UDAY PRAKASH WARUNJIKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE . Shri Nalawade, A.P.P. waives service. Rule made returnable forthwith and heard by consent.

(2.) THIS writ petition is filed by one junior Advocate aged 25 years now practicing at Bombay. According to the Petitioner, he was engaged by one Dnyaneshwar Shenoy in November 1996 as Advocate to defend his brother in a case under TADA before the TADA Judge, Mumbai. The accused in the said case was Pankaj Shenoy. The petitioner was contacted by his brother Dnyaneshwar and the Petitioner then obtained signature of the Accused on the vakalatnama and filed the same in TADA Court in Case No.17 of 1994. The Petitioner had orally agreed to argue the discharge application to be filed before the TADA Court and it is the case of the Petitioner that he had told the person who contacted him that he will not be able to conduct the trial as he is mainly practicing in the High Court. It however appears that on 24.9.1997 he filed an application Exh. 14 and on that day one Shri Vilas Tapkire a colleague of the Petitioner appeared before the Court and handed over the application informing the Court that the present petitioner who was dealing with the matter had been instructed not to appear and prayed for withdrawal of the vakalatnama. The learned Judge of the Designated court under TADA Act passed an order on the said application and the matter was kept back, to the afternoon session and the Petitioner was asked to explain as to how the Court can allow the Petitioner to withdraw his vakalatnama on the basis of the instructions given by the Accused. The learned Judge then asked certain questions to the Accused in the open Court and the Accused told the learned Judge that he has not asked the Petitioner to withdraw the vakalatnama and thereafter another application was filed praying for withdrawal of the earlier application i.e. Exh. 14 or in the alternative for amendment of the application at Exh. 14 by deleting the word 'brother of the Accused' and substituting the word 'Accused'. The learned Judge however rejected the said application.

(3.) I have heard at length the argument advanced by Shri Mundargi, learned Counsel for the Petitioner. I have also seen the applications made by the Petitioner before the learned trial Judge and the orders passed by him. On perusal of the order, it does appear that the conduct of the Petitioner in Court was very proper. The hearing had commenced and the examination-in-chief of one of the witnesses was complete. Thereafter hearing was differed to 23.9.1997, as the learned Advocates for both the sides were absent and the witness was discharged. It was directed that the examination of the witness be treated as closed and on the same day at about 3.00 p.m. the matter was taken up on board for passing certain orders in the matter. At that time, the Advocate for Accused No.2 requested for recalling the witness for the purpose of cross-examination and the said application was posted for orders, firstly on 24.9.1997 and as already stated the application was filed by Shri Vilas Tapkire Advocate. According to the learned Judge, Shri Vilas Tapkire Advocate had met the learned Judge in Chamber and told him that the Petitioner wants to withdraw his vakalatnama from the case. He was asked to file an application to that effect stating reasons for withdrawal on the next date. According to the learned Judge when on the next date the case came up on board, Mr.Tapkire as well as the present Petitioner filed application wherein it was stated that the brother of the Accused who had given instruction to the Petitioner, had asked him not to appear and that he should be allowed to withdraw his vakalatnama. From the order of the learned Judge it appears that the learned Judge was annoyed due the fact that the brother of the Accused and the Accused are separate entities and therefore, he asked the Advocate to enlighten him as to how he can be permitted to withdraw on the instructions of the brother of the Accused. Many a times when the persons are in Jail, their relatives engage Advocate for appearing and this is quite normal.