1 crap782.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 782 OF 2011 IN CRIMINAL APPEAL NO. 114 OF 1999 Bhika Shamrao Bare ...Applicant/Appellant VERSUS The State of Maharashtra ...Respondent ..... Shri Shri H.F.Pawar, advocate for applicant/appellant Smt. Y.M.Kshirsagar, A.P.P. for respondent/State ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 6 th April, 2011 PER COURT : 1 Heard learned counsel for the respective parties. 2 This is an application, preferred by the applicant/appellant (original accused) for restoration of Criminal Appeal No. 114 of 1999, which was dismissed for non-removal of office objections as 2 crap782.11 per conditional order dated 11.6.1999. The applicant was convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and was sentenced to undergo R.I. for four years and to pay fine of Rs.5,000/-, in default of payment of fine to suffer R.I. for one year, further directing that out of the total fine amount recovered from accused no.1, an amount of Rs.3,000/- be paid to the wife of deceased Santram Pawar by way of compensation. 3 The applicant/appellant herein (original accused) preferred appeal against the said conviction, bearing Criminal Appeal No. 114 of 1999, challenging the said conviction and sentence and the said appeal was admitted by this court by order dated 20.3.1999, as well as the applicant was granted bail, pending hearing and final disposal of the said appeal, on the same day, and the applicant/accused is on bail. Thereafter, the conditional order was passed on 11.6.1999 and the applicant/appellant was directed to remove office objections and in the event of failure thereof, it was directed that the appeal shall stand dismissed for want of prosecution without back reference to the court. However, the applicant/appellant failed to remove office objections within the prescribed period, and therefore, the said appeal came to be dismissed as per the above referred conditional order. 3 crap782.11 4 Thereafter, the applicant/appellant preferred application for restoration of the said appeal on 13.12.1999. However, the said application was not sworn in by the applicant and prayer for dispensation thereof was not made in the said application, and hence, the office raised the objection in that respect. Thereafter on 13.2.2001 this court passed conditional order in group of matters and directed to remove the office objections till 26.2.2001, failing which it was directed that the application shall stand dismissed for want of prosecution without further reference to the court. However, the applicant/appellant failed to comply with the said order within the prescribed period, and hence, said application also came to be dismissed in view of the said conditional order dated 13.2.2001. 5 The applicant/appellant noticed that Criminal Appeals for the year 1998-99 are listed for final hearing, but present appeal was not listed. Hence, he inquired with the office and came to know that the afore said Criminal Appeal No. 114 of 1999 and application for restoration thereof were dismissed for want of removal of office objections as afore said. The applicant/appellant, therefore, preferred Criminal Application for condonation of delay caused in filing the said application, which has been allowed by this court today by separate order passed therein and the delay caused therefor is condoned. 4 crap782.11 6 Learned A.P.P. opposed the present application vehemently and submitted that present application bears no substance and same is without any merits and same be rejected. 7 Considering the rival submissions advanced by the learned counsel for the parties, admittedly the appeal against the judgment and order of conviction and sentence, preferred by the applicant/appellant herein, came to be dismissed on 11.6.1999 by way of conditional order due to non-removal of the office objections and it is settled principle that appeals against the conviction would not be dismissed on technical ground and same shall be decided on its own merits. 8 In the result, present Criminal Application is allowed in terms of prayer clause 'A' thereof and Criminal Appeal No. 114 of 1999 stands restored to file at its original position by recalling the order dated 11.6.1999 and present application stands disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap782.11