1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 79 OF 2008 Shaikh Banemiya S/o Shaikh Amir .. Applicant Versus The State of Maharashtra .. Respondent Mr. Shrikant Kulkarni, Advocate for the Applicant Smt. R.R. Mane, APP for the Respondent-State CORAM : A.V. NIRGUDE, J. DATED : 15th JUNE, 2009 P.C.:- 1] The criminal application is challenging the judgment of conviction and order of sentence passed by the III Adhoc Additional Sessions Judge, Ambajogai in Criminal Apeal no. 3 of 1999. After going through the impugned judgments of the Courts below, I thought it fit to take up the application for hearing at admission stage. Rule. Heard forthwith. 2 2] The appeal was filed against the judgment of conviction and order of sentence of imprisonment of three months, recorded by the learned Judicial Magistrate First Class, Parali Vaijanath in Criminal case no. 710 of 1998. The applicant was prosecuted under section 5 r/w. 12(A) of the Bombay Prevention of Gambling Act. The applicant suo motu appeared before the learned Judicial Magistrate First Class, Parali Vaijanath and recorded his plea. The applicant pleaded guilty and so the learned Judicial Magistrate First Class, convicted him for the above mentioned offences and sentenced him to suffer R.I. for three months and pay fine of Rs.500/- in default S.I. for 15 days. The applicant thereafter, filed the appeal which remained pending since 1999. When the appeal was called out for hearing, neither the applicant nor his Advocate remained present. Even on previous occasions they remained absent repeatedly. The learned Lower Appellate Court heard the matter on merits, and then held that there was practically no scope to challenge the impugned judgment and order and accordingly, appeal was dismissed. 3 3] I am inclined to allow the application for following two reasons:- . It was the applicant's contention before the lower Appellate Court that the learned Judicial Magistrate First Class took a different view, when four other similarly placed accused in the same case pleaded guilty. They were sentenced till rising of the Court, and to pay certain fine. The present applicant when suo motu appeared, he got a different treatment. This aspect required proper consideration before the lower Appellate Court. This aspect has not been properly dealt with by the lower appellate Court. . The second reason why the application deserves to be allowed, is that the applicant could not argue the appeal. When the learned lower Appellate Court took up the matter for hearing, I am told, that the Advocate of the applicant had left practise and has become a Judicial Officer. In view of this, the application deserves to be heard before the lower appellate Court. 4 4] The application is allowed. The judgment and order passed by the lower Appellate Court stands set aside. The appeal stands restored. The lower Appellate Court, shall give one more opportunity of hearing to the applicant, and decide the appeal de- novo. (A.V. NIRGUDE, J.) arp/15june9/cra79.08