State Of Gujarat &

[1.0] Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicant herein – original appellant to quash and set aside the impugned order dated 07.06.2012 passed by the learned 2nd Additional District & Sessions Judge, Vadodara in Criminal Appeal No.76 of 2009 by which the learned Appellate Court has dismissed the said Appeal without considering the same on merits on the ground that the learned advocate appearing on behalf of the appellant is not remaining present in the Court to argue the Appeal. [2.0] It is the case on behalf of the appellant that as such the hearing of the Appeal was adjourned to 07.05.2012 and thereafter, it was adjourned to 29.06.2012 and despite the same, the Appeal was taken upon on board for hearing on 07.06.2012 and as nobody remained present on behalf of the present appellant, the same has been dismissed for non­prosecution.

[3.0] Shri Hasurkar, learned advocate appearing on behalf of the applicant has placed on record the zerox copy of the daily board dated 17.05.2012 to show that the Appeal was infact adjourned to 29.06.2012. It is submitted by Shri Hasurkar, learned advocate appearing on behalf of the applicant that as such there was no other malafide intention on the part of the applicant and/or his advocate not to appear before the learned Appellate Court and to make submissions in the Appeal and/or to delay the hearing of the Appeal. It is submitted that the learned advocate appearing on behalf of the appellant shall appear before the learned Appellate Court on the day on which that may be fixed by this Court and argue out the Appeal on the very day. Shri Hasurkar, learned advocate appearing on behalf of the applicant has also stated at the Bar that he has no objection if the respondent No.2 herein is permitted to withdraw the amount of Rs.2500/­ which the applicant has deposited. Pursuant to the earlier order passed by this Court dated 30.08.2012, it is requested to allow the present Criminal Revision Application and remand the matter to the learned Appellate Court to decide and dispose of the same on merits and after giving opportunity to all concerned.

[4.0] Respondent No.2 Shri Satish Kaushik has personally remained present and has appeared as party­in­person. It is submitted that as such the appellant and/or his advocate is deliberately not remaining present when the Appeal is taken up for hearing and are trying to delay the hearing of the Appeal. Therefore, it is submitted that as such the learned Appellate Court has not committed any error and/or illegality in dismissing the Appeal. However, he has stated at the Bar that if the appellant and/or his advocate remains present before the learned Appellate Court on particular date and argue out the Appeal on the very day, it is requested to pass appropriate order.

[5.0] Having heard Shri Bhargav Hasurkar, learned advocate appearing on behalf of the applicant and respondent No.2 party in person and Ms. C.M. Shah, learned Additional Public Prosecutor and considering the facts and circumstances of the case narrated herein above, it appears to the Court that there was some error on the part of the learned advocate appearing on behalf of the appellant and therefore, the applicant should be given the opportunity to submit the case on merits. Learned advocate appearing on behalf of the applicant has stated at the Bar that the applicant and/or his advocate shall appear before the learned Appellate Court on 26.09.2012 and he shall argue out the Appeal on the very day and no adjournment shall be sought by the applicant and/or his advocate on any ground. Under the circumstances, on payment of the cost of Rs.2500/­ which is deposited by the applicant, to be paid to respondent No.2 party in person and on the aforesaid condition one additional opportunity can be given to the applicant.

[6.0] In view of the above and for the reasons stated above, present Criminal Revision Application succeeds. Impugned order dated 07.06.2012 passed by the learned 2nd Additional District & Sessions Judge, Vadodara in Criminal Appeal No.76 of 2009 is hereby quashed and set aside and the Appeal is remanded to the learned Appellate Court to decide and dispose of the the same on merits. As agreed by the learned advocate appearing on behalf of the applicant, applicant and/or his advocate and respondent No.2 shall appear before the learned Appellate Court on 26.09.2012 to argue out the Appeal and the learned advocate appearing on behalf of the appellant to make submissions on merit in the Appeal on the very day and conclude his submissions and as agreed no adjournment shall be sought by the applicant and/or his advocate on any ground and the learned Appellate Court to finally decide and dispose of the Appeal within a period of two weeks from 26.09.2012. If it is found that either the applicant and/or his advocate is not cooperating and/or did not appear before the learned Appellate Court on 26.09.2012 as agreed, it will be open for the learned Appellate Court to proceed further with the hearing of the Appeal ex­parte and decide the said Appeal on merits ex­ parte. It will be open for the respondent No.2 party in person to withdraw the amount of Rs.2500/­ which the applicant has deposited with the Registry of this Court, deposited pursuant to the order dated 30.08.2012 passed by this Court, which shall be paid to the respondent No.2 party in person by account payee cheque. Rule is made absolute accordingly. Direct service is permitted. Registry is directed to send the writ of this order to the learned Appellate Court immediately and may be by fax.

Sd/­ (M.R. Shah, J.) menon