Bombay High Court
Nuhu Khan S/O Babulal Pathan vs 1 Syed Salim S/O Syed Hussain & Ors on 25 November, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 659 OF 2015
Nuhu Khan s/oBabulal Pathan,
age 55 years, occu. Agril.,
r/o Gadepimpalgaon, Tq. Vaijapur,
Dist. Aurangabad, presently
residing at Katkat Gate, Nehru Nagar,
Aurangabad. ..PETITIONER.
VERSUS
1. Syed Salim S/o Syed Hussain,
age 35 years, occu. Agril.,
r/o Gadepimpalgaon, Tq. Vaijapur,
Dist. Aurangabad.
2. Ali Abbas s/o Syed Hussain,
age 31 years, occu. Agril.,
r/o Gadepimpalgaon, Tq. Vaijapur,
Dist. Aurangabad.
3. Syed Younus s/o Syed Hussain,
age 29 years, occu. Education,
r/o Gadepimpalgaon, Tq. Vaijapur,
Dist. Aurangabad.
4. Yasmeen w/o Syed Salim,
age 31 years, occu. Agril. & household,
r/o Gadepimpalgaon, Tq. Vaijapur,
Dist. Aurangabad.
5. Sharifa Bee wo Syed Hussain,
age 57 years, occu. Agril.,
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r/o Gadepimpalgaon, Tq. Vaijapur,
Dist. Aurangabad.
6. The State of Maharashtra through
Veergaon Police Station, Tq. Vaijapur,
Dist. Aurangabad. ..RESPONDENTS.
...
Advocate for Petitioner : Mr.Khan M. A.
APP for Respondent/State: Mr.S.P. Tiwari.
Advocate for respondents 1 to 5: Mr.Mobin H. Shaikh.
...
ig CORAM : V.K. JADHAV, J.
Dated: November 25, 2016.
ORAL JUDGMENT:
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
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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 leveled 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
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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. The learned Counsel for respondents - original
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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.
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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.
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(ii) Criminal Writ Petition is accordingly
disposed of. Rule is made absolute in the
above terms.
(V.K. JADHAV, J.)
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