Vishnu @ Tukya Haridas Dake v. The State Of Maharashtra And Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD 924 CRIMINAL APPLICATION NO.968 OF 2022 IN APEAL/425/2018 VISHNU @ TUKYA HARIDAS DAKE

VERSUS

THE STATE OF MAHARASHTRA AND OTHERS ...

Advocate for Applicant : Mr. A. S. Kale i/by M/s. Talekar and Associates APP for Respondent-State : Mr. S. D. Ghayal ...

CORAM : V.K. JADHAV & SANDIPKUMAR C. MORE, JJ. Dated: April 06, 2022 ...

PER COURT :- 1.

We have heard the learned counsel for the applicant and the learned APP for the respondent State. 2.

The learned counsel for the applicant informs that copy of this application is served on the counsel representing the present applicant in criminal appeal no. 425 of 2018.

3.

This application is fled in criminal appeal no.425 of 2018 by the appellant/original accused no.1 Vishnu @ Tukya Jaridas Dake. The learned Special Judge, Osmanabad has convicted the present applicant and

three others for the offence punishable under sections 376 (D), 354 (C), 324 r/w 34 of IPC and further convicted accused no.2 for the offence punishable under Section 377 of IPC. The applicant herein, alongwith other convicted accused persons, has assailed the said judgment and order of conviction before this Court by fling common appeal no.425 of 2018. Byy order dated 24.11.2018 this Court has admitted the appeal and now the appeal is pending for fnal adjudication before this Court.

4.

The applicant, who is original appellant no.1 in the aforesaid criminal appeal no.425 of 2018, wants to engage a separate counsel through M/s. Talekar and Associates Litigating Law Firm and accordingly, the applicant has fled this application praying therein leave to fle a separate appeal memo.

5.

Learned counsel for the applicant has placed reliance on the judgment of this Court at the Principal Seat at Byombay in the case of Bhaskar Pandit Kadam

and others vs. State of Maharashtra, reported in 1984

(2) Bom.C.R. 769 wherein identical facts were involved. In the aforesaid case, the Division Byench of this Court has observed that if one of the appellant wants to engage different advocate in an appeal which has already been fled, an application for separating the appeal of the person must necessarily be made and separate appeal be registered by the offce. Then there would be two appeals which can be supported by two advocates. In para 35 of the said judgment, the Division Byench of this Court has made the following observations:- "35 We deem it necessary to make some observation for the guidance of the offce of this court. In this appeal originally Mr. Dighe had fled his appearance for both the appellants. Some time later Mrs. Byhonsale after obtaining the consent of Mr. Dighe, fled her appearance only for appellant No.1. At the time of fnal hearing naturally both the advocates thought it ft to address the Court on behalf of accused No.1. Such a procedure

is really not permissible. Whenever there is one appeal irrespective of the number of the appellant, only one Advocate can appear in support of the appeal. Two Advocates cannot appear for two different appellants in the same appeal. However, if one of the appellants wants to engage a different Advocate in an appeal which has already been fled or admitted, an application for separating the appeal of that person must necessarily be made. Once that application a separate appeal be registered by the offce. Then there would be two appeals which can be supported by two different advocates appearing. This is not the frst time that such a procedural irregularity has been noticed by us.

We, therefore, direct that whenever in an appeal where there are two or more appellants, subsequently an Advocate fles appearance for only some of the appellants, that appearance should to be taken on record unless the Advocate also make an application as indicated above for separating the appeal of those appellants of whom he intends to appear.

objection and the course suggested above should be followed."

6.

In view of the observations made by this Court in the aforesaid case and for the reasons stated in the criminal application, the same is allowed in terms of prayer clause "A". Criminal application is accordingly disposed off.

( SANDIPKUMAR C. MORE, J. ) ( V.K. JADHAV, J. ) ...