The State Of Maharashtra vs Pragnesh Mahendrakumar Desai And ...
2021 Latest Caselaw 2608 Bom

                                                                       (3)Apeal-174-04.doc


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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CRIMINAL APPELLATE JURISDICTION
                                 CRIMINAL APPEAL NO.174 OF 2004


          The State of Maharashtra                       ]       ...        Appellant
                           vs.
          Pragnesh Mahendrakumar Desai & Anr.            ]       ...        Respondents.

          Ms.P.P. Shinde, APP for the State/Appellant.
          Mr.Nitin Sejpal, for Respondent.

                                        CORAM : SMT.SADHANA S. JADHAV &
                                                N.R.BORKAR, JJ.

                                        DATE   :   9th FEBRUARY, 2021.

          P.C.


          1]               The present appeal is filed by the State of Maharashtra

          challenging the judgment and order dated              26th September, 2003

          passed by the Sessions Court, Thane in Sessions Case No. 237 of

          2003, thereby, acquitting the respondents of the offence punishable

          under Sections 302, 201 read with 34 of the Indian Penal Code.



          2]               The appeal is admitted by this Court on 4th October, 2004.

          Learned counsel Mr. Sejpal had caused his appearance for Accused

          no.2 Vipul Patel, whereas, Accused No.1 had appeared through

          learned Advocate Majid Memon, hence the Division Bench of this Court


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 was of the opinion that it would not be necessary to take action under

 Section 390 of the Code of Criminal Procedure. Respondent No.1 was

 represented by learned counsel Mr.Maulik Nanavati on 5th May, 2004.

 But, thereafter, none appeared for Respondent No.1.                        However,

 Mr.Sejpal continued to appear for Respondent No.2.



 3]               On the last occasion when the matter was listed for final

 hearing, learned counsel Mr. Sejpal appeared before the Court and

 demonstrated the efforts taken by him to approach Respondent No.2,

 but to no avail.



 4]               Learned counsel Mr. Sejpal had also drawn our attention to

 the fact that the State had filed application under Section 391 of the

 Code of Criminal Procedure for adducing additional evidence and an

 order was passed to the effect that Criminal Application No.3737 of

 2004 be heard alongwith Criminal Appeal No.174/2004.



 5]               Today, learned counsel Mr.Sejpal has filed an affidavit on

 record, thereby demonstrating the efforts taken by him to contact

 Respondent No.2.              Mr. Sejpal has also given the phone numbers of

 Respondent No.2. As far as Respondent No.1 is concerned, address

 shown at the time of trial is :


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               "645, Paliside Avenue, Cliffside Park, New Jersey. The
               Affidavit is taken on record and marked as x- for
               identification".


 6]               As regards respondent No.2, his address as per letter sent

 to him by learned counsel Mr.Sejpal is,:

               "Bunglow No.9, Tulsi, Shreeji Shraddha                     Society,
               Karelobaug, Baroda, Gujarat State".


             It is seen from the Affidavit that     the Registered letter was

 delivered to Mr. Patel on 4th February, 2021. Similarly another letter

 was also delivered on 3rd February, 2021. It is specifically contended

 that Respondent No.2 has blocked contact with his Counsel and is not

 responding although he is apprised of the fact that the appeal is listed

 for final hearing.


 7]               In view of these facts, we are, of the opinion that this is a

 fit case to issue Non-Bailable Warrant against Respondent Nos.1 and

 2. Hence, following order is passed :

                                     ORDER

i] Issue Non-Bailable Warrant against Respondent Nos.1

and 2 returnable on 9th March, 2021;

ii] A look out notice to be issued forthwith against

Respondent Nos.1 and 2 and the same be circulated to

all Airports;

(3)Apeal-174-04.doc

iii] The Commissioner of Police, Thane, shall personally

look into the matter and make every possible effort to

get the NBW executed;

iv] The State shall send a copy of the NBW to the

American Embassy and submit a report to that effect

within two weeks. The Registry shall issue notice to the

American Embassy;

v] The Commissioner of Police, Thane, shall forthwith report

these facts to the Commissioner of Police , Baroda and

get the NBW executed against Respondent No.2 with the

help of Commissioner of Police, Baroda;

vi] Matter to appear on board on 9th March, 2021.

[N.R.BORKAR, J] [SMT.SADHANA S. JADHAV, J]