Bombay High Court
EMPLOYEES STATE INSURANCE CORPORATIONversusM/S. SHREE ENTERPRISES AND ORS
- Decided
- Disposal
- Dismissed
Holding
The appeal is dismissed because the accused cannot be located, making it impossible to proceed on merits, with liberty to restore the appeal if they are later traced.
Summary
The Employees State Insurance Corporation appealed against the acquittal of two respondents by a Metropolitan Magistrate in a case under Sections 85(a) and 85(i)(b) of the Employees' State Insurance Act, 1948. The police report indicated that the first respondent's establishment did not exist at the stated address and the second respondent, the proprietor, could not be located. The appeal, filed in 2018, remained pending due to the inability to serve notice on the respondents. The appellant argued that the appeal could not be heard on merits because the accused were unavailable for sentencing, and proceeding would waste judicial time. The Court dismissed the appeal, holding that without the accused the matter could not be decided, but granted liberty to restore the appeal if the respondents are later traced.
Issues considered
- Whether a criminal appeal for acquittal can be decided on merits when the accused cannot be served and their whereabouts are unknown.
Legislation cited
- Employees' State Insurance Act, 1948 — s. 85(a), 85(i)(b)
Subjects
- criminal appeal
- acquittal
- service of notice
- Employees' State Insurance Act
- procedural law
- absence of accused
Judgment
28-apeal-618-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 618 OF 2018
Employees State Insurance
Corporation …Appellant
V/s.
M/s. Shree Enterprises & Ors. ...Respondents.
…………..
Ms Seema Chopde for the Appellant.
Mr. Y.Y. Dabake, 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. 10/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
28-apeal-618-18.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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