- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL REVISION APPLICATION NO. 28 OF 2010 WITH CRIMINAL MISC. APPLICATION NO. 177 OF 2010 IN CRIMINAL REVISION APPLICATION NO. 28 OF 2010 VITHAL G. NARVEKAR …...APPLICANT. V/S STATE THROUGH PUBLIC PROSECUTOR …..RESPONDENT. Mr. D. D. Zaveri, Advocate for the petitioner. Mr. C. A. Ferreira, Public Prosecutor, for the respondent. Coram:- N. A. BRITTO, J. Date:- 21st July, 2010. P.C. Heard. 2. The appeal filed by the petitioner against his conviction under sections 279, 337 and 338 of Indian Penal Code, has been dismissed by learned Additional Session Judge, Panaji by order dated - 2 - 22.6.2010 and admittedly without hearing the appellant or his counsel. The appeal had come up for hearing previously on various dates and lastly on 8.6.2010 when the appellant as well as his advocate remained absent. On the next date i.e 20.6.2010 as appellant nor his advocate was present the learned Additional Session Judge proceeded to hear the appeal in their absence and after going through the records was pleased to dismissed the same. Counsel on behalf of the petitioner submits that the petitioner's wife was admitted for delivery on 4.6.2010 and on account of that, he could not appear before the Additional Session Judge on 8.6.2010. Counsel further submits that the appellant had instructed his advocate to appear for him but advocate also did not appear and therefore the applicant may not to be penalised for non appearance of his said advocate before the Additional session Judge either on 8.6.2010 or 22.6.2010. 3. Counsel on behalf of the applicant has placed reliance on case of Ram Naresh Yadav and others Vs State of Bihar,(1987 Cri. L. J. 1856) wherein the Apex Court observed as:- “We are fully conscious of this dimension of the matter but in criminal matter the convicts must be - 3 - heard before their matters are decided on merits. The Court can dismiss the appeal for non prosecution and enforce discipline or refer the matter to the Bar council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellant or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf.” 4. In the light of aforesaid judgment of the Apex Court the judgment/order of the Additional Session Judge needs to be set aside. Learned Additional Session Judge is hereby directed to hear the appellant/his Advocate and dispose the appeal on merits in accordance with law, being uninfluenced by any of the observations which might have been made in his Order dated 22.6.2010. - 4 - 5. Petitioner to appear before the Additional Session Judge on 30.7.2010 instant at 2.30p.m. Petitioner not to be arrested till the appeal filed by him is disposed of finally. N. A. BRITTO, J. vn*