1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.918 OF 2009 Sarangdhar Murlidhar Kabra & ors. Petitioners. versus The State of Maharashtra Respondent ------ Shri S.S.Bora, Advocate for the petitioners. Shri B.V. Wagh, A.P.P. for Respondent No.1. Shri S.P.Deshmukh, Advocate for Respondent No.2. Coram: P.R. Borkar, J. Date : November 19, 2009 P.C. 1. Petitioners herein are challenging the order passed by learned Additional Sessions Judge-2, Jalna, on 25.8.2009 in Criminal Miscellaneous Petition No. 18 of 2009, whereby prayer of the State for condonation of delay in filing criminal appeal against the order of acquittal passed by learned Judicial Magistrate, F.C. Jafrabad in R.C.C. No.115 of 1995, is allowed. 2 2. Present petitioners who are original accused Nos. 1 to 3 were put on trial by the learned Judicial Magistrate, F.C. Jafrabad, in R.C.C. No.115 of 1995 for offence under Section 379 read with Section 34 of IPC as they were alleged to have committed theft of electric pump set. The learned Magistrate, by his order dated 9.3.2007 acquitted the accused of the offence with which they were charged. 3. Said order of acquittal came to be challenged by the State in the appeal before the Sessions Court, Jalna filed under Section 378(1)(a) of the Code of Criminal Procedure 1973. The said appeal came to be registered as Criminal Appeal No.66 of 2007 and pursuant to notice, accused appeared in the said appeal. Record of R.C.C. No.115 of 1995 was called for and Advocates for the parties were heard and it was revealed that no directions of the learned District Magistrate were obtained for filing appeal as required under Section 378 (1)(a) of the Cr.P.C. and as such the said appeal was not maintainable. The learned Sessions Judge, Jalna, therefore, dismissed the appeal on 16.2.2008 with following order. 3 "Appeal is dismissed on technical ground. Record and proceedings be sent back to the trial court. Bail bonds of the accused/respondents are canceled." 4. Against the above decision in said Criminal Appeal No.66 of 2007 review petition, the copy of which is at Exhibit C to present writ petition, was filed by the State praying that the judgment and order passed by the learned Judicial Magistrate, F.C., Jafrabad, as confirmed by Sessions Judge in Criminal Appeal No.66 of 2007 be set aside and the accused may be convicted. It was stated in review petition that Criminal Appeal No.66 of 2007 was dismissed by the learned Sessions Judge, Jalna vide his order dated 16.2.2008 only on technical ground that the directions were not obtained from the District Magistrate to file appeal against the order of the learned Magistrate as required under Section 378(1)(a) of the Cr.P.C. It was also stated in review petition that the appeal was being filed by the District Government Pleader after receiving directions from the District Magistrate on 28th April 2008 to file appeal. 5. It is clear from the communication dated 28.4.2008 by the District Magistrate to the Dist.Govt.Pleader that the alleged sanction to file 4 appeal was given by the District Magistrate to file appeal was subsequent to the decision in Criminal Appeal No.66 of 2007 on 16.2.2008. 6. It appears that thereafter the office of the Sessions Court has put up a note on 23.5.2008 on the said review petition that there was no provision for review of the order in appeal and so the matter was placed for orders. Accordingly, review petition was placed before District Judge-3 as per order dated 18.7.2008. 7. Learned Additional District Judge,Jalna, heard the review petition and rejected the same vide order dated 22.12.2008, holding that there is no provision of review petition. 8. Thereafter, Criminal Misc. Petition No.18 of 2009 was filed by the State for condonation of delay and for registering the appeal. Notice on that application was given to the respondents-accused. Ultimately, learned Addl.Sessions Judge-2, Jalna, allowed that application on 25.8.2009 and condoned the delay with directions to register the appeal. It is this order which is challenged before this court. 5 9. Above developments clearly indicate that there was no necessary application of mind on the part of the learned A.P.P. before filing Criminal Appeal No. 66 of 2007 in the Sessions Court against acquittal of the accused persons recorded by the learned Magistrate. The Sessions Court not only registered the appeal without proper scrutiny, but it also took cognizance of the appeal and issued notice thereon to the respondents-accused. The accused persons appeared and engaged Advocate. Record and Proceedings was called from the trial court. At this stage the question of maintainability of review was raised and considered. Thereafter, even though there was no provision for review in the Code of Criminal Procedure, the application for review of the order dated 16.2.2008 dismissing the Criminal Appeal was filed. As stated earlier, after the review application was turned down on 22.12.2008, the application for condonation of delay with fresh appeal memo was filed on 9.4.2009. The same was registered as Criminal Misc. Petition No.18 of 2009 and was allowed, as stated earlier, by the learned Additional Sessions Judge-II, Jalna vide his order dated 25.8.2009 which is under challenge in this writ petition. 6 10. In my considered opinion, having dismissed the Criminal Appeal on merits, may be because there was technical lacuna i.e. absence of necessary directions from the District Magistrate to the Government Pleader as required under Section 378(1(a) of Cr.P.C., same court cannot entertain appeal again. Condoning the delay and directing registration of appeal is nothing but entertain the appeal second time. It is indirect review of the order dated 16.2.2008 dismissing Criminal Appeal No.66 of 2007. 11. Moreover, in this matter, original case of the prosecution was regarding theft of an electric pump set. Perusal of judgment of the trial court, the copy of which is on record, shows that the complaint was lodged by present Respondent No.2 Rameshwar Rajaram kabra who is uncle of present petitioners No. 1 and 3. 12. Considering the facts on record, in my opinion, this writ petition deserves to be and is accordingly, allowed. The order passed by the learned Additional Sessions Judge-2, Jalna in Criminal Misc. Petition No.18 of 2009 on 25.8.2009 is hereby set aside and the 7 said criminal application is dismissed. 13. At this stage, Advocate Shri S.S. Bora for the petitioners informs that as a result of decision dated 25.8.2009 of the learned Additional Sessions Judge-2, Jalna in above said Criminal Misc. Petition No.18 of 2009, Criminal Appeal is registered and numbered as Criminal Appeal No.65 of 2009. Since, the said order dated 25.8.2009 is set aside, it follows that the said Criminal Appeal No.65 of 2009 is not maintainable and as such does not survive. 14. Copy of this order may be sent to the Secretary, Law and Judiciary Department, Government of Maharashtra, Mantralaya, Mumbai, for information. 15. Writ Petition disposed of. Rule made absolute, accordingly. pnd/CRIWP918.09 (P.R.BORKAR, J.) 19.11.2009