HABIBULLA KARIM KHANversusTHE STATE OF MAHARASHTRA

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION

                  INTERIM APPLICATION NO. 1548 OF 2026
                                  IN
                  INTERIM APPLICATION NO. 3138 OF 2025
                                  IN
                    CRIMINAL APPEAL NO. 186 OF 2017
Habibulla Karim Khan                                 …     Applicant
     Versus
The State of Maharashtra                             …     Respondent
                            ******
Mr. Faisal F. Shaikh a/w Mrs. Farhana Shah, Mr. Sultan Khan,
Mr.Bhavesh Ameta, Mr. Omar Shah, Mr. Zaman Shaikh,
Mr.Adnan Shemle, Ms. Uma Nemlekar, Mr. Rashid Sayyed,
Ms.Bushra Shaikh, Ms. Sharvari Kulkarni, Ms. Khaliqua Khan,
Ms. Khyati Shah, Mr. Naqui Hasware and Ms. Amna Khan for
Applicant.
Ms. Sharmila S. Kaushik, APP for Respondent-State.
                            ******
                      CORAM : MANISH PITALE AND
                                  SANDESH D. PATIL, JJ.
                      DATE      : 10th SEPTEMBER 2026
P.C. :
.         Heard learned counsel for the applicant.

2.        By this application, the applicant is seeking recall of an order
dated 18.09.2025 passed in Interim Application No. 3138 of 2025
in Criminal Appeal No. 186 of 2017.

3.        This application is filed in the light of an order dated
20.02.2026 passed by the Hon’ble Supreme Court in Special
Leave Petition (Criminal) Diary No. 4088 of 2026. The applicant
by the said Special Leave Petition, challenged the aforesaid order
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dated 18.09.2025 passed in Interim Application No. 3138 of
2025. Having considered the Special Leave Petition, the Supreme
Court, without expressing opinion on the merits of the
submissions on behalf of the applicant, disposed of the Special
Leave Petition, as withdrawn, with liberty to move a recall
application before this Court. It was further observed that if such a
recall application is submitted, the same shall be decided on its
own merits.

4.        Before appreciating the contentions raised on behalf of the
applicant, it would be necessary to refer to the chronology of
events.

5.        The applicant filed Criminal Appeal No. 186 of 2017 for
challenging a judgment and order dated 16.11.2016 passed by the
Sessions Court, Greater Bombay, in Sessions Case No. 853 of
2014, whereby the applicant was convicted under Section 302 of
the Indian Penal Code, 1860 (IPC) and sentenced to suffer
rigorous imprisonment for life.

6.        Aggrieved by the same, the applicant filed Criminal Appeal
No. 186 of 2017 before this Court. During the pendency of the
said appeal, the applicant filed the aforesaid Interim Application
No. 3138 of 2025. Although, a copy of the said application has
not been annexed to the present application, it is evident from the
submissions made by the learned counsel for the applicant that the
said interim application was filed to raise the plea of juvenility
before this Court in the pending appeal. When the said application
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came up for consideration before the Division Bench of this Court
(Coram: Revati Mohite Dere, J., as she then was, and Sandesh D.
Patil, J.) on 18.09.2025, on a statement made by the learned
counsel appearing for the applicant, the following order was
passed :

          “1. The learned counsel appearing for the Applicant seeks
          leave to withdraw this Application. The Application is
          accordingly disposed of as withdrawn.
          2.    We make it clear that we have not gone into the merits
          of the said Application.”
7.        Thereafter, the appeal itself came up for hearing on merits.
By judgment and order dated 03.11.2025, passed by another
Division Bench of this Court (Coram: Bharati Dangre and Shyam
C. Chandak, JJ.), the contentions raised on behalf of the appellant
were considered and the appeal was dismissed on merits and the
judgment and order of the Sessions Court was confirmed. It is
relevant to note that no ground was raised concerning the
juvenility when the said appeal was heard on merits and dismissed
by the aforesaid Division Bench of this Court.

8.        We find that instead of challenging the aforesaid judgment
and order dated 03.11.2025 passed by the Division Bench of this
Court, dismissing Criminal Appeal No. 186 of 2017 on merits, the
applicant chose to file the aforesaid Special Leave Petition before
the Supreme Court, to challenge only the order dated 18.09.2025
passed by the aforesaid Division Bench of this Court, whereby the
application, seeking to raise plea of juvenility, bearing Interim
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Application No. 3138 of 2025 was withdrawn.

