Final Order:

1. This is a Criminal Revision Application under Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.PC’) against the Judgment and Order dated 28.11.2023, passed by the learned Additional Sessions Judge, Shrigonda, District - Ahmednagar, in Criminal Appeal No.07/2019 (Mr. Nilesh Bhimrao Nagawade Vs. Baban Maruti Murkute and Ors.). The operative order of the impugned Judgment, reads as under :-

                   “(1) The appeal is disposed of with the following directions :-

                   i) The judgment and order passed by the trial Court in R.C.C. No. 204/2010 is set aside.

                   ii) The judgment and order passed by the trial Court in R.C.C. No. 203/2010 is set aside.

                   iii) The learned trial Court is hereby directed to decide the case and counter case afresh considering the settled principle of case and counter case as discussed in the judgment as early as possible.

                   iv) The parties to appear before trial Court on 28.12.2023.

                   (2) Record & proceedings be sent to the learned trial Court, with copy of this judgment.

                   (3) Judgment is dictated directly on computer and pronounced in open Court.”

2. The aforesaid Criminal Appeal was preferred by the Informant against the Judgment and Order of acquittal in Regular Criminal Case (RCC) No.204/2010 dated 04.08.2017, passed by the learned Judicial Magistrate, First Class, Jamkhed, acquitting Respondent Nos.1 to 4, who were Accused for the offences punishable under Sections 326, 323, 504, 506(II) read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’). It was the case of Informant that, the Accused were his relatives. Due to the dispute in respect of the agricultural land, the incident of assault took place on 17.06.2010 in the agricultural field when the Informant was busy in the agricultural operation. The Informant and his family members got injured in the incident, for which they had to take the medical treatment. Upon reporting the incident to the Police, Crime bearing No.143/2010 came to be registered with Jamkhed Police Station, District - Ahmednagar for the above-referred offences under IPC. The charge-sheet came to be submitted and was registered as RCC No.204/2010 after committal.

3. The cross-FIR bearing No.146/2010 came to be registered on the report lodged by Respondent No.4 – Alka Baban Murkute against the Informant and his family members. The charge-sheet came to be submitted and was registered as RCC No.203/2010 after committal. The trial in both Crimes were conducted separately before the learned Trial Court. The learned Trial Court decided both the criminal cases bearing RCC No.203/2010 and RCC No.204/2010 by the separate Judgments.

4. No Appeal was preferred against the Judgment and Order in RCC No.203/2010, which was decided by the Judgment and Order dated 03.08.2017, acquitting the Accused therein, i.e. the Informant in the present case and his family members. The Criminal Appeal was preferred against the Judgment and Order in RCC No.204/2010, which was decided on 04.08.2017. The learned Sessions Court decided the Criminal Appeal not on merits, but on the ground that, the Judgments in both the cases were not pronounced on the same date and there was no reference of cross-case in the Judgment against which the aforesaid Criminal Appeal was filed.

5. Heard the learned Advocate for the Applicant, learned Advocate for Respondent Nos.1 to 4 and the learned APP for Respondent No.5 – State. With their assistance, perused the papers on record.

                   [A] It is submitted by the learned Advocate for the Applicant that, the learned Sessions Court erred in passing the impugned Judgment without taking into consideration the provisions of 465 of Cr.PC, which provides as to when a finding or sentence is reversible by reason of error, omission, or irregularity. No Appeal was preferred by Respondent Nos.1 to 4 against the Judgment in the cross-case, which had acquitted the Applicant and the Co-accused. No illegality was committed by the learned Trial Court while deciding the case and cross-case on two (02) different dates. By remanding the matter by the learned Sessions Court, on technical ground, the learned Trial Court committed an error. The impugned Judgment and Order by the learned Sessions Court be quashed and set aside and the Application be allowed.

                   [B] It is submitted by the learned Advocate for Respondent Nos.1 to 4 that, since the case and cross-case were not decided on the same day, the learned Sessions Court has rightly passed the impugned Judgment and Order and remanded back the matters to the learned Trial Court. The learned Sessions Court has considered the decisions referred in the impugned Judgment, which provides the manner in which the case and cross-case are to be decided. The learned Sessions Court exercised the powers under Sections 397 and 399 of Cr.PC, which are the revisional powers and passed the impugned Judgment and Order. The learned Sessions Court has rightly referred to Section 386(e) of Cr.PC, as the learned Trial Court did not appreciate the evidence on record properly. No interference was called for in the Judgment and Order, and the Application be dismissed. He relied on the Judgment of Full Bench of the Madras High Court in T. Balaji and Anr. Vs. The State rep. By the Inspector of Police in Criminal OP No.4587/2024, decided on 08.08.2024 and in Valmiki Faleiro Vs. Mrs. Lauriana Fernandes and Others; 2005 SCC Online Bom 1584 in support of his contentions.

