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Bombay High Court

EMPLOYEES STATE INSURANCE CORPORATIONversusM/S. SHREE ENTERPRISES AND ORS

Decided
Disposal
Dismissed

Holding

The appeal is dismissed because the respondents cannot be traced for service, though it may be restored if they are later located.

Summary

The Employees State Insurance Corporation appealed against the acquittal of two respondents in a case under Sections 85(a) and 85(i)(b) of the Employees' State Insurance Act, 1948. The Metropolitan Magistrate had acquitted the respondents, but the appellant argued that the appeal should be heard on merits now that it had been admitted. The court noted that the first respondent's establishment could not be located and the second respondent, the proprietor, was untraceable, making service impossible. The appellant contended that without the accused, a reversal of acquittal would be futile as sentencing could not be addressed. The court held that the appeal must be dismissed due to the inability to serve the respondents, but granted liberty to revive the appeal if they are later located. Consequently, the appeal was dismissed pending any future service of notice.

Issues considered

  • Can an appeal against an acquittal be decided on merits when the accused cannot be traced and served?
  • Is dismissal appropriate where the respondents are untraceable, and can the appeal be reinstated upon their discovery?

Legislation cited

Subjects

  • criminal appeal
  • acquittal
  • service of notice
  • Employees' State Insurance Act
  • procedural dismissal

Judgment

                                                                   27-apeal-613-18.odt


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION
                 CRIMINAL APPEAL NO. 613 OF 2018

Employees State Insurance Corporation                       …Appellant
      V/s.
M/s. Shree Enterprises & Ors.                               ...Respondents.

                              …………..
Ms Seema Chopde for the Appellant
Ms S.S. Kaushik, APP for the Respondent/State.
                             …………..

                                    CORAM      :     N.R. BORKAR, J.
                                    DATE       :     16.09.2026.

P.C. :

1.       This appeal takes exception to the judgment and order dated
30.03.2015 passed by the Metropolitan Magistrate, 25 th Court,
Mazgaon at Sewree, Mumbai in C.C. No. 09/EW/2004.


2.       By        the   impugned   judgment       and   order,   the    learned
Magistrate has acquitted the respondent Nos. 1 and 2/original
accused for the offence punishable under Section 85(a) read with
Section 85(i)(b) of the Employees' State Insurance Act, 1948.


3.       The report received from the concerned police station shows
that the respondent No. 1 establishment does not exist at the
given address and respondent No. 2, who is the proprietor of
respondent No. 1, is not traceable.




Dinesh S. Sherla                         1/2
                                                               27-apeal-613-18.odt


4.       The appeal is pending since 2018 for effecting service upon
the respondents.


5.       The learned counsel for the appellant submits that as this
Court has admitted the appeal, the same be heard on merits.
However, the appeal against acquittal cannot be decided on
merits in absence of the accused for the reason that, if this Court
decides to reverse the judgment of acquittal into conviction, the
accused will have to be heard on the point of sentence. In absence
of the accused, the same is not possible. Apart from it, deciding
the appeal on merit, when it is not known, whether the accused is
alive or not will be waste of judicial time. The appeal, therefore,
will have to be dismissed. In the result, the following order is
passed


                                     ORDER
                   The Appeal is dismissed. However, liberty is granted to
         restore the appeal in case, the respondents are traced out.



                                                  [N.R.BORKAR, J.]




Dinesh S. Sherla                          2/2


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