contentions of the parties on merits are expressly kept open. v) It is clarified that the parties will appear before the concerned learned Sessions Judge who is assigned the work of Applications for anticipatory bail. vi) Application is disposed of accordingly. vii) The parties and the concerned Court will act on an authenticated copy of this order. : 5 : 5 : 5 : Judge. Judge. Judge.