                   [C] It is submitted by the learned APP for Respondent No.5 – State that, appropriate order be passed in the Application.

6. Following are the undisputed aspects of the matter :-

                   [i] Crime Nos.143/2010 and 146/2010 were registered with the Jamkhed Police Station in connection with one and the same incident, i.e. case and cross-case.

                   [ii] Crime No.143/2010 was registered for the offence punishable under Sections 326, 324, 504 and 506 read with Section 34 of IPC against Respondent Nos.1 to 4.

                   [iii] Crime No.146/2010 was registered for the offence punishable under Sections 323, 324, 504 and 506 read with Section 34 of IPC against the Applicant herein and three (03) others.

                   [iv] RCC No.203/2010 was out of Crime No.146/2010.

                   [v] RCC No.204/2010 was out of Crime No.143/2010.

7. The learned Sessions Court, by referring to the Judgments in Nathilal and Others Vs. State of U.P. and Another; 1990 (Supp) SCC 145 and Sudhir and Others Vs. State of MP; (2001) 2 SCC 688, noted that, the learned Trial Court has not pronounced the Judgments in both the cases on the same day, and the learned Trial Court, while appreciating the evidence, have not considered that, both the parties in the case and cross-case have admitted their presence on the spot and set aside the impugned Judgment and also set aside the Judgment and Order in the cross-case, against which no Appeal was preferred. The learned Sessions Court, by referring to Section 386(e) of Cr.PC, passed the impugned Judgment and order.

8. In T. Balaji (Supra), the questions for consideration before the Full Bench were as under :-

                   “i. Whether the police is required to mandatorily follow the procedure prescribed in Police Standing Order 566 while investigating a case and case in counter?

                   ii. What is the effect of non-compliance with PSO 566? If and in what circumstances does non-compliance vitiate the prosecution?

                   iii. If in the event of the Court holding that the procedure provided under PSO 566 is not mandatory, should the Court come up with a set of guidelines to ensure proper investigation in a case and a case-in-counter?

                   iv. What is the procedure to be adopted by the Court trying offences in cases where the prosecution files a report under Section 173(2) Cr.P.C in both the case and case in counter?”

                   8.1. The questions came to be answered as follows :-

                   “a. The police are required to mandatorily follow the procedure prescribed in PSO 566 while investigating a case and case in counter ie., rival versions of the same incident.

                   b. The consequences of non-compliance with PSO 566 would depend upon the stage at which such an objection is raised. It is the duty of the Magistrate to screen out final reports which are filed in inconsistent rival versions of the same incident ie., where one rival version is true the other must be necessarily false, by returning with a direction to follow PSO 566. Where the Magistrate inadvertently takes cognizance, the error may be set right by the High Court under Section 528 BNSS, 2023 if the same is raised at an early stage. If, however, the trial in such cases is allowed to go on and has reached an advanced stage, a plea of non-compliance with the PSO will not ipso facto vitiate trial unless and until a demonstrable case of prejudice or miscarriage is made out.

                   c. The police will take note of and scrupulously follow the guidelines set out in paragraph 58-A, supra.

                   d. Trial of a case and counter case shall be held simultaneously before the same Court and the guidelines set out in paragraph 58-B, supra, shall be followed.”

9. In Valmiki Faleiro (Supra), which was a revision application, it was observed, in the facts and circumstances of that case that, it was within the province of the learned Sessions Judge to exercise suo motu powers of revision and to set right a wrong order whenever it came to his notice that such order was incorrectly made or illegally or improperly passed.

10. The aforesaid decision relied upon by the learned Advocate for Respondent Nos.1 to 4 are of no assistance for more than one reason. Firstly, the learned Sessions Court exercised the appellate powers while passing the impugned order. Secondly, there is no reference of exercise of the revisional powers while passing the impugned Judgment and Order. There is no substance in the submission made by the learned Advocate for Respondent Nos.1 to 4 that, the learned Sessions Court has exercised the powers under Sections 397 and 399 of Cr.PC, i.e. revisional powers, because the impugned Judgment is silent on that aspect. What the Judgment shows is that, the learned Sessions Court exercised the appellate powers under Section 386 of Cr.PC and remanded the cases for deciding afresh by considering as to who is the aggressor. The above-referred decisions are based on different factual aspects.

