1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4585 OF 2008 J.S.Bhat and others Applicants versus Prabhakar Kulkarni and another Respondents Vincent D'Silva for petitioner. Hiranandani i/by C.G.Gavnekar for respondent no.1. H.J.Dedhia, APP for State. CORAM : A.S.OKA, J. DATE : 18th June 2009 PC :- 1. Heard learned advocate for the applicants. On 05th May 2009 time was sought as the advocate for the applicants was not available. On that day a detailed order was passed in which paragraph no.4 of the present application was quoted which reads thus :- "4. From time time the non-coordination in the attitude of the learned Sessions Judge made the applicants sure that they will not be heard in the interest of justice and the only option was to wait for the disposal of this application and decided to remain absent to approach this Hon'ble Court. Accordingly, this Revision No.280/06 was disposed off on 31.1.2008 and being aggrieved by such attitude and disposal of this application the applicants are approaching this Hon'ble 2 Court." On 11th June 2009 when applicant no.1 appeared in person this Court invited attention of applicant no.1 to the said paragraph. 2. The averments made in the said paragraph show that the applicants decided to remain absent before the Sessions Court where the revision application preferred by the applicants was pending. The revision application was preferred for challenging an order of issue of process on a complaint filed by the 1st respondent under section 138 of the Negotiable Instruments Act, 1881. The revision application was dismissed by the impugned order due to continuous absence of the applicants. By the impugned order dated 31st January 2008 the Sessions Court has rejected the said revision application by quoting that repeatedly the applicants were absent. In paragraph no.3 of the impugned order the learned Judge has given dates on which the applicants remained absent and has stated that there was a continuous absence of the applicants. The learned counsel for the first respondent stated that the applicants continuously remained absent and repeatedly the revision application was adjourned. He pointed out that the advocate for the first respondent was required to remain present from time to time as the revision application was adjourned on various dates due to the absence of the applicants. 3 3. The only explanation for the repeated absence of the applicant according to the counsel for the applicants is in paragraph no.2 of the application in which it is stated that the predecessor of the learned Additional Sessions Judge had earlier granted legal assistance but the learned Additional Sessions Judge who heard the revision application declined to grant legal assistance to the applicants. The said paragraph is very vague. It is not stated as to when the applicants applied for legal aid and when the order was passed by the learned Sessions Judge declining the said prayer. The learned counsel for the applicants did not dispute that the applicants have filed various proceedings in this Court. Therefore, the applicants could have always come in this Court for challenging the alleged denial of legal aid. The fact remains that the applicants have themselves come out with a case that as they were under an impression that the learned Sessions Judge will not hear them, they decided to remain absent at the time of hearing of the revision application. If the applicants were apprehensive that they will not get justice from a judicial officer, there were remedies available to the applicants. The learned Judge has quoted that right from August 2007 till January 2008 number of dates were fixed in the revision application but the revision applicants were absent. The impugned order shows that though the applicants were absent on the dates 4 fixed for hearing of the revision application, from time to time indulgence was shown by adjourning the revision application. 4. On 5th May 2009 the averments made in paragraph no.4 of the application were brought to the notice of the applicants with a hope that the applicants will make amends. But today the applicants have chosen to justify what has been stated in paragraph no.4 of the application. 5. Notwithstanding such conduct which itself is sufficient to throw out an application under section 482 of the Code of Criminal Procedure, 1973, a query was made by the Court to the learned counsel for the applicants as to whether the applicants are willing to pay substantial costs to the first respondent so that the revision application can be remanded for a fresh hearing. The first respondent had engaged an advocate in the revision application who continuously remained present on various dates. The first respondent was required to engage an advocate in this Court. If the revision application is remanded, first respondent will have to again engage an advocate. The 1st respondent cannot be made to suffer. His complaint under section 138 of the said Act of 1881 is filed in January 2000 which has not made progress. Considering these facts, it is suggested to the applicants that they will have to pay the costs of Rs. 5 25,000/- if the revision application is to be remanded to the Sessions Court. The counsel for the revision applicants on instructions has expressed inability to pay the said amount. He stated that a reasonable amount by way of costs may be fixed. He has not quoted as to what is the reasonable amount though he was called upon disclose the amount. Therefore, indulgence cannot be shown by remanding the revision application for fresh hearing. 6. The power of this Court under section 482 of the Code of Criminal Procedure, 1973 has to be exercised sparingly and in very rare cases. Considering the conduct of the applicants, this is not a case where the jurisdiction of this Court under section 482 of the said Code can be exercised. Hence, the application is rejected. (A.S.OKA, J.)