9.        On 20.02.2026, the Supreme Court disposed of the Special
Leave Petition as withdrawn and passed the following order :

          “1.     Delay condoned.
          2.   The learned counsel for the petitioner submits that
          under some misconception the application claiming juvenility
          was withdrawn. Therefore, he may be given opportunity to
          move a recall application before the High Court.
          3.     Having regard to the above, without expressing any
          opinion on the merits of the above submissions, we deem it
          appropriate to dispose of this petition as withdrawn with
          liberty to move a recall application before the High Court.
          4.     If any such recall application is submitted, the same
          shall be decided on its own merits.
          5.      Pending application(s), if any, shall stand disposed of.”
10.       It is in this backdrop that the present application, seeking
recall of the order dated 18.09.2025, has come up for
consideration.

11.       The learned counsel for the applicant contends that there
was a ‘misconception of fact’ on the basis of which Interim
Application No. 3138 of 2025, seeking to raise plea of juvenility,
was withdrawn, as recorded in the order dated 18.09.2025. It was
contended that, what was proposed to be withdrawn was another
Interim Application bearing No. 3639 of 2024 filed in the appeal.

12.       It was submitted that since the prayer for withdrawing
Interim Application No. 3138 of 2025 was made on such
misconception of fact, a good ground is made out for recalling the
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order dated 18.09.2025, to which one of us (Sandesh D. Patil, J.)
was a party.

13.       We are of the opinion that the aforesaid plea of the applicant
cannot be considered as the appeal in which Interim Application
No. 3138 of 2025 was filed i.e. Criminal Appeal No. 186 of 2027
itself has been heard and dismissed by the aforesaid judgment and
order dated 03.11.2025. In other words, the applicant is seeking
to pursue the present application in an appeal that is already
dismissed and disposed of by the said judgment of this Court. It is
to be noted that by the said judgment and order of the Division
Bench of this Court dated 03.11.2025, the appeal was dismissed
on merits and the conviction and sentence was confirmed. As
noted hereinabove, no attempt was made on behalf of the
applicant to raise the plea of juvenility, when the appeal was taken
up for final hearing. If there was any substance in the plea of
‘misconception of fact’ on the part of the applicant or the
Counsel, the first argument before the Division Bench, which
heard and dismissed the appeal, ought to have been concerning
the plea of juvenility. The Counsel appearing for the applicant
could have proceeded on the basis that the aforesaid application
raising the plea of juvenility was pending and that it was first
required to be pressed before the appeal itself could be taken up
for consideration. The judgment and order dated 03.11.2025
passed by the Division Bench of this Court, dismissing the appeal
on merits, does not record any attempt made on the part of the
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applicant or the Counsel to claim that a plea of juvenility in the
form of the aforesaid Interim Application No. 3138 of 2025 was
alive and pending, when the appeal was taken up for
consideration. The appeal was argued without any attempt of
raising the said plea of juvenility and the contentions raised on
behalf of the applicant were accordingly considered and the appeal
was dismissed on merits.

14.       The argument pertaining to ‘misconception of fact’ is also
not tenable for the reason that on the very same date on which the
aforesaid Interim Application No. 3138 of 2025 pertaining to the
question of juvenility was withdrawn i.e. 18.09.2025, Interim
Application No. 3639 of 2024 was also withdrawn on behalf of
the applicant. On the same day i.e. 18.09.2025, the Division
Bench of this Court recorded that the learned counsel for the
applicant did not press the said Interim Application No. 3639 of
2024, seeking suspension of sentence and enlargement on bail, as
the appeal itself was fixed for final hearing. On this basis, the said
application was disposed of as withdrawn and the appeal was fixed
for final hearing. Thus, the fact that the Interim Application No.
3138 of 2025 was pertaining to the question of juvenility was very
much in the knowledge of the Counsel, when the said application
was withdrawn, as on the same day, the other application
pertaining to suspension of sentence was also specifically
withdrawn on the ground that the appeal itself was fixed for final
hearing. This is an additional ground for rejecting the contention
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on behalf of the applicant, while seeking recall of the order dated
18.09.2025 passed in Interim Application No. 3138 of 2025.

