A.H. SATRANJIWALA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition raises an interesting question as to the interpretation of Section 561A of the Code of Criminal Procedure, 1898.

(2.) THE relevant facts are that the petitioner is the proprietor of Messrs. Peerbhoy and Sons. He put up an illuminated Neon Sign containing the words 'Peerbhoys' outside his shop. He was prosecuted under Section 471 read with Section 328 -A of the Bombay Municipal Corporation Act and put up for trial in Cri. Case No. 298/M of 1968 before the learned Presidency Magistrate, 1st Additional Court, Victoria Terminus, Bombay, but he was acquitted by the learned Magistrate on April 30, 1968. The State being the respondent herein preferred an appeal against that order of acquittal and the appeal was placed for hearing before. Abhyankar, J., on November 7, 1969. Shri A.H. Merchant, Advocate, appeared on behalf of the petitioner and applied for an adjournment of the hearing of the appeal for two weeks which was granted. It is stated in the petition that Mr. Merchant thereafter attended the Court and learnt that Abhyankar J. was not taking up the matter on November 28, 1969. The advocate made inquiries in the office of this Court and was informed that the appeal would be placed for hearing either before Wagle J., or Gatne J., and accordingly the petitioner's advocate was watching the boards of the said Courts but did not find the matter on either of the boards on November 28, 1969, December 1, 1969 or on December 2, 1969. The appeal was regularly placed, however, on the board of Apte J., on December 2, 1969 and reached hearing. When the appeal reached hearing, neither the petitioner nor his advocate was present, and the learned Judge proceeded to hear the appeal on merits in the absence of the petitioner, who was the respondent in that appeal, and his advocate. In the said appeal, the order of acquittal passed by the learned Presidency Magistrate was reversed and the petitioner was convicted of the above offence and sentenced to pay a fine of Rs. 50. The petitioner has presented this petition under Section 561A of the Criminal Procedure Code praying that the appeal should be restored and reheard in the interest of justice and other appropriate orders be passed.

(3.) ONE or two further facts also need to be noted in this connection. After the appeal was disposed of on December 2, 1969 as set out earlier, a writ has been issued on December 12, 1969 in terms of the order. The present petition was presented on December 9, 1969 before the writ was issued, but the petitioner did not apply for or obtain any stay of the issue of the writ with the result that the writ had already been issued at the time when this petition came up for hearing before us. In view of the petition, Apte J. has not signed the judgment. That, however, as we shall point out later on, does not make much difference.