1 crap1761.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1761 OF 2011 IN CRIMINAL APPEAL NO. 71 OF 2001 Babibai w/o Madhukar Tayade ...Applicant/Appellant VERSUS The State of Maharashtra ...Respondent ..... Shri R.M.Deshmukh, advocate for applicant/appellant Smt. Y.M.Kshirsagar, A.P.P. for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 4 th May, 2011 PER COURT : 1 Heard learned counsel for the parties. 2 This is an application preferred by the applicant i.e. wife of deceased appellant (original accused), namely Madhukar Janglu Tayade, requesting that she be added in the array of appellant in Criminal Appeal No. 71 of 2001 and permission be granted to her to 2 crap1761.11 prosecute the appeal further, after condoning delay of 9 years and 108 days caused in filing present application under Section 394 (2) of the Code of Criminal Procedure. 3 The applicant submits that her husband, namely late Madhukar Janglu Tayade was convicted for the offences punishable under Section 7 and Section 13(1)(d) r/w Section 13 (2) of the Prevention of Corruption Act and was sentenced thereunder by way of judgment and order, dated 8.2.2001, rendered by learned Additional Sessions Judge, Special Judge, Dhule in Special Case No. 86 of 1997. 4 Being aggrieved and dissatisfied by the said judgment and order of conviction, the appellant (original accused) preferred Criminal Appeal No. 71 of 2001 before this court and same has been admitted and same is pending before this court. However, the applicant submits that during the pendency of said Criminal Appeal No. 71 of 2001, her husband, namely Madhukar Janglu Tayade expired on 19.12.2002 at Walwadi, Taluka and District Dhule and the copy of death certificate to that effect has been produced at Exh. ‘A’. 5 The applicant further submits that she was not aware of the procedure under Section 394 (2) of the Code of Criminal 3 crap1761.11 Procedure in respect of seeking permission for continuation of the appeal and when she received letter from her advocate, she contacted him and came to know that she was required to prefer application therefor. Hence, the applicant has preferred the present application after taking legal advice, for the prayers as set out therein. 6 It is further submitted that the delay of 9 years and 108 days caused in filing present application is not willful, deliberate or intentional, and therefore, same deserves to be condoned in the interest of justice. 7 Learned Additional Public Prosecutor opposed the present application vehemently and submitted that it bears no substance and same is devoid of any merits and same be rejected. 8 Considering the rival submissions advanced by the learned counsel for the parties, admittedly, the appellant Madhukar Janglu Tayade i.e. the deceased husband of the applicant herein, expired on 19.12.2002 during the pendency of Criminal Appeal No. 71 of 2001 filed by him against the judgment and order of conviction and sentence of imprisonment and the death certificate to that effect has been annexed at Exh. ‘A’ herein. It is also stated that the 4 crap1761.11 applicant, who is wife of deceased appellant, was not aware of the procedure under Section 394 (2) of the Code of Criminal Procedure, which resulted into delay of 9 years and 108 days in filing present application. It is apparent that the applicant who is wife of deceased appellant is entitled to continue the appeal with the leave of this court in accordance with the provisions of Section 394 (2) of the Code of Criminal Procedure and the said appeal shall not abate in that event. It is also apparent that the delay caused in filing present application is not willful, deliberate or intentional, and therefore, same deserves to be condoned and present application is required to be allowed by granting her permission to be added into the array of Appellant in Criminal Appeal No. 71 of 2001 and also to permit her to prosecute the said appeal further in accordance with the provisions of Section 394 (2) of the Code of Criminal Procedure. 9 In the result, present application is allowed in terms of prayer clauses ‘B’ and ‘C’ and present application stands disposed of accordingly. The applicant be added into the array of Appellant in Criminal Appeal No. 71 of 2001, within the period of two weeks. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1761.11