ISHRAT HUSSAIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. By consent, Rule made returnable forthwith. By consent, heard finally.

(2.) The applicant was prosecuted vide RCC No. 649/2008 on the allegation that he had committed an offence punishable under section 174A of the Indian Penal Code. It was alleged that the petitioner was an accused in RCC No.913/1999 which was in respect of an offence punishable under section 324 of the Indian Penal Code. That, the petitioner did not remain present before the trial court in that case inspite of the fact that a proclamation requiring him to remain present was issued by the Trial Court as contemplated under section 82 of the Code of Criminal Procedure. The learned Magistrate, after holding a trial, convicted the petitioner of an offence punishable under section 174A of the Indian Penal Code, and sentenced him to suffer R.I for one year and to pay a fine of Rs.5,000/, but further directed that instead of sending the petitioner to prison, he be released on his executing a bond of Good Behaviour as contemplated under section 4 of the Probation of Offenders Act, 1958. The petitioner challenged the order of his conviction by filing an appeal before the Court of Sessions which was allowed by setting aside the order of conviction, but directing, in effect, a retrial of the petitioner. Being aggrieved thereby, the petitioner has invoked the Constitutional jurisdiction of this Court by filing present petition.

(3.) A number of contentions have been raised by Mr.A.K.Bhosale, the learned counsel for the petitioner about the legality, propriety and correctness of the findings arrived at by the Magistrate, as well as by the Court of Sessions. A number of contentions are also raised about the propriety of the procedure adopted by the learned Magistrate as well as the Court of Sessions. I find great substance in the contentions raised by the learned counsel for the petitioner in that regard, but in the view that I am taking, it is not necessary to discuss those contentions. It is because the petition is bound to succeed on a more fundamental and clear point.