1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 491 OF 1992 WITH CRIMINAL APPEAL NO. 492 OF 1992 WITH CRIMINAL APPEAL NO. 493 OF 1992 WITH CRIMINAL APPEAL NO. 497 OF 1992 WITH CRIMINAL APPEAL NO. 498 OF 1992 The State of Maharashtra .. Appellant Vs. Chambappa Ishwarappa Hatti .. Respondent Mr. J. P. Yagnik, APP for State in Cri. Appeal Nos. 491 and 492 of 1992. Ms. S.V. Gajare, APP for State in Cri. Appeal No. 493 of 1992. Mrs.P.P. Shinde, APP for State in Cri. Appeal No. 497 and 498 of 1992. Mr. Niranjan Mundargi for the respondent in all the appeals. CORAM: B. H. MARLAPALLE & MRS. MRIDULA BHATKAR, JJ. April 01, 2010. ORAL JUDGMENT ( Per B. H. Marlapalle, J.): 1. All these appeals filed by the State Government under Section 377 of Cr.P.C. are directed against the orders of sentence passed by the 2 learned Judicial Magistrate, First Class at Gadhinglaj in five different criminal cases against the common accused - Chambappa Ishwarappa Hatti (Accused No.1.). All these cases were tried for the offences punishable under Sections 408, 409, 465 and 477A and in one case with the aid of Section 34 of IPC i.e. in Criminal Case No.43 of 1986. All these impugned orders have been passed on the same day i.e. 5/6/1992. The details of the cases are set out in the following chart. Appeal Cri.Case Plea Pursis for pleading No. No. guilty Exh. 491/92 37/1983 Pleaded not guilty 23 Exh. 10 492/92 57/1983 Pleaded not guilty 11 Exh.8/C 493/92 61/1983 Pleaded not guilty 14 Exh.8 497/92 52/1983 Pleaded not guilty 14 Exh.8/C 498/92 43/1986 Pleaded not guilty 54 Exh.20 3 2. The learned Magistrate was pleased to convict the accused in all the five criminal cases and when it came to sentence, he noted that the accused had pleaded guilty and, therefore, awarded the sentence of SI for one day. 3. We have perused the pursis filed by the accused and which was accepted to be a pursis pleading guilty by the learned Magistrate and we have noted that the accused had not pleaded guilty and on the contrary he has taken a specific plea that it was on account of inadvertence that the record (entries) was erroneously written or left to be written. The approach of the learned JMFC is, therefore, totally erroneous. At the same time, we have also noted from the record that the learned APP was called upon to file his say on the pursis for pleading guilty and no say was filed. 4. Section 386(c)(i) of Cr.P.C. empowers the Appellate Court to order re-trial by a court of competent jurisdiction. Though, in the instant cases, the order of conviction has been recorded and it has not been challenged by the accused, we have noted that the said order is based solely on the alleged pursis of pleading guilty and if the said pursis was not accepted as the plea for pleading guilty submitted by the accused, he could 4 have got an opportunity to face the trial and the onus of proving the charge would certainly lie on the prosecution. Thus, the order of conviction has been recorded without trial and, therefore, even though we are satisfied that there was no pursis of pleading guilty filed, it would not be safe to allow these appeals and enhance the sentence and, therefore, the only way left is to remand the cases for re-trial by the learned JMFC at Gadhinglaj. 5. Hence, these appeals succeed partly. The impugned order of conviction and sentence in each of the appeals is hereby quashed and set aside and the respective criminal cases are restored to the file of the learned JMFC, Gadhinglaj for re-trial. The re-trial shall be completed as expeditiously as possible and in any case within three months from the receipt of writ from this court. In case the accused desires to plead guilty afresh, the same shall be considered as per the provisions of law. The accused was on bail during trial. The learned JMFC may consider to grant him bail on the same terms but on fresh bonds. (MRS. MRIDULA BHATKAR,J.) (B. H. MARLAPALLE, J.)