1 Cri.A.545.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 545 OF 2010 IN CRIMINAL APPEAL NO.719 OF 2004 The State of Maharashtra. ...APPLICANT VERSUS Sau Anita Vijay Gadiya ...RESPONDENT ... Mr.N.H.Borade,APP for Applicant-State. Mr.A.M.Gholap,Advocate for Resp.No.1. Mr.V.P.Latange,Advocate for Resp.No.2. Mr.S.J.Salgare,Advocate holding for Smt.S.S.Jadhav,Advocate for respondent No.3. ... CORAM: U.D.SALVI, J. DATE : 29TH AUGUST, 2011 PER COURT : . Heard. 2. Perused the application and affidavit in-reply dated 08.06.2006. The applicant, State of Maharashtra, is seeking condonation of delay of 1859 days, caused in filing Criminal Application 2 Cri.A.545.10 for adding accused Nos. 2 and 3, as party respondents to the Criminal Appeal No.719 of 2004. 3. Following sanction dated 21.01.2004, the State preferred an appeal with leave application against the Judgment and order of acquittal dated 15.07.2004, passed by the learned Ad-hoc Additional Sessions Judge-3, Ahmednagar, in Sessions Case No. 31 of 2003 for the offence punishable under section 489(B), in the alternatively 489(C) read with section 34 of the Indian Penal Code, on 05.11.2004. Sanction was granted and this appeal was preferred only against acquittal of the accused No.1 - Anita Vijay Gadiya, in the said case. Leave to appeal was granted and the appeal against acquittal of the accused No.1 Anita Gadiya came to be numbered as Criminal Appeal No.719 of 2004. 4. It appears that, there was realization of the merits of the appeal to be preferred against remaining co-accused i.e. respondent No.2 Vijay 3 Cri.A.545.10 Surajmal Gadhiya and accused No.3-Shirish Vishnu Karadkar. The appeal came up for admission before this Court, on 04.04.2006 and it is pleaded that Joint Secretary, Law and Judiciary Department, Aurangabad by written communication dated 15.04.2007 given instructions to file Criminal Appeal against acquittal of the co-accused. However, draft of the application for joining of the co-accused to the appeal remained on the file till 08.11.2009. Eventually, Criminal Application No. 4345 of 2009 for adding co-accused to the appeal and makes corresponding amendment to the appeal was moved. This application came to be disposed off on 17.12.2009 with following observations: “4. As far as first prayer that ground Nos. XIII and XIV as stated in the present application be permitted to be added being in the appeal memo is concerned, there is no difficulty to grant the said prayer, because ultimately appeal 4 Cri.A.545.10 will be decided on its own merits. 5. However, so far as prayer for additional of original accused Nos.2 and 2 as Respondent Nos 2 and 3 in the appeal is concerned, it may be noted that appeal was filed on 05.11.2004 as against the order passed on 15.7.2004 by III Ad-hoc Assistant Sessions Judge, Ahmednagar in Sessions Case No. 31 of 2003. The applicant-State cannot add new accused persons without seeking condonation of delay in filing appeal against them.” 5. It is now contended that, pursuant to the directions passed by this Court vide order dated 17.12.2009, this application for delay condonation has been moved. There is denial regarding existence of a communication dated 15.04.2007 from the Law and Judiciary Department, Aurangabad giving directions to prefer an appeal. . Learned APP now placed before this Court a Official note dated 06.01.2010. It speaks about a 5 Cri.A.545.10 communication/letter No. 116 of 2006 dated 15.04.2006 regarding directions to prefer an appeal against co-accused Nos.2 and 3. Learned APP conceded to the fact that there is no such communication dated 15.04.2007, but it is a typographical mistake in the application and it ought to have been read as a communication dated 15.04.2006. He placed before this Court the relevant communication dated 15.04.2006, received from the Law and Judiciary Department, Aurangabad. The contents of communication are reproduced herein below: “With reference to the above noted subject, I am to inform you that, this office has been already instructed to file appeal against the order of acquittal of accused No.1 only. Now considering the view expressed by Hon’ble High Court, you are requested to file appeal against order of acquittal in respect of accused No.2 and 3 also.” 6 Cri.A.545.10 6. A communication dated 15.04.2006 is in response to letter dated 04.04.2006 addressed by Additional Public Prosecutor, High Court, Bench at Aurangabad, relevant portions of the letter dated 04.04.2006 are quoted herein below: “Today the appeal was placed for admission before this Hon’ble Court(Hon’ble J.H. Bhatiya,J), While considering the judgment of the trial Court, it was observed that accused no.1 got the currency notes from accused No.2 while accused No.2 got these notes from accused No.3 who is working in Nagar Cooperative Bank Ltd. Nagar. It is also observed that, even though accused No.2, 3 and 4(absconding accused) were charged for the offences, the learned trial Court has not given any reasons for acquittal of these accused. The Hon’ble Court orally directed the undersigned to take instruction from the office of your good self why the appeal is not preferred against the accused No.2 and 3. From the proposal, it is revealed that the 7 Cri.A.545.10 office of your good self was of the opinion that, there was no cogent and clinching evidence collected to show that accused no.2 and 3 were the persons connected with possession or delivery of the said notes” 7. It is worthwhile to read mind of State, in relation to order dated 04.04.2006, noted in Farad Sheet “As Mr. Varale, learned APP seeks time to obtain instructions as to why the accused Nos. 2 and 3 are not made parties respondents to this appeal. Stand over to 21.04.2004”. 8. It is, thus, clear that this Court only called for explanation as to why accused Nos.2 and 3 were not made party respondents to the appeal and nothing more. It appears that this was misread as directions and the State blinded by this misunderstanding proceeded to issue directions dated 15.04.2006, oblivious of the merits of the case for appeal against accused Nos. 2 and 3. 8 Cri.A.545.10 9. On this backdrop, it is abundantly clear that this is not a case where the State was inclined to file an Appeal against co-accused Nos.2 and 3, but was prevented from taking steps for sufficient reason/causes. In fact, the State was not bent on preferring the Appeal against respondent Nos. 2 and 3 and had accepted acquittal of the co-accused in the said case. Application for condonation of delay is therefore not justified. Application stands rejected. Sd/- [ U.D.SALVI, J.] MTK