Bombay High Court
Mahesh Kariman Tirki And Others vs State Of Maharashtra Thr. Pso Aheri ... on 5 March, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
1 appa.266.2024 in criminal appeal nos. 136 and 137 of
2017 saibaba
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION NO.266 OF 2024 IN
CRIMINAL APPEAL NOS. 136 OF 2017
Mahesh Kariman Tirki and ors.
..vs..
State of Maharashtra
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Dr. Birendra Safar, Advocate General (through V.C.) a/w Shri
Devendra Chauhan, Public Prosecutor for the
applicant/respondent.
Shri Trideep Pais, Senior Advocate (through V.C.) a/w Shri N.B.
Rathod, Advocate and Shri H.P. Lingayat, Advocate for the
appellant/non-applicant.
CORAM: VINAY JOSHI AND VALMIKI SA MENEZES, JJ.
DATED : 05/03/2024.
Heard.
2. This application is moved by the State seeking
stay to the effect and operation of the judgment and
order dated 05.03.2024 (i.e. today) passed by this Court
in Criminal Appeal Nos.136 and 137 of 2017 for the
period of six weeks.
3. Heard learned Advocate General on behalf of the
State and learned Advocate Shri Rathod on behalf of the
appellant/accused. Learned Advocate General made a
submission that the matter pertains to offences against
the State and are of serious nature having wide
implications. The charges are serious one. The Trial
Court after considering the evidence, recorded the
finding of guilt. It is submitted that several issues of law
has been dealt by this Court which requires to be tested
2 appa.266.2024 in criminal appeal nos. 136 and 137 of
2017 saibaba
before the Supreme Court. It is submitted that already
the State has filed a Special Leave Petition and has
sought urgent listing of the same, which would require
some time. It is also submitted that the judgment of
acquittal, which is pronounced today, is not available at
present on the website.
4. On our query about empowerment of this Court
enabling us to stay the proceedings after acquittal, it has
been submitted that neither the Code of Criminal
Procedure nor any law precludes this Court from passing
a stay order, which is a matter of discretion. Finally it is
submitted that in order to give a breathing time to the
State, stay be granted for some days.
5. Per contra, learned Advocate Shri Rathod
representing other side has submitted that already the
State has moved to the Supreme Court and thus, this
Court has become functus officio. He has attracted our
attention to Section 262 of the Code of Criminal
Procedure (for short 'the Code) to contend that after
signing the final judgment and order, the Court cannot
review or alter the same. It is submitted that considering
the facts and law, this Court has passed exhaustive
judgment of acquittal on all issues, and thus, there is no
occasion to grant stay after acquittal.
6. We have also heard Shri Pais through video
conferencing, who has equally resisted the urge of the
State to grant stay. He has canvassed that this Court has
held that the prosecution failed to establish the charges
and on acquittal directed that the accused be set at
3 appa.266.2024 in criminal appeal nos. 136 and 137 of
2017 saibaba
liberty. He would submit that now, this Court cannot
reverse the part of said order by passing further orders to
stall the effect, and thus, it would be against the spirit of
Section 362 of the Code. He has attracted our attention
to Section 390 of the Code to contend that those powers
are vested with the Appellate Court only. He has also
relied on the judgment of the Supreme Court in case of
Adalat Prasad vs. Rooplal Jindal and ors. (2004) 7 SCC
338 to contend that the same Court has no power to
recall its own order. To sum up, he has submitted that
after delivery of the judgment of acquittal, this Court has
become functus officio and there is no question of
exercising any discretion.
7. Again learned Advocate General made a short
submission stating that Section 362 of the Code would
not come into play since the State is not seeking in either
way to reverse or alter the findings but a prayer is to stay
the effect of the order for few days to give a reasonable
opportunity to the State to test the judgment and order
of this Court before Higher Forum. It is submitted that
limited relief has been asked which can be granted in the
interest of justice and in particular for giving fair
opportunity to the State
8. After hearing both appeals exhaustively,
considering the evidence and submissions, today we have
delivered the final judgment and order of acquittal.
Precisely, we held that the prosecution has failed to
establish the guilt of the accused and there are technical
glitches too. Though we put a specific query about
4 appa.266.2024 in criminal appeal nos. 136 and 137 of
2017 saibaba
powers after rendering the judgment of acquittal to grant
stay, we could not get the satisfactory answer but a
generalize submission that this Court still has discretion.
We are not in an agreement with said submission to use
discretion in the matter where the Code does not
empower us to pass an order of stay after the Court has
become functus officio.
9. Though it is submitted that charges are serious
however in absence of power merely by looking cahrges
we are not inclined to make any adventures. We have
already acquitted the accused and directed to release
them forthwith, if not required in other crime.
10. In the circumstances, we cannot stall the effect
of the judgment and order of acquittal particularly in
absence of power which may affect the fundamental
right of life and personal liberty of individual. In view of
the above, we are not inclined to grant stay to our own
judgment and order of acquittal, hence the application
stands rejected.
11. We hereby make it clear that today itself the
judgment would be uploaded.
12. The application stands disposed of in above
terms.
(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)
Signed by: Trupti D. Agrawal
Trupti
Designation: PA To Honourable Judge
Date: 05/03/2024 19:50:03
