1 APPLN.119-2011.sxw acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 119 OF 2011 IN CRIMINAL APPEAL NO. OF 2011 Mrs. Naseem Mohamed Shakeel ..Applicant. Vs. The State of Maharashtra & Ors. ...Respondents. ---- Ms. Mallika Ingale, for the applicant. Mrs. A.A. Mane, APP for the State-respondent no.1. Mr. Hemant Kanjalkar, for respondent no.2. ---- CORAM: U. D. SALVI, J. APRIL 05, 2011. P.C.:- 1 Heard. Perused the application and annexures thereto. Impugned Order of acquittal under Section 256 of Cr.P.C. in warrant triable case is debatable. Appeal be numbered. Leave granted. Appeal taken up for hearing. 2 The applicant had filed the complaint under Sections 406 and 420 of IPC, 1860 being CC No.294/SS/05, presently numbered as CC No.132/S/2000 before the learned Metropolitan Magistrate’s 2 APPLN.119-2011.sxw Court at Andheri, Mumbai against respondent nos.2 and 3-accused. 3 It appears that the case dragged on for one reason or other and ultimately ended with the impugned order dated 21.12.2010, which reads as under: “Complainant present. Advocate absent. Witness of the Complainant absent. Signatory of the Complainant & Verification absent. Once matter was dismissed in default but the same was restored by Hon’ble Session Court. Today again Complainant is not willing to lead evidence matter is pending for more than 9 years. Therefore, complaint stands dismissed U/Sec. 256 Cr.PC Accused Acquitted from all offence Their bail bond stands cancelled. Proceeding closed.” 4 Ms. Ingale, the learned Advocate for the appellant submits that the learned Metropolitan Magistrate’s Court at Andheri, was trying warrant triable case instituted otherwise than on police report, and as such was governed by the provisions of Chapter XIX of the Code of Criminal Procedure, 1973 and therefore, the learned 3 APPLN.119-2011.sxw Metropolitan Magistrate could not have acquitted the respondents- accused by passing an order under Section 256 of Code of Criminal Procedure, 1973. 5 It was incumbent upon the learned Metropolitan Magistrate’s Court to have given thought to the provisions under Chapter XIX, and Sections 244 to 249 of Code of Criminal Procedure, 1973 governing the present case it being warrant triable case instituted otherwise than on police report. Acquittal of the respondents-accused for the reason of non-production of the evidence on the given date could not have been ordered under the aforesaid provisionsand certainly there could not have been acquittal of the accused in warrant triable case unless charge was framed after recording evidence for prosecution of the complaint under Section 244 Code of Criminal Procedure, 1973. Mr.Kanjalkar, the learned Advocate for contesting respondent no.2 has no dispute with the said legal proposition. However, he contends that the appeal is not a remedy in the present case, and the appellant ought to have moved 4 APPLN.119-2011.sxw this court under Section 482 of Code of Criminal Procedure, 1973 . He invited attention of the court to the Section 386(a) of Code of Criminal Procedure, 1973 defining the powers of the appellate court and submitted that the remedial measures stipulated therein cannot be invoked in the present case. 6 Section 386 of Code of Criminal Procedure, 1973 reads as under: “Powers of the Appellate Court- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law.” 7 According Mr. Kanjalkar, the learned Advocate for the contesting respondent no.2 submits that the trial had commenced 5 APPLN.119-2011.sxw and as such there is no question of any inquiry being made in the present case. Ms. Ingale, the learned Advocate for the appellant submits that the submissions made by the learned Advocate for the respondents are erroneous in as much as the charges were not framed in the said case and the case was at the stage of recording the evidence before framing the charges, and the inquiry consequent upon recording the evidence before charge was in offing. 8 Patently, the impugned order of acquitting the accused under Section 256 of Code of Criminal Procedure, 1973 in warrant triable case is illegal and deserves to be interfered with. 9 For the reasons recorded above, the impugned order of acquitting respondent nos.2 and 3 dated 21.12.2010 is set aside. Case to proceed in accordance with law. Parties to appear before Metropolitan Magistrate’s 10th Court, Andheri, Mumbai on 4th May, 2011 braced with the evidence which they want to lead. Application and Appeal stand disposed off. (U. D. SALVI,J.)