1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1019 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri Amit Mukhedkar Advocate for petitioner and Shri K.M.Suryawanshi APP for Respondent. 2. Rule. By consent, rule made returnable forthwith and writ petition is taken up for final disposal. 3. This Writ Petition is filed by original accused in S.C.C. No. 1560 of 2008 in the court of Judicial Magistrate, First Class, Phulambri, District Aurangabad. On 3.7.2009, the matter was for recording evidence when Witnesses were present. However, application for adjournment was given on behalf of the accused which was 2 rejected by the court and examinations- in-chief of PW-1 Ramnath-complainant, PW-2 Suryakant Investigating Officer were recorded by the learned Magistrate with noting that there was no cross examination. The matter was adjourned to 21.7.2009. On that day Advocate of the accused came to know about the order of no-cross examination passed earlier and, therefore, made application Exh.14 for permission to cross examine both the witnesses. 4. It is stated in the application that on the date fixed, Advocate had some religious function and, therefore, application for adjournment was given with a request to recall the witnesses and permit their cross examination. On 4.8.2009, when the matter came up on board, Advocate for accused was again absent, although repeatedly called. The complainant was present for being cross-examined because of the application by accused. However, since the Advocate of the accused himself was absent, in spite of 3 application for recalling the witnesses, the said application came to be rejected by the learned Magistrate by his order dated 4.8.2009. 5. Considering the conduct of the applicant's Advocate on 4.8.2009, this is not a case wherein his conduct can be justified. This court expresses displeasure about the manner in which the things are happening. Absence of Advocate on 3.7.2009 can be understood because that absence was explained in application Exh.14. But, after having given the said application, Advocate for accused ought to have appeared before the court and should have proceeded with cross examination when the complainant and Investigating Officer were present and court was inclined to allow application Exh.14. 6. Due to fault of advocate, accused should not suffer. Hence, writ petition allowed and the order passed by learned Judicial Magistrate, First Class, Phulambri on Exhibit 14 is 4 hereby set aside. The petitioner through his Advocate is allowed to cross examine the complainant and Investigating Officer. They may be recalled by the court for cross examination. However, the petitioner shall deposit Rs.2000/= in the trial court as cost to be paid to the government. Writ Petition disposed of. Date:12/11/2009 (P.R.BORKAR, J.) pnd/criwp1019.09