1. 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 respondent 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, 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.

3. The petition is misconceived.

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.

5. 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.

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 applica