11. The principles in respect of the case and cross-case are well settled in view of the above-referred Judgments in Nathilal and Others (Supra) and Sudhir and Others (Supra). The principles laid therein are that, the same learned Judge must try both cross-cases one after the another by two separate Judgments on the same day. Identical issue to the one involved in the present matter came up for consideration before the Full Bench of the Karnataka High Court in State of Karnataka Vs. Hosakeri Ningappa and Ors.; MANU/KA/2658/2011. The following questions were referred for consideration of the Full Bench :-

                   “(1) Whether the proceedings are vitiated if the case and counter case are not tried as held by the Hon'ble Supreme Court in Nathi Lal vs. State of U.P. reported in MANU/SC/0091/1989 : 1990 SCC (Cri) 638 and Sudhir and others vs. State of M.P. reported in 2001 SCC (Cri) 387

                   (2) Whether the evidence recorded in one case can be looked into in the other case? If so, when and to what extent?

                   (3) If the Trial Court disposes of case and counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and appeal is preferred in the case decided later whether the proceedings in the later case are vitiated?”

                   11.1. Brief facts, which led to the reference, are reproduced below from the said Judgment :-

                   “ The case and counter case i.e., Sessions Case No. 1/1995 and Sessions Case No.11/1995, arose out of the same incident that occurred at 2.00 P.M. on 31.3.1994 in front of Neelamma Temple, situated at Hippatheri Magani, Hospet Taluk, Bellary District. Though the aforementioned two sessions cases were the case and the counter case (or cross cases), they were not tried simultaneously and the judgments were not pronounced one after the other. Sessions Case No.11/1995 was decided on 3.10.2003 by acquitting the accused therein. Whereas, Sessions Case No.1/1995 was decided on 10.2.2005 and the accused therein are also acquitted. The judgment and order of acquittal passed in Sessions Case No.11/1995 has attained finality, inasmuch as, no appeal is filed questioning the acquittal of the accused. However, Criminal Appeal No.971/2005 came to be filed by the State against the judgment and order of acquittal dated 10.2.2005 passed in Sessions Case No.1/1995.

                   1A. During the course of hearing of Criminal Appeal No.971/2005, it was brought to the notice of the Division Bench that the Sessions Case No.1/1995 and Sessions Case No.11/1995 were not tried simultaneously as per the dictum laid down by the Supreme Court in the case of Nathi Lal vs. State Of U.P. 1990 Suppl. SCC 145: MANU/SC/0091/1989: 1990 SCC (Cri) 638 and the judgment in the case of Sudhir And Others vs. State Of M.P. 2001 SCC (Cri) 387 AND State Of M.P. vs. Lavkush And Others. Various other judgments, including the judgment of the Division Bench of this Court in the case of Abdul Majid Sab And Others vs. State Of Karnataka MANU/KA/0849/2009 : ILR 2010 Kar 1719, were brought to the notice of the Court in Crl.A. No.971/2005.”

12. Considering the Judgments in Nathi Lal and Others (Supra) and Sudhir and Others (Supra), which are relied by the Sessions Court in the case at hand, the Full Bench made the following observations, which are necessary to be reproduced :-

                   “7. The Supreme Court has described the procedure and practice of simultaneous trial of case and counter case as "fair procedure", "salubrious practice", "salutary practice", "generally recognised rule", "proper procedure to adopt" etc., in various judgments. The procedure to be adopted by the Courts while dealing with the case and counter case is the Judge made procedure and not a statutory procedure. The question, however, is whether the wrong procedure adopted by the Learned Trial Judge vitiates the trial, irrespective of the fact whether prejudice has been caused to the accused or not.

