Bombay High Court
Vijay Wasudeo Hingane And Another vs State Of Mah Thr. Pso Ps Rajura Dist ... on 25 January, 2024
Author: M. W. Chandwani
Bench: M. W. Chandwani
2024:BHC-NAG:1157
1 36-revn-146-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO. 146 OF 2019
1. Vijay Wasudeo Hingane,
Age 25 years, Occ. Cultivation,
2. Wasudeo Pandurang Hingane,
Age 54 years, Occ. Cultivation,
Both R/o. Kadhali, Tah. Rajura,
Dist. Chandrapur.
(In Chandrapur Jail) . . . APPELLANTS
// V E R S U S //
The State of Maharashtra through
Police Station Officer, Police Station,
Rajura, Tah. & Dist. Chandrapur. . . . NON-APPLICANT
------------------------------------------------------------------------------------------------
Shri Anil A. Dhawas, Advocate for applicants.
Shri Harshal Futane, APP for non-applicant/State.
-----------------------------------------------------------------------------------------------
CORAM :- M. W. CHANDWANI, J.
DATED :- 25.01.2024
ORAL JUDGMENT (PER: M. W. CHANDWANI):-
Heard finally by consent of the learned counsel for the
parties.
2. This revision takes exception to the judgment and order
dated 20.03.2017 passed by the learned Additional Sessions Judge,
Chandrapur in Criminal Appeal No. 108/2012, dismissing the appeal
arising out of the judgment and order passed by the learned Judicial
2 36-revn-146-19.odt
Magistrate First Class, Rajura in Regular Criminal Case No. 369/2008,
dated 18.10.2012 convicting the appellants for the offence punishable
under Section 324 r/w. Section 34 of the Indian Penal Code and
thereby sentencing them to suffer rigorous imprisonment for one year
and fine of Rs.1500/-, in default to suffer simple imprisonment for one
month.
3. After going through the impugned judgment and order it
is evident that the appellants and their learned counsel were absent
and without hearing the appellants, the first appellate Court proceeded
to dismiss the appeal. Thus, it is clear that the appeal was decided,
though on merits, but in absence of the appellants.
4. It is well settled law that the appeal against conviction can
be disposed of on merits only after hearing the appellant/s or his
counsel. When there is no representation for the appellants, the
appellate Court ought to have appointed an Amicus Curiae. The
Hon'ble Supreme Court of India in catena of judgments has held
accordingly. For instance, I may refer to paragraph 5 of the judgment
in the case of Shankar .Vs. State of Maharashtra (Criminal Appeal No.
1106 of 2019, decided on 23.07.2019), which reads thus:-
3 36-revn-146-19.odt
"5. When the accused has preferred the appeal against the
conviction, the appeal can be disposed of on merits only after
hearing the appellant or his counsel. When there was no
representation for the appellant, in our considered view, the
High Court ought not to have disposed of the case on merits. It
was held in 2005 (11) SCC 185 titled Mangat Singh vs. State of
Punjab that where the advocate for the appellant is absent on
the date of hearing, the Court shall either appoint an amicus
curiae and then decide the appeal. Once the appeal against the
conviction is admitted, it is the duty of the Appellate Court
either to appoint an advocate as amicus curiae or to nominate a
counsel through Legal Services Authority and hear the matter
on merits and then dispose of the appeal. When the appellant
was not represented by the advocate, in our view, the High
Court ought not to have decided the matter on merits and the
impugned order is liable to be set aside and the matter is
remitted back to the High Court. ..."
5. In that view of the matter, I pass the following order:-
i) The Criminal Revision Application is partly allowed.
ii) The judgment and order dated 20.03.2017 passed by the
learned Additional Sessions Judge, Chandrapur in Criminal Appeal
No.108/2012 is hereby quashed and set aside.
iii) Criminal Appeal No.108/2012 is restored back to the file
of the learned Additional Sessions Judge, Chandrapur, to decide the
same on merits after hearing the appellants.
iv) The learned Additional Sessions Judge, Chandrapur is
directed to decide the appeal, as expeditiously as possible, preferably
within a period of three months from today.
(M. W. CHANDWANI, J.)
Signed by: Mr. Rajnesh Jaiswal
RR Jaiswal
Designation: PA To Honourable Judge
Date: 30/01/2024 18:43:55
