1 CRIMINAL REVISION APPLICATION NO.: 91 OF 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL REVISION APPLICATION NO.: 91 OF 2011 *** Malhari S/o Parmeshwar Ghate, Age: 32 years, Occu.: Labour, R/o Kabnoor, Post. Wasure, Tq. Mukhed, Dist. Nanded. ... PETITIONER. Versus The State of Maharashtra. Through Police Station, Mukramabad. ... RESPONDENT. *** Mr. Mahesh V. Ghatge, Advocate for the Petitioner. Mr. S. B. Pulkundwar, A.P.P. for the Respondent. *** CORAM: S. B. DESHMUKH, J. DATED:- 1st DECEMBER, 2011. ORAL JUDGMENT: 1. Heard learned counsel for the parties. 2. Even though formal notice was not issued to the State, learned A.P.P. Mr. Pulkundwar does not dispute that he has received copy of the revision application. 2 CRIMINAL REVISION APPLICATION NO.: 91 OF 2011 3. Legality, correctness and propriety of the order passed below Exhibit-20 in Criminal Appeal No.07 of 2007 is questioned in this revision application under sections 397 and 401 of Cr.P.Code. 4. Rule. Rule is made returnable forthwith, heard finally with consent of the parties. 5. Learned counsel for the Petitioner took me to the order passed by the learned Judicial Magistrate, First Class, Mukhed, district Nanded. Learned A.P.P. points out that the present petitioner was tried by the learned trial Court for the offence punishable under section 304-A of I.P.C. Learned Magistrate, after recording evidence, reached to a conclusion that the petitioner has committed offence punishable under section 304-A of I.P.C. Learned trial Judge convicted the petitioner for offence under section 304-A and sentenced him to suffer R.I. for 6 months and to pay a fine of Rs.1,000/- with default stipulation. Even though petitioner was tried for the offence punishable under sections 279, 337 of I.P.C. and 304-A of I.P.C. the learned trial Judge, after recording a finding of guilt against the 3 CRIMINAL REVISION APPLICATION NO.: 91 OF 2011 petitioner/ accused for all these offences, inflicted punishment only for the offence punishable under section 304-A I.P.C. Since the petitioner is convicted under section 304-A of I.P.C. the learned trial Judge held that it is not necessary to award punishment to the petitioner under sections 279, 337 of I.P.C. This judgment of conviction was rendered by the learned trial Judge on 24th of January, 2007 in S.C.C. NO.298 of 2009. 6. The judgment of conviction recorded by the learned trial Court indisputably has been challenged by the present petitioner by filing an appeal under section 374 before learned Additional Sessions Judge, Kandhar being Criminal Appeal No.07 of 2007. Subsequently, this appeal was made over to learned Additional District & Sessions Judge at Mukhed (link Court). 7. Counsel for the petitioner points out copy of the application Exhibit-20 (page 25, Annexure-C to the petition). It is seen from this application that the said application was presented before the learned Additional Sessions Judge at Mukhed. Counsel for the petitioner had gone to attend some other matter in a Court at Kandhar and consequently 4 CRIMINAL REVISION APPLICATION NO.: 91 OF 2011 was not present before learned Additional Sessions Judge at Mukhed for conducting and/ or arguing Criminal Appeal No.07 of 2007. This application was filed on behalf of the petitioner on 3rd March, 2011. Learned Additional Sessions Judge, Mukhed passed an order on 3rd March, 2011 and dismissed the application Exhibit-20 consequently the appeal filed by the petitioner has been dismissed for want of prosecution. Non-bailable warrant also has been issued against the present petitioner/ accused to undergo the sentence inflicted upon him by the learned J.M.F.C., Mukhed. 8. Trial, either in civil or criminal cases, has to be fair. It is more important and significant so far as criminal cases are concerned. In a civil case litigant may lose some property. In a criminal case, the person who is accused of commission of some offence, at the end of trial is likely to be convicted and sentenced or acquitted. In the case on hand, indisputably, petitioner had been represented through an Advocate. However, the Advocate was not present before the Court. It is also not the case of Respondent/ State that on earlier occasions the matter was adjourned at the 5 CRIMINAL REVISION APPLICATION NO.: 91 OF 2011 instance of the present petitioner time and again. In short, it is not the case of delaying tactics played on behalf of the present petitioner. In all fairness, learned Additional Sessions Judge, Mukhed ought to have adjourned the hearing of this appeal. Apart from this aspect, learned counsel for the petitioner justifiably argues that the criminal appeal cannot be dismissed in default. It is for the Court to consider the merits of the criminal appeal brought before the competent Appellate Court and accordingly decide said appeal in accordance with law on merits. For this preposition, learned counsel for the petitioner places reliance on a reported judgment in the case of "Bani Singh and others V/s State of U.P." reported in AIR 1996 SC 2439 (1). In this view of the matter, I am inclined to quash and set aside the order impugned in this revision application being illegal and perverse. 9. The order impugned is quashed and set aside and the case is remitted back to Appellate Court concerned for decision according to law. It is made clear that I did not enter into merits of the case. The Court concerned shall hear the parties 6 CRIMINAL REVISION APPLICATION NO.: 91 OF 2011 and decide the appeal in accordance with provisions of law, after giving opportunity of being heard to the parties. 10. The rule is made absolute, in above terms. No costs. [S.B.DESHMUKH, J.] Dated:29/09/2011. ans/91 7 CRIMINAL REVISION APPLICATION NO.: 91 OF 2011 CRIMINAL REVISION APPLICATION NO.: 91 OF 2011 Date of decision: 1st DECEMBER, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE