Bombay High Court
Digambar S/O. Nagoji Bhalerao And ... vs The State Of Mah. Thr. Pso Khandala, Post ... on 20 September, 2025
Author: Anil Laxman Pansare
Bench: Anil Laxman Pansare
2025:BHC-NAG:9520-DB
1 cr. wp 366.2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 366 OF 2023
[Digambar S/o Nagoji Bhalerao and ors. vs. The State of Maharashtra,
through P.S.O. Khandala, Post Khandala, Tq. Pusad, Dist. Yavatmal and ors.]
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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
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------------------ - - -
Mr. R. R. Gour, Advocate for the petitioners
Mr. S. S. Doifode, APP for the State/respondent nos. 1 and 3
Ms. Anjana M. Raut, Advocate for respondent no. 4
CORAM: ANIL L. PANSARE AND
SIDDHESHWAR S. THOMBRE, JJ.
DATED : 20-09-2025.
Heard.
2. The petitioners - original accused have preferred the
petition under Article 226 of the Constitution of India seeking
following prayers :-
"(i) call for the record of the Criminal Appeal No. 28/2012
from the file of the Additional District Judge, Pusad,
Dist. Yavtmal ;
(ii) quash and set aside the impugned judgment dated
31/03/2023 (Annexure-D) passed by Additional
District Judge, Pusad, District Yavtmal in Criminal
Appeal No. 28/2012, in the interest of justice ;
(iii) conduct the enquiry in respect of the proceedings and
the judgment passed by the passed by Additional
District Judge, Pusad, District Yavtmal in Criminal
Appeal No. 28/2012 dated 31/03/2023 ;
(iv) take legal action against the respondent No. 1 to 4 for
committing deliberate legal wrong to harass the
petitioners as mentioned in the petition ;
(v) saddle heavy cost upon respondents including the
compensatory loss and damaged caused to the
2 cr. wp 366.2023
petitioners ;
(vi) grant any other relief which deemed fit including that
of the costs in the facts and circumstances of the
present case."
3. The petitioners have questioned the legality of the
judgment dated 31-3-2023 passed by the Additional Sessions
Judge, Pusad, District Yavatmal in Criminal Appeal No.
28/2012. By the said judgment, learned Additional Sessions
Judge has remanded Regular Criminal Case No. 49/2006 back
to the Judicial Magistrate First Class (Court No. 2), Pusad. The
reason for remand is that the learned trial Court did not afford
opportunity to the prosecution to lead evidence. It appears that
the trial Court has examined a single witness i.e. panch witness
and on the same day, closed evidence of its own. The trial
Court then dispensed with statement of accused under Section
313 of the Code of Criminal Procedure, 1973 and pronounced
the judgment.
4. The appellate Court has referred to the judgments of
the Supreme Court and Gujarat High Court to render a finding
that since Magistrate has not given an opportunity to the victim
to lead evidence, it will be appropriate to remand the case back
to the Magistrate so that opportunity to lead evidence should be
given to the prosecution.
5. Learned Additional Public Prosecutor (APP) submits
that the course adopted by the appellate Court is in the light
of well settled principles of law and, therefore, no interference
is called for in the impugned judgment. We accede to the
submissions so made by the learned APP.
6. There appears no reason from the record as to why
should learned trial Court not afford opportunity to the
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prosecution to lead evidence and why trial Court should rush to
close the evidence of its own. It is worth mentioning here that
on earlier date, before the trial Court, the witnesses were
present but the Court itself was on leave and, therefore, injured
witnesses could not be examined. When on next date, the
Court resumed duty, a single witness was examined i.e. panch.
The trial Court did not give opportunity to the prosecution to
lead further evidence. That being so and since the trial Court
failed to discharge its duty, the first appellate Court has rightly
remanded the case back to the trial Court.
7. Despite such well reasoned finding, the petitioners -
original accused approached this Court by making learned
Additional Sessions Judge as party respondent no. 2 in person.
This Court vide order dated 14-7-2023 permitted the
petitioners to delete his name. The petitioners, however, did
not seek to delete the allegations made against the learned
Judge as also the prayer.
8. The argument of petitioners is that the State had also
preferred appeal before the High Court being Criminal Appeal
No. 412/2013 challenging the judgment of acquittal passed by
Judicial Magistrate First Class. The High Court dismissed the
appeal. According to the petitioners, despite such status, the
Sessions Court allowed the appeal and thus, committed
contempt of court. According to the petitioners, such a finding
has resulted into suffering heavy losses, which cannot be
compensated in terms of the money. The petitioners then
continued with the prayer to conduct enquiry in respect of
proceeding and the judgment passed by the Additional Sessions
Judge.