                   8. In case of irregularity in not adopting the procedure which otherwise ought to have been adopted, generally the trial or proceeding does not get vitiated. Only in the case of want of competency of the Trial Court, the procedure vitiates. The Privy Council in the case of Pulukuri Kotayya vs. Emperor MANU/PR/0049/1946 : AIR 1947 PC 67 has observed thus :

                   “Para-7: Even on this basis, Mr. Pritt for the accused has argued that a breach of a direct and important provision of the Code of Criminal Procedure cannot be cured, but must lead to the quashing of the conviction. The Crown, on the other hand, contends that the failure to produce the note book in question amounted merely to an irregularity in the proceedings which can be cured under the provisions of S. 537, Criminal P.C., if the Court is satisfied that such irregularity has not in fact occasioned any failure of justice. There are, no doubt, authorities in India which lend some support to Mr. Pritt's contention, and reference may be made to 49 ALL. 475, in which the Court expressed the view that S. 537, Criminal P.C., applied only to errors of procedure arising out of mere inadvertence, and not to cases of disregard of, or disobedience to, mandatory provisions of the Code, and to 45 Mad. 820 in which the view was expressed that any failure to examine the accused under S. 342, Criminal P.C., was fatal to the validity of the trial and could not be cured under S. 537. In their Lordships opinion this argument is based on too narrow a view of the operation of S. 537. When a trial is conducted in a manner different from that prescribed by the Code as in 28 I.A. 257, the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under S. 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships 'Board in 5 Rang. 53, where failure to comply with S. 360, Criminal P.C., was held to be cured by Ss. 535 and 537. The present case falls under S. 537, and their Lordships hold the trial valid notwithstanding the breach of S. 162.”

                   It seems to us that the case falls within the second category mentioned by the Privy Council. This is not a case of want of competency, but is a case of irregularity.

                   9. Though the procedure prescribed by the Supreme Court mentioned supra is indicative of the mandatory nature of the procedure to be followed, in our considered opinion, the proceedings ipso facto are not vitiated if the case and counter case are not tried as per the procedure laid down by the Supreme Court in the case of Nathi Lal vs. State of U.P. (Supra), Sudhir And Others vs. State of M.P. (Supra) and other cases. In this context it is relevant to refer to Section 465 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code' for short) which reads thus:

                   Section 465 : Finding or sentence when reversible by reason of error, omission or irregularity.- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court or appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

                   (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

                   (Emphasis supplied)

                   10. Use of the words in the judgments cited supra, no doubt is prima facie indicative of mandatory character of the procedure to be followed in case and counter case, a close analysis thereof, in the light of the provisions contained in Section 465 of the Code would indicate that non-compliance of such a procedure, by itself, is not sufficient to denude the concerned Judge of the jurisdiction to proceed with the trial and to pass the final order. If the procedure as stated by the Supreme Court mentioned supra in the cases of NATHI LAL and similar matters is not followed, the same would be a case of irregularity, but not a case of want of competency. The wrong procedure adopted by the Trial Judge in such matters does not in any way relate to competency of the Court, but, it relates to adopting irregular procedure.

                   11. The omission on the part of the Trial Judge in not following the procedure of simultaneous trials does not vitiate the trial in view of Section 465 Cr.P.C., particularly when it is not shown that any prejudice is caused to the accused on account of this omission. In this context, it is relevant to note certain observations made by the Supreme Court in the case of Banwari And Another vs. State Of Uttar Pradesh MANU/SC/0170/1962: AIR 1962 SC 1198, wherein the effect of the provisions of Section 537 of the Code of Criminal Procedure, 1898 (akin to Section 465 of Code of Criminal Procedure, 1973) is considered. The said observations are as follows:

                   Para-20 : The procedure of recording evidence with respect to the offences which were the subject of different Sessions Trials in the proceedings of one Sessions Trial alone, is not certainly warranted by the provisions of the Code of Criminal Procedure. Every separate trial must proceed separately, with the result that every proceeding, including the recording of evidence, in each trial should be separate. The question, however, is whether this wrong procedure adopted by the Learned Sessions Judge, has vitiated the trial, irrespective of the fact whether prejudice has been caused to the accused or not.

                   Para-28 : We have already said that the proceedings in each separate trial should be separate and that on that basis the procedure adopted by the Learned Sessions Judge was wrong. The question for determination, then, is whether his following the wrong procedure vitiates the trial and the conviction of the appellants or is curable under S.537 of the Code.

                   Para-29: We are of opinion that such a defect does not invalidate the trial in view of S.537 of the Code.

                   In the above case, the Sessions Judge had tried the three sessions cases jointly arising out of three different charge sheets. The Supreme Court has held that the procedure adopted by the Sessions Judge was wrong. However, while deciding the question as to whether following of wrong procedure vitiates the trial, the Supreme Court held that such a defect does not invalidate or vitiate the trial.

