Research › Search › Judgment

Bombay High Court · body

2016 DIGILAW 2121 (BOM)

Nuhu Khan s/o Babulal Pathan v. Syed Salim S/o Syed Hussain

2016-11-25

V.K.JADHAV

body2016
JUDGMENT : V.K. Jadhav, J. 1. Rule. Rule returnable forthwith. Heard finally with the consent of the learned Counsel for the parties at the admission stage. 2. The learned Counsel for the petitioner - original informant/appellant submits that he restricts the writ petition to the extent of quashing and setting aside the order dated 29.8.2013 passed by the Additional Sessions Judge, Vaijapur in Criminal Appeal No.07/2013 and further quashing and setting aside the order dated 8.1.2015 in Criminal M.A. No.24/2013 passed by the Additional Sessions Judge, Vaijapur. 3. The brief facts, giving rise to the present writ petition, are as follows: On the basis of the complaint lodged by the petitioner, Crime No.73/2007 for the offences punishable under Sections 141, 143, 147, 148, 323, 324, 325, 504, 506 r/w section 149 of I.P.C. came to be registered at Police Station Veergaon and after due investigation, the concerned Police Station submitted the charge-sheet before the Court. In RCC No.306/207, the learned J.M.F.C., Vaijapur framed charges against the respondents - accused who pleaded not guilty and accordingly, the prosecution has examined the witnesses to substantiate the charges levelled against the accused. On completion of all the formalities and after hearing both the parties, the learned J.M.F.C. (Court No.3), Vaijapur by the judgment and order dated 16.3.2013 in RCC No.306/2007 acquitted all the respondents - accused. Being aggrieved by the same, the petitioner preferred Criminal Appeal No.07/2013 before the Additional Sessions Judge, Vaijapur. The learned Additional Sessions Judge, Vaijapur by the impugned order dated 29.8.2013, dismissed the appeal in default/for want of prosecution. The petitioner has, therefore, filed the Criminal M.A. No.24/2013 for restoration of the Criminal Appeal. However, the learned Additional Sessions Judge has also dismissed the said application for want of prosecution. Hence, this writ petition. 4. The learned Counsel for the petitioner submits that there is no provision in the Code of Criminal Procedure to dismiss the criminal appeal in default/for want of prosecution. It is incumbent upon the Sessions Judge to decide the criminal appeal on merits and no option is available to dismiss the criminal appeal for want of prosecution. The learned Counsel submits that the orders impugned are thus liable to be quashed and set aside on this ground alone. 5. It is incumbent upon the Sessions Judge to decide the criminal appeal on merits and no option is available to dismiss the criminal appeal for want of prosecution. The learned Counsel submits that the orders impugned are thus liable to be quashed and set aside on this ground alone. 5. The learned Counsel for respondents - original accused submits that the criminal writ petition in the present form is not maintainable and the petitioner ought to have filed revision. The learned Counsel submits that the petitioner had not taken steps in the pending criminal appeal and therefore, the learned Additional Sessions Judge has rightly dismissed the appeal in default as the petitioner remained absent on various dates when the criminal appeal was taken on board for hearing. The Criminal M.A. No.24/2013 also came to be dismissed in default as the petitioner remained absent as and when the matter was called out. The learned Counsel submits that no case is made out. Writ petition is thus, liable to be dismissed. 6. There is no provision in the Code of Criminal Procedure to dismiss the criminal appeal for want of prosecution. The learned Sessions Judge has to decide the appeal on merits and not otherwise. Thus, the order impugned is not proper, correct and legal and certainly calls for interference. 7. Hence, the following order: (1) The Criminal Writ Petition is hereby allowed. (2) The order dated 29.8.2013 passed by the Additional Sessions Judge, Vaijapur in Criminal Appeal No.07/2013 and the order dated 8.1.2015 in Criminal M.A. No.24/2013 passed by the Additional Sessions Judge, Vaijapur, are hereby quashed and set aside. (3) Criminal Appeal No.7/2013 is restored to its original position with the following directions: (i) The parties shall appear before the Additional Sessions Judge, Vaijapur within one week from today and the learned Additional Sessions Judge, Vaijapur shall dispose of the criminal appeal within three months from the date of their appearance. (ii) Criminal Writ Petition is accordingly disposed of. Rule is made absolute in the above terms. Petition allowed.