9. Firstly, we do not find any error having been
committed by the Sessions Court in entertaining appeal filed by
4 cr. wp 366.2023
the victim. In fact the Sessions Court has taken note of the
appeal preferred by the State and assigned following reasons in
paragraph no. 9 of the judgment :
"09] In this case State has preferred appeal before the
Hon'ble High Court, which came to be dismissed. In case
of Bhavubel Makwana Vs. State of Gujarat, the Hon'ble
Gujarat High Court had framed questions for
consideration :
1] Whether an appeal filed by the victim, invoking his
right under proviso to section 372 of Cr.P.C.,
challenging acquittal is not maintainable, on the ground
that the State has filed an appeal against the same
order and for the same purpose ?
While discussing this issue, the Full Bench observed that
the Legislature had conferred a substantive statutory right
of appeal and such a right could not be diluted by a
judicial pronouncement since the right of a party to file an
appeal is an independent, substantial and statutory right.
In light of different type of right of appeal provided to the
victim and to the State, it will not be proper to hold that
the right of either of them is dependent upon the others.
To put it differently, only victim can file an appeal against
an order of imposing inadequate compensation in addition
to his right of appeal against acquittal or conviction.
Therefore, it is a statutory right of victim not subservience
to the rights of the State to file an appeal. It was
concluded that each victim has an independent right of
appeal. In other words, both the victim and the State can
file appeals independently. Thus, the Hon'ble Gujarat
High Court held that appeals filed by the victim are
maintainable."
10. Thus, the Court held that the victim has statutory right
to file appeal. That being so, it could not have been said by the
petitioners that the Sessions Court could not have entertained
appeal and remanded the matter back to the trial Court.
5 cr. wp 366.2023
Merely because the High Court had dismissed the appeal
preferred by the State, the findings rendered by the Sessions
Court cannot be taken as contemptuous.
11. We have gone through the judgment dated
15-11-2021 passed by this Court in Criminal Appeal No.
412/2013 to find that the correct facts were not pointed out to
the Court, rather, this Court was made to believe that
prosecution led evidence of only panch witness related to spot
panchanama. It appears that the trial Court noted in paragraph
no. 7 of its judgment that despite opportunity, neither the
informant nor any other eye witness remained present to lead
evidence. Thus, the State failed to point out to the High Court
the fact that on previous date, the witnesses were present
before the trial Court. According to the victim, the witness,
namely, Sheshrao Rathod was present before the trial Court on
20-4-2010. It was only because the Court was on leave, he was
not examined. The victim then pointed out that on next day,
the learned trial Court examined only panch witness and suo
moto closed the evidence and pronounced judgment on the
same day by dispensing with the statement of accused.
12. Learned counsel for the petitioners failed to show us
from the record any contrary position of fact as noted by the
Sessions Court in paragraph no. 8 of its judgment which is spelt
out above.
13. That being so, there is no merit so far as challenge to
the judgment passed by the Sessions Court is concerned. As
regards allegations against learned Judge, the petitioners,
though sought permission to delete his name, continued to
make reckless allegations of contemptuous act and further
sought enquiry against the judicial officer. Such allegations
and prayer without any material is uncalled for, for the simple
6 cr. wp 366.2023
reason that the learned Judge has discharged his duties by
rendering a judgment in an appeal preferred before him.
14. In a given case, the appellate Court may commit
mistake in arriving at a particular conclusion, that by itself
cannot be a ground to make allegation of contemptuous act by
the learned Judge, who has performed his duties.
15. In such circumstances, the course that was available to
the petitioners was to challenge the judgment which they had.
They, however, made reckless allegations as also the prayer,
which according to us, require deprecation and one of the
ways of doing so is to impose exemplary costs. The petition is
accordingly dismissed with costs of Rs. 25,000/- to be paid by
the petitioners within two weeks from today. The costs shall be
deposited with the Registry, failing which, the Registry shall
proceed to recover the costs as land revenue. The costs, once
deposited, shall be paid to respondent no. 4 - victim.
(S. S. THOMBRE, J.) (A. L. PANSARE, J.)
wasnik
Signed by: Mr. A. Y. Wasnik
Designation: PS To Honourable Judge
Date: 22/09/2025 17:52:58
