1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application (APL) No. 280/2011 Anandrao Arjun Darve V/s. State of Maharashtra ----------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ----------------------------------------------------------------------------------------------------------- Mr ٌS. P. Sirpurkar, Adv for applicant Mr. Parihar, APP respondent Coram: A. P. Bhangale, J Dated: 7th June 2011 1. By this application under Section 482 of Code of Criminal Procedure, the applicant prayed for quashing and setting aside the order dated 1st April 2011, passed below Exhibit - 70, by learned Extra Joint Adhoc Additional Sessions Judge-2, Chandrapur, in Session Case No. 58/2009, and further allow application below Exhibit – 70. 2. Learned counsel who represented the accused was medically unfit due to sprain in his recently operated left leg and was unable to attend the Court. He had sent his junior to the Court and prayed for adjournment and to permit for cross- examination of the Investigation Officer and one prosecution 2 witness PW-4 Pitambar Dongre. 3. Learned Advocate for the applicant submitted that the accused is facing serious accusations under Section 304 of Indian Penal Code and was entitled to be represented by the counsel appointed by him who unfortunately due to sprain to his leg was unable to attend the Court. It is also submitted that the prayer for adjournment and appropriate permission to recall witnesses concerned was made. In fact, learned APP who had opposed the application for adjournment, had put up a condition of heavy costs to be imposed on the applicant if at all the application was to be allowed. 4. Learned Additional Public Prosecutor has supported the impugned order. 5. On perusal of the order, it does appear that the Sessions Judge was at pains since the evidence in the trial was being recorded since 9.11.2010. However, it is settled position of law that for the inability or unfitness of the lawyer, litigant should not be allowed to suffer. In the present case, lawyer concerned was unable to take part in the trial on that particular day for the reason beyond his control. 6. For what has been observed above, I am inclined to allow the present application under Section 482 Cr. P.C. Impugned order dated 1st April 2011 passed by the Extra Joint 3 Adhoc Additional Sessions Judge-2, Chandrapur is quashed and set aside. Application (ex.70) of the applicant is accordingly allowed. P.W. 4 Pitambar Dongre, IO be recalled and he is allowed to be cross-examined on behalf of the accused. Needless to say that, the prosecution shall be permitted to re-examine said witnesses in accordance with law. Costs of Rs. 1000/- (Rs. One thousand only) shall be paid by accused to the said witness. JUDGE Punde