((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.146 OF 2009 Kavita Kishore Dhumale Applicant versus State of Maharashtra Respondent Anjali Iyer for applicant. Miss A.T.Javeri, APP for State. CORAM : A.S.OKA, J. DATE : 04th May 2009 PC : 1. Rule. Learned APP waives service for the respondent State of Maharashtra. Immediately taken-up for final disposal. A true copy of the judgement of the Trial Court is taken on record. 2. The revision applicant-accused was prosecuted for the offence punishable under section 420 of the Indian Penal Code. The learned Additional Chief Metropolitan Magistrate convicted the applicant for the said offence and the applicant was sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.5,000/-. An appeal against ((-2-)) the conviction was preferred by the applicant before the Sessions Court. By the impugned judgement and order dated 16.1.2009 the appeal has been dismissed. 3. The learned counsel for the applicant pointed out that the appeal was heard in absence of the applicant and her advocate. She pointed out that the advocate for the applicant was not present on 16.1.2009 when the appeal was heard as the said advocate was not aware of the date fixed. It is pointed out that the maternal uncle of the advocate was not keeping well who expired on 17.1.2009. She pointed out that the applicant remained absent as she was required to take her daughter for medical check-up to Tata Hospital. She has placed reliance on certain decisions of the Apex Court which are referred to in the subsequent part of this judgement. Learned APP supported the impugned judgement and order by pointing out that the Sessions Court has considered the merits of the case and there are concurrent findings against the applicant. 4. I have carefully considered the submissions. In the case of Ram Naresh Yadav ((-3-)) and others Vs. State of Bihar (1987-Cri.L.J.-1856) the Apex Court held that in criminal matters the convicts must be heard before the matters are decided on merits. The Apex Court held that an appeal preferred against an order of conviction cannot be disposed of on merits unless the accused or his advocate are heard. Reliance is also placed on another decision of the Apex Court in the case of Mangat Singh Vs. State of Punjab ([2006]1-SCC [Cri]-767). This was a case where High Court had decided an appeal against an order of conviction in absence of advocate appearing for the accused. The High Court had considered the evidence in detail while deciding the appeal. The Apex Court observed that there is no substitute for the judgement rendered after hearing the counsel for the accused. The Apex Court observed that the Court could have appointed an advocate to espouse the cause of the accused. 5. In the present case, the revision applicant is a woman who was convicted and was ordered to undergo sentence of rigorous imprisonment of two years. If the applicant and her advocate were absent, the Court could have appointed an ((-4-)) advocate from the legal aid panel to espouse the cause of the applicant. However, that was not done. In my view, the impugned order deserves to be quashed and set aside for the purposes of allowing the applicant to prosecute the appeal on merits. Hence, I pass following order :- (a) The impugned judgement and order dated 16th January 2009 is quashed and set aside and Criminal Appeal No.543 of 2007 is restored to the file of the Sessions Court; (b) The interim relief/interim protection which was granted to the applicant during pendency of the said appeal will continue to operate till disposal of the said appeal subject to same terms and conditions; (c) The Sessions Court will hear and decide the appeal in accordance with law; (d) Hearing of the appeal is expedited and the Sessions Court is expected to conclude the hearing by 31st December 2009; (e) Revision Application is partly allowed in ((-5-)) above terms. (A.S.OKA, J.) mst FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.143 OF 2009 ----------------------------------------------------------------- Office Notes, Office Court’s or Judge’s orders Memoranda of Coram, appearnaces, Court’s orders or directions and Registrar’s orders ----------------------------------------------------------------- Anjali Iyer for applicant. Miss A.T.Javeri, APP for State. CORAM : A.S.OKA, J. DATE : 04th May 2009 PC :- 1. In view of disposal of the revision application, this application does not survive and is disposed of accordingly. (A.S.OKA, J.)