2024:BHC-NAG:10982-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY :

NAGPUR BENCH : NAGPUR.

CRIMINAL WRIT PETITION No. 783/2024.

Shahrukh Ziya Mohammad, aged about 31 years, Occupation - Business, resident of Plot No.104, Rose Colony, Rajaram Layout, Rukhmini Nagar, Katol Road, Nagpur, District Nagpur. ... PETITIONER.

VERSUS

1.State of Maharashtra, through Superintendent of Police, State CID (Crime Investigation Department) Nagpur.

2.Ritika @ Ritu Dinesh Maloo, Age 39 years, Occupation – Business, resident of Deshpande Layout, Nandanwan, Nagpur. ... RESPONDENTS.

---------------------------------

Mr.A.G. Hunge, Advocate for the Petitioner.

Mr. D.V. Chavhan, Senior Advocate/G.P. with Mr.N.H. Joshi, A.P.P.

for Respondent No.1.

Mr.S.P. Bhandarkar, Advocate for Respondent No.2.

Mr. F.T. Mirza, Senior Advocate with Mr. A. Kukday, Advocate for Registrar, High Court Bombay.

----------------------------------

CORAM : VINAY JOSHI AND VRUSHALI V. JOSHI , JJ .

DATE : OCTOBER 01 , 2024 .

ORAL JUDGMENT (PER VINAY JOSHI, J.) :

Heard. Rule. Rule made returnable forthwith and with the consent of the learned Counsel appearing for the parties, the matter is taken up for final disposal.

2. In this Writ Petition we are confronted with an unusual situation, wherein the action of the learned Sessions Judge, Nagpur of suo moto taking cognizance of the order passed by the learned Judicial Magistrate First Class, Court No.4, Nagpur (Magistrate), has been called in question. The petitioner is one of the kin of deceased in the incident who has raised challenge to the action of Sessions Judge of suo moto invoking revisional jurisdiction vide impugned order dated 30.09.2024. The challenge is on the ground that there is neither propriety, nor cause for the learned Sessions Judge to invoke suo moto powers for examining the order of the Magistrate.

3. It necessitates us to make a brief reference of few facts which are necessary for the purpose of deciding this petition. The genesis of the entire episode is a ‘road accident’ which took place on 25.02.2024 around 1.30 to 1.45 a.m. at Ramjhula Bridge in which two innocents lost their lives. The police have registered Crime No.122/2024 initially for the offences punishable under Section 304- A, 279, 337, 338 of the Indian Penal Code and Section 184 of the Motor Vehicles Act. Later on the police have invoked Section 304 of the Indian Penal Code. The accused/respondent no.2 was initially arrested and released on bail for the offence punishable under Section 304-A of the Code. After invocation of Section 304, the respondent no.2 attempted to secure pre-arrest bail, however, failed upto this Court. By virtue of the order passed by this Court in Criminal Writ Petition No.441/2024 dated 30.08.2024, the investigation has been transferred to State CID.

4. The transferred investigating agency has applied for cancellation of bail and permission to rearrest. After hearing the parties, the learned Sessions Judge vide order dated 25.09.2024 has canceled the bail granted by the Judicial Magistrate as well as, permitted the investigating agency i.e. C.I.D. to arrest respondent no.2/accused.

5. Since the changed investigating agency has crossed all the barriers in arrest, immediately they have moved to the jurisdictional Magistrate seeking permission to arrest. As the accused is a lady and the investigating agency inclined to immediately arrest the accused after sunset and before sunrise, permission was sought. Record indicates that the said application was moved to the Magistrate on the very day i.e. 25.09.2024 at 10.11 p.m. The learned Magistrate having regard to the facts and the provisions of Section 46[4] of the Code of Criminal Procedure (Section 43[5] of the Bhartiya Nagrik Suraksha Sanhita, 2023), has permitted the investigating agency to arrest respondent no.2/accused during night hours with a rider that the arrest shall be made by a woman police officer by following due process of law.

6. It is informed that after passing of the said order in