                   12. Section 465 of the Code is intended to cure any error, omission, irregularity or infraction of procedural law committed by the Court of competent jurisdiction, unless such irregularity or illegality has in fact occasioned a failure of justice. The object of the Section is to secure justice by preventing the invalidation of a trial held on the ground of technical breaches of any provisions of the Code causing no prejudice to the accused. The intention is to eliminate all possibilities of acquittal of persons committing offences except on the merits. The procedural laws are designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well established and well-understood principles that accord with our notions of natural justice. If there be substantial compliance with the requirements of law providing the accused a full and fair trial in accordance with principles of natural justice, no order of a competent Court should be reversed or altered in appeal or revision on account of a procedural irregularity unless the same results in miscarriage of justice. The procedural laws are designed to sub serve the ends of justice and not to frustrate them. The test to be applied is whether the accused had a fair trial in spite of the transgression of the prescribed rule ox procedure.

                   In judging the question of prejudice, Courts must act with a broad vision and look to the substance and not to technicalities and their main concern should be to see whether the accused had a fair trial; whether he knew that he was being tried for; whether the main facts sought to be established against him were explained to him fairly and clearly; and whether he was given a full and fair chance to defend himself.

                   13. In our considered opinion, in each case, it has to be decided on merits based on the facts and circumstances of that case, as to whether the irregularity in the procedure adopted by the Trial Judge while proceeding with the trial has occasioned failure of justice or not. If the irregularity in procedure adopted by the Sessions Court has occasioned failure of justice, then only the proceedings vitiate. Otherwise, not.

                   14. But, as a proposition of law, it cannot be laid down in omnibus manner that in case if the procedure relating to simultaneous trial of case and counter case as mentioned in NATHI LAL and SUDHIR is not followed, the trial vitiates. We are clearly of the opinion that, if the procedure adopted by the Trial Court while trying the case and the counter case is in derogation of the procedure prescribed by the Supreme Court in the case of NATHI LAL and SUDHIR, though, amounts to adopting irregular procedure, it does not invalidate or vitiate the proceedings or trial in view of Section 465 of the Code. Therefore, if the procedure prescribed is not followed by the concerned Trial Judge, the aggrieved party would have to show as to how the same has caused prejudice to him. Hence, the proceedings will not vitiate except where prejudice is shown to have been caused to the accused. Procedural irregularity committed by the Trial Court cannot be equated to lack of competency on the part of the Trial Court.

                   15. To sum up, the procedure to be adopted in case and counter case is that the investigation should be conducted by the same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors. The trial should be conducted by the same Court. After recording the evidence and after hearing the arguments, the judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments should be heard in the other case. It is needless to observe that the arguments in both the matters shall be heard by the same Learned Judge. The judgments should be pronounced by the same Judge simultaneously i.e., one after the other.

                   In deciding each case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case (or counter case) cannot be looked into. The Judge shall not be influenced by the evidence or arguments in the cross case. However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case.

                   16. If the Trial Court by not adopting the salutary procedure mentioned supra disposes of the case and the counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and appeal is preferred in the case decided later, in our considered opinion, the proceedings in the later case are not vitiated. The Court cannot compel the State to file an appeal in any given case. It is left to the wisdom of the State to decide as to whether the judgment passed by the Court below needs to be questioned or not. If the State is satisfied about the judgment passed in one case it may choose not to file appeal in that case. However, the State may feel that in the other case (i.e., in the counter case), appeal may be necessary. In such an event, nobody can prevent the State from filing the appeal. If two cases arise out of the same incident and if two charge sheets are filed, two trials will be held. In a given case, the Trial Judge may choose to acquit the accused in both the cases or may choose to convict the accused in both the cases; the Trial Judge may even convict the accused in one case and acquit the accused in another case. The decision will depend upon facts and circumstances of each case. Merely because the appeal is not filed in one case and the appeal is filed in the other case, the proceedings will not get vitiated automatically in the later case. In our considered opinion, in such a situation, the accused in such cases will have to show prejudice suffered by him. However, as a proposition of law, it cannot be laid down that the appeal filed in the second case by the State questioning the Judgment and Order of acquittal needs to be dismissed in limine on the ground that the proceedings in the later case is vitiated. It all depends upon facts and circumstances of individual case to be decided by the Appellate Court to see whether any prejudice is caused to the accused in not conducting the trial of the case and the cross case simultaneously. In view of the foregoing reasons, we answer the points referred to us as under :

                   (a) If the case and counter case are not tried simultaneously as held by the Supreme Court in the case of Nathi Lal vs. State of U.P. (Supra) and in the case of Sudhir and others vs. State of M.P. (Supra) the proceedings ipso facto do not get vitiated. But, where the irregular procedure adopted by the Trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise the proceedings are protected under Section 465 of the Code.

