FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.8 OF 2010 Shakir Jakir Khan Vs. State of Maharashtra _____________________________________________________________________________________ Office Notes, Office Memoranda of : Coram, appearances, Court s orders : ’ or directions and Registrar s’ : Court s or Judge s orders ’ ’ orders : _____________________________________________________________________________________ Mr.Amin Solkar for applicant Mr.A.S.Shitole, APP CORAM : S.C. DHARMADHIKARI, J. DATED : 1st February 2010. PC :- 1. Mentioned out of turn. On account of illness of the applicant, urgency made out. Heard. 2. An appeal was filed by the applicant original accused No.1 before the Court of Sessions, Gr.Mumbai being Criminal Appeal No.107 of 2003. The conviction and sentence was for offences punishable under section 379 of IPC dated 12th May 2003. The applicant has been convicted by the trial court and directed to suffer R.I., for six months and to pay a fine of Rs.2,000/-. In default, simple imprisonment for three months. 3. Appeal was preferred and was pending before the sessions court. In the meanwhile, it appeared from the record that the applicant attended the court but thereafter it is observed by the learned appellate Judge that he jumped the bail and his presence could not be secured. The applicant now prays that the appeal be re-heard on merits so that an opportunity is made available to him to convince the appellate court that conviction and sentence was illegal and unjustified. 4. Mr.Solkar, appearing for applicant states that the applicant is HIV patient, presently in custody having undergone a period of 3 months of the total sentence. However, the conviction stands and ultimately, if this Court finds that serious miscarriage of justice has resulted because an appeal was decided in the absence of applicant, then, a remand would necessarily be called for. 5. Learned APP has no instructions. The applicant is presently detained in Nashik Road, Central Prison and is undergoing his sentence as directed by the trial court for the last three months. In these circumstances and when the appeal has been decided in the absence of applicant accused, I am satisfied that there – is miscarriage of justice. Merely because it was an old matter, the learned Sessions Judge should not have proceeded with appeal in the absence of the applicant. In such circumstances, the order of the lower appellate court is set aside and the appeal is restored to file for being decided afresh and in accordance with law within a period of two months from the date of receipt of copy of this order. Revision application allowed in the above terms. Needless to state that once appeal is restored to the file of the lower appellate court, the applicant would be at liberty seek bail and even such application would be decided uninfluenced by the earlier conduct of the applicant. (S.C.Dharmadhikari, J.)