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 ================================================================ Approved for Reporting Yes No ✔ ================================================================ 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 R/CR.A/865/2008 JUDGMENT DATED: 08/07/2026 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 : R/CR.A/865/2008 JUDGMENT DATED: 08/07/2026 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 R/CR.A/865/2008 JUDGMENT DATED: 08/07/2026 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 R/CR.A/865/2008 JUDGMENT DATED: 08/07/2026 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 R/CR.A/865/2008 JUDGMENT DATED: 08/07/2026 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