0704appa58.11.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION (APPA) NO.58 OF 2011 IN CRIMINAL APPEAL NO.76 OF 2009. Praveen Manohar Sontakke ..vs.. State of Mah. Through PSO Ranapratap Nagar, Nagpur. ------------------------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------------- Mr. O.Y. Kashid Adv. for the petitioner. Mr. T.A. Mirza, APP for the State. CORAM : MRS.V.K.TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATED : 7th APRIL, 2011. 1. Heard the learned counsel for the petitioner and the learned APP for the State. 2. The applicant had been convicted under Section 302 of IPC for causing the murder of Ashok Choudhary. The applicant is now seeking bail. 3. The eye witnesses to the incident i.e. PW 1 – Chandrabhan and PW 5 – Mukund have stated that they heard a noise from second floor and therefore they rushed there and saw Ashok lying on the floor and accused bent upon the body of Ashok. Both these witnesses asked accused to leave Ashok but accused threatened them to go away otherwise he would kill them. At that time these witnesses noticed that blood was spread 0704appa58.11.odt 2/3 on the floor near deceased Ashok. 4. The learned counsel for the appellant submitted that the trial was not properly conducted by the Advocate who represented the appellant during the trial. He submitted that in such case the appellant could not have been convicted. He further submitted that the matter ought to be remanded back to the trial court to give an opportunity to the defence to properly cross-examine the witnesses. 5. To support his contention, he has placed reliance on the decision of this court in the case of Sunil Damodhar Gaikwad ..vs.. State of Maharashtra, reported in ALL MR (Cri) – 2009-0-3305. We have carefully perused the said decision. On going through the said decision, it is noticed that the said decision is rendered in a case where an Advocate was appointed from the Legal Aid Panel to represent the accused in the trial in a case under 302 of IPC. It was noticed that prior to conducting the case under 302 IPC, the appointed Advocate had conducted only three sessions cases i.e. under 307 IPC, under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and under Section 135 of the Electricity Act. The appointed lawyer had not conducted any case under 302 of IPC prior to conducting the said trial. On going through the record of the said 0704appa58.11.odt 3/3 case, this court found that the case was not properly conducted by the appointed Advocate due to which the accused was not provided effective and meaningful legal aid, hence the case was remanded back. 6. In the present case, the appellant had engaged his own counsel. Therefore, main distinguishing factor is that it was not a case of an Advocate being appointed from the Legal Aid Panel. Thus this decision would not be applicable to the facts of the present case. Once an advocate is privately engaged by an accused, it is difficult to hold that the Advocate has not properly conducted the trial. Moreover, we have noticed that the case is mainly based on the evidence of two eye witnesses i.e. PW 1 Chandrabhan and PW 5 Mukund. Both these eye witnesses have been effectively cross examined. Thus, we find no merit in the submission. Looking to the evidence on record, we do not think that this is a fit case to grant bail. 7. Application is rejected. JUDGE JUDGE chute