criwp216.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 216 OF 2010 1 Datta s/o Kundalik Niakwade age 30 years, occ. agril r/o Sakhare Borgaon Tq. & Dist. Beed. 2 Shivaji s/o Tukaram Mane age 40 years, occ. agril r/o as above. 3 Ashok s/o Baburao Gavde age 35 years, occ. agril r/o as above. .. PETITIONERS VERSUS The State of Maharashtra Through P.I. police station Beed (Rural), Dist. Beed .. RESPONDENT Mrs. Vaishali B. Deshmukh, holding for Mr. V.D. Salunke, advocate for the petitioners. Mr. V.D. Godbharale, APP for the State. ===== CORAM : A.H. JOSHI, J. DATE : 11th OCTOBER, 2011. ORAL JUDGMENT : 1 Rule. Rule returnable forthwith and heard by consent. 2 Petitioners were tried in SCC No. 2354/2003 for criwp216.10 2 offences punishable under section 353, 323 r/w section 34 of the Indian Penal Code. The trial ended in conviction. Sentence, however, was fine of Rs. 250/- and Rs. 1,000/- respectively for offences under section 323 and 353 of the Indian Penal Code and, imprisonment in default. 3 Accused persons preferred appeal. Learned Sessions Judge heard and decided the appeal, and recorded in paragraph No. 14 as regards maintaining the “finding”, which reads as follows : “14 Section 386 of Cr.P.C. empowers the appellate Court to reverse the finding and enhance the sentence only in case where the appeal for enhancement of sentence is filed and not otherwise. I am of the opinion that in this case, the learned Magistrate was not right in passing very minimal sentence. I, therefore, maintain the finding and remand the matter back to the learned Chief Judicial Magistrate, Bed for imposing appropriate punishment in accordance with Law......” 4 In the operative order, learned Sessions Judge has passed the following order : “2 The judgment and finding of the learned Magistrate is maintained. criwp216.10 3 3 The matter is remanded back to the trial Magistrate for re-trial.” 5 Relying on the text of clause (3) of the order passed by learned District & Sessions Judge, the petitioner had urged before the trial court, for fresh trial on merit. 6 The learned Chief Judicial Magistrate had declined to succumb to these submissions and had passed the order. 7 Same submissions are reiterated for challenging the order passed by the Magistrate. 8 I have observed and quoted hereinabove paragraph No. 14 of the judgment of the Sessions Court and clause (2) of operative part. 9 It is amply clear that the learned Sessions Judge has in very clear terms an without leaving any ambiguity held that “judgment an findings” are maintained. criwp216.10 4 10 Clause (3) of the operative order cannot be read in this juncture with paragraph No. 2 of the operative order partly remanding the case. 11 In the result, the impugned order is seen to have been passed in conformity with remand order and is therefore perfectly legal. 12 Petition does not merit interference and is dismissed. Rule is discharged. ( A.H. JOSHI ) JUDGE dyb