STATE OF GUJARATversusMULUBHA JIVABHAI DHANDHAL

     R/CR.A/865/2008                                 JUDGMENT DATED: 08/07/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 865 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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            Approved for Reporting                  Yes          No
                                                                 ✔
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                              STATE OF GUJARAT
                                    Versus
                       MULUBHA JIVABHAI DHANDHAL & ANR.
================================================================
Appearance:
MS JYOTI BHATT, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR YATIN SONI(868) for the Opponent(s)/Respondent(s) No. 1,2
================================================================

 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                                Date : 08/07/2026

                                  JUDGMENT


1.      The present appeal is filed by the appellant – State of Gujarat
under Section 378(1)(3) of the Criminal Procedure Code, 1973
(hereinafter referred to as ‘the Code’ for short) against the judgment
and order dated 29.09.2007 passed by the learned Chief Judicial
Magistrate, Rajkot (hereinafter be referred to as “the Trial Court) in
Criminal Case No.5781 of 2006, whereby the learned trial Court has
acquitted the respondents -         original accused Nos.3 and 4 for the
offence under Sections 224, 225A, 202 read with Section 120B of the
Indian Penal Code (hereinafter referred to as “the IPC” for short).


2.      It is the case of the prosecution that the present respondents



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accused were serving as constable at Rajkot Police Station and while
they were in charge of the case, they facilitated the escape of the
accused from lawful custody and that was the charge levelled against
the present respondents accused. After considering the facts of the
case and considering the evidence, the trial Court convicted the
original accused No.1 - Satishbhai Shantilal Thakkar, original accused
No.2 – Ashok Ramjibhai Solanki and original accused No.5 – Ramji @
Gigo Kalubhai Kihla for the offence punishable under Sections 224,
225A and 202 of the IPC and sentenced to undergo S.I. for six months
and imposed fine of Rs.500/-, in default, further S.I. for one month,
however, the trial acquitted the original accused Nos.1, 2 and 5 for
the offence punishable under Section 120B of the IPC. So far as the
present respondents – original accused Nos.3 and 4 are concerned,
they were acquitted by the trial Court from the charges levelled
against them by giving benefit of doubt.


3.      Being aggrieved by and dissatisfied with the aforesaid judgment
and order of acquittal the appellant – State of Gujarat has preferred
this appeal.


4.      Heard learned counsel appearing for the respective parties.


5.      The present respondents accused were charged for the offence
punishable under Sections 224, 225A, 202 read with Section 120B of
the IPC and on perusal of the provisions of the aforesaid Sections, an
appeal is required to be preferred under Section 378(1)(3) of Cr.P.C.
before immediate higher Court i.e. Sessions Court concerned against
the judgment and order of acquittal. The provisions of Sections 224,
225A, 202 and 120B of the IPC are reproduced hereunder :



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        Section 224 : Resistance or obstruction by a person to his lawful
        apprehension.—

        Whoever intentionally offers any resistance or illegal obstruction to the
        lawful apprehension of himself for any offence with which he is charged or
        of which he has been convicted, or escapes or attempts to escape from any
        custody in which he is lawfully detained for any such offence, shall be
        punished with imprisonment of either description for a term which may
        extend to two years, or with fine, or with both. Explanation.— The
        punishment in this section is in addition to the punishment for which the
        person to be apprehended or detained in custody was liable for the offence
        with which he was charged, or of which he was convicted.

        Section 225A : Omission to apprehend, or sufferance of escape, on
        part of public servant, in cases not otherwise, provided for.

        Whoever, being a public servant legally bound as such public servant to
        apprehend, or to keep in confinement, any person in any case not provided
        for in section 221, section 222 or section 223, or in any other law for the
        time being in force, omits to apprehend that person or suffers him to
        escape from confinement, shall be punished—
        (a) if he does so intentionally, with imprisonment of either description for a
        term which may extend to three years, or with fine or with both; and
        (b) if he does so negligently, with simple imprisonment for a term which
        may extend to two years, or with fine, or with both.

        Section 202 : Intentional omission to give information of offence by
        person bound to inform.—

        Whoever, knowing or having reason to believe that an offence has been
        committed, intentionally omits to give any information respecting that
        offence which he is legally bound to give, shall be punished with
        imprisonment of either description for a term which may extend to six
        months, or with fine, or with both.

        Section 120B : Punishment of criminal conspiracy.--

        (1) Whoever is a party to a criminal conspiracy to commit an offence
        punishable with death, 2[imprisonment for life] or rigorous imprisonment
        for a term of two years or upwards, shall, where no express provision is
        made in this Code for the punishment of such a conspiracy, be punished in
        the same manner as if he had abetted such offence.
        (2) Whoever is a party to a criminal conspiracy other than a criminal
        conspiracy to commit an offence punishable as aforesaid shall be punished
        with imprisonment of either description for a term not exceeding six
        months, or with fine or with both.


6.      Considering the provisions of law as aforesaid, this matter is
required to be transferred in view of the decision of the High Court of


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Chhattisgarh rendered in the case of State of Chhattisgarh,
Through Its Station House Officer Vs. Mohanlal Bagde, reported
in [2019] SCC OnLine Chh 102 wherein, the Court has referred the
earlier decision of the Hon’ble Supreme Court rendered in case of of
Subhash Chand vs State (Delhi Administration), reported in
(2013) 2 SCC 17, wherein, the Hon’ble Supreme Court has observed
and held in para-18 as under :

        “18. If we analyse Section 378(1)(a) & (b), it is clear that the State
        Government cannot direct the Public Prosecutor to file an appeal against an
        order of acquittal passed by a Magistrate in respect of a cognizable and
        non- bailable offence because of the categorical bar created by Section
        378(1)(b). Such appeals, that is appeals against orders of acquittal passed
        by a Magistrate in respect of a cognizable and non-bailable offence can only
        be filed in the Sessions Court at the instance of the Public Prosecutor as
        directed by the District Magistrate. Section 378(1)(b) uses the words "in any
        case" but leaves out orders of acquittal passed by a Magistrate in respect of
        a cognizable and non-bailable offence from the control of the State
        Government. Therefore, in all other cases where orders of acquittal are
        passed appeals can be filed by the Public Prosecutor as directed by the
        State Government to the High Court."