                   (b) The evidence recorded in one case cannot be looked into in the other case. The Trial Judge can only rely upon the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into. Each case must be decided on the basis of the evidence which has been placed on record in that particular case. However, if the evidence recorded in one case is brought on record in accordance with procedure known to law in the other case, then, such evidence which is legally brought on record can be looked into. Otherwise, the evidence recorded in one case cannot be looked into in the other case.

                   (c) If the Trial Court disposes of the case and counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and the appeal is preferred in the case decided later, the proceedings in the later case do not automatically get vitiated. Each case has to be judged on its own merits. Unless prejudice is shown to have been caused to the accused, the proceedings in the later case do not get vitiated.

13. Coming to the case at hand, the learned Sessions Court observed that, there was no whisper about the counter case in the Judgment passed by the learned Trial Court and further observed that, the learned Trial Court appreciated the evidence in RCC No.204/2010 independently and came to independent conclusion and passed the impugned order. The said factor weighed heavily with the learned Sessions Court in passing the impugned Judgment. As is clear from the above-referred decisions in Nathilal and Others (Supra) and Sudhir and Others (Supra) in deciding both the cross-cases, the learned Trial Court can only rely on the evidence recorded in that particular case, and the evidence recorded in the cross-case cannot be looked into. Therefore, the said findings recorded by the learned Sessions Court cannot form the basis to set aside the Judgment of the learned Trial Court in view of the ratio laid down in the above cases. Secondly, undisputedly the decision by the learned Trial Court in both the cases was delivered on two (02) different dates, i.e. 03.08.2017 and 04.08.2017. Considering the ratio or the answers to the reference by the Full Bench of the Kanataka High Court in State of Karnataka (Supra), the impugned Judgment cannot sustain, as the proceedings will not automatically get vitiated. It is nobody’s case and there is no finding that, prejudice was caused to the Accused.

14. Even if the above aspects are ignored altogether, undisputedly, the learned Sessions Court was not seized or dealing with the Appeal against the Judgment and Order in RCC No.203/2010, wherein, also the Accused persons were acquitted. The learned Sessions Court was seized and dealing with Criminal Appeal against the Judgment and Order passed by the learned Trial Court in RCC No.204/2010. By resorting to the provisions of Section 386(e) of Cr.PC, the learned Sessions Court set aside both the Judgments passed by the learned Trial Court in the cross-cases, which had acquitted the Accused persons. The learned Sessions Court, instead of deciding the Appeal on merits, which was the Appeal against acquittal, set aside the order of acquittal on the above-referred grounds. Chapter – XXIX of Cr.PC is in respect of Appeals. Section 382 of Cr.PC provides for Petition of Appeal and Section 385 provides for procedure for hearing appeals which are not dismissed summarily. The provisions of Section 386 of Cr.PC, which are the powers of the Appellate Court provides that after perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may …………… It is clear from the said Sections of Cr.PC that, only when the Appeal is preferred, the Appellate Court can exercise the powers in that Appeal. The learned Sessions Court travelled beyond its powers by setting aside the order of acquittal recorded by the learned Trial Court in cross-case in absence of any Appeal before it against that order.

15. In view of the above discussion, the impugned Judgment cannot stand the scrutiny of law and is liable to be interfered with. The impugned Judgment and Order is liable to be set aside by restoring the Criminal Appeal No.07/2019 on the file of the concerned Sessions Court for deciding the same in accordance with law. Hence, the following order :

ORDER

[I] The Criminal Revision Application is allowed.

[II] The impugned Judgment and Order dated 28.11.2023 passed by the learned Additional Sessions Judge, Shrigonda, District - Ahmednagar, in Criminal Appeal No.07/2019 is quashed and set aside.

[III] The Criminal Appeal No.07/2019 is restored on the file of learned Additional Sessions Judge, Shrigonda, District – Ahmednagar for reconsideration and decision in accordance with law.