Bombay High Court
Rakesh Vinayak Prasade vs State Of Maharashtra And Anr on 30 October, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1349 OF 2023
Rakesh Vinayak Prasade .... Applicant
versus
State of Maharashtra & Anr. .... Respondents
.......
• Mr. Rishi Bhuta a/w Ashish Dubey a/w Neha Patil a/w Ankita
Bamboli a/w Saakshi Jha, Advocate for Applicant.
• Mr. Ajay Patil, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL, J.
DATE : 30th OCTOBER, 2023
P.C. :
1. The Applicant has challenged the two orders dated
13/10/2023 and 20/10/2023 passed in Criminal Appeal No.304
of 2022 by the Additional Sessions Judge, Greater Mumbai.
Learned counsel for the Applicant submitted that after this
Petition was filed challenging these two orders, one more
consequential order was passed on 26/10/2023 and therefore
that order also needs to be challenged in the present application.
He seeks leave to add the prayer challenging the order dated
Nesarikar
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26/10/2023 and also seeks leave to annex a copy of that order.
Since the subject matter and consequences of all three orders
are similar, leave is granted to add the prayer clause challenging
the order dated 26/10/2023 and also for annexing the said
order. Amendment shall be carried out within one week.
2. The Applicant is the original accused in case
No.574/SS/2009 before the Metropolitan Magistrate, 14th Court,
Girgaon, Mumbai. The Trial Court convicted the Applicant for
commission of offence punishable u/s 138 of Negotiable
Instruments Act. He was sentenced to suffer simple
imprisonment for six months. He was directed to pay an amount
of Rs.26 lakhs to the complainant (the Respondent No.2 herein)
as compensation within 30 days from the date of order. In
default he was directed to suffer further simple imprisonment
for two months.
3. The Applicant challenged that order before the Court
of Sessions, Greater Mumbai, vide Criminal Appeal No.304 of
2022. That Appeal is at the stage of pronouncement of the judgment.
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4. On 13/10/2023 an application for exemption was filed
by the Applicant on the ground of illness. On that application
the impugned order dated 13/10/2023 was passed. It was
observed thus :
"ORDER : Granted for today only. Today, this matter
is fixed for judgment but in absence of appellant,
judgment cannot be pronounced. Matter is
adjourned to 20.10.2023 for judgment."
5. On the next occasion i.e. on 20/10/2023 the second
impugned order was passed as follows :
"ORDER ON EXH.16- Perused application and say.
Also perused the document of hospital. It shows
that he admitted in the hospital on 19.10.2023
for fever and it would take three to four days for
his treatment. Considering the documents of
hospital, the exemption is granted to the
appellant upto 26.10.2023. Judgment in this case
cannot be pronounced because of absence of
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appellant. Matter is adjourned to 26.10.2023 for
judgment."
6. On 26/10/2023, the following order was passed:
"ORDER - 1. The application (Exh. 17) is
rejected. 2. Issue NBW against the appellant.
Adv. Jatin Shah requested for humdast. O-
Allowed. Matter is adjourned to 31.10.2023 for
return of warrant and judgment.
7. Learned counsel for the Applicant submitted that a
Division Bench of this Court has taken a view that the presence
of Applicant at the stage of pronouncement of the judgment is
not mandatory. The procedure gives discretion to the Appellate
Court whether to insist on the Appellant's presence. He relied on
the observation of the Division Bench order of this Court passed
on 12/06/2014 in Criminal Writ Petition No.1455 of 2008. The
said judgment was followed by a Single Judge Bench of this
Court in Criminal Writ Petition No.4148 of 2017 passed on
11/10/2017. In that order it was observed that, the Appellate
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Court has discretion to secure presence of the accused to hear
the judgment. The discretionary powers cannot be exercised
routinely but are to be exercised judiciously to meet the ends of
justice. In the case before the High Court in that case the learned
Judge had not assigned any reasons to exercise these
discretionary powers. Therefore, the presence of the Appellant at
the stage of pronouncement was dispensed with.
8. Learned counsel for the Applicant submitted that all
the three impugned orders indicated that the learned Appellate
Judge proceeded on the footing that the Appellate judgment
cannot be pronounced at all in the absence of the Appellant. The
learned Additional Sessions Judge has not given any reasons for
insisting on presence of the Appellant at the time of
pronouncement of the judgment.
9. Considering these submissions and also taking into
account the ratio of the aforesaid two orders, it is necessary to
hear the other side and till then, the impugned order of issuance
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of non-bailable warrant as well as insisting of presence of the
Appellant need to be stayed.
10. Hence, the following order :
ORDER
(i) Issue notice to the Respondent No.2 returnable
on 07/11/2023.
(ii) Till then the execution of non-bailable warrant
issued against the Applicant is stayed.
(SARANG V. KOTWAL, J.)
