1. This petition is filed by the State under Article 227 of the Constitution of India and under Section 482 Cr.P.C. to challenge correctness and legality of the order dated 22nd October, 2008 passed by the learned Additional Sessions Judge, Kalyan in Criminal Anticipatory Bail Application No.640 of 2008 filed by the respondent and the order dated 22nd October, 2008 passed by the Judicial Magistrate First Class, 3rd Court, Kalyan on the application by the petitioner for transfer warrant in respect of the respondent.

2. The summary of the facts stated in the petition is as follows:

On 19th October, 2008 the Railway Recruitment Board was conducting examination for the post of Assistant Station Master and Clerk at 67 examination centres in the State of Maharashtra. In all, 16,000 candidates from all over the country were to appear for the examination. Tilak Vidyamandir, Dombivli (East), District-Thane was one of the examination centres. The members of Maharashtra Nav Nirman Sena, a political party, gathered outside the school agitating against the participation in the examination by non-Maharashtrians. They shouted slogans against non-Maharashtrian candidates, restrained them from entering the premises of the school and started beating them. They tore the hall-tickets and certificates of the candidates thereby scuttling the process of recruitment examination. After the incident, Dombivli Police Station registered a crime vide C.R.No.-I-257/2008 (Dombivli case for short) under Sections 109, 143, 147, 149, 188, 183, 153(a), 153(b) and 343 IPC read with Section 37(iii) and 135 of Bombay Police Act and Section 7 of Criminal Law Amendment initially against the miscreants and later against the respondent contending that the respondent being the President of Maharashtra Nav Nirman Sena had instigated and provoked the members of his party to create a law and order problem at the examination center. There are two more cases registered against the respondent, they being C.R.No.I-264 of 2008 with Kherwadi Police Station and C.R.No.164 of 2008 registered with Kalyan Railway Police (Kalyan Railway case for short). Both the complaints are for identical offences as in the complaint registered with Dombivli Police station.

3. The respondent was arrested at Ratnagiri and produced before the court of 32nd Metropolitan Magistrate, Bandra on 21st October, 2008 in C.R.No.-I-264/2008 registered with Kherwadi Police Station. The court ordered him to be released on bail in that case. However, pursuant to the transfer warrant issued by the learned Judicial Magistrate First Class, 3rd Court, Kalyan his custody was transferred to Dombivli Police Station in connection with Dombivli case. On the same day, Kalyan Railway Police had also obtained a transfer warrant from Judicial Magistrate First Class, Railway Court Kalyan against the respondent as he was required in the Kalyan Railway case.

4. On 22nd October, 2008 at about 2.30 p.m. the respondent was produced before the learned Judicial Magistrate First Class, 3rd Court, Kalyan when the Investigating Officer, filed an application requesting for grant of police custody of the respondent. The application was rejected and the respondent was remanded to judicial custody. Immediately, thereafter the Investigating Officer in Kalyan Railway case presented the transfer warrant issued by the Judicial Magistrate First Class, Railway Court, Kalyan. The Court passed a handwritten order on the application “Issue transfer warrant” and signed the same. Thereafter, the Judicial Clerk of the Court endorsed on the application that the custody of the respondent had been received by the Investigating Officer from Kalyan Railway Court and obtained his signature below the endorsement.

5. Since, the respondent was remanded to judicial custody in the Dombivli case, an application for bail was moved on his behalf immediately. In the midst of his submissions, the learned counsel for the respondent sought permission of