Bombay High Court
Ketan Rasiklal Shah vs State Of Maharashtra on 22 August, 2022
Bench: Prakash Deu Naik
Ethape 1 23-APL-762-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 762 OF 2022
Ketan Rasiklal Shah ...Applicant
Versus
State Of Maharashtra ...Respondent
....
Mr. S. R. Samel a/w Mr. P.K. Sanghrajka i/by Rajeev Sawant &
Associates, Advocate for the Applicant.
Mr. A. R. Patil, APP for the Respondent - State.
Digitally signed
....
by
DNYANESHWAR
DNYANESHWAR ASHOK ETHAPE
ASHOK ETHAPE
Date:
2022.08.24
14:16:44 +0530
CORAM : PRAKASH D. NAIK, J.
DATE : 22nd AUGUST, 2022
PC :
1. The applicant was convicted vide judgment and order
dated 30.05.2022 passed by learned Metropolitan
Magistrate 23rd Court Esplanade, Mumbai in CC No. 366/PS/
2012 for ofences punishable under Section 5 of the
Maharashtra Prevention of Gambling Act and sentenced to
sufer simple imprisonment for sixs months and to pay fne
of Rs.2,000/-,
2. The judgment of conviction was challenged by
applicant before the Sessions Court by preferring appeal
alongwith Misc. Application for suspension of sentence
imposed by the trial Court and to stay the conviction
warrant.
Ethape 2 23-APL-762-2022.doc
3. Learned Sessions Judge vide order dated 13.07.2022
passed following order :-
"SPP Mr. V. D. More for the state present submitted
that appeal should be dismiss as it is number
without payment of fne in Lower Court. HC 32316
present from Cufe Parade police station.
Appellant is present with Adv. Kiran Varma h/f
Rajeev Sawant point that he is ready to pay fne in
this Court for which he has preferred M.A.
Exh. 02 Prosecution fiee reeiy. O. fiee.
It is seen that ofce ought to have taken objection
before numbering the appeal. The appeal is
accepted without fne amount being paid in Lower
Court. The appellant/accused No.5 is ready to pay
fne, so he should go to the lower Court and pay the
fne amount which is reuuirement for fling appeal.
Accused/appellant directed to pay the fne amount
in the Lower Court and then get the appeal
numbered for getting the sentence suspended by
this Court.
It is seen that without taking objection about
payment of fne amount this ofce has wrongly
numbered the appeal.
Hence appeal removed from broad as dismissed for
want of removing objection.
In the above circumstance Cri. M. A. 1216/2022 for
stay of conviction and for permission to pay fne
amount in Lower Court stands disposed of.
Cri. M. A. 1215/2022 and Cri. B. A. 1585/2022 is
dismissed as appeal is not tenable when fne
amount is not paid in Lower Court.
Authenticated copy be issued."
4. Learned advocate for the applicant submits that the
appeal has been dismissed on technical ground. The appeal
was preferred before the Sessions Court challenging the
judgment of conviction. The tenor of the order indicate that
Ethape 3 23-APL-762-2022.doc
the appeal was dismissed for non prosecution since the fne
was not deposited before the trial Court. The applicant is
willing to deposit the fne before the appeal could be heard.
Without hearing the matter on merits, the Sessions Court
has dismissed the appeal. On account of the conviction
warrant and since the sentence imposed by trial Court is
not suspended, the applicant is apprehending that he would
be arrested at any point of time. The applicant is willing to
pursue the appeal on merits if, same is restored.
5. On perusal of order dated 13.07.2022, it is apparent
that the learned Sessions Judge has proceeded on the basis
that the ofce ought to have taken objection before
numbering the appeal. The appeal is accepted without fne
amount being paid in the lower Court. The applicant is
ready to pay fne, so he should go to the lower Court and
pay fne amount which is requirement for fling appeal. The
applicant was directed to pay fne amount in the lower
Court and then the appeal would be numbered for getting
the sentence suspended by this Court. It was also observed
that without taking objection about payment of fne
amount, this ofce has wrongly numbered the appeal. The
appeal was removed from the board as dismissed for want
Ethape 4 23-APL-762-2022.doc
of removing objection. In these circumstances, Cri. M.A. No.
1216 of 2022 for stay of conviction and for permission to
pay fne amount in the lower Court stands disposed of.
Criminal M.A. No. 1215 of 2022 and Criminal B.A. No. 1585
pf 2022 dismissed as appeal is not tenable when fne
amount is not paid in the lower Court.
6. Considering the aforesaid order, which would deprived
the applicant from pursuing the appeal on merits of the
case and in the interest of justice, I pass the following
order:-
ORDER
(i) Order dated 13.07.2022 passed by Sessions Court,
Mumbai in Criminal Appeal No. 382 of 2022 is set aside.
(ii) Criminal Appeal No. 382 of 2022 as well as Criminal
M.A. No. 1215 of 2022 and MA No. 1216 of 2022 and B.A.
No. 1585 of 2022, are restored to fle.
(iii) Learned Sessions Judge shall hear the appeal and the
application on merits.
(iv) The applicant shall deposit fne amount of Rs. 2,000/-
before the trial Court within a period of one week from
today.
Ethape 5 23-APL-762-2022.doc
(v) Conviction warrant, if any, issued against the
applicant pursuant to the judgment and order dated
30.05.2022 passed by learned Metropolitan Magistrate 23 rd
Court Esplanade, Mumbai or before the said order the same
is stayed for a period of two weeks from today.
(vi) Application stands disposed of.
(PRAKASH D. NAIK, J.)
