IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1664 OF 2008 RAMCHANDRA ANANDRAO BAILE .... APPLICANT V/S. STATE OF MAHARASHTRA ..... RESPONDENTS Smt.V.R.Raje, for the applicant. Mrs.A.A.Mane, Addl. Public Prosecutor for the State. CORAM : A.A.KUMBHAKONI, J. (Vacation Judge ) DATE : MAY 22, 2008. P.C. 1. Heard 2. Rule. Rule is made returnable forthwith, with the consent of the parties. 3. A stitch in time saves nine. I am sure that this application if dismissed, the accused are bound to raise similar objections as raised in the present proceedings in their appeal that they will certainly file if they are convicted. In order to give bare and reasonable opportunity, that too as and by way of last chance, in view of the following facts and circumstances of the case, I am inclined to allow this application subject to deposit of costs by the applicant with the State Legal Services Authority, Mumbai, as ordered hereinunder. 4. The applicant is facing trial for the offences punishable under Sections 498, 306, 323, 504, 506 of the Indian Penal Code. It is the case of the prosecution that due to ill-treatment and harassment, the wife of the accused has committed suicide. The prosecution has examined, in all, seven witnesses. On behalf of the accused, all the witnesses have been cross- 2 examined, except witnesses P.W.1 and P.W.2. P.W.1 is the complainant who is the father of the deceased wife of the accused and P.W.2 is the brother of the deceased wife of the accused. The applicant had filed an application initially for recalling of these two witnesses and also for recalling of an order of no cross passed in their regard. The Sessions Court had rejected both these applications and the applicant therefore, had earlier preferred Writ Petition No.1788/2007 in this Court. This Court in that petition by its order dated 30-11-2007 recorded a statement of the learned Counsel appearing for the applicant in those proceedings to the effect that no further adjournments will be sought and that the Advocate for the applicant will cross-examine both these witnesses, if possible on 05-12- 2007 or any other date which may be convenient to the Trial Court. This Court by the aforesaid order of 30-11-2007 was pleased to accept the aforesaid statement made on behalf of the applicant and directed the Additional Sessions Judge, Satara, to recall both the aforesaid witnesses for their cross-examination. 5. Unfortunately, the applicant's learned senior Advocate Bhaskar Dattatreya Kadam, who was conducting the said matter on behalf of the applicant before the trial Court, died in an accident which took place on 22- 01-2008 i.e. After the aforesaid order of this Court dated 30-11-2007. On account of said sudden demise of his Advocate, the applicant again sought for time before the lower Court to engage another Advocate to conduct cross-examination of the aforesaid two witnesses. This application was filed at Exh.76, which has been rejected by the learned Ad-hoc Additional Sessions Judge-1, Satara, by his order dated 28-04-2008. Being aggrieved and dissatisfied by this order of 28-04-2008, the applicant has preferred the present proceeding. 3 6. I have heard both the sides. Learned A.P.P. strongly opposes the application and has tried to demonstrate from the chronology of the events that the applicant is trying to protract the conclusion of the trial, which is almost over. The learned counsel appearing on behalf of the applicant, rejoins by trying to point out that on account of the sudden demise of their Advocate, the applicant was helpless and that in spite of the statement made, which statement had been accepted by this Court, before this Court in the earlier proceeding, cross-examination of the aforesaid two witnesses could not be conducted by the applicant and further that the applicant was constrained to seek adjournments for the same. 7. As I have mentioned at the threshold, in case if this application is rejected the applicant is bound to make a grievance latter on that he was not given just and sufficient opportunity to cross-examine two main and important witnesses. If not at the trial stage, at the appellate stage if such grievance is accepted, it will create such complications in the matter which can be avoided by passing appropriate order at this stage. In my view, to give full and complete opportunity to the applicant “beyond any doubt” as such I am constrained to pass following order. In my view the applicant should not have any excuse on this count in defending himself, provided the applicant complies with the conditions set out by this order. In view of the overall facts and circumstances, particularly the unfortunate development namely the death of the Advocate of the applicant in an accident, which has taken place after passing of the order by this Court on 30-11-2007 in Writ Petition No.1788/2007, I am inclined to allow this application conditionally. Hence, the following order. ORDER (i). The present application is allowed, subject to the condition that 4 the applicant deposits within one week from today with the State Legal Services Authority, Mumbai, an amount of Rs.2,500/- (Rupees Two Thousand Five Hundred only). Upon deposit of such an amount within the aforesaid period, for which no extension shall be granted, the order dated 20-04-2008 passed by Ad-hoc Additional Sessions Judge-1, below application Exh.76, will stand set aside and the original application filed by the applicant at Exh.76 will stand allowed to the following extent. (ii). The prosecution shall keep both the aforesaid witnesses present for cross-examination before the Trial Court on 04-06-2008. Without any excuse whatsoever, these two witnesses will be cross- examined on behalf of the applicant on 04-06-2008 or on a subsequent date as may be fixed entirely at the discretion of the Trial Court, in the exercise of which the applicant will have no say whatsoever. (iii) In case if the applicant fails to deposit the amount in terms of the aforesaid directions, the present application will stand dismissed without reference to the Court and in that event the aforesaid order dated 28-04-2008 shall stand confirmed. It is further made clear that it will not be open for the applicant to make any grievance in this regard either at the time of final hearing of the trial or in an appeal, in case an occasion arises for the appellant to file such an appeal. (iv) Before permitting the applicant to cross-examine the aforesaid two witnesses, the Trial Court shall verify from the Advocate for the applicant the fact the applicant has deposited the aforesaid amount in time by obtaining a copy of receipt with affidavit from applicant. (vi) Rule made absolute accordingly. (A.A.Kumbhakoni,J.)