bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 785 OF 2007 PETITION NO. 785 OF 2007 PETITION NO. 785 OF 2007 Captain Rajinder S. Sahi ... Petitioner v/s 1. Miss Afsana Abbas Khan & ors. ... Respondents Mr.A.N.Mulla for the petitioner. Mr.Rahul Kadam i/by Mr.Uday P. Warunjikar for Resp.No.1. Mr.D.P.Adsule, A.P.P. for Resp.No.3 State. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 10TH APRIL, 2008 10TH APRIL, 2008 10TH APRIL, 2008 P.C. P.C. P.C.: 1. The petitioner by this petition invokes the powers of this Court under Section 482 of the Code of Criminal Procedure. It is contended that the petitioner was not given an opportunity to be heard by the Trial Court in R.C. No.256 of 2000 before the final judgment dated 8.9.2006. This judgement acquits the accused of the offence committed under Sections 420 read with 34 of the Indian Penal Code. 2. The learned counsel for the respondents has raised a preliminary objection that such a petition would not lie against the order of acquittal. The remedy of the 2 petitioner is to file an appeal if he is aggrieved by the order of acquittal. It is submitted that Section 482 of the Cr.P.C. cannot be used to set aside an order of the acquittal. Reliance is placed on the judgment of the learned Single Judge of this Court (J.N.Patel, J.) in the case of Raja s/o Dr.S.P.Upadhyay v/s State of Maharashtra reported in 1999 (3) Mh.L.J. 397, wherein it has been held that if a complaint under the Negotiable Instruments Act is dismissed and the accused is discharged, it must be construed as an order of acquittal under Section 256(1) of the Code of Criminal Procedure and not one of discharge. It has been held that in such a case the remedy is to file an appeal under Section 378(5) of the Code of Criminal Procedure. 3. The learned advocate for the petitioner placed reliance on the judgments of this Court in Bombay Cycle and Motor Agency Ltd. v/s Bhagwanprasad Ramraghubir Pandey & ors., reported in 1975 Cri.L.J. 820 in support of his submission that the powers of this Court under Section 482 of the Cr.P.C. are wide enough to set right the injustice caused to the petitioner by the learned Magistrate. It is submitted that the Trial Court acquitted the accused who had filed an application for exemption from appearing before the Court. Reliance is also placed on the judgment of the Patna High Court in 3 the case of Ramballabh Jha v/s The State of Bihar, Ramballabh Jha v/s The State of Bihar, Ramballabh Jha v/s The State of Bihar, reported reported reported in A.I.R. 1962 Patna 417. in A.I.R. 1962 Patna 417. in A.I.R. 1962 Patna 417. 4. In my view, the judgment in the Bombay Cycle (supra) case has no application to the present case. That judgment is given in the facts of that case. It has been held that where the judgment pronounced by the subordinate Court is without jurisdiction or is delivered in violation of the principles of natural justice or it is obtained by an abuse of process of Court, the High Court can in its inherent power re-hear the case. In the facts and circumstances of the present case, where the respondent has been acquitted of the offences alleged against her, in my opinion, this judgment would have no application. 5. In the case of the judgment delivered by the Patna High Court, it was held that where a judgment in appeal has been delivered without giving reasonable opportunity to the appellant or his pleader to be heard in the case as required by Section 421 of the Criminal Procedure Code, the judgment must be held to have been passed without jurisdiction and the High Court has inherent power to make an order for its rehearing. Thus, it was after an appeal was filed against the order of the Trial Court that the High Court in its inherent jurisdiction 4 directed a rehearing. 6. In my opinion, the writ petition is not maintainable to challenge the order of acquittal. A valuable right that the accused has acquired under the order cannot be done away with in this fashion. There are alternative remedies available to the petitioner which have not been exhausted and, therefore, the petition is rejected.