Ndm 1 wp.2439.09 & ors.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2439 OF 2009 WITH WRIT PETITION NO. 2440 OF 2009 WITH WRIT PETITION NO. 2441 OF 2009 AND WRIT PETITION NO. 2442 OF 2009 Sandeep Raghavji Gala. ... PETITIONER Vs. The State of Maharashtra and anr. ... RESPONDENTS -------------- Mr. Sanjeev P. Kadam, Advocate for Petitioner. Mr. S.V. Marwadi, Advocate for Respondent No.2. Ms. M.H. Mhatre, APP for the State in Criminal Application No. 2439 of 2009. Smt. R.V. Newton, APP for the State in Criminal Application No. 2440 of 2009 and Criminal Application No. 2442 of 2009. Mrs. P.P. Bhosale, APP for the State in Criminal Application No. 2441 of 2009. -------------- CORAM : S.A. BOBDE, J. DATE : 18 th September, 2009. P.C. 1 The petitioner has challenged the orders of the learned Sessions Judge holding that the petitioner, who is the accused had approached the Sessions Court at an interlocutory stage, and therefore, the Revision is not Ndm 2 wp.2439.09 & ors.sxw maintainable. According to the learned Sessions Court, a Revision would have been maintainable if the evidence of the petitioner-accused would have been led but is not because only the evidence of the complainant has been led. In brief, the present controversy arises in this manner. The petitioner-accused filed an application under Section 255 of the Criminal Procedure Code praying that he be acquitted since the evidence led by the Prosecution does not disclose the commission of the offence. The learned Magistrate who heard the application rejected it on the ground that it would be appropriate to hear the accused under Section 313 of the Criminal Procedure Code. 2 The accused challenged that order before the Sessions Court. The Sessions Court held that the order of the learned Magistrate is an interlocutory order because only the evidence of the complainant has been led and the evidence of the petitioner-accused is yet to be led. The learned Sessions Judge has observed that, if the evidence of the accused would have been led, the order of rejecting the prayer for acquittal would be an interlocutory order capable of being subjected to revision. It must be stated that both the learned counsels for the Petitioner as well as Respondents do not dispute that Ndm 3 wp.2439.09 & ors.sxw the last aforesaid observation of the Sessions Court is not in accordance with law. Indeed, at the stage of Section 255, which is for all practical purposes a final hearing of the summons case, the Trial Court has the discretion to acquit or convict the accused on the basis of the evidence already led or to pass an order of acquittal or conviction after further evidence is directed to be led. Undoubtedly, the trial Court also has discretion to proceed to record the statement of the accused under Section 313 of the Code of Criminal Procedure. Thus, if the trial Court does not acquit the accused only on the basis of the evidence led by the Complainant and considers it appropriate in the interest of justice to hear the accused, it cannot be said that the trial Court has passed a final order by refusing to acquit merely because the accused makes such an application. 3 As observed earlier, the trial Court is entitled to proceed to record the evidence of the accused and also his statement under Section 313 of the Criminal Procedure Code. Such an order has rightly been observed by the Sessions Court as not being an interlocutory order. However, the Session Court committed an error in observing that, if the accused had led the evidence Ndm 4 wp.2439.09 & ors.sxw before the trial Court then the order would become an interlocutory order. There is no reason why the order rejecting of the application of the accused to acquit him at this stage, would become an interlocutory order merely because the accused had led evidence. The trial Court is entitled at the stage of Section 255 to record the statement of the accused under Section 313 of the Criminal Procedure Code and to finally dispose of the matter. At this stage, if the accused is advised to make an application for acquittal, for which apparently there is no provision, and the trial Court rejects such an application. The order cannot be said to be an interlocutory order merely because the evidence has been led by the Prosecution as well as the accused. In this view of the matter, the aforesaid observations of the learned Sessions Court is liable to be set aside and is accordingly set aside. 4 At this juncture, it would be appropriate to reproduce the observations of the Supreme Court in some of the similar facts in N.K. Jain Vs. C.K.Shah AIR 1991 Supreme Court 1289, where the Lordship observed as follows: Ndm 5 wp.2439.09 & ors.sxw 20. From the above discussion, it emerges that at least Ss. 14 (1A) and 14 (2A) are attracted to the facts in the present case and therefore it cannot be said that there is no prima facie case and consequently the accused cannot claim any acquittal, even before the conclusion of the trial under Chapter XX, Cr.P.C. dealing with trial of summons cases. 5 At this stage, Shri. Kadam states that the accused will participate in the trial from the present stage to its conclusion in accordance with law. 6 Rule is discharged with the aforesaid observations. Order accordingly. The trial Court shall proceed with the matter in accordance with law on all points. The trials are hereby expedited. The trial Court shall take up the matters on 06 th October, 2009. [ S.A. BOBDE, J ]