15.       As noted hereinabove, instead of challenging the aforesaid
judgment and order dated 03.11.2025 passed in Criminal Appeal
No. 186 of 2017 and along with such a challenge raising the plea
of juvenility, the applicant for some reason chose to challenge only
the aforesaid order dated 18.09.2025 passed by the Division
Bench of this Court, permitting withdrawal of the Interim
Application No. 3138 of 2025. It is to be noted that even in the
said order, the Division Bench was careful to give a clarification
that it had not gone into the merits of the said application.

16.       In such a situation, what the applicant, by way of this
application, after seeking the liberty from the Supreme Court, is
seeking to do is to call upon this Division Bench to pass an order
that would, in effect, disturb the judgment and order dated
03.11.2025 passed by a coordinate Division Bench of this Court,
while dismissing the appeal of the applicant on merits. Such a
situation cannot be countenanced.

17.       For the reasons recorded hereinabove, we are of the opinion
that there is no substance in the contentions regarding
‘misconception of fact’ sought to be raised by the applicant to seek
recall of the order dated 18.09.2025 passed in Interim Application
No. 3138 of 2025. We are also of the opinion that it is
procedurally impermissible to do so, for the reason that the said
application was filed in Criminal Appeal No. 186 of 2017, which
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was itself heard and dismissed on merits by the said judgment and
order dated 03.11.2025.

18.       As regards reliance placed on behalf of the applicant on the
judgment of the Supreme Court in the case of Mahavir alias
Avnish vs. State of Madhya Pradesh, 2026 SCC OnLine SC 1747,
we are of the opinion that there cannot be any quarrel with the
proposition laid down in the said judgment by relying upon the
settled position of law that the plea of juvenility can indeed be
raised at any stage. In the said case, after the appeal of the convict
was dismissed on merits by the High Court and a Special Leave
Petition was filed challenging the same, the petitioner chose to
withdraw the Special Leave Petition. Thereafter, the petitioner
therein moved an application before the High Court, seeking
recall of the judgment and order, whereby the High Court had
dismissed the appeal on merits and confirmed the conviction and
sentence imposed upon the convict. The High Court refused to
entertain the application for recall of its judgment, only on the
ground that since the Special Leave Petition filed by the convict
had been dismissed as withdrawn and its judgment had already
attained finality, there was no scope for entertaining the
application for recall of the judgment and order. It is in the
context of such facts that the Supreme Court in the said judgment
referred to precedents and elaborated upon the power available to
the Court under Section 362 read with Section 482 of the Code of
Criminal Procedure, 1973 (Cr.P.C.), concerning inherent powers
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 of the High Court and it was held that the application for recall of
 the judgment and order for raising the plea of juvenility ought to
 have been entertained by the High Court.

 19.       Such are not the facts in the present case. We have already
 noted hereinabove the procedural impossibility of consideration of
 the present application, seeking recall of the order dated
 18.09.2025 passed by this Court, permitting the applicant to
 withdraw Interim Application No. 3138 of 2025, as the appeal in
 which it was filed itself had been dismissed by the judgment and
 order dated 03.11.2025.

 20.       Hence, the application is dismissed.

 21.       However, the applicant is at liberty to raise the plea of
 juvenility either in a challenge that he may choose to raise against
 judgment and order dated 03.11.2025 passed by the coordinate
 Division Bench of this Court in Criminal Appeal No. 186 of 2017
 or in the light of the aforesaid judgment of the Supreme Court in
 the case of Mahavir alias Avnish vs. State of Madhya Pradesh
 (supra), he would be at liberty to seek recall of the order dated
 03.11.2025 passed in Criminal Appeal No. 186 of 2017, in
 accordance with law.

 22.       We are not expressing any opinion on the merits of such a
 plea that may be raised by the applicant, if so advised.



  (SANDESH D. PATIL, J.)                          (MANISH PITALE, J.)
             Digitally signed by BIPIN
BIPIN        DHARMENDER
DHARMENDER   PRITHIANI
             Date: 2026.09.11
PRITHIANI    18:10:51 +0530