7.      It would also be appropriate to refer to the decision of the High
Court of Punjab & Haryana rendered in case of Mohanlal Vs. Gaurav
Kumar and Anr., reported in 2025 PHHC 162308, wherein the
Court has observed and held in para-3 as under :

        “3. The Hon’ble Supreme Court in M/s. Celestium Financial vs.
        A.Gnanasekaran Etc., 2025(3) RCR (Criminal) 208, after considerable
        discussion and comparative interpretation of Sections 372 and 378(4) of
        Cr.P.C., concluded that the victim has a right to file an appeal under Section
        372 of Cr.P.C. before the Court of Sessions.”


8.      In the case of Celestium Financial Vs. A. Gyanasekaran
(supra), the Hon’ble Supreme Court has held and observed in para –
7.12 as under:-

          “7.12 The reasons for the above distinction are not far to see


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     and can be elaborated as follows:

     Firstly, the victim of a crime must have an absolute right to
     prefer an appeal which cannot be circumscribed by any
     condition precedent. In the instant case, a victim under Section
     138 of the Act, i.e., a payee or the holder of a cheque is a person
     who has suffered the impact of the offence committed by a
     person who is charged of the offence, namely, the accused,
     whose cheque has been dishonoured.

     Secondly, the right of a victim of a crime must be placed on par
     with the right of an accused who has suffered a conviction, who,
     as a matter of right can prefer an appeal under Section 374 of
     the CrPC. A person convicted of a crime has the right to prefer
     an appeal under Section 374 as a matter of right and not being
     subjected to any conditions. Similarly, a victim of a crime,
     whatever be the nature of the crime, unconditionally must have
     a right to prefer an appeal.

     Thirdly, it is for this reason that the Parliament thought it fit to
     insert the proviso to sub-section 372 without mandating any
     condition precedent to be fulfilled by the victim of an offence,
     which expression also includes the legal representatives of a
     deceased victim who can prefer an appeal. On the contrary, as
     against an order of acquittal, the State, through the Public
     Prosecutor can prefer an appeal even if the complainant does
     not prefer such an appeal, though of course such an appeal is
     with the leave of the court. However, it is not always necessary
     for the State or a complainant to prefer an appeal. But when it
     comes to a victim’s right to prefer an appeal, the insistence on
     seeking special leave to appeal from the High Court under
     Section 378(4) of the CrPC would be contrary to what has been
     intended by the Parliament by insertion of the proviso to Section
     372 of the CrPC.

     Fourthly, the Parliament has not amended Section 378 to
     circumscribe the victim’s right to prefer an appeal just as it has
     with regard to a complainant or the State filing an appeal. On
     the other hand, the Parliament has inserted the proviso to
     Section 372 so as to envisage a superior right for the victim of
     an offence to prefer an appeal on the grounds mentioned therein
     as compared to a complainant.

     Fifthly, the involvement of the State in respect of an offence
     under Section 138 of the Act is conspicuous by its absence. This
     is because the complaint filed under that provision is in the
     nature of a private complaint as per Section 200 of the CrPC and
     Section 143 of the Act by an express intention incorporates the
     provisions of the CrPC in the matter of trial of such a deemed
     offence tried as a criminal offence. Therefore, the complainant,
     who is the victim of a dishonour of cheque must be construed to



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             be victim in terms of the proviso to Section 372 read with the
             definition of victim under Section 2(wa) of the CrPC.”


9.         Learned Additional Public Prosecutor has pointed out that the
matter in the case of Celestium Financial Vs. A. Gyanasekaran
(supra) is now pending at large before the Hon’ble Supreme Court in
case of M/s. Everest Automobiles Vs. M/s. Ranjit Enterprises in Special
Leave to Appeal (Crl.) No. 12350/2024 wherein the Hon’ble Supreme
Court has observed that it is desirable that a larger Bench gives an
authoritative pronouncement on this issue as it has far-reaching
consequences.


10.        In view of the said submissions and the decisions of different
Courts as well as the Hon’ble Supreme Court as aforesaid, this appeal
is disposed of with a direction to the Registry to transfer the appeal to
the concerned Sessions Court. After it is transferred to the concerned
Sessions Court, it has to be treated as an Appeal under the proviso
under Section 372 of the Code / Section 413 of BNSS and numbered
accordingly and issue notice to the parties. The Registry is directed to
transfer the entire record of the case, including the certified copies of
the order impugned and record & proceedings, if lying with this Court,
to the concerned lower Appellate Court, forthwith.


11.        Considering that the matter has been pending for considerable
time, the learned lower Appellate Court is required to make
endeavour to dispose of the matter as expeditiously as possible. It is
clarified that this Court has not gone into the merits of the matter at
this stage.

                                                                  (HEMANT M. PRACHCHHAK,J)

Dolly

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: DOLLYBEN CHETANBHAI VADUKAR(HC01392), PRIVATE SECRETARY, at High Court of Gujarat on 09/07/2026 17:51:41
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