Bombay High Court
EMPLOYEES STATE INSURANCE CORPORATIONversusMOHAMMAD HUSSIAN AND ANR
- Decided
- Disposal
- Disposed Off
Holding
The appeal cannot be decided on merits until the accused is served; therefore, it is disposed with liberty to seek restoration if the accused is later located.
Summary
The Employees State Insurance Corporation appealed against the acquittal of Mohammad Hussain by the Additional Sessions Judge, who had set aside his conviction under Sections 85(a) and 85(i)(b) of the Employees State Insurance Act. The High Court, after admitting the appeal and ordering an investigation under Section 390 of the CrPC, received a police report that the accused had closed his shop and could not be located. The appellant argued that without the accused being served, the appeal could not be heard on its merits. The Court held that the appeal must be disposed of pending service of the accused, granting the appellant liberty to seek restoration if the accused is later found. Consequently, the appeal was disposed without a substantive decision on the merits, and the earlier acquittal was not treated as affirmed.
Issues considered
- Can a criminal appeal be decided on its merits when the accused respondent cannot be served?
- Does the inability to serve the accused justify dismissal of the appeal pending restoration?
Legislation cited
- Code of Criminal Procedure — s. 390
- Employees' State Insurance Act — s. 85(a), 85(i)(b)
Subjects
- Employees State Insurance Act
- Criminal Appeal
- Section 390 CrPC
- Service of Summons
- Procedural Disposal
Judgment
DINESH
SADANAND
SHERLA
Digitally signed by 20-apeal-1109-25.odt
DINESH SADANAND
SHERLA
Date: 2026.09.24
19:32:28 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1109 OF 2025
Employees State Insurance
Corporation …Appellant.
V/s.
Mohammad Hussain & Anr. ...Respondents.
…………..
Mr. Shailesh S. Pathak for the Appellant.
Mrs. Rutuja Ambekar, APP for the Respondent/State.
…………..
CORAM : N.R. BORKAR, J.
DATE : 24.09.2026.
P.C. :
1. This appeal takes exception to the judgment and order
dated 6.2.2016 passed by the learned Additional Sessions Judge,
Greater Mumbai in Criminal Appeal No. 618 of 2015.
2. The appellant-corporation herein had filed the complaint
case against respondent No.1 for the offences punishable under
Section 85(a) read with 85(i)(b) of the Employees State Insurance
Act. By the judgment and order dated 10.6.2015, the trial Court
convicted the respondent No.1 herein for the said offences and
sentenced him to suffer S.I. for one month.
3. Being aggrieved by the aforesaid judgment and order of the
trial Court the respondent No.1 preferred an appeal. By the
impugned judgment and order, the learned Additional Sessions
Judge has allowed the appeal and acquitted the respondent No.1.
Dinesh S. Sherla 1/2
20-apeal-1109-25.odt
4. This Court by order dated 14.10.2025 admitted the present
appeal and ordered action under Section 390 of Code of Criminal
Procedure.
5. The report submitted by the concerned police station
pursuant to the said action shows that the respondent No.1 has
closed down the shop and his whereabouts are not known.
6. The learned counsel for the appellant-corporation, on
instructions, submits that in spite of best efforts the whereabouts
of respondent No.1 could not be traced.
7. Considering overall facts and circumstances, the present
appeal cannot be decided on merits unless respondent No.1 is
served. The Appeal is therefore, disposed of with liberty to the
appellant to seek restoration of the appeal in case respondent
No.1 is traced out.
8. Needless to mention that disposal of the appeal shall not be
treated as confirmation of the judgment and order of the Sessions
Court on merits.
9. The Appeal is disposed of in the aforesaid terms.
[N.R.BORKAR, J.]
Dinesh S. Sherla 2/2
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