IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.360 OF 2008. Dr.Avinash Vijayshastri Magan. ..Petitioner. versus The State of Maharashtra & Anr. ..Respondents. .... Mr. Subhash Jha, i/b. M/s Law Global, for the Petitioner. Mr.J.P.Yagnik, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 10th September 2008. : 10th September 2008. : 10th September 2008. P.C.: 1. The submissions of the learned Counsel appearing for the parties were heard yesterday. The Petitioner is being prosecuted for offences punishable under sections 489B, 489C read with section 34 of the Indian Penal Code. An application for discharge filed by the Petitioner before the Sessions Court has been rejected by order dated 19th December 2007. An application was made on behalf of the Petitioner for recalling the order dated 19th December 2007 passed by the learned Sessions Court mainly on the ground that the Advocate for the Petitioner could not argue the Petition on merits. The said application has been rejected by order dated 25th January 2008. The challenge in this Petition under : 2 : Article 227 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1973 is to both the orders passed by the learned Sessions Judge. 2. The learned Counsel appearing for the Petitioner has invited my attention to averments made in paragraph no.5 of the Petition and pointed out that as the concerned Counsel was in Calcutta High Court on the date on which the application for discharge was heard, he could not remain present and argue the matter. Though an Advocate was instructed to appear in the matter for seeking an adjournment, he could not appear in the matter. He, therefore, submitted that the application for discharge was rejected without hearing the Advocate for the Petitioner and therefore, the learned Judge ought to have recalled his own order. The learned APP opposed the Petition by submitting that adequate opportunities were granted to the Petitioner by the learned Sessions Judge and after considering the merits of the case, the learned Sessions Judge has rejected the prayer for discharge. He submitted that the learned Sessions Court could not have recalled its own order. He submitted that no case for interference was made out. 3. I have considered the submissions. In order : 3 : dated 19th December 2007 by which the application for discharge was rejected, the learned Sessions Judge has noted that the application was filed in the year 2004 and reply was filed to the said application in the year 2006 and thereafter, the application was adjourned from time to time. The learned Judge noted that this Court had granted exemption to the Petitioner till the disposal of the application for discharge and the matter was prolonged for a period of two years. He noted that on 19th October 2007, an adjournment was granted to the Advocate for the Petitioner as a last chance subject to payment of costs of Rs.2,000/-. The learned Judge noted that on 27th November 2007, the Advocate for the Petitioner argued the Petition for some time and thereafter sought an adjournment. The said application was rejected and arguments of the learned APP were heard and the application was kept for passing orders on 19th December 2007. The learned Judge noted that the Advocate for the Petitioner and the Petitioner were absent on 19th December 2007. It must be noted here that the order dated 19th December 2007 records that one Mr. Manoj Dalvi was present for the Petitioner. While rejecting the application for recall made by the Petitioner, the learned Judge observed that on 26th September 2007, Mr. Santosh Thakur appeared on behalf : 4 : of the Petitioner and stated that he was not ready for arguments. The learned Judge noted that on 19th October 2007, an adjournment was sought which was granted subject to payment of costs of Rs.2,000/-. The learned Judge noted that on 27th November 2007, an Advocate appeared and argued the matter half way through and applied for an adjournment. The prayer for grant of the adjournment was rejected. The learned Judge noted that though the name of Shri Manoj Davli was shown in the order dated 19th December 2007, in fact, Shri Manoj Dalvi was not present on that day. 4. After going through the said orders, it can be said that there was a justification on the part of the learned Sessions Judge in adopting the course which he has adopted. The learned Judge could not have recalled his own order. However, the fact remains that proper submissions were not made on behalf of the Petitioner on discharge application. The learned Judge himself has noted that the Advocate who appeared on 27th November 1997, partly argued the matter and thereafter sought an adjournment. 5. The learned Counsel appearing for the Petitioner has stated that if an opportunity is given, the : 5 : concerned Advocate will remain present before the learned Judge on 1st October 2008 and will argue the Petition without seeking any adjournment. 6. Though it is not possible to find fault with the learned Judge, with a view that the case of the Petitioner should not suffer, one opportunity deserves to be granted to the Petitioner so that his case in support of the discharge application is properly argued. It will have to be clarified that hearing of the discharge application cannot be postponed on the ground that a S.L.P is pending in the Supreme Court. 7. Hence, I pass the following order :- (1) The impugned orders dated 19th December 2007 and 25th January 2008 are quashed and set aside and Miscellaneous Application No.1690/2004 in Sessions Case No.737/2000 is restored to the file. (2) The Advocate for the Petitioner will remain present before the learned Sessions Judge on 1st October 2008. It is made clear that no adjournment will be granted to the Advocate for : 6 : the Petitioner. (3) The learned Judge will decide the application afresh as expeditiously as possible and in any event, before the end of the year 2008. (4) All contentions on merits are expressly kept open. (5) Parties and concerned Court to act upon an authenticated copy of this order. (A.S.Oka,J) (A.S.Oka,J) (A.S.Oka,J)