IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.511 OF 2007 CRIMINAL REVISION APPLICATION NO.511 OF 2007 CRIMINAL REVISION APPLICATION NO.511 OF 2007 Balkrishna @ Krishna Narsaiyya Baikade ..Applicant versus The State of Maharashtra ..Respondent Mr.Parvez Ubare for the Applicant Mr.Dedhia for the State CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 6th May, 2008. DATED : 6th May, 2008. DATED : 6th May, 2008. P.C. 1. Revision is admitted. 2. Rule is issued. Learned Advocate Mr. Dedhia waives service on behalf of the State. 3. In the peculiar facts of the case, revision is taken up for hearing on merits. 4. The applicant is concerned in C.R.No.270 of 2004 of N.M.Joshi Marg Police Station under Sectin 304, 328, 272, 273, 120B of IPC a/w. 66(1)(b) and Section 65(e) of the Bombay Prohibition Act. It is seen that the present applicant had filed Misc. Application No.302 of 2006 in Sessions Case No.478 -2- of 2005 which arises out of C.R.No.370 of 2004 of N.M.Joshi Marg Police Station wherein the present applicant is shown as accused. The 3rd Adhoc Addl. Sessions Judge at Sewree, hereinafter refrred to as the learned Addl. Sessions Judge rejected the said application for discharge by speaking Order dated 7th June, 2007. Perusal of the said Order goes to show that the neither the applicant nor the advocate for the applicant was present. This is being stated on the basis of the use of terminology "none for the applicant/accused". According to the present applicant co-accused Mehfus Alam Siddiqui was similarly placed and he had filed Criminal Revision Application No.288 of 2007 which Revision Application was granted by this Court by Order dated 24.7.2007 and that the learned Addl. Sessions Judge was directed to hear the discharge application filed by the said Mehfus. Treating this as something which would help the present applicant, the present applicnt filed the application before the learned Addl. Sessions Judge at Exhibit 51 being Application dated 30th July, 2007 instead of challenging the Order dated 7th June,. 2007 and prayed before the learned Addl. Sessions Judge that his discharge -3- application should also be heard again. That application at Exhibit 51 came to be filed seeking restoration of Misc. Applicatin No.302 of 2006. According to Learned Advocate Mr. Ubare the learned Addl. Sessions Judge expressed view that it would be better if the applicant files a separate application for discharge and therefore the present applicant filed Misc. Application No.208 of 2007. While all this was being done, the applicant did not challenge the Order dated 7th June, 2007 passed in Misc. Application No.302 of 2007 by filing an appropriate proceeding before this Court. The learned Addl. Sessions Judge decided the Misc. Application No.208 of 2007 by Order dated 21st September, 2007 and rejected the same by holding that as the Order dated 7th June, 2007 was passed rejecting the applicatin for discharge, the second application is not maintainable. In these peculiar circumstances, the applicant has filed this revision application challenging the order dated 7th June, 2007 referred to earlier and Order dated 21.9.2007. 5. I have heard learned Advocate Mr. Ubare and learned Advocate Mr. Dedhia. Learned Advocate -4- Mr. Ubare had produced certified copy of roznama dated 7th June, 2007 concerning the Sessions Case in which the applicant is shown as accused. The presence of the applicant is mentioned in the roznama. Learned Advocate Mr. Ubare submitted that when the charge was framed his Junior Advocate was present in the Court and no specific efforts were made by the said Junior to inform the Court that application for discharge i.e. Application No.302 of 2006 is pending. As per the said Order the applicant or this advocate is shown to have remained absent on call till 2.00 p.m. and that is how the Order has been passed showing the applicant as absent. In the substance, the Order dated 7th June, 2007 was passed without hearing the applicant. The second Order came to be passed on 21st September, 2007 primarily on the ground that the earlier Order dated 7th June, 2007 has not been set aside by the Superior Court. In the body of the application at paragraph 7 it is stated that at the end of the day when the learned Advocate tried to inform the learned Judge, the learned Judge is said to have informed the Court Shirestedar, who in turn informed the advocate for the applicant that the application for discharge has been rejected. -5- 5. Considering the aforesaid development it appears that there was some confusion as regards the presence of the applicant in the Court and or passing the Order dated 7th June, 2007. Whatever may be the situation, the fact remains that the Order dated 7th June, 2007 was passed without giving a formal hearing to the applicant or his advocate. In my view, in the fitness of the things and in the interest of justice it would be proper if the applicant gets a hearing through his advocate so that the learned Addl. Sessions Judge can hear and dispose of the application for discharge on merits. The second Order dated 29th September, 2007 came to be passed because the first Order dated 7th June, 2007 was not set aside and to that extent the learned Addl. Sessions Judge may be treated as having arrived at proper conclusion. Ofcourse the fact remains that the applicant was not heard on the question of discharge through his advocate. . In my view, without going into the controversy as regards the absence of the applicant or his advocate or the presence of the applicant or -6- the junior of Mr. Ubare it would be proper if the applicant is heard on merits on the question of discharge on the basis of the text of the Misc. Application NO.302 of 2006 so that the applicant will get the chance to advance his submissions and that the learned Judge will have benefit of arguments of both the sides and pass a reasoned Order. In the aforesaid peculiar circumstances, I am inclined to set aside the Order dated 7th June, 2007 and 21st September, 2007. It is clarified that nothing adverse is being observed against the learned Addl. Session Judge and that all questions regarding the prayer for discharge are left open. . For the reasons mentioned aforesaid, I am inclined to allow this revision application by passing the following order: ORDER . Rule is made absoulte in terms of prayer cloause (b) and (c). ii) Misc. Application No.306 of 2006 is restored to the file of learned 3rd Adhoc Addl. -7- Sessions Judge, Sewree, Gr. Bombay. iii) The 3rd Adhoc Addl. Sessions Judge shall hear the learned Advocate for the applicant Balkrishna as al;so the learned Advocate for the State of Maharashtra and decide the Misc. Application No. 302 of 2006 (Application for discharge) on merits. iv) This Court is informed that the next date before the learned Addl. Sessions Judge is fixed as 16th May, 2008. The learned Advocate Mr. Ubare is aware of the said date. In view of this the 3rd Addl. Sessions Judge at Sewree Gr.Bombay shall hear the Misc. Application No.302 of 2006 on 16th May, 2008 or soon thereafter. Mr. Ubare assures this Court that he will arrange to see that he is present on the date when the hearing is fixed. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)