{1} CWP No.75/2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.75 OF 2011 Sachin Ajit Parab PETITIONER Age-34 years, Occ-Business R/o 5/1 Samartha Colony, Jalgaon VERSUS 1. Shri Agrasen Urban Coop Credit Society, RESPONDENTS Ltd., Jalgoan, E-Wing, Block No.30, 32, 2nd Floor, 26 Golani Market, Jalgaon (Notice to Chairman) 2. The State of Maharashtra ....... Mr.M.M.Bhokarikar, Advocate for the petitioner Mr.S.G.Nandedkar, APP for respondent State Mr.A.I.Deshmukh, Advocate for respondent No.1 ....... [CORAM : A.V.POTDAR, J.] DATE: 13 th September 2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties heard finally at the stage of admission. {2} CWP No.75/2011 2. Challenge in this petition is to the order dated 20.11.2010 passed by Sessions Judge Jalgaon in Criminal Revision Application No.217/2010 thereby dismissing the revision application filed by the petitioner. 3. Respondent No.1 had filed complaint u/s 138 of the Negotiable Instruments Act, before JMFC, Jalgaon bearing STCC No.6287/2005. After statement of accused / petitioner came to be recorded u/s 313 of the Criminal Procedure Code, an application came to be filed by the petitioner at Exhibit-76. By the said application (Exhibit-76), the petitioner had requested to refer the cheque in question to the hand writing expert. The said application (Exhibit-76) was filed on 02.08.2010 and respondent No.1 had filed its say on 18.08.2010. Learned JMFC, Jalgaon, vide order dated 31.08.2010, rejected the application. It appears that the petitioner had questioned correctness of the said order by preferring Criminal Revision Application No.217/2010 before Sessions Judge, Jalgaon. It appears that the said revision was listed for hearing on 20.11.2010, however on that day none was present on behalf of the {3} CWP No.75/2011 petitioner. Learned Revisional Court, in absence of learned counsel of the petitioner, dismissed the application (Exhibit-76) after perusing the same. 4. In this respect, it may be useful to refer the observations of the Apex Court in the matter of “Md.Sakur Ali V/s State of Assam” 2011 Cri.L.J.1690. The Apex Court, in the said judgment has observed that no proceedings be decided in absence counsel for the accused. The Apex Court has observed thus- “A criminal case should not be decided against the accused in absence of a counsel. Article 21, which guarantees protection of life and personal liberty is the most important fundamental right guaranteed by the Constitution. It is only a lawyer who is conversant with law who can properly defend and accused in a criminal case. Hence, if a criminal case is decided against an accused in the absence of a counsel, there will be violation of Article 21 if the Constitution. As such even if the counsel for the accused does not appear because of his negligence or deliberately, even then the Court should not decide a criminal case against the accused in absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused.” 5. In the instant case, admittedly, the impugned {4} CWP No.75/2011 judgment is passed by the Additional Sessions Judge in its revisional jurisdiction after perusing the application, in absence of the counsel of the accused/petitioner. No doubt, adjournments were sought on behalf of the petitioner, yet the recourse for the Revisional Court was to issue notice to the petitioner or to his counsel and then to proceed with the revision. However, it appears that in haste, Sessions Judge has passed the impugned order in absence of either petitioner or his counsel, which is against the interest of the accused / petitioner. 6. In the premise, the impugned judgment and order requires to be quashed and set aside and the matter needs to be remitted back to the Court of Sessions with direction to decide it afresh on its own merits, after hearing both the parties. 7. Consequently, the petition is allowed. The impugned judgment is hereby quashed and set aside. The matter is remitted back to the Court of Sessions. Parties are directed to appear before the Sessions Judge, Jalgaon on 03.10.2011. Learned counsel for the parties undertake to intimate this judgment to their respective {5} CWP No.75/2011 clients. If the parties failed to appear on the assigned date, then the revisional court to issue notice to the parties and thereafter to decide the revision. Revisional Court is further directed to decide the revision application within a period of 45 days from the appearance of the parties before it. It is hereby made clear that the Revisional Court need not be influenced with the observations made in this judgment and decide the revision on its own merits in accordance with law. Rule is made absolute as indicated above. [A.V.POTDAR, J.] drp/B11/cwp75-11