Whether Magistrate can make out more serious offence than offence for which accused has surrendered?

In the second place, when the petitioners surrendered before

the Magistrate, and invoked the Magistrate's jurisdiction, it was open for
the Magistrate to form a prima facie opinion, on the material placed before
him, as to what offence the petitioners are alleged to have committed. The
Magistrate was of the view that, an offence punishable under Section 67-A
of the I.T. Act was also disclosed, and this finding of the Magistrate was
invited by the petitioners themselves by surrendering before the
Magistrate. It is not possible to accept that, the petitioners were entitled to

surrender before the Magistrate invoking jurisdiction and make him form
an opinion on the merits of the matter, but that, the formation of such
opinion must be according to what the petitioners desire. Once they had
approached the Magistrate, they could not prevent him from forming an
opinion that, more serious offence or a different one, had been, prima
facie, committed by the petitioners.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.

Criminal Writ Petition No. 1236 of 2013
 Atul s/o. Manchakrao Jadhav,


versus
 The State of Maharashtra,

CORAM : ABHAY M. THIPSAY, J.
Citation;2015 ALLMR(cri) 257
DATE : 6TH JANUARY 2014

Heard Mr. S.K. Chavan, the learned Counsel for the
petitioners. Heard Mr. S.B. Pulkundwar, the learned Additional Public
Prosecutor, for the respondent - State. I have also heard Mr. S.J. Salunke,
the learned Counsel for the respodent no.2 i.e. first informant, who has
filed an application for intervention in the matter.
2.
On the basis of the FIR lodged by the intervenor, a crime was
registered against the petitioners, in respect of an offence punishable under
Section 66-A of the Information Technology Act [For short, "the I.T.
Act"]. It is not in dispute that, this offence is bailable under the provisions
of the said Act. After the registration of the offence, the petitioners
approached the Judicial Magistrate (First Class), who was competent to
take cognizance of the said offence, surrendered before him, and made an
application for release on bail. The learned Magistrate expressed a doubt,

(3)
as to whether, before arrest of the petitioners, they could seek bail from the
Magistrate; but ultimately concluded that an offence punishable under
Section 67-A of the I.T. Act was also disclosed from the facts alleged. It
is not in dispute that, the offence punishable under Section 67-A of the I.T.
Act is non-bailable. The Magistrate, however, on an application made by
the petitioners, granted 'ad interim bail' (as termed by him), to the
petitioners.
The petitioners have now approached this Court invoking the

constitutional jurisdiction of this Court, and praying that the order passed
by the Magistrate wherein he recorded that, prima facie an offence
punishable under Section 67-A of the I.T. Act, was also disclosed, be
quashed and set aside.
The petition is misconceived.
3.
4.
In the first place, whether even before the Police had
expressed or disclosed an intention to arrest the petitioners, they could
straightway go before the Magistrate and surrender, is extremely doubtful.
How the Magistrate was to 'accept the surrender', when no material
showing that the petitioners were 'wanted' by the Police for arresting
them, was before him, is not clear. On the contrary, it appears that though
the petitioners were available to the Police, the Police had thought it fit,
not to arrest them and the petitioners were allowed to go after
interrogation. The Police have discretion in the matter of arrest, and
therefore, the Magistrate's doubt about whether to accept surrender of the
petitioners, under the circumstances, cannot be said to be unjustified.

(4)
In the second place, when the petitioners surrendered before
5.
the Magistrate, and invoked the Magistrate's jurisdiction, it was open for
the Magistrate to form a prima facie opinion, on the material placed before
him, as to what offence the petitioners are alleged to have committed. The
Magistrate was of the view that, an offence punishable under Section 67-A
of the I.T. Act was also disclosed, and this finding of the Magistrate was
invited by the petitioners themselves by surrendering before the
Magistrate. It is not possible to accept that, the petitioners were entitled to

surrender before the Magistrate invoking jurisdiction and make him form
an opinion on the merits of the matter, but that, the formation of such
opinion must be according to what the petitioners desire. Once they had
approached the Magistrate, they could not prevent him from forming an
opinion that, more serious offence or a different one, had been, prima
facie, committed by the petitioners.
6.
Though much can be said about the grant of 'ad interim bail'
by the Magistrate, I do not wish to go into the matter, as, in any case, there
is no case for intervention in the matter. The petitioners can avail of the
appropriate legal remedies if they are anxious about safeguarding their
liberty in accordance with law. Needless to say that, the petitioners shall
not be precluded from canvassing before the appropriate forum at
appropriate time i.e. even at the stage of consideration of the bail
application, or the anticipatory bail application, that, no case of an offence
punishable under Section 67-A of the I.T. Act is disclosed against the
petitioners, or any of them.

(5)
With the aforesaid observations, the petition is rejected.
7.
( ABHAY M. THIPSAY )
JUDGE

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